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Contents Federal Register Vol. 62, No. 3

Monday, January 6, 1997

Agriculture Department Education Department See Animal and Plant Health Inspection Service NOTICES See Cooperative State Research, Education, and Extension Agency information collection activities: Service Proposed collection; comment request, 738–740 See Forest Service Submission for OMB review; comment request, 740 NOTICES Meetings: Import quotas and fees: National Educational Research Policy and Priorities Swiss cheese from Canada and Germany, 727 Board, 740–741 Energy Department Air Force Department See Energy Efficiency and Renewable Energy Office RULES See Federal Energy Regulatory Commission Claims and litigation: NOTICES Distribution of literature and protest and dissident Electricity export and import authorizations, permits, etc.: activities; CFR part removed, 631 New York State Electric & Gas Corp., 741 Sales and services: Environmental statements; availability, etc.: Copying, certifying, and searching records and other Windsor, CT— documentary material; fee schedule; CFR part S1C Prototype reactor plant, defueled and dismantled; removed, 631 disposal, 741–742 Legal assistance program; CFR part removed, 631 Multi-Agency Radiation Survey and Site Investigation Manual; availability, 736–737 Animal and Plant Health Inspection Service Energy Efficiency and Renewable Energy Office RULES NOTICES Plant-related quarantine, foreign: Consumer product test procedures; waiver petitions: Fruits and vegetables; importation, 593–597 CFM Majestic Inc., 742–745 Veterinarian accreditation, etc.: Optional digital signature; official certificates, forms, Engineers Corps records, and reports, 597–600 NOTICES Base realignment and closure: Army Department Surplus Federal property— See Engineers Corps Sierra Army Depot, Herlong, CA, 737–738 Environmental statements; availability, etc.: Middlesex County et al., NJ; Green Brook flood control Commerce Department project, 738 See International Trade Administration See National Oceanic and Atmospheric Administration Environmental Protection Agency RULES Cooperative State Research, Education, and Extension Air quality implementation plans; approval and Service promulgation; various States; air quality planning NOTICES purposes; designation of areas: Grants and cooperative agreements; availability, etc.: Louisiana, 648–653 Special research programs— Air quality implementation plans; approval and Pest management alternatives research, 884–888 promulgation; various States: Potato research, 876–882 Ohio, 646–648 PROPOSED RULES Air quality implementation plans; approval and Defense Department promulgation; various States: See Air Force Department Ohio, 695–696 See Engineers Corps NOTICES RULES Air pollution control; new motor vehicles and engines: Civilian health and medical program of uniformed serivces Urban buses (1993 and earlier model years); retrofit/ (CHAMPUS): rebuild requirements; equipment certification— Unproven drugs, devices, and medical treatments and Engine Control Systems Ltd., 746–750 procedures; recognition as nationally accepted Meetings: medical practice process; exclusion clarification, Scientific Counselors Board Executive Committee, 750 625–631 Multi-Agency Radiation Survey and Site Investigation NOTICES Manual; availability, 736–737 Agency information collection activities: Proposed collection; comment request, 735–736 Federal Aviation Administration Submission for OMB review; comment request, 736 RULES Multi-Agency Radiation Survey and Site Investigation Airworthiness directives: Manual; availability, 736–737 Cessna, 602–603 IV Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Contents

Fokker, 604–607 Fiscal Service Williams International, L.L.C., 600–602 RULES Class E airspace, 607–610 Book-entry securities: NOTICES Student Loan Marketing Association (Sallie Mae); Meetings: conformity to TRADES regulations, 621–625 Aviation Rulemaking Advisory Committee, 790–791 Marketable book-entry Treasury bills, notes, and bonds; sale and issue; uniform offering circular; amendments, 846– Federal Communications Commission 874 NOTICES RULES Surety companies acceptable on Federal bonds: Personal communication services: American Interstate Insurance Co., 794 Broadband PCS— Geographic partitioning and spectrum disaggregation; market entry barriers elimination, 653–662 Fish and Wildlife Service Radio stations; table of assignments: RULES Kentucky et al., 664–665 Endangered and threatened species: Telecommunications Act of 1996; implementation: Canelo Hills ladies’-tresses, etc. (three wetland species in Common carrier services— southern Arizona and northern Sonora, Mexico), Local competition provisions; motion for stay and 665–689 notification of court stay, 662–664 PROPOSED RULES Food and Drug Administration Common carrier services: Cellular and general wireless communications services; RULES Animal drugs, feeds, and related products: geographic partitioning and spectrum disaggregation; Irradiation in production, processing, and handling of market entry barriers elimination, 696–700 NOTICES food— Agency information collection activities: Poultry feed or poultry feed ingredients; rendering as Proposed collection; comment request, 750–751 salmonella negative by gamma radiation; hearing Submission for OMB review; comment request, 751–752 on objections denied, 611–613 New drug applications— Gentamicin sulfate intrauterine solution, 611 Federal Deposit Insurance Corporation NOTICES NOTICES Biological product licenses: Uniform Financial Institutions Rating System; policy AM-Rho Laboratories, Inc., 762–763 statement, 752–757 Food additives: Patent extension; regulatory review period Federal Energy Regulatory Commission determinations— RULES Olean, 763–764 Electric utilities (Federal Power Act): Meetings: Open access same-time information system (formerly Advisory committees, panels, etc., 764–765 real-time information networks) and standards of National Mammography Quality Assurance Advisory conduct for public utilities Committee, 765–766 Next hour reservations of transmission service; clarification, 610–611 Forest Service NOTICES NOTICES Applications, hearings, determinations, etc.: Agency information collection activities: Panhandle Easter Pipe Line Co., 745 Proposed collection; comment request, 727–728

Federal Highway Administration Health and Human Services Department PROPOSED RULES See Food and Drug Administration Engineering and traffic operations: NOTICES Uniform Traffic Control Devices Manual— Privacy Act: Markings, signals, and traffic control systems for Systems of records, 758–762 railroad-highway grade crossings, 691–694 NOTICES Housing and Urban Development Department Intelligent Transportation Systems National Architecture; dedicated short range comunication systems; NOTICES implementation, 791–793 Organization, functions, and authority delegations: FHA Comptroller, 766–767

Federal Maritime Commission Interior Department NOTICES Agreements filed, etc., 757 See Fish and Wildlife Service Freight forwarder licenses: See Land Management Bureau International Consultants, Inc., et al., 757–758 See Minerals Management Service See National Park Service NOTICES Financial Management Service Privacy Act: See Fiscal Service Systems of records, 767–768 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Contents V

Internal Revenue Service Atlantic shark, 724 RULES Caribbean, Gulf, and South Atlantic fisheries— Income taxes: South Atlantic shrimp, 720–724 Inflation-indexed debt instruments, 615–621 West Coast States and Western Pacific fisheries— PROPOSED RULES Pacific Coast groundfish, 700–720 Income taxes: NOTICES Inflation-indexed debt instruments; cross-reference, 694– Marine mammals: 695 Incidental taking; authorization letters, etc.— NOTICES Vandenberg Air Force Base, CA; Taurus space launch Agency information collection activities: vehicles, 734–735 Proposed collection; comment request, 794–795 National Park Service International Trade Administration NOTICES NOTICES Agency information collection activities: Antidumping duty orders and findings: Submission for OMB review; comment request, 769–770 Intent to revoke, 728 Countervailing duties: Nuclear Regulatory Commission Ball bearings and parts from— NOTICES Thailand, 728–731 Agency information collection activities: Pasta from— Proposed collection; comment request, 771 Italy, 731–732 Meetings: Export trade certificates of review, 732–733 Reactor Safeguards Advisory Committee, 771–772 Multi-Agency Radiation Survey and Site Investigation International Trade Commission Manual; availability, 736–737 NOTICES Import investigations: Parole Commission Sodium azide from— NOTICES Japan, 770 Meetings; Sunshine Act, 770–771

Justice Department Postal Service See Parole Commission RULES Domestic Mail Manual: Labor Department Miscellaneous amendments; correction, 645–646 See Veterans Employment and Training, Office of Assistant International Mail Manual: Secretary Global Package Link— Canada and United Kingdom, 638–645 Land Management Bureau Implementation, 631–638 NOTICES Meetings: Public Health Service Resource advisory councils— See Food and Drug Administration Southeastern Oregon, 769 Securities and Exchange Commission Minerals Management Service NOTICES NOTICES Self-regulatory organizations; proposed rule changes: Agency information collection activities: National Association of Securities Dealers, Inc., 772–782 Submission for OMB review; comment request, 769 Pacific Stock Exchange Inc., 782–783 Philadelphia Stock Exchange, Inc., 783–785 National Highway Traffic Safety Administration RULES State Department Motor vehicle safety standards: RULES Occupant crash protection— Visas; immigrant documentation: Smart air bags, vehicles without; warning labels, Violence Againist Women Act; spouses and children self- manual cutoff switches, etc.; reduction of petition for immediate relative and preference dangerous impacts on children, 798–806 classifications; classification symbols, 613–615 PROPOSED RULES Motor vehicle safety standards: Surface Transportation Board Occupant crash protection— NOTICES Air bag deactivation, 807–844 Railroad services abandonment: Ludington & Northern Railway, Inc., 793–794 National Oceanic and Atmospheric Administration RULES Transportation Department Fishery conservation and management: See Federal Aviation Administration Caribbean, Gulf, and South Atlantic fisheries— See Federal Highway Administration Gulf king mackerel, 689–690 See National Highway Traffic Safety Administration PROPOSED RULES See Surface Transportation Board Fishery conservation and management: NOTICES Alaska; fisheries of Exclusive Economic Zone— Aviation proceedings: Gulf of Alaska groundfish, 724–726 Agreements filed; weekly receipts, 785 VI Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Contents

Certificates of public convenience and necessity and Separate Parts In This Issue foreign air carrier permits; weekly applications, 785 National freight transportation policy; policy statement, Part II 785–790 Department of Transportation, National Highway Traffic Safety Administration, 798–844 Treasury Department See Fiscal Service Part III See Internal Revenue Service Department of Treasury, Fiscal Service, 846–874 Part IV United States Information Agency Department of Agriculture, Cooperative State Research, NOTICES Education, and Extension Service, 876–882 Senior Executive Service: Performance Review Board; membership, 795 Part V Department of Agriculture, Cooperative State Research, Veterans Affairs Department Education, and Extension Service, 884–888 NOTICES Agency information collection activities: Submission for OMB review; comment request, 795 Reader Aids Meetings: Additional information, including a list of public laws, Innovations in Nursing Advisory Committee, 796 telephone numbers, reminders, and finding aids, appears in Special Medical Advisory Group, 795–796 the Reader Aids section at the end of this issue.

Veterans Employment and Training, Office of Assistant Secretary Electronic Bulletin Board NOTICES Free Electronic Bulletin Board service for Public Law Agency information collection activities: numbers, Federal Register finding aids, and a list of Proposed collection; comment request; correction, 771 documents on public inspection is available on 202–275– 1538 or 275–0920. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 300...... 593 319...... 593 9 CFR 160...... 597 161...... 597 14 CFR 39 (3 documents) ...... 600, 602, 604 71 (3 documents) ...... 607, 608, 609 18 CFR 37...... 610 21 CFR 529...... 611 579...... 611 22 CFR 42...... 613 23 CFR Proposed Rules: 655...... 691 26 CFR 1...... 615 Proposed Rules: 1...... 694 31 CFR 354...... 621 356...... 846 32 CFR 199...... 625 813...... 631 818b...... 631 844...... 631 39 CFR 20 (2 documents) ...... 631, 638 111...... 645 40 CFR 52 (2 documents) ...... 646, 648 81...... 648 Proposed Rules: 52...... 695 47 CFR 24...... 653 51...... 662 73...... 664 Proposed Rules: 22...... 696 26...... 696 49 CFR 571...... 798 Proposed Rules: 571...... 807 595...... 831 50 CFR 17...... 665 622...... 689 Proposed Rules: 600...... 700 622...... 720 660...... 700 678...... 724 679...... 724 593

Rules and Regulations Federal Register Vol. 62, No. 3

Monday, January 6, 1997

This section of the FEDERAL REGISTER and dissemination of fruit flies and Agriculture. APHIS personnel contains regulatory documents having general other injurious plant pests that are new determined that the testing protocol applicability and legal effect, most of which to or not widely distributed within and used in the Western Cape Province was are keyed to and codified in the Code of throughout the United States. scientifically sound and that the Federal Regulations, which is published under On July 2, 1996, we published in the Western Cape Province showed no 50 titles pursuant to 44 U.S.C. 1510. Federal Register (61 FR 34379–34385, evidence of citrus blackspot. Later, in The Code of Federal Regulations is sold by Docket No. 95–098–1) a proposal to May (the time of the year for optimum the Superintendent of Documents. Prices of amend the regulations by allowing expression of citrus blackspot in South new books are listed in the first FEDERAL additional fruits and vegetables to be Africa) 1995, an additional survey for REGISTER issue of each week. imported into the United States from citrus blackspot was conducted by certain parts of the world under personnel of the Directorate of Plant and specified conditions. The importation of Quality Control, and no evidence of the DEPARTMENT OF AGRICULTURE these fruits and vegetables had been disease was detected. The results of prohibited because of the risk that the these surveys give us the confidence to Animal and Plant Health Inspection fruits and vegetables could introduce make the determination that the Service injurious insects into the United States. Western Cape Province is free from 7 CFR Parts 300 and 319 We proposed to allow these citrus blackspot. importations at the request of various Comment: The pest risk analysis for [Docket No. 95±098±3] importers and foreign ministries of citrus fruit from South Africa notes that agriculture, and after conducting pest the Western Cape Province is free of Importation of Fruits and Vegetables risk assessments that indicated that the citrus blackspot. What measures are AGENCY: Animal and Plant Health fruits or vegetables could be imported being taken to ensure that citrus Inspection Service, USDA. under certain conditions without blackspot is not introduced into the significant pest risk. Western Cape Province from other areas ACTION: Final rule. We solicited comments concerning of South Africa that are known to be SUMMARY: We are allowing a number of our proposal for 60 days ending infected with the disease? Regular, on- previously prohibited fruits and September 3, 1996. We received 15 going surveys performed in the Western vegetables to be imported into the comments by that date. They were from Cape Province by trained plant United States from certain parts of the representatives of State and foreign pathologists, routine verification of world. All of the fruits and vegetables, governments, grocery stores, industry South African testing programs as a condition of entry, are subject to groups, and a member of Congress. Ten regarding the pest-free status of the inspection, disinfection, or both, at the commenters supported the proposed Western Cape Province, and other on- port of first arrival as may be required rule as written. The other commenters going pest exclusion activites need to be by a U.S. Department of Agriculture expressed concerns about our proposing established to prevent the spread of inspector. In addition, some of the fruits to allow importation of citrus fruit from citrus blackspot into the Western Cape and vegetables are required to undergo the Western Cape Province of South Province. prescribed treatments for injurious plant Africa. These concerns are discussed Response: As stated in the proposed pests as a condition of entry, or to meet below: rule, both natural and regulatory other special conditions. The removal of Comment: How has it been barriers are in place that will help these prohibitions will provide the determined that the Western Cape ensure that the Western Cape Province United States with additional kinds and Province is free of citrus blackspot? will remain free of citrus blackspot. The sources of fruits and vegetables while Response: Many factors have Western Cape Province’s nearest citrus- continuing to provide protection against contributed to our determination that producing neighbor, the Gamtoos River the introduction and dissemination of the Western Cape Province is free of Valley, has, to date, had no findings or injurious plant pests by imported fruits citrus blackspot. First, citrus blackspot reports of citrus blackspot, and the and vegetables. has never been reported in the Western citrus-producing areas in South Africa Cape Province. In addition, in June that are infested with citrus blackspot EFFECTIVE DATE: January 6, 1997. 1994, we received assurances from the are separated from the Western Cape FOR FURTHER INFORMATION CONTACT: Mr. Director of the Directorate of Plant and Province by mountain ranges, semi- Peter Grosser, Senior Operations Officer, Quality Control, Department of desert areas, or long distances. Port Operations, PPQ, APHIS, 4700 Agriculture, Republic of South Africa, Additionally, the South African River Road Unit 139, Riverdale, MD that the Western Cape Province is free Government has in place regulations 20737–1236; (301) 734–6799. of citrus blackspot. In that same month, that prohibit the movement of nursery SUPPLEMENTARY INFORMATION: personnel of the Animal and Plant trees from the northern citrus- Health Inspection Service (APHIS), U.S. production area of South Africa into the Background Department of Agriculture (USDA), Western Cape Province, and the South The regulations in 7 CFR 319.56 began a review of the testing protocol African Government carefully monitors through 319.56–8 (referred to below as for citrus blackspot (the procedures and regularly inspects citrus fruit for ‘‘the regulations’’) prohibit or restrict used in testing for the presence of citrus citrus blackspot in the growing areas the importation of fruits and vegetables blackspot) and the results of the testing and packing houses of the Western Cape into the United States from certain parts for citrus blackspot provided by the Province. We believe that these natural of the world to prevent the introduction South African Department of and regulatory barriers are sufficient to 594 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations help ensure that the Western Cape been determined not to be significant for annually. This average includes import Province remains free of citrus the purposes of Executive Order 12866 values for 1994 when, due to a record blackspot. and, therefore, has not been reviewed by import volume of 3,220 metric tons, Comment: Leaves and other debris the Office of Management and Budget. U.S. basil imports amounted to $4.6 which might result in the introduction In accordance with 5 U.S.C. 604, we million. No information is available on of the citrus leaf miner, Phyllocnistis have performed a Final Regulatory U.S. basil production. citrella, should not be allowed into the Flexibility Analysis, which is set out It is estimated that Argentina United States with any shipments of below, regarding the economic impact produces about 1,500 metric tons of citrus imported from South Africa. of this final rule on small entities. basil annually. If commercial conditions Additionally, mitigation measures, such Under the Plant Quarantine Act and are favorable, basil exports to the United as limiting shipments of citrus from the Federal Plant Pest Act (7 U.S.C. States could, over time, reach 200 South Africa to early spring, need to be 150dd, 150ee, 150ff, 151–167), the metric tons a year. This amount is only taken to prevent the introduction of Secretary of Agriculture is authorized to about 6 percent of current U.S. basil Toxoptera odinae, a type of aphid, into regulate the importation of fruits and imports and, therefore, is not expected the United States. vegetables to prevent the introduction of to have a significant economic effect on Response: This final rule allows the injurious plant pests. any entities in the U.S. basil market. importation of citrus fruit from the This rule amends the regulations Western Cape Province of South Africa. governing the importation of fruits and Babaco From Chile vegetables by allowing a number of Section 319.56–2(a) of the regulations Chile produced 334 metric tons of previously prohibited fruits and provides that all importations of fruits babaco from 1994 to 1995. Of this vegetables to be imported into the and vegetables must be free from plants amount, only 6.9 metric tons were United States from certain foreign or portions of plants, including leaves, exported, and all exported babaco went countries and localities under specified twigs, or other portions of plants, or to Argentina. There is no data available conditions. The importation of these plant litter or rubbish as distinguished on production or importation of babaco fruits and vegetables had been from clean fruits and vegetables. Both by the United States. We do not expect prohibited because of the risk that they the citrus leaf miner and Toxoptera that babaco imported from Chile would could have introduced injurious plant odinae are associated with the leaves have a significant economic impact on pests into the United States. and other portions of citrus plants, and U.S. producers or other small entities. as citrus leaves or other debris that may In our proposal, we solicited harbor the citrus leaf miner or comments on the potential effects of the Hyacinth Bean and Yard Long Bean Toxoptera odinae are prohibited entry proposed action on small entities. In From Honduras into the United States, we are confident particular, we sought data and other information to determine the number No information is available on that at any time of the year, the risk of potential U.S. imports of hyacinth bean the introduction of the citrus leaf miner and kind of small entities that may incur benefits or costs from the or yard long bean from Honduras or on or Toxoptera odinae into the United U.S. production of these commodities. States is negligible. Additionally, both implementation of the proposed rule. of these pests are mitigated in the We received no comments on the Initial Angelica From Korea Western Cape Province of South Africa Regulatory Flexibility Analysis contained in the proposed rule. Korea produces about 1,300 metric by chemical controls during preharvest tons of angelica a year. Of this amount, and postharvest and by phytosanitary This rule is based on pest risk assessments that were conducted by only 10 kilograms were exported in export inspections. Therefore, we are 1994 and 14 kilograms in 1995. Given making no changes to the proposed rule APHIS at the request of various importers and foreign ministries of the negligible quantities exported in the in response to this comment. last 2 years, it is anticipated that very Therefore, based on the rationale set agriculture. The pest risk assessments little angelica will be imported into the forth in the proposed rule and in this indicate that the fruits or vegetables United States from Korea. Therefore, no document, we are adopting the listed in this rule can, under certain significant economic impact on U.S. provisions of the proposal as a final rule conditions, be imported into the United entities is expected. without changes. States without significant pest risk. All of the fruits and vegetables, as a Strawberry From Morocco Effective Date condition of entry, will be subject to This is a substantive rule that relieves inspection, disinfection, or both, at the In 1994, total U.S. strawberry restrictions and, pursuant to the port of first arrival as may be required production was 737,580 metric tons. provisions of 5 U.S.C. 553, may be made by a USDA inspector. In addition, some That year, the United States exported effective less than 30 days after of the fruits and vegetables will be 57,332 metric tons of fresh strawberries publication in the Federal Register. required to undergo mandatory and 28,637 metric tons of frozen Immediate implementation of this rule treatment for injurious plant pests as a strawberries and imported 19,843 metric is necessary to provide relief to those condition of entry, or to meet other tons of fresh strawberries and 25,050 persons who are adversely affected by special conditions. This action will metric tons of frozen strawberries. restrictions we no longer find provide the United States with Therefore, in 1994, U.S. exports of fresh warranted. Therefore, the Administrator additional kinds and sources of fruits strawberries surpassed U.S. imports of of the Animal and Plant Health and vegetables while continuing to fresh strawberries by nearly three times, Inspection Service has determined that provide protection against the while frozen strawberry exports and this rule should be effective upon introduction into the United States of imports were more balanced. publication in the Federal Register. injurious plant pests by imported fruits Morocco produced about 35,000 and vegetables. metric tons of strawberries in the 1994– Executive Order 12866 and Regulatory 95 season. During that season, Morocco Flexibility Act Basil From Argentina exported about 9,000 metric tons of This rule has been reviewed under From 1990 to 1994, the value of U.S. fresh strawberries and 11,000 metric Executive Order 12866. The rule has basil imports averaged $3.3 million tons of frozen strawberries. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 595

Future U.S. strawberry imports from 1,000 metric tons of satsuma; and 900 List of Subjects Morocco are estimated at 160 metric metric tons of minneola. These 7 CFR Part 300 tons of strawberries per year. As these projections amount to only a fraction of estimated strawberry imports from one percent of U.S. production of citrus. Incorporation by reference, Plant Morocco constitute less than .02 percent Additionally, as South Africa exports diseases and pests, Quarantine. of U.S. strawberry production, they are most of its fresh citrus and citrus 7 CFR Part 319 not expected to have a significant products during the summer months, Bees, Coffee, Cotton, Fruits, Honey, economic impact on U.S. entities, large South African citrus would not compete Imports, Incorporation by reference, or small. with the late fall, winter, and early Nursery stock, Plant diseases and pests, spring citrus production season in the Broad Bean, Green Bean, and Mung Quarantine, Reporting and United States. Bean From Nicaragua recordkeeping requirements, Rice, Therefore, due to summer arrival of Vegetables. In 1994, total U.S. green bean citrus from South Africa, the relatively Accordingly, 7 CFR parts 300 and 319 production was 916,750 metric tons. Of negligible quantity of citrus expected to are amended as follows: this amount, 20,324 metric tons, or 2.2 be imported into the United States from percent of total production, was South Africa, and the fact that U.S. exported. In 1994, green bean imports PART 300ÐINCORPORATION BY citrus exports are more than nine times REFERENCE amounted to 11,230 metric tons. greater than U.S. citrus imports, we U.S. production data is not available expect that South African citrus exports 1. The authority citation for part 300 for broad bean and mung bean. to the United States would not have a continues to read as follows: However, in 1994, the United States significant economic impact on U.S. exported 389 metric tons of dried broad Authority: 7 U.S.C. 150ee, 154, 161, 162, producers, exporters, and importers of and 167; 7 CFR 2.22, 2.80, and 371.2(c). bean and 2,134 metric tons of dried citrus, or other small entities. Citrus mung bean. U.S. imports of these 2. In § 300.1, paragraph (a), the importers in the United States could commodities in 1994 totaled 610 metric introductory text is revised to read as benefit from the increased availability of tons of dried broad bean and 7,178 follows: citrus fruit, especially navel oranges, metric tons of dried mung bean. during the time of year when U.S. § 300.1 Materials incorporated by No information is available on reference; availability. potential imports of green bean, broad production is at its lowest. (a) Plant Protection and Quarantine bean, and mung bean from Nicaragua. The alternative to this rule was to Treatment Manual. The Plant Protection Given the sizable quantity of green make no changes in the regulations. and Quarantine Treatment Manual, beans produced in the United States and After consideration, we rejected this which was reprinted November 30, given the import levels for broad bean alternative because there is no biological 1992, and includes all revisions through and mung bean, potential import of reason to prohibit the importation into October 1996, has been approved for these commodities from Nicaragua is the United States of the fruits and incorporation by reference in 7 CFR not expected to have a significant vegetables listed in this document. chapter III by the Director of the Office economic impact on U.S. producers or Executive Order 12988 of the Federal Register in accordance other small entities. This rule allows certain fruits and with 5 U.S.C. 552(a) and 1 CFR part 51. Clementine, Grapefruit, Lemon, vegetables to be imported into the * * * * * Minneola, Navel Orange, Satsuma, and United States from certain parts of the Valencia Orange From South Africa world. State and local laws and PART 319ÐFOREIGN QUARANTINE In the 1994–95 season, the total value regulations regarding the importation of NOTICES of the U.S. citrus crop was $2.25 billion. fruits and vegetables under this rule will 3. The authority citation for part 319 The 1994–95 value of U.S.-produced be preempted while the fruit is in continues to read as follows: navel oranges (early and midseason) foreign commerce. Fresh fruits and vegetables are generally imported for Authority: 7 U.S.C. 150dd, 150ee, 150ff, was $836 million, valencia oranges $727 151–167, 450, 2803, and 2809; 21 U.S.C. 136 million, grapefruit $301 million, and immediate distribution and sale to the and 136a; 7 CFR 2.22, 2.80, and 371.2(c). lemon $265 million. Production value is consuming public, and will remain in 4. A new § 319.56–2q is added to read not available for clementine, satsuma, foreign commerce until sold to the as follows: and minneola. ultimate consumer. The question of In 1994, the United States exported when foreign commerce ceases in other § 319.56±2q Administrative instructions: fresh citrus and citrus products valued cases must be addressed on a case-by- conditions governing the entry of citrus at more than $650 million and imported case basis. No retroactive effect will be from South Africa. fresh citrus and citrus products valued given to this rule, and this rule will not Clementine (Citrus reticulata), at about $70 million. By weight, about require administrative proceedings grapefruit (Citrus paradisi), lemon 50 percent of 1994 fresh citrus exports before parties may file suit in court (Citrus limon), minneola (C. paradisi x were oranges and tangerines, about 40 challenging this rule. C. reticulata), navel orange (Citrus percent grapefruit, and about 10 percent Paperwork Reduction Act sinensis), satsuma (Citrus reticulata), lemons and limes. and valencia orange (Citrus sinensis) South Africa exports about two-thirds In accordance with section 3507(d) of may be imported into the United States of its citrus crop. The 1996 projected the Paperwork Reduction Act of 1995 from the Western Cape Province of exports of citrus from the Western Cape (44 U.S.C. 3501 et seq.), the information South Africa only under the following Province of South Africa to the United collection or recordkeeping conditions: States include 10,500 metric tons of requirements included in this final rule (a) The citrus fruit must be grown in, navel oranges; 12,750 metric tons of have been approved by the Office of packed in, and shipped from the valencia oranges; 8,000 metric tons of Management and Budget (OMB). The Western Cape Province of South Africa. clementines; 75 metric tons of assigned OMB control number is 0579– (b) The citrus fruit must be cold grapefruit; 3,000 metric tons of lemons; 0049. treated for false codling moth and fruit 596 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations flies of the genus Ceritatis and Ministry of Agriculture stating that the the heading Plant part(s), by removing Pterandrus in accordance with the Plant conditions of paragraph (a) of this the words ‘‘Leaf and stem’’ and adding Protection and Quarantine Treatment section have been met. (Approved by the words ‘‘Above ground parts’’ in their Manual, which is incorporated by the Office of Management and Budget place. reference at § 300.1 of this chapter. under control number 0579– 0049) c. In the entry for Belize, the entry for (1) If the cold treatment is to be 5. In § 319.56–2t, an OMB control Papaya, by revising the text under the conducted in the United States, entry of number is added at the end of the heading Plant part(s) to read as set forth the citrus fruit into the United States is section, and the table is amended as below. limited to ports listed in § 319.56– follows: d. By adding, in alphabetical order, 2d(b)(1). a. In the entries for Costa Rica, entries for Basil from Argentina, Babaco (2) If the cold treatment is conducted Guatemala, and Philippines, under the from Chile, Angelica from Korea, and in South Africa or in transit to the heading Common name, by removing Strawberry from Morocco to read as set United States, entry of the citrus into the words ‘‘Yam bean’’ from each entry forth below. the United States may be made through and adding the word ‘‘Jicama’’ in their any U.S. port. places. § 319.56±2t Administrative instructions: (c) Each shipment of citrus fruit must b. In the entries for Guatemala and conditions governing the entry of certain be accompanied by a phytosanitary Panama, the entry for Tarragon would fruits and vegetables. certificate issued by the South African be amended in the fourth column, under * * * * *

Country/locality Common name Botanical name Plant part(s)

Argentina.

******* Basil ...... Ocimum spp...... Above ground parts.

******* Belize.

******* Papaya ...... Carica papaya ...... Fruit (Must be accompanied by a phytosanitary certificate issued by the Belizean department of agriculture stating that the fruit originated in the district of Cayo, Corozal, or Orange Walk, or in any portion of the district of Stann Creek except the area bounded as follows: Beginning at the southernmost point of the Placencia Peninsula; then north along the coast of the Caribbean Sea to Riversdale Rd.; then west along Riversdale Rd. to Southern Hwy.; then south along the Southern Hwy. to Independence Rd.; then east along Independence Rd. to Big Creek Port; then east, on an imaginary line, from Big Creek Port across the Placencia Lagoon to the point of beginning. Papayas from other areas of Belize enterable only with treatmentÐsee § 319.56±2x). Prohibited entry into Hawaii due to the papaya fruit fly, Toxotrypana curvicauda. Cartons in which fruit is packed must be stamped ``Not for importation into or distribution within HI.''

******* Chile ...... Babaco ...... Carica x heilborni var. Fruit. (From Medfly-free areasÐsee § 319.56±2j. Fruit pentagona. must be accompanied by a phytosanitary certificate issued by the Chilean department of agriculture stating that the fruit originated in a Medfly-free province.)

******* Korea ...... Angelica ...... Aralia elata ...... Edible shoot.

******* Morocco ...... Strawberry ...... Fragaria spp...... Fruit.

*******

* * * * * (Approved by the Office of Management and Budget under control number 0579- 0049) 6. In § 319.56–2x, paragraph (a), the table is amended as follows: a. In the entry for Belize, the entry for Papaya, by revising the text under the heading Plant part(s) to read as set forth below. b. By adding, in alphabetical order, entries for Hyacinth bean and Yard long bean from Honduras and Broad bean, Green bean, and Mung bean from Nicaragua to read as set forth below. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 597

§ 319.56±2x Administrative instructions; conditions governing the entry of certain fruits and vegetables for which treatment is required. (a) * * *

Country/locality Common name Botanical name Plant part(s)

******* Belize ...... Papaya ...... Carica papaya ...... Fruit (Treatment for Medfly not required for fruit grown in the districts of Cayo, Corozal, and Orange Walk, or in any portion of the district of Stann Creek except the area bounded as follows: Beginning at the southernmost point of the Placencia Peninsula; then north along the coast of the Caribbean Sea to Riversdale Rd.; then west along Riversdale Rd. to Southern Hwy.; then south along the Southern Hwy. to Independence Rd.; then east along Independence Rd. to Big Creek Port; then east, on an imaginary line, from Big Creek Port across the Placencia La- goon to the point of beginningÐsee § 319.59±2t.) Papayas prohibited entry into Hawaii due to the papaya fruit fly, Toxotrypana curvicauda. Cartons in which fruit is packed must be stamped ``Not for importation into or distribution within HI.''

******* Honduras ...... Hyacinth bean ...... Lablab purpureus ...... Pod or shelled. Yard long bean ...... Vigna unguiculata, subsp. Pod or shelled. sesquipedalis.

******* Nicaragua ...... Broad bean ...... Vicia faba ...... Pod or shelled. Green bean ...... Phaseolus spp...... Pod or shelled. Mung bean ...... Vigna radiata ...... Pod or shelled.

*******

* * * * * restrictions that appear to be SUPPLEMENTARY INFORMATION: Done in Washington, DC, this 20th day of unnecessary. December 1996. Background DATES: Consideration will be given only Al Strating, The regulations in 9 CFR parts 160 Acting Administrator, Animal and Plant to comments received on or before March 7, 1997. and 161 (the regulations), govern the Health Inspection Service. accreditation of veterinarians. [FR Doc. 97–108 Filed 1–3–97; 8:45 am] ADDRESSES: Please send an original and Accredited veterinarians are approved BILLING CODE 3410±34±P three copies of your comments to by the Administrator of the Animal and Docket No. 96–075–1, Regulatory Plant Health Inspection Service (APHIS) Analysis and Development, PPD, to perform certain regulatory tasks to 9 CFR Parts 160 and 161 APHIS, suite 3C03, 4700 River Road control and prevent the spread of Unit 118, Riverdale, MD 20737–1238. animal diseases throughout the country [Docket No. 96±075±1] Please state that your comments refer to and internationally. One of these Docket No. 96–075–1. Comments Accredited Veterinarians; Optional regulatory tasks is preparing official received may be inspected at USDA, Digital Signature documents including certificates, forms, room 1141, South Building, 14th Street records, and reports and submitting AGENCY: Animal and Plant Health and Independence Avenue SW., such documents to APHIS. Currently, Inspection Service, USDA. Washington, DC, between 8 a.m. and we require a hand written signature by 4:30 p.m., Monday through Friday, ACTION: Proposed rule. the accredited veterinarian on all except holidays. Persons wishing to official certificates, forms, records, and SUMMARY: We are proposing to accept inspect comments are requested to call reports. digital signatures from accredited ahead on (202) 690–2817 to facilitate We are proposing to change the veterinarians as an additional option for entry into the comment reading room. regulations to allow accredited official certificates, forms, records, and FOR FURTHER INFORMATION CONTACT: Dr. veterinarians the additional option of reports to the Animal and Plant Health Joseph S. VanTiem, Senior Staff signing official certificates, forms, Inspection Service. Currently, we Veterinarian, National Animal Health records, and reports by use of a digital require hand written signatures on all Programs, VS. APHIS, 4700 River Road signature and of transmitting such such documents. We believe that Unit 43, Riverdale, MD 20737–1231, documents electronically to APHIS. We accepting digital signatures may benefit (301) 734–7716, or e-mail: will continue to accept and process accredited veterinarians and the [email protected]. official certificates, forms, records, and industries they serve by reducing the reports in hard copy as well, so that the turn around time for these documents. technical capabilities or preferences of This proposed action would relieve 598 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations the accredited veterinarian will not reduce costs associated with processing, propose to revise the definition of issue hinder the processing of these handling, and mailing the VS Form 17– in § 160.1 of the regulations to include documents. We believe that allowing 6, (2) move exports on short notice due electronic transmission. We propose to accredited veterinarians the option of to market conditions, and (3) reduce revise the definition of sign in § 160.1 of signing and transmitting documents processing costs and turn around time the regulations to include digital electronically will provide them with between the producers and VS area signatures approved by the more flexibility and allow them to offices for review and endorsement. Administrator. We propose to add the choose the method which is most Producers, accredited veterinarians, and following definition for approved digital efficient for them. VS Area Offices in Arkansas and Iowa signature: Representatives of the poultry volunteered to participate in the pilot Digital signatures approved by the industry, other industries served by project. Administrator for electronic transmission, for accredited veterinarians, and APHIS An automated copy of VS Form 17– example, via a computer. To be approved, a veterinarians have requested that we 6 was created using Novell Inc.’s digital signature must be able to verify the accept digital signatures and allow InForms software. During the pilot identity of the accredited veterinarian signing electronic transmissions between project, the automated VS Form 17–6 the document and indicate if the integrity of was used by two producers, accredited the data in the signed document was accredited veterinarians and APHIS. compromised. The proposed addition to the veterinarians, and the VS Area Office in regulations could benefit the accredited Arkansas and Iowa. The participants of We also propose to revise § 161.3(j) of veterinarians and the industries they the pilot project concluded that the use the regulations to require accredited serve by saving them time and money. of digital signatures and electronic veterinarians to be responsible for the The time delays currently experienced transmission was successful and use of approved digital signature in transmitting documents to APHIS beneficial. We believe that the use of capabilities. could be eliminated or lessened. In digital signatures and electronic Executive Order 12866 and Regulatory addition to the time saved, the costs transmission of documents could be Flexibility Act currently incurred for the use of successful for other industries as well. This proposed rule has been reviewed couriers or special handling to expedite Other Government Use of Digital under Executive Order 12866. The rule delivery could be eliminated. Signature Technology has been determined to be not Previously Published Notice As technology has advanced, various significant for the purposes of Executive As we stated in our Notice published governments have begun to use or Order 12866 and, therefore, has not in the Federal Register on October 31, investigate the use of digital signatures. been reviewed by the Office of 1996 (60 FR 56215–56216, Docket No. The Federal Government is using digital Management and Budget. We do not have enough data for a 96–084–1), APHIS has a waiver to use signatures on purchase orders. Many comprehensive analysis of the economic RSA 1 digital signature technology in states have enacted legislation accepting impacts of this proposed rule on small lieu of the Digital Signature Standard digital signatures or are looking into the entities. Therefore, in accordance with 5 specified by Federal Information use of digital signatures, including U.S.C. 603, we have performed an Initial Processing Standard 186. The RSA Arizona, California, Florida, Georgia, Regulatory Flexibility Analysis for this digital signature technology provides Hawaii, Illinois, Oregon, Utah, Virginia, proposed rule. We are inviting document security that can be used to Washington, and Wyoming. Several comments about this proposed rule as it verify the identity of the person who foreign countries are also working on relates to small entities. In particular, signed the document and can protect the acceptability of digital signatures, we are interested in determining (1) the the signed document against including Canada, Chile, and Germany. number and kind of small entities that unauthorized modifications of its text. We expect to see continued may incur benefits or costs from The RSA digital signature technology is advancements in the use of digital implementation of this proposed rule widely used in a variety of commercial signatures. and (2) the economic impact of those software applications, for example, Regulatory Changes benefits or costs. InForms by Novell Incorporated, Form Due to the current state of technology Under the Animal Industry Act (21 Flow by Delrina Corporation, and Jet and the technological advancements U.S.C. 112, 113–114a–1, and 115), the Form by Jet Form Corporation. that we expect to continue, we propose Animal Quarantine Acts and the Cattle Digital Signature Pilot Project to allow the maximum flexibility to use Contagious Diseases Act (21 U.S.C. 105, 111–113, 120, 121, and 125), the Federal APHIS developed a pilot project digital signatures and electronic Meat Inspection Act (21 U.S.C. 612 and testing the use of digital signatures and transmission for official certificates, 613), the Foot-and-Mouth Disease electronic transmissions using the forms, records, and reports. We envision Research Act (21 U.S.C. 113a), and the Veterinary Services (VS) Form 17–6, electronic transmission of official Horse Protection Act (15 U.S.C. 1828), Certificate for Poultry or Hatching Eggs certificates, forms, records, and reports the Secretary of Agriculture has the for Export. The pilot project began in by various methods, including authority to promulgate regulations and December 1995 and ran through May electronic mail and Internet. As take measures to prevent the 1996. technology advances, we expect new introduction and dissemination of At the August 9–10, 1994, Livestock methods will be available. Therefore, we communicable diseases of livestock and and Poultry Movement meeting in Fort propose to approve the methods based poultry. In accordance with the Collins, CO, producers identified the on technological capabilities at the time regulations in 9 CFR parts 160, 161, and following potential benefits from of the request and not limit the 162, some veterinarians are accredited digitally signing and electronically regulations to a specific method, thus by the Federal Government to cooperate transmitting the VS Form 17–6: (1) offering the greatest flexibility and the least restrictive regulations. with APHIS in controlling and 1 RSA was named for the inventors of the Specifically, we propose to revise preventing the introduction and algorithm, Drs. Ronald Rivest, Adi Shamir, and several definitions, including the dissemination of animal diseases. Leonard Adleman. definitions of issue and sign. We Accredited veterinarians use their Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 599 professional training in veterinary accurately estimate the potential Administrator for electronic medicine to perform certain regulatory savings. However, we expect that the transmission, for example, via a tasks. One of these regulatory tasks is proposed rule change could be computer. To be approved, a digital preparing official documents, including beneficial to accredited veterinarians signature must be able to verify the certificates, forms, records, and reports and their clients, whether large or small. identity of the accredited veterinarian and submitting such documents to An alternative to this proposed rule is signing the document and indicate if the APHIS. Currently, only a hand written to make no changes in the regulations. integrity of the data in the signed signature of an accredited veterinarian We rejected this alternative because document was compromised. is acceptable. accredited veterinarians will not be * * * * * APHIS is proposing to allow required to use this alternative signature Issue. The distribution, including accredited veterinarians to use digital method. electronic transmission, of an official signatures in place of hand written This proposed rule contains no new animal health document that has been signatures. Allowing the electronic information collection or recordkeeping signed. transmission of signed documents could requirements. * * * * * benefit accredited veterinarians and the Executive Order 12988 industries they serve by eliminating the Sign, (Signed). For an accredited time-consuming step of physical This proposed rule has been reviewed veterinarian to put his or her signature transmission from the accredited under Executive Order 12988, Civil in his or her own hand, or by means of veterinarian to the VS area office and Justice Reform. If this proposed rule is an approved digital signature, on a others involved in the process. adopted: (1) All State and local laws and certificate, form, record, or report. No An example of a document which regulations that are inconsistent with certificate, form, record, or report is accredited veterinarians must sign is an this rule will be preempted; (2) no signed if: export health certificate. For the poultry retroactive effect will be given to this (1) Someone other than the accredited industry, VS Form 17–6, Certificate for rule; and (3) administrative proceedings veterinarian has signed it on behalf of or Poultry or Hatching Eggs for Export, is will not be required before parties may in the name of the accredited used as an export health certificate. file suit in court challenging this rule. veterinarian, regardless of the authority Currently, a VS Form 17–6 is processed Paperwork Reduction Act granted them by the accredited as follows: the producer fills out This proposed rule contains no new veterinarian; or information related to the exportation (2) If any mechanical device, other on the VS Form 17–6 and sends it to the information collection or recordkeeping requirements under the Paperwork than an approved digital signature, has accredited veterinarian; the accredited been used to affix the signature. veterinarian fills out the information Reduction Act of 1995 (44 U.S.C. 3501 about the health of the poultry or eggs et seq.). * * * * * on the VS Form 17–6, including any Regulatory Reform PART 161ÐREQUIREMENTS AND required test information, signs the VS This action is part of the President’s STANDARDS FOR ACCREDITED Form 17–6 and sends it to the VS area Regulatory Reform Initiative, which, VETERINARIANS AND SUSPENSION office; the APHIS veterinarian reviews among other things, directs agencies to OR REVOCATION OF SUCH and endorses the VS Form 17–6 and remove obsolete and unnecessary ACCREDITATION sends it back to the producer, who regulations and to find less burdensome sends the VS Form 17–6 to the ways to achieve regulatory goals. 3. The authority citation for part 161 importing country. Throughout this would continue to read as follows: process, there can be time delays and List of Subjects Authority: 15 U.S.C. 1828; 21 U.S.C. 105, additional expenses incurred for 9 CFR Part 160 111–114, 114a, 114a–1, 115, 116, 120, 121, mailing or special handling to move the 125, 134b, 134f, 612 and 613; 7 CFR 2.22, certificate from one place to the next. Veterinarians. 2.80, and 371.2(d). With the use of digital signatures, the 9 CFR Part 161 accredited veterinarian could receive, 4. In § 161.3 paragraph (j) would be complete, and sign an automated Reporting and recordkeeping revised to read as follows: document from the producer. The requirements, Veterinarians. Accordingly, 9 CFR parts 160 and 161 § 161.3 Standards for accredited accredited veterinarian could veterinarian duties. electronically transmit the signed would be amended as follows: * * * * * document to the VS area office. PART 160ÐDEFINITION OF TERMS Therefore, this amendment would (j) An accredited veterinarian shall be eliminate the need to pay couriers or 1. The authority citation for part 160 responsible for the security and proper package delivery companies and wait would continue to read as follows: use of all official certificates, forms, for delivery between the producers, records, and reports; tags, bands, or Authority: 15 U.S.C. 1828; 21 U.S.C. 105, other identification devices; and accredited veterinarians, and the VS 111–114, 114a, 114a–1, 115, 116, 120, 121, area office. 125, 134b, 134f, 612 and 613; 7 CFR 2.22, approved digital signature capabilities The proposed rule change would 2.80, and 371.2(d). used in his or her work as an accredited veterinarian and shall take reasonable provide an additional option for signing 2. In § 160.1, the definitions for issue care to prevent the misuse thereof. An and submitting official certificates, and sign would be revised and the accredited veterinarian shall forms, records, and reports. While not definition for approved digital signature immediately report to the Veterinarian- requiring that this option be exercised, would be added, in alphabetical order, in-Charge the loss, theft, or deliberate or there are potential savings for those to read as follows: accredited veterinarians who make use accidental misuse of any such of this option. The delivery costs § 160.1 Definitions. certificate, form, record, or report; tag, associated with these documents can * * * * * band, or other identification device; or vary widely based on the delivery Approved digital signature. Digital approved digital signature capability. method used. Therefore, we cannot signatures approved by the * * * * * 600 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Done in Washington, DC, this 26th day of 96–ANE–39, 12 New England Executive posts and turbine blades, which could December 1996. Park, Burlington, MA 01803–5299. result in aircraft damage. This AD Al Strating, The service information referenced in requires initial and repetitive ECI for Acting Administrator, Animal and Plant this AD may be obtained from Mr. John possible cracks in HPT disk blade Health Inspection Service. Teeter, Manager, Customer Support, retention posts. The inspection [FR Doc. 97–177 Filed 1–3–97; 8:45 am] Williams International, 2280 West population is divided into two groups, BILLING CODE 3410±34±P Maple Road, P.O. Box 200, Walled Lake, with the higher risk group listed by MI 48390–0200; telephone (810) 624– engine serial number (S/N). This group 5200, fax (810) 669–9515. This of HPT disks is at a higher risk due to DEPARTMENT OF TRANSPORTATION information may be examined at the a lower stress rupture strength FAA, New England Region, Office of the characteristic. In addition, this AD Federal Aviation Administration Assistant Chief Counsel, 12 New requires replacement of the existing England Executive Park, Burlington, HPT disks, Part Number (P/N) 48629, 14 CFR Part 39 MA; or at the Office of the Federal with advanced design HPT disks, P/N [Docket No. 96±ANE±39; Amendment 39± Register, 800 North Capitol Street, NW., 55291, by July 1, 1997, as terminating 9875; AD 97±01±05] suite 700, Washington, DC. action to the inspection requirements of FOR FURTHER INFORMATION CONTACT: this AD. The calendar end-dates for this RIN 2120±AA64 Eugene H. Messal, Aerospace Engineer, AD were determined based upon each suspect disk group’s time to crack Airworthiness Directives; Williams Chicago Aircraft Certification Office, initiation, subsequent crack propagation International, L.L.C. Model FJ44±1A FAA, Small Airplane Directorate, 2300 rate, and its failure probability. In Turbofan Engines East Devon Avenue, Des Plaines, Illinois 60018; telephone (847) 294–7011, fax addition, the total in-service cycles and AGENCY: Federal Aviation (847) 294–7834. hours of each of the suspect disks of both groups, and the ASB replacement Administration, DOT. SUPPLEMENTARY INFORMATION: The parts availability were contributing ACTION: Final rule; request for Federal Aviation Administration (FAA) factors for determining the end-dates. comments. has verified two reports of inflight HPT These actions are required to be disk post separations on Williams SUMMARY: accomplished in accordance with the This amendment adopts a International model FJ44–1A turbofan new airworthiness directive (AD) that is ASBs described previously. engines. One of these inflight post Since a situation exists that requires applicable to Williams International, separations was uncontained. The L.L.C. Model FJ44–1A turbofan engines. the immediate adoption of this investigation revealed that in both cases, regulation, it is found that notice and This action requires initial and high pressure turbine (HPT) disk blade repetitive eddy current inspections (ECI) opportunity for prior public comment retention posts separated due to hereon are impracticable, and that good for possible cracks in high pressure cracking caused by material creep/ turbine (HPT) disk blade retention cause exists for making this amendment fatigue. This condition, if not corrected, effective in less than 30 days. posts. In addition, this AD requires the could result in other engines installation of advanced design HPT experiencing HPT disk blade retention Comments Invited disks as terminating action to the post separations and turbine blade Although this action is in the form of inspection requirements of this AD. liberations, and subsequent losses of a final rule that involves requirements This amendment is prompted by two engine power. In addition, this affecting flight safety and, thus, was not incidents of HPT disk blade retention condition could, if not corrected, result preceded by notice and an opportunity post separations. The actions specified in other engines experiencing high disk for public comment, comments are in this AD are intended to locate speed uncontained liberation of disk invited on this rule. Interested persons possible cracks in HPT disk blade posts and turbine blades, which could are invited to comment on this rule by retention posts, thereby preventing the cause aircraft damage. submitting such written data, views, or separation of these posts and the The FAA has reviewed and approved arguments as they may desire. liberation of the turbine blades that they the technical contents of Williams-Rolls Communications should identify the retain, and a subsequent loss of engine Alert Service Bulletin (ASB) No. FJ44– Rules Docket number and be submitted power. In addition, the actions specified A72–30, dated November 6, 1996, that in triplicate to the address specified in this AD are intended to prevent the describes procedures for eddy current under the caption ADDRESSES. All possible high disk speed uncontained inspections (ECI) for possible cracks in communications received on or before liberation of disk posts and turbine HPT disk blade retention posts; and the closing date for comments will be blades, which could cause aircraft ASB No. FJ44–A72–31, dated November considered, and this rule may be damage. 4, 1996, that describes procedures for amended in light of the comments DATES: Effective January 21, 1997. replacement of existing HPT disks with received. Factual information that The incorporation by reference of advanced design HPT disks. supports the commenter’s ideas and certain publications listed in the Since an unsafe condition has been suggestions is extremely helpful in regulations is approved by the Director identified that is likely to exist or evaluating the effectiveness of the AD of the Federal Register as of January 21, develop on other engines of the same action and determining whether 1997. design, this AD is being issued to locate additional rulemaking action would be Comments for inclusion in the Rules possible cracks in HPT disk blade needed. Docket must be received on or before retention posts, which could lead to the Comments are specifically invited on March 7, 1997. liberation of the turbine blades that they the overall regulatory, economic, ADDRESSES: Submit comments in retain, and subsequent loss of engine environmental, and energy aspects of triplicate to the Federal Aviation power. In addition, this AD is being the rule that might suggest a need to Administration (FAA), New England issued to prevent the separation of HPT modify the rule. All comments Region, Office of the Assistant Chief disk posts that could lead to a high disk submitted will be available, both before Counsel, Attention: Rules Docket No. speed uncontained liberation of disk and after the closing date for comments, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 601 in the Rules Docket for examination by emergency regulation otherwise would numbers 1001–1179, 1196, and 1197, interested persons. A report that be significant under DOT Regulatory installed on, but not limited to, Cessna summarizes each FAA-public contact Policies and Procedures, a final Citation Model 525 aircraft. concerned with the substance of this AD regulatory evaluation will be prepared Note 1: This airworthiness directive (AD) will be filed in the Rules Docket. and placed in the Rules Docket. A copy applies to each engine identified in the Commenters wishing the FAA to of it, if filed, may be obtained from the preceding applicability provision, regardless acknowledge receipt of their comments Rules Docket at the location provided of whether it has been modified, altered, or submitted in response to this notice under the caption ADDRESSES. repaired in the area subject to the must submit a self-addressed, stamped requirements of this AD. For engines that postcard on which the following List of Subjects in 14 CFR Part 39 have been modified, altered, or repaired so statement is made: ‘‘Comments to Air transportation, Aircraft, Aviation that the performance of the requirements of Docket Number 96–ANE–39.’’ The safety, Incorporation by reference, this AD is affected, the owner/operator must postcard will be date stamped and Safety. request approval for an alternative method of compliance in accordance with paragraph (c) returned to the commenter. Adoption of the Amendment The regulations adopted herein will of this AD. The request should include an not have substantial direct effects on the Accordingly, pursuant to the assessment of the effect of the modification, States, on the relationship between the authority delegated to me by the alteration, or repair on the unsafe condition national government and the States, or Administrator, the Federal Aviation addressed by this AD; and, if the unsafe on the distribution of power and Administration amends part 39 of the condition has not been eliminated, the responsibilities among the various Federal Aviation Regulations (14 CFR request should include specific proposed levels of government. Therefore, in part 39) as follows: actions to address it. accordance with Executive Order 12612, Compliance: Required as indicated, unless it is determined that this final rule does PART 39ÐAIRWORTHINESS accomplished previously. not have sufficient federalism DIRECTIVES To prevent possible high pressure turbine implications to warrant the preparation 1. The authority citation for part 39 (HPT) disk blade retention post separations of a Federalism Assessment. continues to read as follows: and the release of their retained turbine The FAA has determined that this blades, subsequent loss of engine power, and Authority: 49 USC 106(g), 40113, 44701. regulation is an emergency regulation possible high disk speed uncontained that must be issued immediately to § 39.13 [Amended] liberation of disk posts and the turbine correct an unsafe condition in aircraft, 2. Section 39.13 is amended by blades, which could cause aircraft damage, and is not a ‘‘significant regulatory adding the following new airworthiness accomplish the following: action’’ under Executive Order 12866. It directive: (a) Perform initial and repetitive eddy has been determined further that this 97–01–05 Williams International, L.L.C.: current inspections (ECI) for cracks in HPT action involves an emergency regulation Amendment 39–9875. Docket 96–ANE– disks, Part Number (P/N) 48629, blade under DOT Regulatory Policies and 39. retention posts in accordance with the following schedule and requirements: Procedures (44 FR 11034, February 26, Applicability: Williams International L.L.C. 1979). If it is determined that this Model FJ44–1A turbofan engines, with serial

Engine serial Nos. Initial compliance required Repetitive inspection required

1001, 1004±1010, 1016, 1017, 1020, 1023±1026, 1031, 1033, 1036, Within 50 cycles after the effective Thereafter, at intervals not to ex- 1039, 1041, 1042, 1043, 1046±1048, 1051±1056, 1063, 1069, date of this AD or by February ceed 125 cycles in service (CIS) 1071, 1072, 1076, 1080, 1082, 1091, 1092, 1095±1098, 1107, 1, 1997, whichever occurs first. since last inspection. 1108, 1111, 1125, 1127±1129, 1133, 1134, 1165, 1172, 1178 Remaining serial number engines with 575 CIS or more as of April 1, No later than May 1, 1997 ...... Thereafter, at intervals not to ex- 1997 ceed 125 CIS since last inspection.

(1) Perform the initial and repetitive eddy (c) An alternative method of compliance or Document No. Pages Date current inspections for cracks in HPT disk adjustment of the compliance time that blade retention posts in accordance with provides an acceptable level of safety may be FJ44±A72±30 ...... 1±7 November Williams-Rolls Alert Service Bulletin (ASB) used if approved by the Manager, Chicago 6, 1996. Aircraft Certification Office. The request No. FJ44–A72–30, dated November 6, 1996. Total pages: 7 should be forwarded through an appropriate (2) Remove from service HPT disks that do FJ44±A72±31 ...... 1±7 November not meet the ‘‘return to service’’ criteria FAA Principal Maintenance Inspector, who may add comments and then send it to the 4, 1996. stated in Williams-Rolls ASB No. FJ44–A72– Total pages: 7 30, dated November 6, 1996, and replace Manager, Chicago Aircraft Certification Office. them with serviceable HPT disks, P/N 48629, Note 2: Information concerning the This incorporation by reference was that meet the required ASB ‘‘return to existence of approved alternative methods of approved by the Director of the Federal service’’ criteria, or replace them with compliance with this airworthiness directive, Register in accordance with 5 U.S.C. 552(a) advanced design HPT disks, P/N 55291, in if any, may be obtained from the Chicago and 1 CFR part 51. Copies may be obtained accordance with paragraph (b) of this AD. Aircraft Certification Office. (b) No later than July 1, 1997, replace all from Mr. John Teeter, Manager, Customer (d) Special flight permits may be issued in Support, Williams International, 2280 West existing HPT disks, P/N 48629, with accordance with sections 21.197 and 21.199 Maple Road, P.O. Box 200, Walled Lake, MI advanced design HPT disks, P/N 55291, in of the Federal Aviation Regulations (14 CFR accordance with Williams-Rolls ASB No. 21.197 and 21.199) to operate the aircraft to 48390–0200; telephone (810) 624–5200, fax FJ44–A72–31, dated November 4, 1996. a location where the requirements of this AD (810) 669–9515. Copies may be inspected at Installation of this advanced design HPT disk can be accomplished. the FAA, New England Region, Office of the constitutes terminating action to the (e) The actions required by this AD shall Assistant Chief Counsel, 12 New England repetitive inspection requirements of this be done in accordance with the following Executive Park, Burlington, MA; or at the AD. Williams-Rolls ASBs: Office of the Federal Register, 800 North 602 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Capitol Street, NW., suite 700, Washington, Cessna Aircraft Company, Citation prevent MLG collapse caused by DC. Marketing Division, P.O. Box 7706, trunnion bearing failure, which could (f) This amendment becomes effective on Wichita, Kansas 67277; telephone (316) result in loss of control of the airplane January 21, 1997. 941–6000; facsimile (314) 941–8500. during landing operations. Issued in Burlington, Massachusetts, on This information may also be examined December 27, 1996. Explanation of the Provisions of This at the Federal Aviation Administration AD Jay J. Pardee, (FAA), Central Region, Office of the Manager, Engine and Propeller Directorate, Assistant Chief Counsel, Attention: Since an unsafe condition has been Aircraft Certification Service. Rules Docket No. 96–CE–59–AD, Room identified that is likely to exist or [FR Doc. 97–31 Filed 1–3–97; 8:45 am] 1558, 601 E. 12th Street, Kansas City, develop in other Cessna Model 525 BILLING CODE 4910±13±U Missouri 64106; or at the Office of the airplanes of the same type design, this Federal Register, 800 North Capitol AD requires repetitively inspecting the Street, NW., suite 700, Washington, DC. main landing gear (MLG) trunnion pins 14 CFR Part 39 for proper installation, and either FOR FURTHER INFORMATION CONTACT: Mr. immediately or eventually replacing the [Docket No. 96±CE±59±AD; Amendment 39± Eual Conditt, Aerospace Safety existing dry-film lubricated MLG 9873; AD 97±01±02] Engineer, FAA, Wichita Aircraft trunnion slot bearings with sealed and Certification Office, 1801 Airport Road, RIN 2120±AA64 self-lubricating bearings. Only two Mid-Continent Airport, Wichita, Kansas inspections will be allowed before 67209; telephone (316) 946–4128; Airworthiness Directives; Cessna mandatory replacement of the MLG facsimile (316) 946–4407. Aircraft Company Model 525 Airplanes trunnion slot bearings. Accomplishment AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: of the inspections required by this AD Administration, DOT. Events Leading to This AD will be in accordance with Cessna Alert Service Letter SLA525–32–11, Revision ACTION: Final rule; request for Recently, a Cessna Model 525 comments. 1, dated October 1, 1996. airplane was involved in an incident Accomplishment of the replacement SUMMARY: This amendment adopts a where the left main landing gear (MLG) required by this AD will be in new airworthiness directive (AD) that collapsed during the landing roll even accordance with Cessna Service Bulletin applies to certain Cessna Aircraft though cockpit indications showed that SB525–32–08, Revision 1, dated October Company (Cessna) Model 525 airplanes. the MLG was in the normal down and 1, 1996. This action requires repetitively locked position. Investigation revealed that loss of dry-film lubricant on the Determination of the Effective Date of inspecting the main landing gear (MLG) the AD trunnion pins for proper installation, MLG trunnion bearings caused this and either immediately or eventually incident. Since a situation exists (loss of control replacing the existing dry-film Further investigation of the MLG of of the airplane during landing lubricated MLG trunnion slot bearings Cessna Model 525 airplanes indicates operations) that requires the immediate with sealed and self-lubricating that this dry-film lubricant in the MLG adoption of this regulation, it is found bearings. This AD results from an trunnion bearings becomes inadequate that notice and opportunity for public incident where the left MLG collapsed over time. When these bearings are not prior comment hereon are during the landing roll even though the properly lubricated, the roll pin that impracticable, and that good cause cockpit indications showed that the goes through the trunnion and bearing exists for making this amendment MLG was in the normal down and shaft fails, which causes the pin to back effective in less than 30 days. out of the bearing. This roll pin supports locked position. Loss of dry-film Comments Invited lubricant on the MLG trunnion bearings the entire MLG, so its failure then Although this action is in the form of caused this incident. The actions causes MLG collapse. a final rule that involves requirements specified by this AD are intended to Applicable Service Information affecting immediate flight safety and, prevent MLG collapse caused by Cessna has issued the following thus, was not preceded by notice and trunnion bearing failure, which could service information: opportunity to comment, comments are result in loss of control of the airplane • Cessna Alert Service Letter invited on this rule. Interested persons during landing operations. SLA525–32–11, Revision 1, dated are invited to comment on this rule by DATES: Effective January 15, 1997. October 1, 1996, which includes submitting such written data, views, or The incorporation by reference of procedures for inspecting the MLG arguments as they may desire. certain publications listed in the trunnion pins for proper installation; Communications should identify the regulations is approved by the Director and Rules Docket number and be submitted of the Federal Register as of January 15, • Cessna Service Bulletin SB525–32– in triplicate to the address specified 1997. 08, Revision 1, dated October 1, 1996, above. All communications received on Comments for inclusion in the Rules which includes procedures for replacing or before the closing date for comments Docket must be received on or before the existing dry-film lubricated MLG will be considered, and this rule may be March 7, 1997. trunnion slot bearings with sealed and amended in light of the comments ADDRESSES: Submit comments in self-lubricating bearings. received. Factual information that triplicate to the Federal Aviation supports the commenter’s ideas and The FAA’s Determination Administration (FAA), Central Region, suggestions is extremely helpful in Office of the Assistant Chief Counsel, After examining the circumstances evaluating the effectiveness of the AD Attention: Rules Docket 96–CE–59–AD, and reviewing all available information action and determining whether Room 1558, 601 E. 12th Street, Kansas related to the incident described above, additional rulemaking action would be City, Missouri 64106. including the above-referenced service needed. Service information that applies to information, the FAA has determined Comments are specifically invited on this AD may be obtained from the that AD action should be taken to the overall regulatory, economic, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 603 environmental, and energy aspects of PART 39ÐAIRWORTHINESS main landing gear trunnion locations (both the rule that might suggest a need to DIRECTIVES forward and aft trunnion pins on both the left modify the rule. All comments and right MLG). Perform these replacements 1. The authority citation for part 39 submitted will be available, both before in accordance with the ACCOMPLISHMENT continues to read as follows: INSTRUCTIONS section of Cessna Service and after the closing date for comments, Authority: 49 U.S.C. 106(g), 40113, 44701. Bulletin SB525–32–08, Revision 1, dated in the Rules Docket for examination by October 1, 1996. interested persons. A report that § 39.13 [Amended] (d) Replacing the existing dry-film summarizes each FAA-public contact 2. Section 39.13 is amended by lubricated MLG trunnion slot bearing with a concerned with the substance of this AD adding a new airworthiness directive sealed and self- lubricating bearing in will be filed in the Rules Docket. (AD) to read as follows: accordance with the ACCOMPLISHMENT INSTRUCTIONS section of Cessna Service Commenters wishing the FAA to 97–01–02 Cessna Aircraft Company: Bulletin SB525–32–08, Revision 1, dated acknowledge receipt of their comments Amendment 39–9873; Docket No. 96– October 1, 1996, on all four main landing submitted in response to this rule must CE–59–AD. gear trunnion locations (both forward and aft submit a self-addressed, stamped Applicability: Model 525 airplanes (serial trunnion pins on both the left and right MLG) postcard on which the following numbers 525–0001 through 525–0153), eliminates the repetitive inspection statement is made: ‘‘Comments to certificated in any category. requirement of this AD. These replacements Docket No. 96–CE–59–AD.’’ The Note 1: This AD applies to each airplane may be accomplished at any time prior to 75 postcard will be date stamped and identified in the preceding applicability hours TIS after the effective date of this AD, returned to the commenter. provision, regardless of whether it has been at which time they must be accomplished modified, altered, or repaired in the area (see paragraph (c) of this AD). Regulatory Impact subject to the requirements of this AD. For (e) Special flight permits may be issued in airplanes that have been modified, altered, or accordance with sections 21.197 and 21.199 The regulations adopted herein will repaired so that the performance of the of the Federal Aviation Regulations (14 CFR not have substantial direct effects on the requirements of this AD is affected, the 21.197 and 21.199) to operate the airplane to States, on the relationship between the owner/operator must request approval for an a location where the requirements of this AD alternative method of compliance in can be accomplished. national government and the States, or accordance with paragraph (f) of this AD. The on the distribution of power and (f) An alternative method of compliance or request should include an assessment of the adjustment of the compliance time that responsibilities among the various effect of the modification, alteration, or repair provides an equivalent level of safety may be on the unsafe condition addressed by this levels of government. Therefore, in approved by the Manager, Wichita Aircraft AD; and, if the unsafe condition has not been accordance with Executive Order 12612, Certification Office (ACO), 1801 Airport eliminated, the request should include it is determined that this final rule does Road, Room 100, Mid-Continent Airport, specific proposed actions to address it. not have sufficient federalism Wichita, Kansas 67209. The request shall be implications to warrant the preparation Compliance: Required as indicated in the forwarded through an appropriate FAA body of this AD, unless already Maintenance Inspector, who may add of a Federalism Assessment. accomplished. comments and then send it to the Manager, To prevent main landing gear (MLG) The FAA has determined that this Wichita ACO. regulation is an emergency regulation collapse caused by trunnion bearing failure, which could result in loss of control of the Note 2: Information concerning the that must be issued immediately to existence of approved alternative methods of correct an unsafe condition in aircraft, airplane during landing operations, accomplish the following: compliance with this AD, if any, may be and is not a significant regulatory action (a) Within the next 25 hours time-in- obtained from the Wichita ACO. under Executive Order 12866. It has service (TIS) after the effective date of this (g) The inspections required by this AD been determined further that this action AD, and thereafter within 25 hours TIS after shall be done in accordance with Cessna involves an emergency regulation under the initial inspection, inspect the main Alert Service Letter SLA525–32–11, Revision DOT Regulatory Policies and Procedures landing gear trunnion pins (four pins: both 1, dated October 1, 1996. The replacements (44 FR 11034, February 26, 1979). If it forward and aft trunnion pins on both the left required by this AD shall be done in is determined that this emergency and right MLG) for proper installation. accordance with Cessna Service Bulletin Perform this inspection in accordance with SB525–32–08, Revision 1, dated October 1, regulation otherwise would be the ACCOMPLISHMENT INSTRUCTIONS significant under DOT Regulatory 1996. This incorporation by reference was section of Cessna Alert Service Letter approved by the Director of the Federal Policies and Procedures, a final SLA525–32–11, Revision 1, dated October 1, Register in accordance with 5 U.S.C. 552(a) regulatory evaluation will be prepared 1996. and 1 CFR part 51. Copies may be obtained (b) If any pin is not properly installed as and placed in the Rules Docket from the Cessna Aircraft Company, Citation described in Cessna Alert Service Letter (otherwise, an evaluation is not Marketing Division, P.O. Box 7706, Wichita, SLA525–32–11, Revision 1, dated October 1, required). A copy of it, if filed, may be Kansas 67277. Copies may be inspected at 1996, prior to further flight, replace the obtained from the Rules Docket. existing dry-film lubricated MLG trunnion the FAA, Central Region, Office of the Assistant Chief Counsel, Room 1558, 601 E. List of Subjects in 14 CFR Part 39 slot bearing with a sealed and self- lubricating bearing. Perform this replacement 12th Street, Kansas City, Missouri, or at the in accordance with the ACCOMPLISHMENT Office of the Federal Register, 800 North Air transportation, Aircraft, Aviation Capitol Street, NW., suite 700, Washington, safety, Incorporation by reference, INSTRUCTIONS section of Cessna Service Bulletin SB525–32–08, Revision 1, dated DC. Safety. October 1, 1996. The repetitive inspection (h) This amendment (39–9873) becomes effective on January 15, 1997. Adoption of the Amendment need not be accomplished on the trunnion pin when the bearing is replaced with a Issued in Kansas City, Missouri, on Accordingly, pursuant to the sealed and self-lubricating bearing. December 23, 1996. authority delegated to me by the (c) Within the next 75 hours TIS after the Michael Gallagher, effective date of this AD, unless already Manager, Small Airplane Directorate, Aircraft Administrator, the Federal Aviation accomplished in accordance with paragraph Certification Service. Administration amends part 39 of the (b) of this AD, replace the existing dry-film Federal Aviation Regulations (14 CFR lubricated MLG trunnion slot bearing with a [FR Doc. 97–160 Filed 1–3–97; 8:45 am] part 39) as follows: sealed and self-lubricating bearing at all four BILLING CODE 4910±13±U 604 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

14 CFR Part 39 Administration (FAA), Transport protection against inadvertent Airplane Directorate, ANM–103, deployment of the thrust reversers [Docket No. 96±NM±273±AD; Amendment during flight. 39±9866; AD 96±26±03] Attention: Rules Docket No. 96–NM– 273–AD, 1601 Lind Avenue, SW., In the preamble to AD 96–24–10, the RIN 2120±AA64 Renton, Washington 98055–4056. FAA indicated that the actions required The service information referenced in by that AD were considered to be Airworthiness Directives; Fokker this AD may be obtained from Fokker ‘‘interim action’’ and that further Model F28 Mark 0070 and 0100 Series Service B.V., Technical Support rulemaking action was being Airplanes Department, P. O. Box 75047, 1117 ZN considered. The FAA now has AGENCY: Federal Aviation Schiphol Airport, The Netherlands. This determined that further rulemaking Administration, DOT. information may be examined at the action is indeed necessary, and this AD FAA, Transport Airplane Directorate, follows from that determination. ACTION: Final rule; request for comments. 1601 Lind Avenue, SW., Renton, New Service Information from the Washington; or at the Office of the Manufacturer SUMMARY: This amendment supersedes Federal Register, 800 North Capitol an existing airworthiness directive (AD), Street, NW., suite 700, Washington, DC. Fokker issued Service Bulletin SBF100–78–012, dated November 22, applicable to all Fokker Model F28 FOR FURTHER INFORMATION CONTACT: Tim 1996, which describes procedures for Mark 0070 and 0100 series airplanes, Dulin, Aerospace Engineer, modification of the wiring of the that currently requires a revision to the Standardization Branch, ANM–113, electrical control, and indication and Airplane Flight Manual (AFM) that will FAA, Transport Airplane Directorate, warning systems of the thrust reversers. enable the flightcrew to determine if the 1601 Lind Avenue, SW., Renton, This modification involves changing the thrust reversers are properly stowed and Washington 98055–4056; telephone wiring of the stow limit relay of the locked prior to take-off. In addition, the (206) 227–2141; fax (206) 227–1149. thrust reverser, which will prevent existing AD requires a revision to the SUPPLEMENTARY INFORMATION: On inadvertent loss of the thrust reverser maintenance program to incorporate December 5, 1996, the FAA issued AD stow signal during certain failure instructions to perform checks of the 96–24–10, amendment 39–9850 (61 FR conditions (i.e., bypasses the stow limit thrust reverser system and correct thrust 66890, December 19, 1996), applicable relay to ensure that the stow solenoid is reverser malfunctions. That AD was to all Fokker Model F28 Mark 0070 and energized at all times regardless of the prompted by results of a review, which 0100 series airplanes. That AD position of the secondary lock actuator indicated that a potential latent failure superseded AD 96–23–16, amendment switch 1, except during commanded of the secondary lock actuator switch 1 39–9825 (61 FR 5887, November 20, deployment of the thrust reverser). This of the thrust reverser system in the open 1996). AD 96–24–10 requires a revision modification also involves changing the position may occur, in addition to the to the Limitations Section of the FAA- wiring of the flight warning computer potential failure of the secondary lock approved Airplane Flight Manual (FWC), which will prevent unintended relay 1 in the energized position. This (AFM) to enable the flightcrew to inhibition of the thrust reverser warning new AD adds a requirement to determine if the thrust reversers are (i.e., bypasses the warning switch of the accomplish new modifications that will properly stowed and locked prior to secondary lock relay 1). serve as terminating actions for the take-off by monitoring proper Accomplishment of this modification revisions to the AFM and maintenance engagement of the autothrottle system will eliminate the need for the revisions program, and new repetitive checks of (ATS). It also allows dispatch of the to the AFM and maintenance program the thrust reverser system. The actions airplane with both thrust reversers (currently required by AD 96–24–10). specified in this AD are intended to inoperative provided they are In addition, accomplishment of this ensure protection against inadvertent deactivated and secured in the stowed modification will slightly increase the deployment of the thrust reversers position, and no operations are electrical loads on the emergency direct during flight. conducted that are predicated on thrust current (DC) bus on Fokker Model F28 DATES: Effective January 21, 1997. reverser operation. In addition, that AD Mark 0070 and 0100 series airplanes. The incorporation by reference of requires a revision to the FAA-approved The load margin for Fokker Model F28 Fokker Service Bulletin SBF100–78– maintenance program to incorporate Mark 0100 series airplanes is adequate 012, dated November 22, 1996; Fokker instructions to correct malfunctions of to sustain the additional electrical loads Service Bulletin SBF100–24–034, the secondary lock relay 1 of the thrust created by accomplishment of Service Revision 1, dated September 12, 1996; reversers found during the operational Bulletin SBF100–78–012; however, and Fokker Service Bulletin SBF100– tests; to perform a daily check to detect Fokker Model F28 Mark 0070 series 78–013, dated November 22, 1996; as latent failure of the secondary lock airplanes do not have an adequate load listed in the regulations; is approved by actuator switch 1; and to take corrective margin to sustain these additional loads. the Director of the Federal Register as of actions, if necessary. Therefore, Fokker Service Bulletin January 21, 1997. That action was prompted by results SBF100–24–034, Revision 1, dated The incorporation by reference of of a review and safety assessment of the September 12, 1996, must be Fokker All Operator Message thrust reverser control and indication accomplished on Fokker Model F28 TS96.67591, dated November 14, 1996, system, which indicated that a potential Mark 0070 series airplanes prior to or in was approved previously by the Director latent failure of the secondary lock conjunction with Fokker Service of the Federal Register as of December actuator switch 1 in the open position Bulletin SBF100–78–012. Fokker 24, 1996 (61 FR 66890, December 19, may occur in addition to the potential Service Bulletin SBF100–24–034 1996). failure of the secondary lock relay 1 in describes procedures for modification of Comments for inclusion in the Rules the energized position addressed by AD the wiring of the priority switching of Docket must be received on or before 96–23–16. the emergency inverter power supply. March 7, 1997. The actions required by AD 96–24–10 The modification involves reconfiguring ADDRESSES: Submit comments in are intended to prevent such failures, the emergency DC bus wiring. triplicate to the Federal Aviation which could result in reduced Accomplishment of this modification Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 605 will reduce the load of the emergency In addition, this AD requires time. The reports of operational check DC bus on Fokker Model F28 Mark 0070 performing the following new results that are required by this AD will series airplanes. requirements: enable the manufacturer to obtain better In addition, Fokker has also issued 1. Modification of the wiring of the insight into the nature, cause, and Service Bulletin SBF100–78–013, dated electrical control, and indication and extent of the inadvertent thrust reverser November 22, 1996. This service warning systems of the thrust reversers, deployment, and eventually to develop bulletin describes procedures for which terminates the currently required final action to address the unsafe performing repetitive operational checks AFM revision and the maintenance condition. Once final action has been to detect failures of the secondary lock program revision; identified, the FAA may consider actuator, primary lock switch, 2. Modification of the wiring of the further rulemaking. indication and warning system, and priority switching of the emergency feedback cable mechanism of the thrust inverter power supply, for certain Determination of Rule’s Effective Date reversers; and repair of the thrust airplanes; 3. Repetitive operational checks to Since a situation exists that requires reverser system, if necessary. the immediate adoption of this The Rijksluchtvaartdienst (RLD), detect failures of the secondary lock actuator, primary lock switch, regulation, it is found that notice and which is the airworthiness authority for opportunity for prior public comment the Netherlands, classified these service indication and warning system, and feedback cable mechanism of the thrust hereon are impracticable, and that good bulletins as mandatory and issued cause exists for making this amendment Dutch airworthiness directive BLA reversers; and repair of the thrust effective in less than 30 days. 1996–140 (A), dated November 25, reverser system, if necessary; and 4. Submission of a report of any 1996, in order to assure the continued Comments Invited finding to Fokker following airworthiness of these airplanes in the accomplishment of the operational Netherlands. Although this action is in the form of checks. a final rule that involves requirements FAA’s Conclusions These actions are required to be affecting flight safety and, thus, was not accomplished in accordance with the These airplane models are preceded by notice and an opportunity service bulletins described previously. for public comment, comments are manufactured in the Netherlands and Operators should note that the FAA invited on this rule. Interested persons are type certificated for operation in the has deleted the previous allowance to are invited to comment on this rule by United States under the provisions of dispatch with both thrust reversers submitting such written data, views, or section 21.29 of the Federal Aviation inoperative, which was specified in arguments as they may desire. Regulations (14 CFR 21.29) and the paragraph (b) of AD 96–24–10. The FAA Communications shall identify the applicable bilateral airworthiness finds that such an allowance is agreement. Pursuant to this bilateral unnecessary, since adequate spare parts Rules Docket number and be submitted airworthiness agreement, the RLD has are now available to accomplish any in triplicate to the address specified kept the FAA informed of the situation required part replacements as a result of under the caption ADDRESSES. All described above. The FAA has the daily maintenance check. communications received on or before examined the findings of the RLD, the closing date for comments will be reviewed all available information, and Difference Between the AD and the considered, and this rule may be determined that AD action is necessary Related Dutch AD amended in light of the comments for products of this type design that are This AD differs from the Dutch received. Factual information that certificated for operation in the United airworthiness directive BLA 1996–140 supports the commenter’s ideas and States. (A) in that it does not address changes suggestions is extremely helpful in Explanation of Requirements of the to the FAA Master Minimum Equipment evaluating the effectiveness of the AD New Rule List (MMEL), whereas the Dutch action and determining whether airworthiness directive changes the additional rulemaking action would be Since an unsafe condition has been requirements of the Dutch MMEL for the needed. identified that is likely to exist or autothrottle and the thrust reverser Comments are specifically invited on develop on other airplanes of the same indication and alerting system. The type design registered in the United the overall regulatory, economic, Dutch BLA allows dispatch with both environmental, and energy aspects of States, this AD supersedes AD 96–24– autothrottle channels inoperative and 10. It continues to require the following the rule that might suggest a need to both thrust reverser indication and modify the rule. All comments actions: alerting systems inoperative provided • submitted will be available, both before A revision to Limitations Section of both thrust reversers are deactivated and the FAA-approved AFM that will enable and after the closing date for comments, secured in the stowed position, and no in the Rules Docket for examination by the flightcrew to determine if the thrust operations or procedures are predicated reversers are properly stowed and interested persons. A report that on their use. The FAA MMEL only summarizes each FAA-public contact locked prior to take-off by monitoring allows dispatch with one autothrottle proper engagement of the authothrottle concerned with the substance of this AD channel inoperative and does not allow will be filed in the Rules Docket. system (ATS); and dispatch with either thrust reverser • A revision to the FAA-approved indication or alerting system Commenters wishing the FAA to maintenance program to incorporate inoperative. The FAA finds no safety- acknowledge receipt of their comments instructions to correct malfunctions related reason to relax these submitted in response to this rule must found during the operational tests of the requirements. submit a self-addressed, stamped secondary lock relay 1 of the thrust postcard on which the following reversers; to perform a daily check to Interim Action statement is made: ‘‘Comments to detect latent failure of the secondary This is considered to be interim Docket Number 96–NM–273–AD.’’ The lock actuator switch 1; and to take action. The exact cause of the addressed postcard will be date stamped and corrective actions, if necessary. unsafe condition is still unknown at this returned to the commenter. 606 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Regulatory Impact otherwise modified, altered, or repaired in (e) Within 500 flight cycles following the area subject to the requirements of this accomplishment of paragraph (c) of this AD, The regulations adopted herein will AD. For airplanes that have been modified, perform operational checks to detect failures not have substantial direct effects on the altered, or repaired so that the performance of the secondary lock actuator, primary lock States, on the relationship between the of the requirements of this AD is affected, the switch, indication and warning system, and national government and the States, or owner/operator must request approval for an feedback cable mechanism of the thrust on the distribution of power and alternative method of compliance in reversers in accordance with Fokker Service responsibilities among the various accordance with paragraph (g) of this AD. Bulletin SBF100–78–013, dated November The request should include an assessment of levels of government. Therefore, in 22, 1996. If any failure is detected, prior to the effect of the modification, alteration, or further flight, repair the thrust reverser accordance with Executive Order 12612, repair on the unsafe condition addressed by it is determined that this final rule does this AD; and, if the unsafe condition has not system in accordance with Chapter 78–30–00 not have sufficient federalism been eliminated, the request should include of the Fokker Airplane Maintenance Manual. implications to warrant the preparation specific proposed actions to address it. Repeat the operational checks thereafter at of a Federalism Assessment. Compliance: Required as indicated, unless intervals not to exceed 500 flight cycles. The FAA has determined that this accomplished previously. (f) Within 10 days after accomplishing the regulation is an emergency regulation To ensure protection against inadvertent operational checks required by paragraphs (b) that must be issued immediately to deployment of the thrust reversers during and (e) of this AD, submit a report of all flight, accomplish the following: findings to Fokker Services B.V., Technical correct an unsafe condition in aircraft, (a) Within 48 hours after November 25, Support Department, P.O. Box 75047, 1117 and that it is not a ‘‘significant 1996 (the effective date of AD 96–23–16, ZN Schiphol Airport, The Netherlands. regulatory action’’ under Executive amendment 39–9825), revise the Limitations Information collection requirements Order 12866. It has been determined Section of the FAA-approved Airplane Flight contained in this regulation have been further that this action involves an Manual (AFM) to include the following. This approved by the Office of Management and emergency regulation under DOT may be accomplished by inserting a copy of Budget (OMB) under the provisions of the Regulatory Policies and Procedures (44 this AD in the AFM. Paperwork Reduction Act of 1980 (44 U.S.C. ‘‘Before take-off, arm the autothrottle 3501 et seq.) and have been assigned OMB FR 11034, February 26, 1979). If it is system (ATS). Control Number 2120–0056. determined that this emergency When cleared for take-off, activate the take- regulation otherwise would be off/go-around (TOGA) trigger(s), and (g) An alternative method of compliance or significant under DOT Regulatory positively verify ATS engagement [throttle adjustment of the compliance time that Policies and Procedures, a final movement and white steady AT1, AT2, or provides an acceptable level of safety may be regulatory evaluation will be prepared AT in the flight mode annunciator (FMA) used if approved by the Manager, Standardization Branch, ANM–113, FAA, and placed in the Rules Docket. A copy engage window]. If the ATS does NOT engage correctly, Transport Airplane Directorate. Operators of it, if filed, may be obtained from the abort the take-off, return, and report to shall submit their requests through an Rules Docket at the location provided maintenance. appropriate FAA Principal Maintenance under the caption ADDRESSES. If the ATS does engage correctly, you may Inspector, who may add comments and then List of Subjects in 14 CFR Part 39 continue take-off with either ATS engaged or send it to the Manager, Standardization disengaged, as necessary. Branch, ANM–113. Air transportation, Aircraft, Aviation (b) Within 48 hours after December 24, Note 2: Information concerning the 1996 (the effective date AD 96–24–10, safety, Incorporation by reference, existence of approved alternative methods of amendment 39–9850), revise the FAA- Safety. compliance with this AD, if any, may be approved maintenance program to include Adoption of the Amendment the procedures specified in Appendix 2 of obtained from the Standardization Branch, ANM–113. Accordingly, pursuant to the Fokker All Operator Message TS96.67591, dated November 14, 1996. These procedures (h) Special flight permits may be issued in authority delegated to me by the must be accomplished daily, and prior to accordance with sections 21.197 and 21.199 Administrator, the Federal Aviation further flight following failure of the of the Federal Aviation Regulations (14 CFR Administration amends part 39 of the operational check required by paragraph (a) 21.197 and 21.199) to operate the airplane to Federal Aviation Regulations (14 CFR of this AD. If any failure is detected during a location where the requirements of this AD part 39) as follows: these procedures, prior to further flight, can be accomplished. accomplish the corrective actions in (i) The actions shall be done in accordance PART 39ÐAIRWORTHINESS accordance with the procedures. The FAA- with Fokker All Operator Message DIRECTIVES approved maintenance program procedures TS96.67591, dated November 14, 1996; required by paragraph (a)(3) of AD 96–23–16, Fokker Service Bulletin SBF100–78–012, 1. The authority citation for part 39 amendment 39–9825, may be removed dated November 22, 1996; Fokker Service continues to read as follows: following accomplishment of the Bulletin SBF100–24–034, Revision 1, dated requirements of this paragraph. September 12, 1996; and Fokker Service Authority: 49 U.S.C. 106(g), 40113, 44701. (c) Within 60 days after the effective date Bulletin SBF100–78–013, dated November § 39.13 [Amended] of this AD, modify the wiring of the electrical control, and indication and warning systems 22, 1996. Fokker Service Bulletin SBF100– 2. Section 39.13 is amended by of the thrust reversers, in accordance with 24–034 contains the following list of effective removing amendment 39–9850 (61 FR Fokker Service Bulletin SBF100–78–012, pages: 66890, December 19, 1996), and by dated November 22, 1996. The AFM revision adding a new airworthiness directive required by paragraph (a) of this AD and the Revision level Date shown FAA-approved maintenance program Page No. shown on (AD), amendment 39–9866, to read as page on page follows: revision required by paragraph (b) of this AD may be removed following accomplishment 96–26–03 Fokker: Amendment 39–9866. of this paragraph. 1±3 ...... 1 ...... September Docket 96–NM–273–AD. Supersedes AD (d) For Model F28 Mark 0070 series 12, 1996. 96–24–10, amendment 39–9850. airplanes: Prior to or in conjunction with the 4±7 ...... Original ...... October 17, Applicability: All Model F28 Mark 0070 accomplishment of paragraph (c) of this AD, 1995. and 0100 series airplanes, certificated in any modify the wiring of the priority switching category. of the emergency inverter power supply in The incorporation by reference of Fokker Note 1: This AD applies to each airplane accordance with Fokker Service Bulletin All Operator Message TS96.67591, dated identified in the preceding applicability SBF100–24–034, Revision 1, dated November 14, 1996, was approved previously provision, regardless of whether it has been September 12, 1996. by the Director of the Federal Register in Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 607 accordance with 5 U.S.C. 552(a) and 1 CFR Kathy Randolph, Air Traffic Division, a notice of proposed rulemaking may be part 51. The incorporation by reference of the Operations Branch, ACE–530C, Federal published with a new comment period. remainder of the service documents listed Aviation Administration, 601 East 12th Comments Invited above is approved by the Director of the Street, Kansas City, Missouri 64106: Federal Register in accordance with 5 U.S.C. telephone: (816) 426–3408. Although this action is in the form of 552(a) and 1 CFR part 51. Copies may be a final rule and was not preceded by a obtained from Fokker Service B.V., Technical SUPPLEMENTARY INFORMATION: The FAA notice of proposed rulemaking, Support Department, P.O. Box 75047, 1117 has developed Standard Instrument ZN Schiphol Airport, The Netherlands. comments are invited on this rule, Copies may be inspected at the FAA, Approach Procedures (SIAP) utilizing Interested persons are invited to Transport Airplane Directorate, 1601 Lind the Global Positioning System (GPS) at comment on this rule by submitting Avenue, SW., Renton, Washington; or at the York Municipal Airport, York Nebraska. such written data, views, or arguments Office of the Federal Register, 800 North The amendment to Class E airspace at as they may desire. Communications Capitol Street, NW., suite 700, Washington, York, NE, will provide additional should identify the Rules Docket DC. controlled airspace to segregate aircraft number and be submitted in triplicate to (j) This amendment becomes effective on operating under Visual Flight Rules the address specified under the caption January 21, 1997. (VFR) from aircraft operating under ADDRESSES. All communications Issued in Renton, Washington, on Instrument Flight Rules (IFR) received on or before the closing date December 20, 1996. procedures while arriving or departing for comments will be considered, and S.R. Miller, the airport. The area will be depicted on this rule may be amended or withdrawn Acting Manager, Transport Airplane appropriate aeronautical charts thereby in light of the comments received. Directorate, Aircraft Certification Service. enabling pilots to either circumnavigate Factual information that supports the [FR Doc. 97–161 Filed 1–3–97; 8:45 am] the area, continue to operate under VFR commenter’s ideas and suggestions is BILLING CODE 4910±13±U to and from the airport, or otherwise extremely helpful in evaluating the comply with IFR procedures. Class E effectiveness of this action and airspace areas extending from 700 feet determining whether additional 14 CFR Part 71 or more above the surface of the earth rulemaking action would be needed. [Docket No. 96±ACE±23] are published in paragraph 6005 of FAA Comments are specifically invited on Order 7400.9D, dated September 4, the overall regulatory, economic, Amendment to Class E Airspace, York, 1996, and effective September 16, 1996, environmental, and energy aspects of NE which is incorporated by reference in 14 the rule that might suggest a need to CFR 71.1. The Class E airspace modify the rule. All comments AGENCY: Federal Aviation designation listed in this document will submitted will be available, both before Administration (FAA), DOT. be published subsequently in the Order. and after the closing date for comments ACTION: Direct final rule; request for in the Rules Docket for examination by comments. The Direct Final Rule Procedure interested persons. A report that summarizes each FAA-public contact SUMMARY: This action amends the Class The FAA anticipates that this concerned with the substance of this E airspace area at York Municipal regulation will not result in adverse or action will be filed in the Rules Docket. Airport, York, Nebraska. The Federal negative comments and therefore, is Commenters wishing the FAA to Aviation Administration has developed issuing it as a direct final rule. Previous acknowledge receipt of their comments a Standard Instrument Approach actions of this nature have not been submitted in response to this rule must Procedure (SIAP) based on the Global controversial and have not resulted in submit a self-addressed, stamped Positioning System (GPS) which has adverse comments or objections. The postcard on which the following made this change necessary. The effect amendment will enhance safety for all statement is made: ‘‘Comments to of this rule is to provide additional flight operations by designating an area Docket No. 96–ACE–23.’’ The postcard controlled airspace for aircraft executing where VFR pilots may anticipate the will be date stamped and returned to the the new SIAP at York Municipal presence of IFR aircraft at lower commenter. Airport. altitudes, especially during inclement DATES: Effective date: March 27, 1997. weather conditions. A great degree of Agency Findings Comment date: Comments must be safety is achieved by depicting the area The regulations adopted herein will received on or before January 24, 1997. on aeronautical charts. Unless a written no have substantial direct effects on the ADDRESSES: Send comments regarding adverse or negative comment, or a States, on the relationship between the the rule in triplicate to: Manager, written notice of intent to submit an national government and the States, or Operations Branch, Air Traffic Division, adverse or negative comment is received on the distribution of power and ACE–530, Federal Aviation within the comment period, the responsibilities among the various Administration, Docket Number 96– regulation will become effective on the levels of government. Therefore, in ACE–23, 601 East 12th St., Kansas City, date specified above. After the close of accordance with Executive Order 12612, MO 64106. the comment period, the FAA will it is determined that this final rule does The official docket may be examined publish a document in the Federal not have sufficient federalism in the Office of the assistant Chief Register indicating that no adverse or implications to warrant the preparation Counsel for the Central Region at the negative comments were received and of a Federalism Assessment. same address between 9:00 a.m. and confirming the date on which the final The FAA has determined that this 3:00 p.m., Monday through Friday, rule will become effective. If the FAA regulation is noncontroversial and except federal holidays. does receive, within the comment unlikely to result in adverse or negative An informal docket may also be period, an adverse or negative comment, comments. For the reasons discussed in examined during normal business hours or written notice of intent to submit the preamble, I certify that this in the Air Traffic Division at the same such a comment, a document regulation (1) Is not a ‘‘significant address listed above. withdrawing the direct final rule will be regulatory action’’ under Executive FOR FURTHER INFORMATION CONTACT: published in the Federal Register, and Order 12866; (2) is not a ‘‘significant 608 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations rule’’ under Department of 14 CFR Part 71 needs this revision before publication of Transportation (DOT) Regulatory aeronautical charts and manuals with [Airspace Docket No. 96±AAL±32] Policies and Procedures (44 FR 11034, effective date January 30, 1997. February 26, 1979), and (3) if Revision of Class E Airspace; The coordinates for this airspace promulgated, will not have a significant Buckland, AK docket are based on North American economic impact, positive or negative, Datum 83. The Class E airspace areas AGENCY: Federal Aviation on a substantial number of small entities designated as 700/1200 foot transition Administration (FAA), DOT. under the criteria of the Regulatory areas are published in paragraph 6005 of Flexibility Act. A copy of it may be ACTION: Final rule. FAA Order 7400.9D, dated September 4, obtained by contacting the Rules Docket 1996, and effective September 16, 1996, at the location provided under the SUMMARY: It has come to the attention of which is incorporated by reference in 14 caption ADDRESSES. the FAA that the Class E airspace at Buckland, AK, will not chart correctly. CFR 71.1 (61 FR 48403; September 13, List of Subjects in 14 CFR Part 71 This action revises the Buckland, AK, 1996). The Class E airspace designation airspace description by clarifying the listed in this document will be Airspace, Incorporation by reference, airspace required from the Kotzebue published subsequently in the Order. Navigation (air). Very High Frequency (VHF) omni- The Rule Adoption of the Amendment. directional radio range (VOR) and Distance Measuring Equipment (VOR/ This amendment to part 71 of the Accordingly, the Federal Aviation DME) and the Selawik VOR/DME to the Federal Aviation Regulations (14 CFR Administration amends part 71 of the new Global Positioning System (GPS) part 71) revises the Class E airspace at Federal Aviation Regulation (14 CFR waypoint coordinates. The area would Buckland, AK. The Class E airspace part 71) as follows: be depicted on aeronautical charts for description will not chart correctly. The pilot reference. The intended effect of PART 71ÐAMENDED airspace description verbage ‘‘10.5 miles this rule is to provide an accurate northwest on the 303° bearing from the airspace description for the Class E Buckland NDB’’ has been reworded to 1. The authority citation for part 71 airspace supporting IFR operations at continues to read as follows: read ‘‘4 miles eitherside of a line Buckland, AK. between AKUDY and the Kotzebue Authority: 49 U.S.C. 106(g); 40103, 40113, EFFECTIVE DATE: Effective 0901 UTC on VOR/DME, and 4 miles eitherside of a 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– January 6, 1997. line between AKUDY and the Selawik 1963 Comp., p. 389; 14 CFR 11.69. FOR FURTHER INFORMATION CONTACT: VOR/DME, excluding that airspace 71.1 [Amended] Robert van Haastert, System inside Kotzebue, AK, and Selawik, AK, Management Branch, AAL–538, Federal Class E airspace areas.’’ This action will 2. The incorporation by reference in Aviation Administration, 222 West 7th clarify the charting problem. 14 CFR 71.1 of Federal Aviation Avenue, Box 14, Anchorage, AK 99513– Because the circumstances described Administration Order 7400.9D, Airspace 7587; telephone number (907) 271– in this final rule warrant immediate Designations and Reporting Points, 5863. dated September 4, 1996, and effective action by the FAA to provide a September 16, 1996, is amended as SUPPLEMENTARY INFORMATION: corrected description for charting follows: History agencies, the FAA concludes that notice and public procedure under 5 U.S.C. Paragraph 6005 Class E airspace areas The FAA established Class E airspace section 553(b) are impractical and good extending upward from 700 feet or more at Buckland Airport, AK, as a result of above the surface of the earth. cause, pursuant to 5 U.S.C. section the development of a GPS instrument 553(d), exists for making this * * * * * approach procedure to Runway (RWY) amendment effective in less than 30 10 at Buckland Airport, AK. The final days. ACE NE E5 York, NE [Revised] rule was published in the Federal York Municipal Airport, NE Register (61 FR 53848, October 16, The FAA has determined that these (lat. 40°53′47′′ N., long. 97°37′26.7′′ W.) 1996). Interested parties were invited to proposed regulations only involve an York NDB participate in this rulemaking established body of technical ° ′ ′′ ° ′ ′′ (lat. 40 53 51 N., long. 97 37 01 W.) proceeding by submitting written regulations for which frequent and That airspace extending upward from 700 comments on the proposal to the FAA. routine amendments are necessary to feet above the surface within a 6.6-mile No comments were received. keep them operationally current. It, radius of the York Municipal Airport and It has been brought to the FAA’s therefore—(1) Is not a ‘‘significant ° within 2.6 miles each side of the 202 bearing attention that the airspace description regulatory action’’ under Executive from the York NDB extending from the 6.6- will not chart correctly. The airspace Order 12866; (2) is not a ‘‘significant mile radius to 7.4 miles southwest of the description has been reworded to rule’’ under DOT Regulatory Policies airport and within 2.6 miles each side of the change the verbage ‘‘10.5 miles and Procedures (44 FR 11034; February 334° bearing from the York NDB extending northwest on the 303° bearing from the 26, 1979); and (3) does not warrant from the 6.6-mile radius to 7.4 miles preparation of a regulatory evaluation as northwest of the airport. Buckland NDB’’ to read ‘‘4 miles eitherside of a line between AKUDY and the anticipated impact is so minimal. * * * * * the Kotzebue VOR/DME, and 4 miles Since this is a routine matter that will Issued in Kansas City, MO, on November eitherside of a line between AKUDY and only affect air traffic procedures and air 22, 1996. the Selawik VOR/DME, excluding that navigation, it is certified that this rule, Christopher R. Blum, airspace inside Kotzebue, AK, and when promulgated, will not have a Acting Manager, Air Traffic Division Central Selawik, AK, Class E airspace areas.’’ significant economic impact on a Region. This action will clarify the charting substantial number of small entities [FR Doc. 97–173 Filed 1–3–97; 8:45 am] problem. National Oceanic and under the criteria of the Regulatory BILLING CODE 4910±13±M Atmospheric Administration (NOAA) Flexibility Act. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 609

List of Subjects in 14 CFR Part 71 14 CFR Part 71 7400.9D, dated September 4, 1996, and effective September 16, 1996. [Airspace Docket No. 96±AAL±16] Airspace, Incorporation by reference, Paragraphs 6002 and 6005 are Navigation (air). Revision of Class E Airspace; incorporated by reference in 14 CFR The Amendment Dillingham, AK 71.1 (61 FR 48403; September 13, 1996). The Class E airspace designations listed In consideration of the foregoing, the AGENCY: Federal Aviation in this document will be published Federal Aviation Administration Administration (FAA), DOT. subsequently in the Order. ACTION: Final Rule. amends 14 CFR part 71 as follows: The Rule PART 71Ð[AMENDED] SUMMARY: This action revises Class E This amendment to part 71 of the airspace at Dillingham Airport, AK. The Federal Aviation Regulations (14 CFR 1. The authority citation for 14 CFR development of Global Positioning part 71) revises Class E airspace located Part 71 continues to read as follows: System (GPS) and Microwave Landing at Dillingham, AK, to provide controlled System (MLS) instrument approaches to Authority: 49 U.S.C. 40103, 40113, 40120; airspace extending upward from 700 RWY 1 and RWY 19 at Dillingham, AK, feet AGL for aircraft executing E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 have made this action necessary. The Comp., p. 389; 49 U.S.C. 106(g), 14 CFR instrument landing and departing intended effect of this action is to procedures. 11.69. provide adequate controlled airspace for The Federal Aviation Administration § 71.1 [Amended] IFR operations at Dillingham Airport, AK. has determined that these proposed 2. The incorporation by reference in regulations only involve an established EFFECTIVE DATE: 0901 UTC, February 27, body of technical regulations for which 14 CFR 71.1 of Federal Aviation 1997. Administration Order 7400.9D, frequent and routine amendments are FOR FURTHER INFORMATION CONTACT: Airspace Designations and Reporting necessary to keep them operationally Robert van Haastert, System current. It, therefore—(1) is not a Points, dated September 4, 1996, and Management Branch, AAL–538, Federal effective September 16, 1996, is ‘‘significant regulatory action’’ under Aviation Administration, 222 West 7th Executive Order 12866; (2) is not a amended as follows: Avenue, Box 14, Anchorage, AK 99513– ‘‘significant rule’’ under DOT * * * * * 7587; telephone number (907) 271– Regulatory Policies and Procedures (44 5863. Paragraph 6005 Class E airspace extending FR 11034; February 26, 1979); and (3) upward from 700 feet or more above the SUPPLEMENTARY INFORMATION: does not warrant preparation of a surface of the earth. regulatory evaluation as the anticipated History * * * * * impact is so minimal. Since this is a On October 16, 1996, a proposal to routine matter that will only affect air AAL AK E5 Buckland, AK [Revised] amend part 71 of the Federal Aviation traffic procedures and air navigation, it Buckland Airport, AK Regulations (14 CFR part 71) to revise is certified that this rule will not have (lat. 65° 58′ 40′′ N, long. 161° 07′ 44′′ W) the Class E airspace at Dillingham was a significant economic impact on a Buckland NDB published in the Federal Register (61 substantial number of small entities (lat. 65° 58′ 45′′ N, long. 161° 08′ 56′′ W) FR 53881). The development of GPS and under the criteria of the Regulatory Kotzebue VOR/DME MLS instrument approach procedures to Flexibility Act. ° ′ ′′ ° ′ ′′ RWY 1 and RWY 19 at Dillingham (lat. 66 53 09 N, long. 162 32 24 W) List of Subjects in 14 CFR Part 71 Selawik VOR/DME Airport, AK, has made this action (lat. 66° 36′ 00′′ N, long. 159° 59′ 50′′ W) necessary. Airspace, Incorporation by reference, AKUDY Interested parties were invited to Navigation (air). (lat. 66° 04′ 23′′ N, long. 161° 30′ 08′′ W) participate in this rulemaking That airspace extending upward from 700 proceeding by submitting written Adoption of the Amendment feet above the surface within a 6.5-mile comments on the proposal to the FAA. In consideration of the foregoing, the radius of the Buckland Airport; and that No comments to the proposals were Federal Aviation Administration airspace extending upward from 1,200 feet received. However, the proposal was amends 14 CFR part 71 as follows: above the surface within 6 miles southwest published with incorrect coordinates and 4 miles northeast of the 303° bearing of which have been corrected to read: PART 71Ð[AMENDED] the Buckland NDB extending from the 6.5- Dillingham Airport (lat. 59°02′43′′ N, mile radius to 21 miles northwest, and 4 long. 158°30′12′′ W). The Federal 1. The authority citation for 14 CFR miles eitherside of a line between AKUDY Aviation Administration has Part 71 continues to read as follows: and the Kotzebue VOR/DME, and 4 miles determined that these changes are Authority: 49 U.S.C. 40103, 40113, 40120; eitherside of a line between AKUDY and the editorial in nature and will not increase E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Selawik VOR/DME, excluding that airspace the scope of this rule. Except for the Comp., p. 389; 49 U.S.C. 106(g); 14 CFR inside Kotzebue, AK, and Selawik, AK, Class non-substantive changes just discussed, 11.69. E airspace areas. the rule is adopted as written. § 71.1 [Amended] * * * * * The coordinates for this airspace Issued in Anchorage, AK, on December 26, docket are based on North American 2. The incorporation by reference in 1996. Datum 83. The Class E airspace areas 14 CFR 71.1 of Federal Aviation Willis C. Nelson, designated as surface areas for an airport Administration Order 7400.9D, are published in paragraph 6002 of FAA Airspace Designations and Reporting Manager, Air Traffic Division, Alaskan Points, dated September 4, 1996, and Region. Order 7400.9D dated September 4, 1996, effective September 16, 1996, is [FR Doc. 97–175 Filed 1–3–97; 8:45 am] and effective September 16, 1996; 700/ 1200 foot transition areas are published amended as follows: BILLING CODE 4910±13±P in paragraph 6005 of FAA Order * * * * * 610 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Paragraph 6002 The Class E airspace areas of the How Working Group, is clarifying Reference Room at 888 First Street, N.E., listed below are designated as a surface area its Phase 1 OASIS regulations Washington, DC 20426. for an airport. concerning ‘‘next hour’’ reservations of Order Granting Request for * * * * * transmission service. The Commission Clarification AAL AK E2 Dillingham, AK [Revised] finds that, during Phase 1, a request for transmission service made after 2:00 Background Dillingham Airport, AK (lat. 59°02′43′′ N, long. 158°30′12′′ W) p.m. of the day preceding the On December 23, 1996, the How Dillingham VOR/DME commencement of such service, will be Working Group 1 filed a letter seeking (lat. 58°59′39′′ N, long. 158°33′08′′ W) ‘‘made on the OASIS’’ if it is made clarification of whether the Commission Within a 4.1-mile radius of the Dillingham directly on the OASIS, or, if it is made intended, in the OASIS Final Rule,2 to Airport and within 3.1 miles each side of the by facsimile or telephone and promptly require that the OASIS serve as a ‘‘next ° Dillingham VOR/DME 207 radial extending (within one hour) posted on the OASIS hour’’ reservation tool during Phase 1 of from the 4.1-mile radius to 10.4 miles by the Transmission Provider. In all OASIS implementation. Specifically, southwest of the airport. This Class E other circumstances, requests for airspace area is effective during the specific the letter states: transmission service must be made It was the interpretation of the How dates and times established in advance by a exclusively on the OASIS. Notice to Airmen. The effective date and time Working Group that a Provider would will thereafter be continuously published in EFFECTIVE DATE: December 27, 1996. accept reservation requests after 2 p.m. the Supplement Alaska (Airport/Facility FOR FURTHER INFORMATION CONTACT: of the preceding day, only if practical. Directory). Marvin Rosenberg (Technical Otherwise, these requests would be * * * * * Information), Office of Economic Policy, accepted off-line and posted after-the- Paragraph 6005 Class E airspace extending Federal Energy Regulatory Commission, fact. It was our view that ‘‘next hour’’ upward from 700 feet or more above the 888 First Street, N.E., Washington, DC functionality was not feasible in Phase surface of the earth. 20426 (202) 208–1283 1. The How Working Group asks us to * * * * * William C. Booth (Technical confirm its interpretation. AAL AK E5 Dillingham, AK [Revised] Information), Office of Electric Power Discussion Regulation, Federal Energy Regulatory The OASIS Final Rule makes a clear Dillingham Airport, AK Commission, 888 First Street, N.E., (lat. 59°02′43′′ N, long. 158°30′12′′ W) distinction between reserving Washington, DC 20426, (202) 208– Dillingham VOR/DME transmission service and scheduling 0849 (lat. 58°59′39′′ N, long. 158°33′08′′ W) transmission service.3 The Phase 1 That airspace extending upward from 700 Gary D. Cohen (Legal Information), OASIS regulations create a mechanism feet above the surface within a 6.6-mile Office of the General Counsel, Federal for making reservations of transmission radius of Dillingham Airport and within 3.1 Energy Regulatory Commission, 888 ° service, while the inclusion of energy miles each side of the 207 radial of the First Street, N.E., Washington, DC scheduling as part of the OASIS Dillingham VOR/DME extending from the 20426, (202) 208–0321 6.6-mile radius to 14.1 miles southwest of the requirements was left as a Phase 2 airport; and that airspace extending upward SUPPLEMENTARY INFORMATION: In OASIS issue. The problem, however, is from 1,200 feet above the surface within a 22- addition to publishing the full text of that for near-term transactions, the mile radius of the VOR/DME. this document in the Federal Register, distinction between scheduling and * * * * * the Commission also provides all reservations tends to blur. Issued in Anchorage, AK, on December 26, interested persons an opportunity to The OASIS regulations provide, at 18 1996. inspect or copy the contents of this CFR § 37.6(e)(1), that ‘‘[a]ll requests for Willis C. Nelson, document during normal business hours transmission services offered by Manager, Air Traffic Division, Alaskan in the Public Reference Room at 888 Transmission Providers under the pro Region. First Street, N.E., Washington, DC forma tariff must be made on the [FR Doc. 97–176 Filed 1–3–97; 8:45 am] 20426. OASIS.’’ Notwithstanding the clear language of this regulation, the How BILLING CODE 4910±13±P The Commission Issuance Posting System (CIPS), an electronic bulletin Working Group would like to board service, provides access to the accommodate requests for service, made after 2:00 p.m. of the day preceding the DEPARTMENT OF ENERGY texts of formal documents issued by the Commission. CIPS is available at no commencement of such service, off the Federal Energy Regulatory charge to the user and may be accessed OASIS and states that it is not feasible Commission using a personal computer with a to handle such requests on the OASIS modem by dialing 202–208–1397 if during Phase 1.4 18 CFR Part 37 dialing locally or 1–800–856–3920 if dialing long distance. CIPS is also 1 The How Working Group is an industry-led [Docket No. RM95±9±000] available on the Internet through the group, with diverse industry and customer representatives, working to reach consensus on Open Access Same-Time Information Fed World system. To access CIPS, set OASIS-related issues. System (OASIS) and Standards of your communications software to 2 Open Access Same-Time Information System Conduct 19200, 14400, 12000, 9600, 7200, 4800, and Standards of Conduct, Final Rule, Order No. 2400, or 1200 bps, full duplex, no 889, FERC Stats. & Regs. ¶ 31,037, 61 FR 21737 Issued December 27, 1996. parity, 8 data bits and 1 stop bit. The (May 10, 1996), reh’g pending. 3 See 61 FR at 21743. AGENCY: Federal Energy Regulatory full text of this order will be available 4 The 2:00 p.m. deadline is consistent with § 14.6 Commission, DOE. on CIPS in ASCII and Wordperfect 5.1 of the pro forma tariff, which provides: ‘‘Schedules ACTION: Final rule; order granting format. The complete text on diskette in for Non-Firm Point-to-Point Transmission Service WordPerfect format may also be must be submitted to the Transmission Provider no request for clarification. later than 2:00 p.m. . . . of the day prior to purchased from the Commission’s copy commencement of such service. Schedules SUMMARY: The Federal Energy contractor, La Dorn Systems submitted after 2:00 p.m will be accommodated, if Regulatory Commission, at the request Corporation, also located in the Public practicable.’’ Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 611

We find that, during Phase 1, a horses (metritis) and as an aid in 21 CFR Part 579 request for transmission service made improving conception in mares with [Docket No. 92F±0317] after 2:00 p.m. of the day preceding the uterine infections caused by bacteria commencement of such service, will be sensitive to gentamicin. Food Additives; Irradiation in the ‘‘made on the OASIS’’ if it is made Approval of ANADA 200–137 for Production, Processing, and Handling directly on the OASIS, or, if it is made Phoenix Pharmaceutical’s gentamicin of Animal Feed and Pet Food; Ionizing by facsimile or telephone and promptly sulfate intrauterine solution (100 mg/mL Radiation for Treatment of Poultry (within one hour) posted on the OASIS gentamicin) is as a generic copy of Feed or Poultry Feed Ingredients by the Transmission Provider. In all Schering’s Gentocin Solution (100 mg/ other circumstances, requests for mL gentamicin) in NADA 046–724. The AGENCY: Food and Drug Administration, transmission service must be made ANADA is approved as of November 13, HHS. exclusively on the OASIS. 1996, and the regulations are amended ACTION: Final rule; response to The Commission orders: The request in 21 CFR 529.1044a to reflect the objections and denial of requests for a of the How Working Group for a approval. The basis for approval is hearing. clarification of the OASIS Final Rule is discussed in the freedom of information hereby granted, as discussed in the body summary. SUMMARY: The Food and Drug of this order. In accordance with the freedom of Administration (FDA) is responding to By the Commission. information provisions of 21 CFR part objections and is denying the requests 20 and 514.11(e)(2)(ii), a summary of Lois D. Cashell, for a hearing on the final rule that safety and effectiveness data and amended the food additive regulations Secretary. information submitted to support (animal use) to provide for the safe use [FR Doc. 97–140 Filed 1–3–97; 8:45 am] approval of this application may be seen of gamma radiation from cobalt-60 for BILLING CODE 6717±01±P in the Dockets Management Branch rendering complete poultry feeds or (HFA–305), Food and Drug poultry feed ingredients salmonella Administration, 12420 Parklawn Dr., negative. Four parties filed objections to DEPARTMENT OF HEALTH AND rm. 1–23, Rockville, MD 20857, between the final rule and submitted requests for HUMAN SERVICES 9 a.m. and 4 p.m., Monday through a hearing requesting approval of Friday. additional energy sources for this use. Food and Drug Administration The agency has determined under 21 After reviewing their submissions, FDA CFR 25.24(d)(1)(i) that this action is of 21 CFR Part 529 has concluded that the objections do not a type that does not individually or raise issues of material fact concerning Certain Other Dosage Form New cumulatively have a significant effect on the approval that justify granting a Animal Drugs; Gentamicin Sulfate the human environment. Therefore, hearing. Therefore, FDA is denying the Intrauterine Solution neither an environmental assessment requests for a hearing. nor an environmental impact statement DATES: The final rule published in the AGENCY: Food and Drug Administration, is required. Federal Register of September 28, 1995, HHS. List of Subjects in 21 CFR Part 529 at 60 FR 50098 is effective. ACTION: Final rule. Animal drugs. FOR FURTHER INFORMATION CONTACT: George Graber, Center for Veterinary SUMMARY: Therefore, under the Federal Food, The Food and Drug Medicine (HFV–220), Food and Drug Administration (FDA) is amending the Drug, and Cosmetic Act and under authority delegated to the Commissioner Administration, 7500 Standish Pl., animal drug regulations to reflect Rockville, MD 20855, 301–594–1724. approval of an abbreviated new animal of Food and Drugs and redelegated to drug application (ANADA) filed by the Center for Veterinary Medicine, 21 SUPPLEMENTARY INFORMATION: Phoenix Pharmaceutical, Inc. The CFR part 529 is amended to read as I. Introduction ANADA provides for the use of a follows: In a notice published in the Federal generic gentamicin sulfate intrauterine PART 529ÐCERTAIN OTHER DOSAGE Register of August 20, 1992 (57 FR solution for control of bacterial FORM NEW ANIMAL DRUGS 37825), FDA announced that a food infections of the uterus in horses additive petition (animal use) (FAP (metritis) and as an aid in improving 1. The authority citation for 21 CFR 2216) had been filed by Nordion conception in mares with uterine part 529 continues to read as follows: International, Inc., 447 March Rd., P.O. infections caused by bacteria sensitive Authority: Sec. 512 of the Federal Food, Box 13500, Kanata, ON, Canada K2K to gentamicin. Drug, and Cosmetic Act (21 U.S.C. 360b). lX8. The petition proposed that the feed EFFECTIVE DATE: January 6, 1997. irradiation regulations be amended to FOR FURTHER INFORMATION CONTACT: § 529.1044a [Amended] provide for the safe use of gamma Sandra K. Woods, Center for Veterinary 2. Section 529.1044a Gentamicin radiation from cobalt-60, not to exceed Medicine (HFV–114), Food and Drug sulfate intrauterine solution is amended 25 kiloGrays (kGy) (2.5 Mrad), to control Administration, 7500 Standish Pl., in paragraph (b) by removing ‘‘000061, salmonella in complete poultry Rockville, MD 20855, 301–594–1617. 000856, 000864, 054273, and 057561’’ (chickens, turkeys, ducks, geese, cornish SUPPLEMENTARY INFORMATION: Phoenix and adding in its place ‘‘000061, hens, pheasant, quail, and fowl) feeds or Pharmaceutical, Inc., 4621 Easton Rd., 000856, 000864, 054273, 057319, and feed ingredients. The notice of filing of P.O. Box 6457, Fairleigh Station, St. 057561’’. FAP 2216 provided for a 60-day Joseph, MO 64506–0457, is the sponsor comment period. No comments were of ANADA 200–137, which provides for Dated: December 23, 1996. received. the use of a generic gentamicin sulfate Stephen F. Sundlof, In a final rule published in the intrauterine solution (100 milligrams/ Director, Center for Veterinary Medicine. Federal Register of September 28, 1995 milliliter (mg/mL)) for control of [FR Doc. 97–185 Filed 1–3–97; 8:45 am] (60 FR 50098), FDA amended the bacterial infections of the uterus in BILLING CODE 4160±01±F animal feed and pet food irradiation 612 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations regulations to provide for the use of 2 (2) The factual issue can be resolved by A hearing request must not only to 25 kGy of gamma radiation from available and specifically identified reliable contain evidence, but that evidence sealed units of cobalt-60 to render evidence. A hearing will not be granted on should raise a material issue of fact complete poultry feeds or poultry feed the basis of mere allegations or denials or upon which a meaningful hearing might general descriptions of positions and be held (Pineapple Growers Association ingredients salmonella negative. The contentions. rule added new § 579.40 (21 CFR (3) The data and information submitted, if v. FDA, 673 F.2d 1083, 1085 (9th Cir. 579.40) to reflect the new feed additive established at a hearing, would be adequate 1982)). Where the issues raised in the use. to justify resolution of the factual issue in the objection are, even if true, legally way sought by the person. A hearing will be insufficient to alter the decision, the II. Objections and Requests for a denied if the Commissioner concludes that agency need not grant a hearing Hearing the data and information submitted are (Dyestuffs and Chemicals, Inc. v. AECL Technologies, Inc., AECL insufficient to justify the factual Flemming, 271 F.2d 281 (8th Cir. 1959) Accelerators, 20 Little Lane, Hauppage, determination urged, even if accurate. cert. denied, 362 U.S. 911 (1960)). FDA NY 11788; E–BEAM Services, Inc., 32 (4) Resolution of the factual issue in the need not grant a hearing in each case Melrich Rd., Cranbury, NJ 08512; way sought by the person is adequate to where an objector submits additional justify the action requested. A hearing will Department of Animal Sciences, Texas not be granted on factual issues that are not information or posits a novel A&M University, College Station, TX determinative with respect to the action interpretation of existing information. 77843–2471; and Secretariat of the requested, e.g., if the Commissioner (See United States v. Consolidated International Consultative Group on concludes that the action would be the same Mines & Smelting Co., 455 F.2d 432 (9th Food Irradiation; each filed objections to even if the factual issue were resolved in the Cir. 1971).) In other words, a hearing is the final rule citing failure of that rule way sought * * *. justified only if the objections are made to provide for additional energy sources (5) The action requested is not inconsistent in good faith and if they ‘‘draw in including gamma rays from cesium-137, with any provision in the act or any question in a material way the machine generated electrons not to regulation in this chapter particularizing underpinnings of the regulation at statutory standards. The proper procedure in issue’’ (Pactra Industries v. CPSC, 555 exceed 10 million electron volts, and those circumstances is for the person machine generated x-rays not to exceed requesting the hearing to petition for an F.2d 677 (9th Cir. 1977)). Finally, courts 5 million electron volts, in addition to amendment or waiver of the regulation have uniformly recognized that a the use of gamma radiation from cobalt- involved. hearing need not be held to resolve 60. The petition supported use of cobalt- (6) The requirements in other applicable questions of law or policy. (See Citizens 60 energy sources. Information filed in regulations, e.g., §§ 10.20, 12.21, 12.22, for Allegan County, Inc. v. FPC, 414 the objections did not object to the 314.200, 314.300, 514.200, and 601.7(a), and F.2d 1125 (D.C. Cir. 1969); Sun Oil Co. conditions of approval of the petition, in the notice promulgating the final v. FPC, 256 F.2d 233, 240 (5th Cir.), cert. but the information filed in the regulation or the notice of opportunity for denied, 358 U.S. 872 (1958).) hearing are met. objections supported additional energy In sum, a hearing request should FDA may deny a request for a hearing sources not previously considered. Such present sufficient credible evidence to if the objections to the regulation do not information should be the subject of a raise a material issue of fact, and that raise genuine and substantial issues of separate food additive petition filed in evidence must be adequate to resolve fact that can be resolved at a hearing accordance with 21 CFR 571.1 to the issue as requested and to justify the (Community Nutrition Institute v. support amending the regulations to action requested. Young, 773 F.2d 1356, 1364 (D.C. Cir. provide for the use of these additional 1985), cert. denied, 475 U.S. 1123 IV. Analysis of Objections and energy sources. (1986)). Response to Requests for a Hearing III. Standards for Granting a Hearing A party seeking a hearing is required FDA is denying the parties’ request Section 409(b)(5) of the Federal Food, to meet a ‘‘threshold burden of for a hearing on their objections for two Drug, and Cosmetic Act (the act) (21 tendering evidence suggesting the need reasons. First, under § 12.24(b)(5), FDA U.S.C. 348(b)(5)) provides for for a hearing’’ (Costle v. Pacific Legal will not grant a hearing if the action publication of a notice, in general terms, Foundation, 445 U.S. 198, 214–215 requested is inconsistent with any of filing of a food additive petition. That (1980) reh. den., 445 U.S. 947 (1980), provision in the act or any FDA notice contains provisions for a 60-day citing Weinberger v. Hynson, Westcott & regulation. The parties’ requested action comment period. Section 409(f)(1) of the Dunning, Inc., 412 U.S. 609, 620–621 is inconsistent with the act and FDA’s act provides for a 30-day comment (1973)). An allegation that a hearing is regulations, because the parties have period after publication of an order necessary to ‘‘sharpen the issues’’ or to raised an issue regarding additional (final rule) relating to approval of a food ‘‘fully develop the facts’’ does not meet energy sources for this food additive use additive petition to permit any person this test (Georgia Pacific Corp. v. U.S. that was not previously presented in the adversely affected by such an order to E.P.A., 671 F.2d 1235, 1241 (9th Cir. petition and have requested a hearing file objections, specifying with 1982)). If a request for a hearing fails to on the issue. Under the act and FDA’s particularity the provisions of the order identify any factual evidence that would regulations, the scope of a proceeding ‘‘deemed objectionable, stating be the subject of a hearing, then there is for approval of a food additive use is reasonable grounds therefor,’’ and no basis for holding a hearing. In limited to the terms and conditions of requesting a public a hearing upon such judicial proceedings, a court is use set forth in the petition. objections. authorized to issue summary judgment Under section 409(c) of the act, an Specific criteria for determining without an evidentiary hearing action on a petition to establish a food whether a request for a hearing is whenever it finds that there are no additive use is based on the petition and justified are set forth in § 12.24(b) (21 genuine issues of material fact in other available information. The CFR 12.24(b)). A hearing will be granted dispute, and a party is entitled to petition that led to the issuance of if the material submitted shows that: judgment as a matter of law. (See Rule § 579.40 provided for use of gamma (1) There is a genuine and substantial issue 56, Federal Rules of Civil Procedure.) radiation from a cobalt-60 energy source of fact for resolution at a hearing. A hearing The same principle applies in for rendering complete poultry feeds or will not be granted on issues of policy or law. administrative proceedings. poultry feed ingredients salmonella Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 613 negative. FDA granted this petition, and use of radiation emitted from cobalt-60. of the Immigration and Nationality Act in the preamble of the final rule (60 FR Thus, because the parties have failed to (INA) to allow certain spouses and 50098), the agency specifically offer any support for their allegation, children of citizens or lawful permanent addressed each of the issues raised in FDA concludes that this objection does resident aliens to self-petition for evaluating the petition. The parties, not justify a hearing. immediate relative and preference however, have objected to the failure of classifications. This rule adds V. Summary and Conclusion the final rule to provide for additional classification symbols for this category energy sources, including gamma rays The agency is denying the objections of immigrants. from cesium-137, machine generated and the requests for a hearing on the EFFECTIVE DATE: This rule takes effect on electrons not exceeding 10 million basis that the request is beyond the January 6, 1997. electron volts, and machine generated x- scope of the petitioned action and is rays not exceeding 5 million electron appropriately resolved through the ADDRESSES: Chief, Legislation and volts. submission of a separate petition Regulation Division, Visa Office, Under section 409(f)(1) of the act, any (§ 12.24(b)(5)) and the requested action Washington, D.C. 20522–1013. person adversely affected by a final rule could not be approved on the basis of FOR FURTHER INFORMATION CONTACT: may file objections thereto, specifying a hearing, i.e., not to be granted based Stephen K. Fischel, Chief, Legislation with particularity the provisions of the on allegations or general descriptions of and Regulations Division, 202–663– final rule deemed objectionable, stating positions and contentions 1204. reasonable grounds therefor, and (§ 12.24(b)(2)). requesting a public hearing upon such The filing of the objections and SUPPLEMENTARY INFORMATION: Section objections. However, there is nothing in requests for a hearing does not affect the 40701 of the Violence Against Women the act or in FDA’s regulations that provisions of § 579.40 to which the Act of 1994 accords aliens who have suggests or implies that, or that objections were made. been battered and/or abused by a U.S. authorizes, interested persons to use the In the absence of any other objections citizen or alien resident spouse or opportunity to object as an opportunity and requests for a hearing, the agency parent, and who have resided in the to expand the authorized use of a food further concludes that this document United States with that spouse or additive beyond that use sought in the constitutes final action on the objections parent, the right to self-petition for petition. On the contrary, 21 CFR 571.6 and requests for a hearing received in immediate relative or family preference requires that if, after a petition has been response to the regulation as prescribed status. Creation of new immigrant visa filed, the petitioner submits added in section 409(f)(1) of the act (21 U.S.C. categories. information which constitutes a 348). This rule amends part 42, title 22 of substantive amendment, the petition Therefore, under the Federal Food, the Code of Federal Regulations by will be given a new filing date; and the Drug, and Cosmetic Act (sec. 409 (21 adding the new visa symbols for these review process will begin anew. U.S.C. 348)) and under authority immigrant categories: IB1 through IB3, Thus, under the act and FDA’s delegated to the Commissioner of Food B11 and B12, B21 through B25, BX1 regulations, the scope of a proceeding and Drugs (21 CFR 5.61), notice is given through BX3, and B31 through B33 to for approval of a food additive use is that the objections and the requests for the list of immigrant visa symbols at limited to the terms and conditions of a hearing filed in response to the final § 42.11. Other minor editorial changes use set out in the petition. To the extent rule § 579.40 that was published in the have been made throughout. that a person who is not the petitioner Federal Register on September 28, 1995 Final Rule seeks to extend the petitioned-for terms (60 FR 50098), do not form a basis for and conditions of use, the person must further amendment of this final rule. This rule will not have a significant do so by a separate petition, not by Dated: December 30, 1996. impact on a substantial number of small objection to the final rule. To attempt to entities under the criteria of the William B. Schultz, do so by objection to the final rule, or Regulatory Flexibility Act, 5 U.S.C. by comment on the notice of filing, is Deputy Commissioner for Policy. 605(b). This rule imposes no reporting to attempt to act in a manner that is [FR Doc. 97–137 Filed 1–3–97; 8:45 am] or record-keeping action on the public inconsistent with the act and FDA’s BILLING CODE 4160±01±F subject to the Paperwork Reduction Act, regulations. The proper procedure, as 44 U.S.C. Chapter 35. No Federalism stated in § 12.24(b)(5), is for the assessment is required under E.O. objecting parties to petition for DEPARTMENT OF STATE 12612. This rule has been reviewed as amendment of § 579.40. Thus, the [Public Notice 2478] required by E.O. 12988. This rule is objecting parties have failed to justify a exempted from E.O. 12866 but has been hearing on the requested action. reviewed to ensure consistency Second, under its regulations, FDA 22 CFR Part 42 therewith. This rule is being will not grant a hearing on the basis of Bureau of Consular Affairs; Visas: promulgated as a final rule pursuant to mere allegations (§ 12.24(b)(2)). Documentation of Immigrants under the ‘‘good cause’’ provision of 5 U.S.C. Consistent with this regulation, the the Immigration and Nationality Act, as sec. 553(b); notice and comment are not relevant case law provides that where a Amended party requesting a hearing only offers necessary in light of the fact that this rule merely establishes visa symbols allegations without an adequate proffer AGENCY: Bureau of Consular Affairs, and makes no substantive rule changes. to support them, the agency may DOS. properly disregard those allegations ACTION: Final rule. List of Subjects in 22 CFR Part 42 (General Motors Corp. v. FERC, 656 F.2d 791, 798 n.20 (D.C. Cir. 1981)). The SUMMARY: The Violence Against Women Classification of immigrants, objecting parties have failed to submit Act of 1994 (Title IV of the Violent Classification symbols, Visas. any evidence showing that failure to Crime Control and Law Enforcement Accordingly, part 42 to title 22 of the approve the use of additional energy Act of 1994, Pub. L. 103–322, 108 Stat. Code of Federal Regulations is amended sources will compromise the approved 1902, 1953–1955), amended section 204 to read as indicated below: 614 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

PART 42Ð[AMENDED] § 42.11 [Amended] § 42.11 Classification Symbols. 2. In section 42.11 the introductory A visa issued to an immigrant alien 1. The authority citation for Part 42 text and the first seven sections of the within one of the classes described continues to read as follows: table are revised to read as follows: below shall bear an appropriate visa Authority: 8 U.S.C. 1104. symbol to show the classification of the alien.

IMMIGRANTS

Symbol Class Section of law

Immediate Relatives

IR1 ...... Spouse of U.S. Citizen ...... 201(b). IR2 ...... Child of U.S. Citizen ...... 201(b). IR3 ...... Orphan Adopted Abroad by U.S. Citizen ...... 201(b). IR4 ...... Orphan to be Adopted In the United States by U.S. Citizen ...... 201(b). IR5 ...... Parent of U.S. Citizen at Least 21 Years of Age ...... 201(b). CR1 ...... Spouse of U.S. Citizen (Conditional Status) ...... 201(b) & 216(a)(1). CR2 ...... Child of U.S. Citizen (Conditional Status) ...... 201(b) & 216. IW1 ...... Certain Spouses of Deceased U.S. Citizens ...... 201(b). IW2 ...... Child of IW1 ...... 201(b). IB1 ...... Self-petition Spouse of U.S. Citizen ...... 204(a)(1)(A)(iii). IB2 ...... Self-petition child of U.S. Citizen ...... 204(a)(1)(A)(iv). IB3 ...... Child of IB1 ...... 204(a)(1)(A)(iii). VI5 ...... Parent of U.S. Citizen Who Acquired Permanent Resident Status Under the Virgin Islands Non- 201(b) & sec. 2 of the Vir- immigrant Alien Adjustment Act. gin Islands, Non- immigrant Alien, Adjust- ment Act, (P.L. 97±271).

Vietnam Amerasian Immigrants

AM1 ...... Vietnam Amerasian Principal ...... 584(b)(1)(A). AM2 ...... Spouse or Child of AM1 ...... 584(b)(1)(B), and AM3 ...... Natural Mother of Unmarried AM1 (and Spouse or Child of Such Mother), or Person Who has Acted 584(b)(1)(C) of the Foreign in Effect as the Mother, Father, or Next-of-Kin of Unmarried AM1 (and Spouse or Child of Such Operations, Export Fi- Person). nancing, and Related Programs Appropriations Act, 1988 (As Contained in sec. 101(e) of P.L 100±202) as amended).

Special Immigrants

SB1 ...... Returning Resident ...... 101(a)(27)(A). SC1 ...... Person Who Lost U.S. Citizenship by Marriage ...... 101(a)(27)(B) & 324(a). SC2 ...... Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces ...... 101(a)(27)(B) & 327.

Family-Sponsored Preferences Family 1st Preference

F11 ...... Unmarried Son or Daughter of U.S. Citizen ...... 203(a)(1). F12 ...... Child of F11 ...... 203(d). B11 ...... Self-petition Unmarried Son or Daughter of U.S. Citizen ...... 204(a)(1)(A)(iv) & 203(a)(1). B12 ...... Child of B11 ...... 203(d).

Family 2nd Preference (Subject to Country Limitations)

F21 ...... Spouse of Alien Resident ...... 203(a)(2)(A). F22 ...... Child of Alien Resident ...... 203(a)(2)(A). F23 ...... Child of F21 or F22 ...... 203(d). F24 ...... Unmarried Son or Daughter of Alien Resident ...... 203(a)(2)(B). F25 ...... Child of F24 ...... 203(d). C21 ...... Spouse of Alien Resident (Conditional) ...... 203(a)(2)(A) & 216. C22 ...... Child of Alien Resident (Conditional) ...... 202(a)(2)(A) & 216. C23 ...... Child of C21 or C22 (Conditional) ...... 203(d) & 216. C24 ...... Unmarried Son or Daughter of Alien Resident (Conditional) ...... 203(a)(2)(B) & 216. C25 ...... Child of F24 (Conditional) ...... 203(d) & 216. B21 ...... Self-petition Spouse of Lawful Permanent Resident ...... 204(a)(1)(B)(ii). B22 ...... Self-petition Child of Lawful Permanent Resident ...... 204(a)(1)(B)(iii). B23 ...... Child of B21 or B22 ...... 204(a)(1)(B)(ii). B24 ...... Self-petition Unmarried Son or Daughter of Lawful Permanent Resident ...... 203(d). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 615

IMMIGRANTS

Symbol Class Section of law

B25 ...... Child of B24 ...... 203(d).

Family 2nd Preference (Exempt from Country Limitations)

FX1 ...... Spouse of Alien Resident ...... 202(a)(4)(A) & 203(a)(2)(A). FX2 ...... Child of Alien Resident ...... 202(a)4)(A) & 203(a)(2)(A). FX3 ...... Child of FX1 and FX2 ...... 202(a)(4)(A) & 203(d) 203(a)(2)(A). CX1 ...... Spouse of Alien Resident (Conditional) ...... 202(a)(4)(A) & 216. CX2 ...... Child of Alien Resident (Conditional) ...... 202(a)(4)(A) & 216. CX3 ...... Child of CX1 & CX2 (Conditional) ...... 202(a)(4)(A) & 203(d) & 216. BX1 ...... Self-petition Spouse of Lawful Permanent Resident ...... 204(a)(1)(B)(ii). BX2 ...... Self-petition Child of Lawful Permanent Resident ...... 204(a)(1)(B)(iii). BX3 ...... Child of BX1 or BX2 ...... 203(d).

Family 3rd Preference

F31 ...... Married Son or Daughter of U.S. Citizen ...... 203(a)(3). F32 ...... Spouse of F31 ...... 203(d). F33 ...... Child of F31 ...... 302(d). C31 ...... Married Son or Daughter of U.S. Citizen (Conditional) ...... 216(a)(1). C32 ...... Spouse of C31 (Conditional) ...... 203(d) & 216. C33 ...... Child of C31 (Conditional) ...... 203(d) & 216. B31 ...... Self-petition Married Son or Daughter of U.S. Citizen ...... 204(a)(1)(A)(iv) & 203(a)(3). B32 ...... Spouse of B31 ...... 203(d). B33 ...... Child of B31 ...... 203(d).

* * * * * final regulations to reflect the addition to issue temporary and proposed Dated: November 21, 1996. of the temporary regulations. The regulations that would provide guidance Mary A. Ryan, regulations in this document provide on the federal income tax treatment of Assistant Secretary for Consular Affairs. needed guidance to holders and issuers the Treasury Inflation-Indexed [FR Doc. 97–135 Filed 1–3–97; 8:45 am] of inflation-indexed debt instruments. Securities and other debt instruments BILLING CODE 4710±06±P EFFECTIVE DATE: The regulations are with similar terms. This document effective January 6, 1997. contains the temporary regulations described in Notice 96–51. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF THE TREASURY Jeffrey W. Maddrey, (202) 622–3940, or Explanation of Provisions William E. Blanchard, (202) 622–3950 A. In General Internal Revenue Service (not toll-free numbers). The temporary regulations provide 26 CFR Part 1 SUPPLEMENTARY INFORMATION: rules for the treatment of certain debt [TD 8709] Background instruments that are indexed for inflation and deflation, including RIN 1545±AU44 The Department of the Treasury Treasury Inflation-Indexed Securities. published final rules describing the Inflation-Indexed Debt Instruments The temporary regulations generally terms and conditions of new debt require holders and issuers of inflation- AGENCY: Internal Revenue Service (IRS), instruments that it plans to issue. The indexed debt instruments to account for Treasury. payments on these debt instruments interest and original issue discount (Treasury Inflation-Indexed Securities) ACTION: Temporary and final (OID) using constant yield principles. In regulations. will be indexed for inflation and addition, the temporary regulations deflation. generally require holders and issuers of SUMMARY: This document contains On June 14, 1996, the IRS published inflation-indexed debt instruments to temporary regulations relating to the final regulations in the Federal Register account for inflation and deflation by federal income tax treatment of relating to certain debt instruments that making current adjustments to their OID inflation-indexed debt instruments, provide for contingent payments (61 FR accruals. including Treasury Inflation-Indexed 30133). The preamble to the final Securities. The text of the temporary regulations indicates that the B. Applicability regulations also serves as the text of the noncontingent bond method described The temporary regulations apply to proposed regulations set forth in the in § 1.1275–4(b) might be inappropriate inflation-indexed debt instruments. In notice of proposed rulemaking on this for the Treasury Inflation-Indexed general, an inflation-indexed debt subject in the Proposed Rules section of Securities. On October 15, 1996, the IRS instrument is a debt instrument that (1) this issue of the Federal Register. This published Notice 96–51 (1996–42 I.R.B. Is issued for cash, (2) is indexed for document also contains amendments to 6), which announced the IRS’s intention inflation and deflation (as described 616 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations below), and (3) is not otherwise a D. Coupon Bond Method bond method requires holders and contingent payment debt instrument. The temporary regulations provide a issuers to make current adjustments to The temporary regulations do not apply, simplified method of accounting for their OID accruals to account for however, to certain debt instruments, qualified stated interest and inflation inflation and deflation. Under the discount bond method, a such as debt instruments issued by adjustments on certain inflation- taxpayer determines the amount of OID qualified state tuition programs. indexed debt instruments (the coupon allocable to an accrual period by using bond method). To qualify for the C. Indexing Methodology steps similar to those provided in coupon bond method, an inflation- § 1.1272–1(b)(1). First, the taxpayer indexed debt instrument must satisfy A debt instrument is considered determines the yield to maturity of the two conditions. First, there must be no indexed for inflation and deflation if the debt instrument as if there were no payments on the instrument are indexed more than a de minimis difference inflation or deflation over the term of by reference to the change in value of between the debt instrument’s issue the instrument. Second, the taxpayer a general price or wage index over the price and its principal amount for the determines the length of the accrual term of the instrument. Specifically, the issue date. Second, all stated interest on periods to be used to allocate OID over amount of each payment on an the debt instrument must be qualified the term of the debt instrument, inflation-indexed debt instrument must stated interest. Because Treasury provided no accrual period is longer equal the product of (1) The amount of Inflation-Indexed Securities that are not than one month. Third, the taxpayer the payment that would be payable on stripped into principal and interest determines the percentage change in the the instrument (determined as if there components satisfy both of these value of the reference index during the were no inflation or deflation over the conditions, the coupon bond method accrual period by comparing the value term of the instrument) and (2) the ratio applies to these securities. at the beginning of the period to the of the value of the reference index for If an inflation-indexed debt value at the end of the period. Fourth, the payment date to the value of the instrument qualifies for the coupon the taxpayer determines the OID reference index for the issue date. bond method, the stated interest payable allocable to the accrual period by using on the debt instrument is taken into a formula that takes into account both The reference index for a debt account under the taxpayer’s regular instrument is the mechanism for the yield of the debt instrument and the method of accounting. Any increase in percentage change in the value of the measuring inflation and deflation over the inflation-adjusted principal amount reference index during the period. Fifth, the term of the instrument. This is treated as OID for the period in which the taxpayer allocates to each day in the mechanism associates the value of a the increase occurs. Any decrease in the accrual period a ratable portion of the single qualified inflation index for a inflation-adjusted principal amount is OID for the accrual period (the daily particular month with a specified day of taken into account under the rules for portions). If the daily portions for an a succeeding month. For example, deflation adjustments described below. accrual period are positive amounts, under the terms of the Treasury For example, if a taxpayer holds a these amounts are taken into account Inflation-Indexed Securities, the Treasury Inflation-Indexed Security for under section 163(e) by an issuer and reference index for the first day of a an entire calendar year and the taxpayer under section 1272 by a holder. If the month is the value of a qualified uses the cash receipts and daily portions for an accrual period are inflation index for the third preceding disbursements method of accounting negative amounts, these amounts are month. The reference index must be (cash method), the taxpayer generally taken into account under the rules for reset once a month to the current value includes in income the interest deflation adjustments described below. of a qualified inflation index. Between payments received on the security Under Notice 96–51, the discount reset dates, the value of the reference during the year. In addition, the bond method would have allowed index is determined through straight- taxpayer includes in income an amount qualified stated interest. The temporary line interpolation. of OID measured by subtracting the regulations, however, provide that no A qualified inflation index is a inflation-adjusted principal amount of interest payments on an inflation- the security at the beginning of the year general price or wage index that is indexed debt instrument subject to the from the inflation-adjusted principal updated and published at least monthly discount bond method are qualified amount of the security at the end of the by an agency of the United States stated interest. The Treasury and the year. If the taxpayer uses an accrual Government. A general price or wage IRS believe that this change simplifies method of accounting rather than the the taxation of an inflation-indexed debt index is an index that measures price or cash method, the taxpayer includes in instrument subject to the discount bond wage changes in the economy as a income the qualified stated interest that method. whole. An index is not general if it only accrued on the debt instrument during measures price or wage changes in a the year and an amount of OID F. Deflation Adjustments particular segment of the economy. For measured by subtracting the inflation- The temporary regulations treat example, the non-seasonally adjusted adjusted principal amount of the deflation adjustments in a manner U.S. City Average All Items Consumer security at the beginning of the year consistent with the treatment of net Price Index for All Urban Consumers from the inflation-adjusted principal negative adjustments on contingent (CPI–U), which is published by the amount of the security at the end of the payment debt instruments under Bureau of Labor Statistics of the year. § 1.1275–4(b)(6)(iii). If a holder has a Department of Labor, is a qualified deflation adjustment for a taxable year, inflation index because it measures E. Discount Bond Method the deflation adjustment first reduces general price changes in the economy. If an inflation-indexed debt the amount of interest otherwise By contrast, the gasoline price instrument does not qualify for the includible in income with respect to the component of the CPI–U is not a coupon bond method (for example, debt instrument for the taxable year. If qualified inflation index because it only because it is issued at a discount), the the amount of the deflation adjustment measures price changes in a particular instrument is subject to the discount exceeds the interest otherwise segment of the economy. bond method. In general, the discount includible in income for the taxable Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 617 year, the holder treats the excess as an date. Therefore, the stated principal K. Effective Date ordinary loss in the taxable year. amount of the debt instrument is the The temporary regulations apply to an However, the amount treated as an same regardless of whether interest inflation-indexed debt instrument ordinary loss is limited to the amount accrues on the instrument from the issued on or after January 6, 1997. by which the holder’s total interest issue date or from an earlier date. The inclusions on the debt instrument in stated principal amount of a Treasury Special Analyses prior taxable years exceed the total Inflation-Indexed Security is the par It has been determined that this amount treated by the holder as an amount of the security, as defined in the Treasury decision is not a significant ordinary loss on the debt instrument in final rules published by the Treasury regulatory action as defined in EO prior taxable years. If the deflation Department describing the terms and 12866. Therefore, a regulatory adjustment exceeds the interest conditions of Treasury Inflation-Indexed assessment is not required. It also has otherwise includible in income by the Securities. been determined that section 553(b) of holder with respect to the debt the Administrative Procedure Act (5 instrument for the taxable year and the When there is a difference between U.S.C. chapter 5) does not apply to these amount treated as an ordinary loss for the stated principal amount of an regulations and, because the regulations the taxable year, the excess is carried inflation-indexed debt instrument and do not impose a collection of forward to offset interest income on the its principal amount for the issue date, information on small entities, the debt instrument in subsequent taxable the instrument’s principal amount for Regulatory Flexibility Act (5 U.S.C. years. Similar rules apply to determine the issue date generally is used for chapter 6) does not apply. Pursuant to an issuer’s interest deductions and purposes of applying the rules in the section 7805(f) of the Internal Revenue income for the debt instrument. temporary regulations to the instrument. Code, these temporary regulations will G. Minimum Guarantee For example, the debt instrument’s be submitted to the Chief Counsel for principal amount for the issue date is Advocacy of the Small Business Certain inflation-indexed debt Administration for comment on their instruments may provide for an used to determine whether the impact on small business. additional payment at maturity (a instrument qualifies for the coupon minimum guarantee payment) if the bond method. The temporary Drafting Information total amount of inflation-adjusted regulations require the use of a debt instrument’s stated principal amount The principal author of the principal paid on the debt instrument is regulations is Jeffrey W. Maddrey, Office rather than its principal amount for the less than the instrument’s stated of Assistant Chief Counsel (Financial issue date to measure the amount of a principal amount. Under both the Institutions and Products). However, minimum guarantee payment. coupon bond method and the discount other personnel from the IRS and bond method, a minimum guarantee I. Strips Treasury Department participated in payment is ignored until the payment is their development. made. If a minimum guarantee payment Treasury Inflation-Indexed Securities is made, the payment is treated as are eligible for the Department of the List of Subjects in 26 CFR Part 1 interest on the date it is paid. Treasury’s Separate Trading of Income taxes, Reporting and In general, the temporary regulations Registered Interest and Principal of recordkeeping requirements. only allow a debt instrument that is Securities (STRIPS) program. Under this indexed by reference to the CPI–U to Adoption of Amendments to the program, the interest and principal provide for a minimum guarantee Regulations components of a Treasury Inflation- payment. The Treasury and the IRS Accordingly, 26 CFR part 1 is Indexed Security may be transferred as believe that there is only a small amended as follows: possibility that the total amount of separate instruments (stripped bonds principal paid on a debt instrument and coupons). In general, section 1286 PART 1ÐINCOME TAXES treats the holder of a stripped bond (or indexed to the CPI–U will be less than Paragraph 1. The authority citation the instrument’s stated principal coupon) as if the holder purchased a newly issued debt instrument that has for part 1 is amended by adding two amount. In this case, it is appropriate to entries in numerical order to read as OID. The temporary regulations provide ignore the minimum guarantee payment follows: until it is paid. that the holder of a component of a Treasury Inflation-Indexed Security that Authority: 26 U.S.C. 7805 * * * H. Principal Amount for the Issue Date is stripped under the Treasury STRIPS Section 1.1275–7T also issued under 26 For purposes of the temporary U.S.C. 1275(d). * * * program must use the discount bond Section 1.1286–2T also issued under 26 regulations, if an inflation-indexed debt method to account for the OID on the U.S.C. 1286(f). * * * instrument is issued with pre-issuance component. accrued interest, the principal amount Par. 2. Section 1.1271–0 is amended of the instrument for the issue date J. Information Reporting by— includes an adjustment for inflation or 1. Revising the second sentence of deflation. This adjustment is measured The temporary regulations do not paragraph (a); by the change in the value of the provide any new information reporting 2. Revising the introductory text of reference index between the date on rules for inflation-indexed debt paragraph (b); and 3. Adding entries for § 1.1275–7T in which interest starts to accrue (the dated instruments. The OID and any qualified paragraph (b). date in the case of a Treasury Inflation- stated interest on an inflation-indexed debt instrument should be reported on The revisions and additions read as Indexed Security) and the issue date. follows: The stated principal amount of a debt Form 1099–OID. The IRS plans to issue instrument under the regulations, guidance for the reporting of OID on § 1.1271±0 Original issue discount; however, is not adjusted for inflation or Treasury Inflation-Indexed Securities effective date; table of contents. deflation between the date on which that are stripped under the STRIPS (a) * * * Taxpayers, however, may interest starts to accrue and the issue program. rely on these sections (as contained in 618 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

26 CFR part 1 revised April 1, 1996) for (as described in paragraph (d) of this payments under each payment schedule debt instruments issued after December section) or the discount bond method are indexed for inflation and deflation 21, 1992, and before April 4, 1994. (as described in paragraph (e) of this and a payment schedule for the debt (b) Table of contents. This section section). Both methods determine the instrument can be determined under lists captioned paragraphs contained in amount of OID that is taken into account § 1.1272–1(c). (For purposes of this §§ 1.1271–1 through 1.1275–7T. each year by a holder or an issuer of an section, the rules of § 1.1272–1(c) are * * * * * inflation-indexed debt instrument. applied to the debt instrument by (b) Applicability—(1) In general. assuming that no inflation or deflation § 1.1275–7T Inflation-indexed debt Except as provided in paragraph (b)(2) will occur over the term of the instruments (temporary). of this section, this section applies to an instrument.) (a) Overview. inflation-indexed debt instrument as (2) Reference index. The reference (b) Applicability. defined in paragraph (c)(1) of this index is an index used to measure (1) In general. section. For example, this section inflation and deflation over the term of (2) Exceptions. a debt instrument. To qualify as a (c) Definitions. applies to Treasury Inflation-Indexed (1) Inflation-indexed debt instrument. Securities. reference index, an index must satisfy (2) Reference index. (2) Exceptions. This section does not the following conditions: (3) Qualified inflation index. apply to an inflation-indexed debt (i) The value of the index is reset once (4) Inflation-adjusted principal amount. instrument that is also— a month to a current value of a single (5) Minimum guarantee payment. (i) A debt instrument (other than a qualified inflation index (as defined in (d) Coupon bond method. tax-exempt obligation) described in paragraph (c)(3) of this section). For this (1) In general. section 1272(a)(2) (for example, U.S. purpose, a value of a qualified inflation (2) Applicability. savings bonds, certain loans between index is current if the value has been (3) Qualified stated interest. natural persons, and short-term taxable updated and published within the (4) Inflation adjustments. (5) Example. obligations); or preceding six month period. (e) Discount bond method. (ii) A debt instrument subject to (ii) The reset occurs on the same day (1) In general. section 529 (certain debt instruments of each month (the reset date). (2) No qualified stated interest. issued by qualified state tuition (iii) The value of the index for any (3) OID. programs). date between reset dates is determined (4) Example. (c) Definitions. The following through straight-line interpolation. (f) Special rules. definitions apply for purposes of this (3) Qualified inflation index. A (1) Deflation adjustments. section: qualified inflation index is a general (2) Adjusted basis. (1) Inflation-indexed debt instrument. price or wage index that is updated and (3) Subsequent holders. An inflation-indexed debt instrument is published at least monthly by an agency (4) Minimum guarantee. a debt instrument that satisfies the of the United States Government (for (5) Temporary unavailability of a qualified example, the non-seasonally adjusted inflation index. following conditions: (g) Reopenings. (i) Issued for cash. The debt U.S. City Average All Items Consumer (h) Effective date. instrument is issued for U.S. dollars and Price Index for All Urban Consumers (CPI–U), which is published by the * * * * * all payments on the instrument are denominated in U.S. dollars. Bureau of Labor Statistics of the § 1.1275.4 [Amended] (ii) Indexed for inflation and Department of Labor). Par. 3. Section 1.1275–4 is amended deflation. Except for a minimum (4) Inflation-adjusted principal by— guarantee payment (as defined in amount. For any date, the inflation- 1. Removing the word ‘‘or’’ from the paragraph (c)(5) of this section), each adjusted principal amount of an end of paragraph (a)(2)(vi); payment on the debt instrument is inflation-indexed debt instrument is an 2. Redesignating paragraph (a)(2)(vii) indexed for inflation and deflation. A amount equal to— as paragraph (a)(2)(viii); and payment is indexed for inflation and (i) The outstanding principal amount 3. Adding a new paragraph (a)(2)(vii). deflation if the amount of the payment of the debt instrument (determined as if The addition reads as follows: is equal to— there were no inflation or deflation over (A) The amount that would be the term of the instrument), multiplied § 1.1275±4 Contingent payment debt payable if there were no inflation or by instruments. deflation over the term of the debt (ii) A ratio, the numerator of which is (a) * * * instrument, multiplied by the value of the reference index for the (2) * * * (B) A ratio, the numerator of which is date and the denominator of which is (vii) An inflation-indexed debt the value of the reference index for the the value of the reference index for the instrument (as defined in § 1.1275–7T); date of the payment and the issue date. or denominator of which is the value of the (5) Minimum guarantee payment. In * * * * * reference index for the issue date. general, a minimum guarantee payment Par. 4. Section 1.1275–7T is added to (iii) No other contingencies. No is an additional payment made at read as follows: payment on the debt instrument is maturity on a debt instrument if the subject to a contingency other than the total amount of inflation-adjusted § 1.1275±7T Inflation-indexed debt inflation contingency or the principal paid on the instrument is less instruments (temporary). contingencies described in this than the instrument’s stated principal (a) Overview. This section provides paragraph (c)(1)(iii). A debt instrument amount. The amount of the additional rules for the federal income tax may provide for— payment must be no more than the treatment of an inflation-indexed debt (A) A minimum guarantee payment as excess, if any, of the debt instrument’s instrument. If a debt instrument is an defined in paragraph (c)(5) of this stated principal amount over the total inflation-indexed debt instrument, one section; or amount of inflation-adjusted principal of two methods will apply to the (B) Payments under one or more paid on the instrument. An additional instrument: the coupon bond method alternate payment schedules if the payment is not a minimum guarantee Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 619 payment unless the qualified inflation (ii) Amount of inflation adjustment. issue date ($100,000) and because all stated index used to determine the reference For any relevant period (such as the interest is qualified stated interest, the index is either the CPI–U or an index taxable year or the portion of the taxable coupon bond method applies to the designated for this purpose by the year during which a taxpayer holds an instrument. (iv) Reference index values. Assume the Commissioner in the Federal Register or inflation-indexed debt instrument), the following table lists the relevant reference the Internal Revenue Bulletin (see amount of the inflation adjustment is index values for 1997 through 1999: § 601.601(d)(2)(ii) of this chapter). See equal to— paragraph (f)(4) of this section for the (A) The sum of the inflation-adjusted Ref- treatment of a minimum guarantee principal amount at the end of the Date erence payment. period and the principal payments index value (d) Coupon bond method—(1) In made during the period, minus general. This paragraph (d) describes (B) The inflation-adjusted principal Oct. 15, 1997 ...... 100 the method (coupon bond method) to be amount at the beginning of the period. Jan. 1, 1998 ...... 101 used to account for qualified stated (iii) Positive inflation adjustments. A Apr. 15, 1998 ...... 103 interest and inflation adjustments (OID) positive inflation adjustment is OID. Oct. 15, 1998 ...... 105 on an inflation-indexed debt instrument (iv) Negative inflation adjustments. A Jan. 1, 1999 ...... 99 described in paragraph (d)(2) of this negative inflation adjustment is a section. deflation adjustment that is taken into (v) Treatment of X in 1997. X does not (2) Applicability. The coupon bond account under the rules of paragraph receive any payments of interest on the debt instrument in 1997. Therefore, X has no method applies to an inflation-indexed (f)(1) of this section. (5) Example. The following example qualified stated interest income for 1997. X, debt instrument that satisfies the however, must take into account the inflation following conditions: illustrates the coupon bond method: adjustment for 1997. The inflation-adjusted (i) Issued at par. The debt instrument Example. (i) Facts. On October 15, 1997, X principal amount for January 1, 1998, is is issued at par. A debt instrument is purchases at original issue, for $100,000, a $101,000 ($100,000 × 101/100). Therefore, issued at par if the difference between debt instrument that is indexed for inflation the inflation adjustment for 1997 is $1,000, its issue price and principal amount for and deflation. The debt instrument matures the inflation-adjusted principal amount for the issue date is less than the de on October 15, 1999, has a stated principal January 1, 1998 ($101,000) minus the minimis amount. For this purpose, the amount of $100,000, and has a stated interest principal amount for the issue date rate of 5 percent, compounded semiannually. ($100,000). X includes the $1,000 inflation de minimis amount is determined using The debt instrument provides that the adjustment in income as OID in 1997. the principles of § 1.1273–1(d). principal amount is indexed to the CPI–U. (vi) Treatment of X in 1998. In 1998, X (ii) All stated interest is qualified Interest is payable on April 15 and October receives two payments of interest: On April stated interest. All stated interest on the 15 of each year. The amount of each interest 15, 1998, X receives a payment of $2,575 debt instrument is qualified stated payment is determined by multiplying the ($100,000 × 103/100 × .05/2), and on October interest. For purposes of this paragraph inflation-adjusted principal amount for each 15, 1998, X receives a payment of $2,625 (d), stated interest is qualified stated interest payment date by the stated interest ($100,000 × 105/100 × .05/2). Therefore, X’s interest if the interest is unconditionally rate, adjusted for the length of the accrual qualified stated interest income for 1998 is payable in cash, or is constructively period. The debt instrument provides for a $5,200 ($2,575 + $2,625). X also must take single payment of the inflation-adjusted into account the inflation adjustment for received under section 451, at least principal amount at maturity. In addition, the 1998. The inflation-adjusted principal annually at a single fixed rate. Stated debt instrument provides for an additional amount for January 1, 1999, is $99,000 interest is payable at a single fixed rate payment at maturity equal to the excess, if ($100,000 × 99/100). Therefore, the inflation if the amount of each interest payment any, of $100,000 over the inflation-adjusted adjustment for 1998 is negative $2,000, the is determined by multiplying the principal amount at maturity. X uses the cash inflation-adjusted principal amount for inflation adjusted principal amount for receipts and disbursements method of January 1, 1999 ($99,000) minus the the payment date by the single fixed accounting and the calendar year as its inflation-adjusted principal amount for rate. taxable year. January 1, 1998 ($101,000). Because the amount of the inflation adjustment is (3) Qualified stated interest. Under (ii) Indexing methodology. The debt instrument provides that the inflation- negative, it is a deflation adjustment. Under the coupon bond method, qualified adjusted principal amount for any day is paragraph (f)(1)(i) of this section, X uses this stated interest is taken into account determined by multiplying the principal $2,000 deflation adjustment to reduce the under the taxpayer’s regular method of amount of the instrument for the issue date interest otherwise includible in income by X accounting. The amount of accrued but by a ratio, the numerator of which is the with respect to the debt instrument in 1998. unpaid qualified stated interest as of value of the reference index for the day the Therefore, X includes $3,200 in income for any date is determined by using the inflation-adjusted principal amount is to be 1998, the qualified stated interest income for principles of § 1.446–3(e)(2)(ii) (relating determined and the denominator of which is 1998 ($5,200) minus the deflation adjustment to notional principal contracts). For the value of the reference index for the issue ($2,000). example, if the interval between interest date. The value of the reference index for the (e) Discount bond method—(1) In first day of a month is the value of the CPI– payment dates spans two taxable years, U for the third preceding month. The value general. This paragraph (e) describes the a taxpayer using an accrual method of of the reference index for any day other than method (discount bond method) to be accounting determines the amount of the first day of a month is determined based used to account for OID on an inflation- accrued qualified stated interest for the on a straight-line interpolation between the indexed debt instrument that does not first taxable year by reference to the value of the reference index for the first day qualify for the coupon bond method. inflation-adjusted principal amount at of the month and the value of the reference (2) No qualified stated interest. Under the end of the first taxable year. index for the first day of the next month. the discount bond method, no interest (4) Inflation adjustments—(i) Current (iii) Inflation-indexed debt instrument on an inflation-indexed debt instrument subject to the coupon bond method. Under is qualified stated interest. accrual. Under the coupon bond paragraph (c)(1) of this section, the debt method, an inflation adjustment is taken instrument is an inflation-indexed debt (3) OID. Under the discount bond into account for each taxable year in instrument. Because there is no difference method, the amount of OID that accrues which the debt instrument is between the debt instrument’s issue price on an inflation-indexed debt instrument outstanding. ($100,000) and its principal amount for the is determined as follows: 620 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

(i) Step one: Determine the debt event will the payment on November 15, in income by a holder with respect to instrument’s yield to maturity. The yield 2000, be less than $100,000. X uses the cash the debt instrument for the taxable year. of the debt instrument is determined receipts and disbursements method of For purposes of this paragraph (f)(1)(i), under the rules of § 1.1272–1(b)(1)(i). In accounting and the calendar year as its interest includes OID, qualified stated taxable year. calculating the yield under those rules (ii) Inflation-indexed debt instrument. interest, and market discount. If the for purposes of this paragraph (e)(3)(i), Under paragraph (c)(1) of this section, the amount of the deflation adjustment the payment schedule of the debt instrument is an inflation-indexed debt exceeds the interest otherwise instrument is determined as if there instrument. The debt instrument’s principal includible in income by the holder with were no inflation or deflation over the amount for the issue date ($100,000) exceeds respect to the debt instrument for the term of the instrument. its issue price ($91,403) by $8,597, which is taxable year, the excess is treated as an (ii) Step two: Determine the accrual more than the de minimis amount for the ordinary loss by the holder for the periods. The accrual periods are debt instrument ($750). Therefore, the taxable year. However, the amount coupon bond method does not apply to the treated as an ordinary loss is limited to determined under the rules of § 1.1272– debt instrument. As a result, the discount 1(b)(1)(ii). However, no accrual period bond method applies to the debt instrument. the amount by which the holder’s total can be longer than 1 month. (iii) Yield and accrual period. Assume X interest inclusions on the debt (iii) Step three: Determine the chooses monthly accrual periods ending on instrument in prior taxable years exceed percentage change in the reference the 15th day of each month. The yield of the the total amount treated by the holder index during the accrual period. The debt instrument is determined as if there as an ordinary loss on the debt percentage change in the reference were no inflation or deflation over the term instrument in prior taxable years. If the index during the accrual period is equal of the instrument. Therefore, based on the deflation adjustment exceeds the to— issue price of $91,403 and an assumed interest otherwise includible in income (A) The ratio of the value of the payment at maturity of $100,000, the yield of by the holder with respect to the debt reference index at the end of the period the debt instrument is 3 percent, instrument for the taxable year and the compounded monthly. to the value of the reference index at the (iv) Percentage change in reference index. amount treated as an ordinary loss for beginning of the period, Assume that the CPI–U for September 1997 the taxable year, this excess is carried (B) Minus one. is 160; for October 1997 is 161.2; and for forward to reduce the amount of interest (iv) Step four: Determine the OID November 1997 is 161.7. The value of the otherwise includible in income by the allocable to each accrual period. The reference index for November 15, 1997, is holder with respect to the debt OID allocable to an accrual period (n) is 160, the value of the CPI–U for September instrument for subsequent taxable years. determined by using the following 1997. Similarly, the value of the reference (ii) Issuer. A deflation adjustment formula: index for December 15, 1997, is 161.2, and reduces the interest otherwise for January 15, 1998, is 161.7. The percentage OID(n) = AIP(n) × [r + inf(n) + (r × inf(n))] deductible by the issuer with respect to change in the reference index from November the debt instrument for the taxable year. in which, 1 15, 1997, to December 15, 1997, (inf ) is For purposes of this paragraph (f)(1)(ii), r = yield of the debt instrument as 0.0075 (161.2/160–1); the percentage change interest includes OID and qualified determined under paragraph in the reference index from December 15, 1997, to January 15, 1998, (inf2) is 0.0031 stated interest. If the amount of the (e)(3)(i) of this section (adjusted for deflation adjustment exceeds the the length of the accrual period); (161.7/161.2–1). (v) Treatment of X in 1997. For the accrual interest otherwise deductible by the inf( ) = percentage change in the value n period ending on December 15, 1997, r is issuer with respect to the debt of the reference index for period (n) .0025 (.03/12), inf1 is .0075, and the product instrument for the taxable year, the as determined under paragraph of r and inf1 is .00001875. Under paragraph excess is treated as ordinary income by (e)(3)(iii) of this section; and (e)(3) of this section, the amount of OID the issuer for the taxable year. However, AIP( ) = adjusted issue price at the n allocable to the accrual period ending on the amount treated as ordinary income beginning of period (n). December 15, 1997, is $916. This amount is is limited to the amount by which the (v) Step five: Determine the daily determined by multiplying the issue price of the debt instrument ($91,403) by .01001875 issuer’s total interest deductions on the portions of OID. The daily portions of debt instrument in prior taxable years OID are determined and taken into (the sum of r, inf1, and the product of r and inf1). The adjusted issue price of the debt exceed the total amount treated by the account under the rules of § 1.1272– instrument on December 15, 1997, is $92,319 issuer as ordinary income on the debt 1(b)(1)(iv). If the daily portions ($91,403+$916). For the accrual period instrument in prior taxable years. If the determined under this paragraph ending on January 15, 1998, r is .0025 (.03/ deflation adjustment exceeds the (e)(3)(v) are negative amounts, however, 12), inf2 is .0031, and the product of r and interest otherwise deductible by the these amounts (deflation adjustments) inf2 is .00000775. Under paragraph (e)(3) of issuer with respect to the debt are taken into account under the rules this section, the amount of OID allocable to instrument for the taxable year and the for deflation adjustments described in the accrual period ending on January 15, amount treated as ordinary income for paragraph (f)(1) of this section. 1998, is $518. This amount is determined by multiplying the adjusted issue price of the the taxable year, this excess is carried (4) Example. The following example forward to reduce the interest otherwise illustrates the discount bond method: debt instrument ($92,319) by .00560775 (the sum of r, inf2, and the product of r and inf2). deductible by the issuer with respect to Example. (i) Facts. On November 15, 1997, Because the accrual period ending on January the debt instrument for subsequent X purchases at original issue, for $91,403, a 15, 1998, spans two taxable years, only $259 taxable years. If there is any excess zero-coupon debt instrument that is indexed of this amount ($518/30 days×15 days) is remaining upon the retirement of the for inflation and deflation. The principal allocable to 1997. Therefore, X includes debt instrument, the issuer takes the amount of the debt instrument for the issue $1,175 of OID in income for 1997 excess amount into account as ordinary date is $100,000. The debt instrument ($916+$259). income. provides for a single payment on November (2) Adjusted basis. A holder’s 15, 2000. The amount of the payment will be (f) Special rules. The following rules determined by multiplying $100,000 by a apply to an inflation-indexed debt adjusted basis in an inflation-indexed fraction, the numerator of which is the CPI– instrument: debt instrument is determined under U for September 2000, and the denominator (1) Deflation adjustments—(i) Holder. § 1.1272–1(g). However, a holder’s of which is the CPI–U for September 1997. A deflation adjustment reduces the adjusted basis in the debt instrument is The debt instrument also provides that in no amount of interest otherwise includible decreased by the amount of any Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 621 deflation adjustment the holder takes (2) The reopening occurs not more FOR FURTHER INFORMATION CONTACT: into account to reduce the amount of than one year after the original Mary A. Sheehan, Assistant General interest otherwise includible in income securities were first issued to the public. Counsel, Sallie Mae, (703) 810-7681, or or treats as an ordinary loss with respect (h) Effective date. This section applies Cynthia E. Reese, Deputy Chief Counsel, to the instrument during the taxable to an inflation-indexed debt instrument Bureau of the Public Debt, (202) 219- year. The decrease occurs when the issued on or after January 6, 1997. 3320. deflation adjustment is taken into Par. 5. Section 1.1286–2T is added to SUPPLEMENTARY INFORMATION: Virtually account under paragraph (f)(1) of this read as follows: all government-sponsored enterprises section. § 1.1286±2T Stripped inflation-indexed (GSEs) have regulations governing their (3) Subsequent holders. A holder debt instruments (temporary). book-entry securities maintained in the Federal Reserve book-entry system that determines the amount of acquisition Stripped inflation-indexed debt are nearly identical to the regulations premium or market discount on an instruments. If a Treasury Inflation- governing marketable Treasury inflation-indexed debt instrument by Indexed Security is stripped under the reference to the adjusted issue price of securities.1 Department of the Treasury’s Separate In the case of the Student Loan the instrument on the date the holder Trading of Registered Interest and acquires the instrument. A holder Marketing Association (‘‘Sallie Mae’’), Principal of Securities (STRIPS) the Secretary of the Treasury is determines the amount of bond program, the holders of the principal premium on an inflation-indexed debt expressly authorized by the Higher and coupon components must use the 2 instrument by assuming that the amount Education Act of 1965, as amended, to discount bond method (as described in promulgate Sallie Mae’s book-entry payable at maturity on the instrument is § 1.1275–7T(e)) to account for the equal to the instrument’s inflation- regulations. The current Sallie Mae original issue discount on the book-entry regulations were issued by adjusted principal amount for the day components. the holder acquires the instrument. Any Treasury pursuant to that authority and Margaret Milner Richardson, 3 premium or market discount is taken appear in 31 CFR Part 354. The Commissioner of Internal Revenue. into account over the remaining term of regulations set forth rules for the the debt instrument as if there were no Approved: December 6, 1996. transfer, pledge and servicing of book- further inflation or deflation. See Donald C. Lubick, entry Sallie Mae securities. The current Treasury regulations will section 171 for additional rules relating Acting Assistant Secretary of the Treasury. be superseded by new regulations (the to the amortization of bond premium [FR Doc. 96–33398 Filed 12–31–96; 12:57 ‘‘TRADES regulations’’) 4 that will go and sections 1276 through 1278 for pm] into effect January 1, 1997. As explained additional rules relating to market BILLING CODE 4830±01±U below, the TRADES regulations discount. incorporate recent and significant (4) Minimum guarantee. Under both Fiscal Service changes in commercial law addressing the coupon bond method and the the holding of securities in book-entry discount bond method, a minimum 31 CFR Part 354 form through financial intermediaries.5 guarantee payment is ignored until the Some commenters on the TRADES payment is made. If there is a minimum Regulations Governing Book-Entry regulations were concerned about guarantee payment, the payment is Securities of the Student Loan coordination among Treasury and the treated as interest on the date it is paid. Marketing Association (Sallie Mae) GSEs. The commenters urged (5) Temporary unavailability of a simultaneous effectiveness of parallel AGENCY: Bureau of the Public Debt, qualified inflation index. GSE rules. Accordingly, pursuant to Fiscal Service, Treasury. Notwithstanding any other rule of this Sallie Mae’s request, Treasury is issuing section, an inflation-indexed debt ACTION: Final rule. revised regulations that will be effective in January, 1997, for Sallie Mae instrument may provide for a substitute SUMMARY: The Department of the value of the qualified inflation index if securities maintained on the Federal Treasury, on behalf of the Student Loan Reserve book-entry system. and when the publication of the value Marketing Association, is publishing of the qualified inflation index is Consistent with the approach in the final regulations to govern Sallie Mae TRADES regulations, the regulations in temporarily delayed. The substitute book-entry securities. This action is value may be determined by the issuer this Part contain specific provisions that being taken in conjunction with similar deal with the rights and obligations of under any reasonable method. For amendments being made by the example, if the CPI–U is not reported for Sallie Mae and the Federal Reserve Department of the Treasury to the Banks with respect to Sallie Mae a particular month, the debt instrument regulations governing book-entry may provide that a substitute value may securities and the operation of the book- Treasury securities, and by other entry system. The regulations are also be determined by increasing the last government-sponsored enterprises reported value by the average monthly based in large part on Revised Article 8 (GSEs) for GSE securities that are on Investment Securities of the Uniform percentage increase in the qualified maintained on the book-entry system inflation index over the preceding operated by the Federal Reserve Banks. 1 twelve months. The use of a substitute 31 CFR Part 306, Subpart O. The rules incorporate recent and 2 P.L. No. 99–498, 20 U.S.C. § 1087–2(m). value does not result in a reissuance of significant changes in commercial law 3 52 FR 4495 (February 12, 1987). Prior to that the debt instrument. addressing the holding of securities in time, Treasury had promulgated book-entry (g) Reopenings. For purposes of regulations only for Sallie Mae securities issued book-entry form through financial February 25, 1983 through September 30, 1983 (48 § 1.1275–2(d)(2), a reopening of intermediaries. FR 8059). Treasury Inflation-Indexed Securities is EFFECTIVE DATE: January 6, 1997. The 4 61 FR 43626 (August 23, 1996). a qualified reopening if— incorporation by reference of certain 5 At the time the Sallie Mae regulations were issued, it was noted in the preamble that once the (1) The terms of the securities issued publications listed in the regulations is TRADES regulations were finalized, it was in the reopening are the same as the approved by the Director of the Federal contemplated that the Sallie Mae regulations would terms of the original securities; and Register as of January 6, 1997. be replaced with a similar set of rules. 622 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Commercial Code (‘‘Revised Article 8’’). publication. For the following reasons, 354.5 Obligations of Sallie Mae; no adverse The regulations include certain choice the Department finds that notice and claims. of law rules patterned on Revised public procedure and a 30-day delayed 354.6 Authority of Federal Reserve Banks. Article 8. In the event the jurisdiction effective date are unnecessary, 354.7 Withdrawal of eligible Book-entry specified under the choice of law rules Sallie Mae Securities for conversion to impracticable, and contrary to the definitive form. has not adopted Revised Article 8, public interest, pursuant to 5 U.S.C. 354.8 Waiver of regulations. Revised Article 8 will be applied 553(b)(3)(B) and (d)(3). First, the rule 354.9 Liability of Sallie Mae and Federal nonetheless, as though it had been so merely conforms the regulations Reserve Banks. adopted. At the time of the publication governing book-entry Sallie Mae 354.10 Additional provisions. of the final TRADES rule, 28 states had securities to the TRADES regulations Authority: 12 U.S.C. 391; 20 U.S.C. 1087– adopted Revised Article 8.6 that will govern book-entry Treasury 2(m). Except with respect to matters related securities. Second, the TRADES to differences between Sallie Mae regulations were published in various § 354.0 Applicability; maintenance of Sallie Mae Securities. securities and Treasury securities,7 the forms, as a proposed rule four times and provisions of these rules are the same as as a final rule once. In each instance, the (a) A Sallie Mae Security may be the rules that will apply to Treasury TRADES regulations were accompanied maintained in the form of a Definitive securities. Sallie Mae intends that the by extensive commentary addressing the Sallie Mae Security or a Book-entry analysis contained in the commentary to background and rule provisions. Third, Sallie Mae Security. A Book-entry Sallie the TRADES final rule, Appendix B to the comments on the TRADES Mae Security shall be maintained in the 31 CFR Part 357, and other regulations urged uniformity in Book-entry System. interpretations of the TRADES substance and effectiveness for (b) The Sallie Mae Securities to which regulations published in the Federal regulations for GSEs that issue book- the regulations in this part apply are Register, are to be used in interpreting entry securities maintained on the obligations which, by the terms of their the Sallie Mae regulations. Federal Reserve book-entry system. issue, are available exclusively as Book- The most notable differences between Fourth, there are compelling reasons for entry Sallie Mae Securities or which, these regulations and the TRADES setting the effective date as close as pursuant to the securities regulations are as follows. First, Sallie possible to January 1, 1997, when the documentation, are convertible from Mae maintains no direct ownership TRADES regulations and those of the Book-entry Sallie Mae Securities to system with respect to Sallie Mae other GSEs will become effective. Definitive Sallie Mae Securities or vice securities comparable to the Having the rules become effective at versa. ‘‘TREASURY DIRECT’’ 8 system for different times for securities that are all § 354.1 Definitions of terms. Treasury securities. Second, Sallie Mae maintained and transferred on the book- rarely has need to issue securities in (a) Adverse Claim means a claim that entry system would be burdensome and definitive (certificated) form; however, a claimant has a property interest in a unworkable for market participants. Security and that it is a violation of the Sallie Mae retains the right to issue As no notice of proposed rulemaking rights of the claimant for another Person securities in definitive form if it so is required, the provisions of the to hold, transfer, or deal with the chooses. Third, there are some Regulatory Flexibility Act do not apply. variations in the terminology used in There are no collections of Security. (b) Book-entry Sallie Mae Security these regulations and in TRADES, information contained in this final rule. means a Sallie Mae Security issued or particularly with respect to the type of Therefore, the Paperwork Reduction Act maintained in the Book-entry System. documentation used to establish the does not apply. terms of the security. Finally, it should (c) Book-entry System means the be noted that these regulations apply List of Subjects in 31 CFR Part 354 automated book-entry system operated only to Sallie Mae book-entry securities Bonds, Electronic funds transfer, by the Federal Reserve Banks acting as maintained on the Federal Reserve Federal Reserve System, Government the fiscal agent for Sallie Mae, on which book-entry system. These regulations do securities, Incorporation by reference, Book-entry Sallie Mae Securities are not apply to Sallie Mae securities held Securities. issued, recorded, transferred and through any other book-entry clearing For the reasons set forth in the maintained in book-entry form. (d) Definitive Sallie Mae Security systems, such as those operated by the preamble, Title 31, Chapter II, means a Sallie Mae Security in engraved Depository Trust Company, Euroclear or Subchapter B, Code of Federal or printed form, or that is otherwise Cedel. Regulations, is amended by revising Part represented by a certificate. Procedural Requirements 354 to read as follows: (e) Eligible Book-entry Sallie Mae This final rule does not meet the PART 354ÐREGULATIONS Security means a Book-entry Sallie Mae criteria for a ‘‘significant regulatory GOVERNING BOOK-ENTRY Security issued or maintained in the action’’ pursuant to Executive Order SECURITIES OF THE STUDENT LOAN Book-entry System which by the terms 12866. MARKETING ASSOCIATION (SALLIE of its Security Documentation is These regulations are being adopted MAE) available in either definitive or book- as a final rule effective upon entry form. Sec. (f) Entitlement Holder means a Person 6 California has since also adopted Revised 354.0 Applicability; maintenance of Sallie to whose account an interest in a Book- Article 8. Mae Securities. entry Sallie Mae Security is credited on 7 Sallie Mae securities, together with interest 354.1 Definitions of terms. thereon, are not guaranteed by the United States the records of a Securities Intermediary. 354.2 Law governing rights and obligations (g) Federal Reserve Bank means a and do not constitute a debt or obligation of the of Federal Reserve Banks, and Sallie United States or of any agency or instrumentality Mae; rights of any Person against Federal Federal Reserve Bank or Branch. thereof other than Sallie Mae. (h) Federal Reserve Bank Operating 8 In TREASURY DIRECT, the beneficial owners of Reserve Banks, and Sallie Mae. Treasury securities hold their securities directly, on 354.3 Law governing other interests. Circular means the publication issued the books of the issuer (in contrast to holding 354.4 Creation of Participant’s Security by each Federal Reserve Bank that sets through a financial intermediary). Entitlement; security interests. forth the terms and conditions under Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 623 which the Federal Reserve Bank issued in the form of a Definitive Sallie (ii) The operation of the Book-entry maintains book-entry Securities Mae Security or a Book-entry Sallie Mae System as it applies to Sallie Mae accounts (including Book-entry Sallie Security. Securities; and Mae Securities) and transfers book-entry (p) Securities Documentation means (2) The rights of any Person, including Securities (including Book-entry Sallie the applicable statement of terms and a Participant, against Sallie Mae and the Mae Securities). conditions or other documents Federal Reserve Banks with respect to: (i) Funds Account means a reserve establishing the terms of a Book-entry (i) A Book-entry Sallie Mae Security and/or clearing account at a Federal Sallie Mae Security. or Security Entitlement; and Reserve Bank to which debits or credits (q) Securities Intermediary means: (ii) The operation of the Book-entry are posted for transfers against payment, (1) a Person that is registered as a System as it applies to Sallie Mae book-entry securities transaction fees, or ‘‘clearing agency’’ under the federal Securities. principal and interest payments. securities laws; a Federal Reserve Bank; (b) A security interest in a Security (j) Participant means a Person that any other Person that provides clearance Entitlement that is in favor of a Federal maintains a Participant’s Securities or settlement services with respect to a Reserve Bank from a Participant and Account with a Federal Reserve Bank. Book-entry Security that would require that is not recorded on the books of a (k) Participant’s Securities Account it to register as a clearing agency under Federal Reserve Bank pursuant to means an account in the name of a the federal securities laws but for an § 354.4(c)(1), is governed by the law (not Participant at a Federal Reserve Bank to exclusion or exemption from the including the conflict-of-law rules) of which Book-entry Sallie Mae Securities registration requirement, if its activities held for a Participant are or may be the jurisdiction where the head office of as a clearing corporation, including the Federal Reserve Bank maintaining credited. promulgation of rules, are subject to (l) Person means and includes an the Participant’s Securities Account is regulation by a federal or state located. A security interest in a Security individual, corporation, company, governmental authority; or governmental entity, association, firm, Entitlement that is in favor of a Federal (2) a Person (other than an individual, Reserve Bank from a Person that is not partnership, trust, estate, representative, unless such individual is registered as a and any other similar organization, but a Participant, and that is not recorded broker or dealer under the federal on the books of a Federal Reserve Bank does not mean or include the United securities laws) including a bank or States, Sallie Mae, or a Federal Reserve pursuant to § 354.14(c)(1), is governed broker, that in the ordinary course of its by the law determined in the manner Bank. business maintains securities accounts (m) Revised Article 8 means Uniform specified in § 354.3. for others and is acting in that capacity. Commercial Code, Revised Article 8, (c) If the jurisdiction specified in the (r) Security means any note, bond, Investment Securities (with Conforming first sentence of paragraph (b) of this debenture, evidence of indebtedness, or, and Miscellaneous Amendments to section is a State that has not adopted in general, any interest or instrument Articles 1, 3, 4, 5, 9, and 10) 1994 Revised Article 8 (incorporated by commonly known as a ‘‘security.’’ Official Text. Revised Article 8 of the reference, see § 354.1), then the law (s) Security Entitlement means the Uniform Commercial Code is specified in paragraph (b) shall be the rights and property interest of an incorporated by reference in this Part law of that State as though Revised Entitlement Holder with respect to a pursuant to 5 U.S.C. 552(a) and 1 CFR Article 8 had been adopted by that Book-entry Sallie Mae Security. State. Part 51. Article 8 was adopted by the (t) State means any state of the United American Law Institute and the States, the District of Columbia, Puerto § 354.3 Law governing other interests. National Conference of Commissioners Rico, the Virgin Islands, or any other on Uniform State laws and approved by (a) To the extent not inconsistent with territory or possession of the United the regulations in this Part, the law (not the American Bar Association on States. February 14, 1995. Copies of this including the conflict-of-law rules) of a (u) Transfer Message means an Securities Intermediary’s jurisdiction publication are available from the instruction of a Participant to a Federal Executive Office of the American Law governs: Reserve Bank to effect a transfer of a (1) The acquisition of a Security Institute, 4025 Chestnut Street, Book-entry Security (including a Book- Philadelphia, PA 19104, and the Entitlement from the Securities entry Sallie Mae Security) maintained in Intermediary; National Conference of Commissioners the Book-entry System, as set forth in on Uniform State Laws, 676 North St. (2) The rights and duties of the Federal Reserve Bank Operating Securities Intermediary and Entitlement Clair Street, Suite 1700, Chicago, IL Circulars. 60611. Copies are also available for Holder arising out of a Security public inspection at the Department of § 354.2 Law governing rights and Entitlement; the Treasury Library, Room 5030, main obligations of Federal Reserve Banks, and (3) Whether the Securities Treasury Building, 1500 Pennsylvania Sallie Mae; rights of any Person against Intermediary owes any duties to an Avenue, N.W., Washington D.C. 20220, Federal Reserve Banks and Sallie Mae. adverse claimant to a Security and in the Office of the Federal Register, (a) Except as provided in paragraph Entitlement; 800 North Capitol St., N.W., Suite 700, (b) of this section, the following are (4) Whether an Adverse Claim can be Washington D.C. governed solely by the book-entry asserted against a Person who acquires (n) Sallie Mae means the Student regulations contained in this Part 354, a Security Entitlement from the Loan Marketing Association, a stock the Securities Documentation (to the Securities Intermediary or a Person who holder-owned corporation and extent not inconsistent with these purchases a Security Entitlement or government-sponsored enterprise regulations) and Federal Reserve Bank interest therein from an Entitlement established in 1972 by, and operating Operating Circulars: Holder; and pursuant to, Section 439 of the Higher (1) The rights and obligations of Sallie (5) Except as otherwise provided in Education Act of 1965, as amended, 20 Mae and the Federal Reserve Banks with paragraph (c) of this section, the U.S.C. 1087–2. respect to: perfection, effect of perfection or non- (o) Sallie Mae Security means any (i) A Book-entry Sallie Mae Security perfection and priority of a security security or obligation of Sallie Mae or Security Entitlement; and interest in a Security Entitlement. 624 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

(b) The following rules determine a Reserve Bank indicates by book-entry interest are governed by such applicable ‘‘Securities Intermediary’s jurisdiction’’ that a Book-entry Sallie Mae Security law. A security interest in favor of a for purposes of this section: has been credited to a Participant’s Federal Reserve Bank shall be treated as (1) If an agreement between the Securities Account. a security interest in favor of a clearing Securities Intermediary and its (b) A security interest in a Security corporation in all respects under such Entitlement Holder specifies that it is Entitlement of a Participant in favor of law, including with respect to the effect governed by the law of a particular the United States to secure deposits of of perfection and priority of such jurisdiction, that jurisdiction is the public money, including without security interest. A Federal Reserve Securities Intermediary’s jurisdiction. limitation deposits to the Treasury tax Bank Operating Circular shall be treated (2) If an agreement between the and loan accounts, or other security as a rule adopted by a clearing Securities Intermediary and its interest in favor of the United States that corporation for such purposes. Entitlement Holder does not specify the is required by Federal statute, governing law as provided in paragraph regulation, or agreement, and that is § 354.5 Obligations of Sallie Mae; no (b)(1) of this section, but expressly marked on the books of a Federal adverse claims. specifies that the securities account is Reserve Bank is thereby effected and (a) Except in the case of a security maintained at an office in a particular perfected, and has priority over any interest in favor of the United States or jurisdiction, that jurisdiction is the other interest in the securities. Where a a Federal Reserve Bank or otherwise as Securities Intermediary’s jurisdiction. security interest in favor of the United (3) If an agreement between the States in a Security Entitlement of a provided in § 354.4(c)(1), for the Securities Intermediary and its Participant is marked on the books of a purposes of this Part 354, Sallie Mae Entitlement Holder does not specify a Federal Reserve Bank, such Federal and the Federal Reserve Banks shall jurisdiction as provided in paragraph Reserve Bank may rely, and is protected treat the Participant to whose Securities (b)(1) or (b)(2) of this section, the in relying, exclusively on the order of an Account an interest in a Book-entry Securities Intermediary’s jurisdiction is authorized representative of the United Sallie Mae Security has been credited as the jurisdiction in which is located the States directing the transfer of the the person exclusively entitled to issue office identified in an account statement security. For purposes of this paragraph, a Transfer Message, to receive interest as the office serving the Entitlement an ‘‘authorized representative of the and other payments with respect thereof Holder’s account. United States’’ is the official designated and otherwise to exercise all the rights (4) If an agreement between the in the applicable regulations or and powers with respect to such Securities Intermediary and its agreement to which a Federal Reserve Security, notwithstanding any Entitlement Holder does not specify a Bank is a party, governing the security information or notice to the contrary. jurisdiction as provided in paragraph interest. Neither the Federal Reserve Banks nor (b)(1) or (b)(2) of this section and an (c)(1) Sallie Mae and the Federal Sallie Mae is liable to a Person asserting account statement does not identify an Reserve Banks have no obligation to or having an Adverse Claim to a office serving the Entitlement Holder’s agree to act on behalf of any Person or Security Entitlement or to a Book-entry account as provided in paragraph (b)(3) to recognize the interest of any Sallie Mae Security in a Participant’s of this section, the Securities transferee of a security interest or other Securities Account, including any such Intermediary’s jurisdiction is the limited interest in favor of any Person claim arising as a result of the transfer jurisdiction in which is located the chief except to the extent of any specific or disposition of a Book-entry Sallie executive office of the Securities requirement of Federal law or regulation Mae Security by a Federal Reserve Bank Intermediary. or to the extent set forth in any specific pursuant to a Transfer Message that the (c) Notwithstanding the general rule agreement with the Federal Reserve Federal Reserve Bank reasonably in paragraph (a)(5) of this section, the Bank on whose books the interest of the believes to be genuine. law (but not the conflict-of-law rules) of Participant is recorded. To the extent (b) The obligation of Sallie Mae to the jurisdiction in which the Person required by such law or regulation or set creating a security interest is located forth in an agreement with a Federal make payments of interest and principal governs whether and how the security Reserve Bank, or the Federal Reserve with respect to Book-entry Sallie Mae interest may be perfected automatically Bank Operating Circular, a security Securities is discharged at the time or by filing a financing statement. interest in a Security Entitlement that is payment in the appropriate amount is (d) If the jurisdiction specified in in favor of a Federal Reserve Bank, made as follows: paragraph (b) of this section is a State Sallie Mae, or a Person may be created (1) Interest on Book-entry Sallie Mae that has not adopted Revised Article 8 and perfected by a Federal Reserve Bank Securities is either credited by a Federal (incorporated by reference, see § 354.1), marking its books to record the security Reserve Bank to a Funds Account then the law for the matters specified in interest. Except as provided in maintained at such Bank or otherwise paragraph (a) of this section shall be the paragraph (b) of this section, a security paid as directed by the Participant. law of that State as though Revised interest in a Security Entitlement marked on the books of a Federal (2) Book-entry Sallie Mae Securities Article 8 had been adopted by that are redeemed at maturity or pursuant to State. For purposes of the application of Reserve Bank shall have priority over a call for redemption in accordance with the matters specified in paragraph (a) of any other interest in the securities. their terms by a Federal Reserve Bank this section, the Federal Reserve Bank (2) In addition to the method withdrawing the securities from the maintaining the Participant’s Securities provided in paragraph (c)(1) of this Participant’s Securities Account in Account is a clearing corporation, and section, a security interest, including a which they are maintained and by either the Participant’s interest in a Book-entry security interest in favor of a Federal Security is a Security Entitlement. Reserve Bank, may be perfected by any crediting the amount of the redemption method by which a security interest proceeds, including both principal and § 354.4 Creation of Participant's Security may be perfected under applicable law interest where applicable, to a Funds Entitlement; security interests. as described in § 354.2(b) or § 354.3. The Account at such Bank or otherwise (a) A Participant’s Security perfection, effect of perfection or non- paying such principal and interest, as Entitlement is created when a Federal perfection and priority of a security directed by the Participant. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 625

§ 354.6 Authority of Federal Reserve Part in any case or class of cases for the DEPARTMENT OF DEFENSE Banks. convenience of Sallie Mae, or in order (a) Each Federal Reserve Bank is to relieve any person or entity of Office of the Secretary hereby authorized as fiscal agent of unnecessary hardship, if such action is 32 CFR Part 199 Sallie Mae to perform functions with not inconsistent with law, does not respect to the issuance of Book-entry adversely affect substantial existing [DoD 6010.8±R] Sallie Mae Securities offered and sold rights, and the Secretary is satisfied that RIN 0720±AA29 by Sallie Mae, in accordance with the such action will not subject Sallie Mae Securities Documentation, and Federal to any substantial expense or liability. Civilian Health and Medical Program of Reserve Bank Operating Circulars; to the Uniformed Services (CHAMPUS); service and maintain Book-entry Sallie § 354.9 Liability of Sallie Mae and Federal Clarification of the CHAMPUS Mae Securities in accounts established Reserve Banks. Exclusion of Unproven Drugs, Devices for such purposes; to make payments of Sallie Mae and the Federal Reserve and Medical Treatments and principal and interest with respect to Banks may rely on the information Procedures such Book-entry Sallie Mae Securities as directed by Sallie Mae; to effect transfer provided in a Transfer Message, and are AGENCY: Office of the Secretary, DoD. not required to verify the information. of Book-entry Sallie Mae Securities ACTION: Final rule. between Participants’ Securities Sallie Mae and the Federal Reserve Account as directed by the Participants; Banks shall not be liable for any action SUMMARY: This final rule clarifies the to effect conversions between Book- taken in accordance with the CHAMPUS exclusion of unproven entry Sallie Mae securities and information set out in a Transfer drugs, devices and medical treatments Definitive Sallie Mae Securities with Message or evidence submitted in and procedures and describes the respect to those securities as to which support thereof. process that the Office of CHAMPUS conversion rights are available pursuant follows in determining when such § 354.10 Additional provisions. to the applicable Securities drugs, devices, treatments and Documentation; and to perform such (a) Additional requirements. In any procedures have moved from the status other duties as fiscal agent as may be case or any class of cases arising under of unproven to the position of proven requested by Sallie Mae. these regulations, Sallie Mae may medical effectiveness. This clarification is necessary to ensure the CHAMPUS (b) Each Federal Reserve Bank may require such additional evidence and a beneficiary and provider population issue Operating Circulars not bond of indemnity, with or without understand the process the Office of inconsistent with this Part, governing surety, as may in the judgment of Sallie the details of its handling of Book-entry CHAMPUS (OCHAMPUS) follows prior Mae be necessary for the protection of to endorsement by CHAMPUS of a new Sallie Mae Securities, Security the interests of Sallie Mae. Entitlements, and the operation of the emerging medical technology, drug, or Book-entry System under this Part. (b) Notice of attachment for Sallie device for which the safety and efficacy Mae Securities in Book-entry System. have been proven. § 354.7 Withdrawal of eligible Book-entry The interest of a debtor in a Security DATES: This final rule is effective Sallie Mae Securities for conversion to Entitlement may be reached by a February 5, 1996. definitive form. creditor only by legal process upon the ADDRESSES: Office of the Civilian Health (a) Eligible Book-entry Sallie Mae Securities Intermediary with whom the and Medical Program of the Uniformed Securities may be withdrawn from the debtor’s securities account is Services (OCHAMPUS), Program Book-entry System by requesting maintained, except where a Security Development Branch, Aurora, CO delivery of like Definitive Sallie Mae Entitlement is maintained in the name 80045–6900. Securities. of a secured party, in which case the FOR FURTHER INFORMATION CONTACT: (b) A Federal Reserve Bank shall, debtor’s interest may be reached by legal Rene Morrell, Program Development upon receipt of appropriate instructions Branch, OCHAMPUS, telephone (303) to withdraw Eligible Book-entry Sallie process upon the secured party. The 361–1218. Mae Securities from book-entry in the regulations in this part do not purport Book-entry System, convert such to establish whether a Federal Reserve SUPPLEMENTARY INFORMATION: Bank is required to honor an order or securities into Definitive Sallie Mae A. Discussion of Champus Policy Securities and deliver them in other notice of attachment in any accordance with such instructions. No particular case or class of cases. Under statutes governing CHAMPUS, including 10 U.S.C. 1079, CHAMPUS such conversion shall affect existing Dated: December 29, 1996. payments are prohibited for health care interests in such Sallie Mae Securities. Gerald Murphy, (c) All requests for withdrawal of services that are ‘‘not medically or Eligible Book-entry Sallie Mae Fiscal Assistant Secretary. psychologically necessary.’’ The Securities must be made prior to the [FR Doc. 97–129 Filed 1–3–97; 8:45 am] purpose of this provision, common in maturity or date of call of such BILLING CODE 4810±39±W health care payment programs, is to securities. prevent CHAMPUS beneficiaries from (d) Sallie Mae Securities which are to being exposed to less than fully be delivered upon withdrawal may be developed and tested medical issued in either registered or bearer procedures and to avoid the associated form, to the extent permitted by the risk of unnecessary or unproven applicable Securities Documentation. treatment. CHAMPUS regulations and program policies restrict benefits to § 354.8 Waiver of regulations. those procedures for which the safety The Secretary reserves the right, in and efficacy have been proven to be the Secretary’s discretion, to waive any comparable or superior to conventional provision(s) of the regulations in this therapies. In general, the CHAMPUS 626 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations regulations and program policies For example, in Hawkins v. Mail Transplantation’’ prepared by the Office exclude cost-sharing of procedures Handlers Benefit Plan and CHAMPUS, of Health Technology Assessment, which are unproven, including those Civil No. 1:94CV6, W.D.N.C. (Jan. 28, Agency for Health Care Policy and that remain in a developmental status. 1994), the court ruled on a motion for Research (OHTA/AHCPR) of the Public The evolution of any medical a preliminary injunction filed by a Health Service, and authored by Harry technology or procedure from unproven beneficiary of both the Mail Handlers Handelsman, D.O.; status to one of national acceptance is Benefit Plan and CHAMPUS, seeking a 2. The American Medical Association often controversial, with those members court order overruling the exclusion in Diagnostic and Therapeutic Technology of the medical community who are both plans of coverage for HDC/SCR as Assessment (AMA DATTA) evaluation using and promoting the procedure a treatment for breast cancer. The court of January 1990 entitled ‘‘Autologous arguing that the procedure has national ruled in favor of the Mail Handlers Bone Marrow Transplantation 0 acceptance. In determining whether a Benefit Plan, but against CHAMPUS Reassessment’’ by Elizabeth Brown, procedure has proven medical based on judgment that the M.D.; effectiveness, CHAMPUS uses the determination that this procedure was 3. The June 1993 study entitled following hierarchy of assessment experimental was not clearly ‘‘Autologous Bone Marrow Transplant sources: established by CHAMPUS and was not and Peripheral Blood Stem Cell Rescue 1. Well-controlled studies of clinically supported by the evidence submitted to for the Treatment of Breast Cancer’’ meaningful endpoints, published in the court. copyright by the Emergency Care refereed medical literature. Similarly, in Wheeler v. Dynamic Research Institute (ECRI) 5200 Butler 2. Formal technology assessments Engineering Inc., and CHAMPUS, No. Pike, Plymouth Meeting, Pa 19462; and from nationally recognized technology 4.94CV16, E.D.Va (April 4, 1994), 4. The February 1995 ECRI assessment groups, such as the: another case of a beneficiary covered by assessment of ‘‘Autologous Bone Marrow Transplant and Peripheral —Food and Drug Administration (FDA); both an employer plan and CHAMPUS Blood Stem Cell Rescue for the —Agency for Health Care Policy and who sought a judgment that both should cover HDC/SCR for breast cancer Treatment of Breast Cancer.’’ Research (AHCPR); Since the time the 1988 and 1990 —Emergency Care Research Institute treatment, the court made a distinction between a new company plan that reports mentioned above were initially (ECRI). prepared, OCHAMPUS has performed a 3. National medical policy organization specifically excluded the procedure and continuous review of the refereed positions such as the: the former company plan and medical literature on this topic, and has —Medical Advisory Panel of the CHAMPUS, both of which did not had numerous confirming discussions National Blue Cross/Blue Shield expressly do so. After determining that with the Office of Health Technology Association. the former plan was applicable (based Assessment (OHTA) of the Public 4. National professional medical on the date the treatment began), the Health Service regarding their position. association positions such as those court ruled that neither the plan nor The latest of these discussions promulgated by the: CHAMPUS could properly exclude confirmed the lack of refereed medical —American College of Obstetricians and coverage of the procedure. literature that would support Gynecologists. Two Circuit Courts of Appeals have recently addressed this issue, and CHAMPUS coverage of this procedure 5. National expert opinion reached conflicting results. In Smith v. for treatment of breast carcinoma. organizations such as the: OCHAMPUS, No. 94–3744, 7th Cir., Therefore, although the initial policy —Diagnostic and Therapeutic Sept. 26, 1995, the Seventh Circuit classifying HDC/SCR as investigational Technology Assessment (DATTA) Court of Appeals ruled that the under CHAMPUS was based upon group of the American Medical CHAMPUS exclusion for HDC/SCR for literature and technical assessments Association; breast cancer was justified, but the dating from the 1988–1990 time-frame, —Health Care Financing opposite answer was reached by the OCHAMPUS continually monitored Administration. Fourth Circuit Court of Appeals in development of the literature and the CHAMPUS policy and benefit Wilson v. OCHAMPUS, No. 95–1016, status of ongoing well-controlled structure are never based solely on 4th Cir., Sept. 15, 1995. The Seventh clinical trials regarding the effectiveness coverage offered by other third party Circuit recently granted a motion for of this form of treatment for breast payers, including Medicare, since each rehearing in the Smith case. carcinoma and other carcinomas for operates under different rules and OCHAMPUS has carefully reviewed which it is not currently authorized as requirements. the evidence on HDC/SCR as a a CHAMPUS benefit. The June 1993 treatment for breast cancer. It is our formal assessment by ECRI provided B. Need for the Regulation conclusion that it continues to be an independent reconfirmation of the This final rule does not present new unproven treatment because the CHAMPUS position. This independent agency policy. Rather, it reaffirms and chemotherapy regimen is not approved reconfirmation has been substantially clarifies existing CHAMPUS policy in by FDA, no well-controlled clinical bolstered by the 1995 ECRI studies the body of the CHAMPUS regulation. trials have proven the effectiveness of which indicated that ‘‘results from the We revise the regulation primarily in HDC/SCR for breast cancer (and certain experimental procedure are not any response to a series of U.S. district court other cancers as well), and because better than published results for decisions concerning one particular formal technology assessment studies conventional therapy to treat breast unproven treatment, high dose have concluded similarly. The cancer,’’ and that ‘‘the impetus for this chemotherapy (HDC) with stem cell CHAMPUS policy regarding the (treatment) is more political than rescue (SCR) as a treatment for breast unproven nature of HDC/SCR for breast scientific * * * (It) is a treatment that’s cancer (discussed more below), in cancer is based upon a series of reports becoming mandated by popular which the courts held that the from four primary sources: opinion.’’ This most recent information CHAMPUS determination regarding this 1. The 1988 study entitled ‘‘Public reconfirms, in even stronger terms and treatment was not sufficiently Health Service Reassessment: with new studies and literature, the established to be accepted by the courts. Autologous Bone Marrow earlier conclusions of previous Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 627 technology assessments that HDC/SCR Department has worked closely with the other third party payers, including has not been proven to be effective in National Cancer Institute to establish a Medicare, since each operates under the treatment of breast cancer. To date formal program for interagency different rules and requirements. In the there has been no new evidence which cooperation which will provide an interest of minimizing regulatory would warrant a departure from the important contribution to the continued burden and confusion, CHAMPUS seeks original coverage determination to development of promising new cancer to harmonize its coverage policy with exclude CHAMPUS cost-sharing of this therapies. other federal programs and the private procedure for the treatment of breast sector to the extent appropriate. C. Provisions of the Final Rule carcinoma. The CHAMPUS position is 3. Discretionary waiver authority. One further supported by the Consensus The final rule describes the criteria commenter suggested this rule provide Conference on Intensive Chemotherapy we use to identify the proven medical discretionary waiver authority to the Plus Hematopietic Stem Cell necessity of procedures, treatments, Director, OCHAMPUS, based on Transplantation in Malignancies drugs, or devices, includes a partial list coordination at the professional level [(Journal of Clinical Oncology, Volume of unproven drugs, devices, treatments, between the military medical services 12, Number 1, (January 1994); pages and procedures, and makes provision and OCHAMPUS, to ensure that 226–231; (Attachment 5)] which states for promptly treating a drug, device, individuals who might otherwise in part: treatment or procedure as no longer benefit, would not be unduly penalized unproven when reliable scientific ** * Although there is currently by the inflexibility of the rule. Such a insufficient evidence to justify the use of evidence supports that conclusion. Any provision would be consistent with HDC/plus HSC (Hematopietic Stem Cell) changes to the partial list will be implementation of the managed care transplantation outside the setting of clinical published periodically as a notice in the concept, current research protocols at trial for any stage of breast cancer, there is Federal Register. military facilities, and the Department amply scientific background for vigorous D. Public Comments of Defense demonstration programs. clinical investigation in this important area Response: The CHAMPUS Regulation *** This final rule is based on a proposed already allows for discretionary waiver Based on the evidence regarding this rule published May 18, 1995 (60 FR authority for rare and unusual cases, procedure, which demonstrates that it 26705–26709). We received seven consistent with applicable law. continues to be unproven, and the series public comments. Many of the However, by law, CHAMPUS can only of recent court rulings declining to comments were quite similar in wording cost-share medically necessary supplies follow an exclusion not clearly and content. Some were very detailed and services. Any drug, device or established in the governing and provided helpful insight and medical treatment or procedure whose instruments of the program, we believe analysis. We thank those who provided safety and efficacy have not been this rule is necessary to reaffirm and input on this important issue. established, is unproven and cannot be clarify CHAMPUS policy on unproven Significant items raised by commenters cost-shared by CHAMPUS. drugs, devices, and medical treatments and our analysis of the comments are 4. Definition of Reliable Evidence. We and procedures and to specifically list a summarized below: received several comments expressing number of procedures we have 1. Definitions of ‘‘Experimental.’’ We concern about the use of the term determined are unproven. received a significant number of ‘‘reliable evidence’’ in the proposed The Department shares public and comments expressing concerns about rule. Many of the types of evidence scientific concern about disappointing terminology used in the proposed rule, demanded by the proposed regulation cure rates under standard cancer particularly the use of the term do not exist for many surgical and other therapies. In emphasizing refereed ‘‘experimental’’ to describe treatments procedures. Also, simply stating that medical literature as the primary source that had not yet established proven randomized controlled trials constitute of reliable evidence that a particular medical effectiveness. a form of reliable evidence, does not treatment or procedure has proven Response: We agree that use of this address the question whether the trial medical effectiveness, we also term causes more confusion than demonstrates efficacy or lack thereof. underscore our support for committed clarification, and have modified the The commenter believed that efforts to advance medical research. We final rule to delete the use of the term CHAMPUS needs to define more clearly have an interest and a responsibility to ‘‘experimental.’’ how it will determine the boundaries of participate in the appropriate evaluation 2. Effect of CHAMPUS policy on other experimental, i.e., the ‘‘gray zone’’ of improved therapeutic approaches for government agencies or other health between effective and ineffective our patients. A number of military care programs. We wish to underscore treatment. medical centers are engaged in such that this final rule relates to the Response: We agree that the use of research protocols. In November 1994, CHAMPUS program. It does not directly this term was easily misunderstood and under authority of 10 U.S.C. 1092, the affect Medicare, Medicaid or other have modified the definition for clarity. Department of Defense undertook a payers. Each program has its own set of The term ‘‘reliable evidence’’ means demonstration project to authorize rules, requirements, and procedures. well controlled studies of clinically payment for breast cancer treatment Thus, determinations by the Office of meaningful endpoints, published in under certain government approved CHAMPUS concerning medical refereed medical literature; published clinical protocols. Initially, the treatments that have established proven formal technology assessments; demonstration project applied only to medical effectiveness and those that published reports of national phase III clinical trials under approved have not should be understood as professional medical associations; National Cancer Institute protocols for representing the best judgment of the published national medical policy high dose chemotherapy with stem cell Department of Defense, but not organizations positions; and published rescue for breast cancer treatment. It necessarily reflecting the views of any reports of national expert opinion was expanded in January of this year to other government agency or other health organizations. We have also included include a broad range of National care program. In addition CHAMPUS specific examples of resources not Cancer Institute sponsored Phase II and policy and benefit structure are never included in the meaning of reliable III clinical trials for other cancers. The based solely on coverage offered by evidence. As stated previously, the 628 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations definition of ‘‘experimental’’ has been accepted standards of practice in the Director OCHAMPUS will initiate deleted from the rule. medical community. action to remove the procedure from the 5. Benefit Limitations. We received 7. List of Excluded Procedures. We partial list of unproven drugs, devices or several comments on the denial of received several comments objecting to medical treatment or procedures. payment for a procedure that uses FDA- several of the items listed. Some approved products, and coverage of off- comments state that the descriptions E. Regulatory Procedures label uses of approved drugs in clinical used in many of the items were too Executive Order 12866 requires trials. It was recommended that vague to define accurately which certain regulatory assessments for any CHAMPUS cover the patient’s care costs procedures are being excluded for ‘‘significant regulatory action,’’ defined associated with any clinical trial payment and some are of procedures as one which would result in an annual (including all ‘‘phases’’ of evaluation) independent of the diseases or effect on the economy of $100 million involving a life-threatening or other conditions that they may treat or or more, or have other substantial serious condition. mitigate. Several commenters submitted impacts. Response: Some procedures, even literature regarding intraoperative The Regulatory Flexibility Act (RFA) though the procedure uses an FDA- radiation therapy; single and dual requires that each federal agency approved product, do not meet photon absorptiomentry (DEXA); prepare, and make available for public CHAMPUS’ criteria for medically videofluroscopy, herniography, comment, a regulatory flexibility necessary treatment. The purpose of this percutaneous balloon valvuloplasty analysis when the agency issues provision is to prevent CHAMPUS (PBV); interoperative monitoring of regulations which would have beneficiaries from being exposed to less sensory evoked potentials (SEP); significant impact on a substantial than fully developed and tested medical radioimmunoguided surgery in the number of small entities. This proposed procedures and to avoid the associated detection of cancer; quantitative rule is not a significant regulatory action risk of unnecessary or unproven computed tomography (QCT); under Executive Order 12866. This rule treatment. In addition, services or percutaneous transluminal angioplasty will not involve any significant burden supplies for which the beneficiary or (PBA); light therapy for seasonal on the CHAMPUS beneficiary or sponsor has no legal obligation to pay; depression; immunotherapy for provider population. This rule only or for which no charge would be made malignant diseases; intracavity clarifies the CHAMPUS exclusion of if the beneficiary or sponsor was not administration of cisplatin; palladium unproven drugs, devices, treatments and eligible under CHAMPUS, as may be the (103Pd) seed brachytherapy; procedures and describes the process case in clinical trials, are not covered by cryosurgery for liver metastases; HLA– that the Office of CHAMPUS follows in CHAMPUS. One of the provisions of DNA typing; and home uterine activity determining for purposes of benefit this rule allows coverage for a device monitoring. The greatest disagreement coverage when a procedure, treatment, with an FDA-approved IDE categorized involved high-dose chemotherapy with drug, or device has moved from the by the FDA as non-experimental/ stem-cell rescue for breast cancer, status of unproven to the position of investigation (FDA Category B) for ovarian cancer, testicular cancer and nationally accepted medical practice. CHAMPUS beneficiaries participating in multiple myeloma. This rule does not impose information FDA-approved clinical trials. Response: The issue of high-dose collection requirements on the public 6. Off-Label Uses of Drugs. Several chemotherapy with stem-cell rescue under the Paperwork Reduction Act of commenters were concerned that the (HSC/SCR) is addressed extensively in 1995 (44 U.S.C. 3501, et seq.) proposed regulation does not give the preamble. The most recent automatic coverage to many well- information reconfirms, in even stronger List of Subjects in 32 CFR Part 199 recognized off-label uses. It was terms and with new studies and Claims, Handicapped, Health recommended that CHAMPUS adopt the literature, the earlier conclusions of Insurance, and Military personnel. approach that Congress utilized in the previous technology assessments that Accordingly, 32 CFR Part 199 is Medicaid program for all drugs and in HSC/SCR is unproven in the treatment amended as follows: the Medicare program for cancer of breast cancer. To date there has been 1. The authority citation for part 199 chemotherapy. Under those statutes, off- no new evidence which would warrant continues to read as follows: label drug uses listed in the three major a departure from the original coverage drug-use compendia—U.S. determination. Authority: 5 U.S.C. 301; and 10 U.S.C. Pharmacopoeia Drug Information, the Since the proposed rule was Chapter 55. American Medical Association’s Drug published, OCHAMPUS has removed 2. Section 199.2 is amended in Evaluations, and the American Hospital herniography, HLA–DNA typing, paragraph (b) by removing the definition Formulary Service—are automatically cryosurgery for liver metastases, bone of ‘‘Experimental’’ and adding the covered. density studies [single and dual photon definitions for ‘‘Clinically Meaningful Response: The above listed absorptiometry and quantitated Endpoints’’, ‘‘Rare Diseases’’, ‘‘Reliable compendia do not meet the CHAMPUS computed tomography (QCT)], Contigen Evidence’’, and ‘‘Unlabeled or Off- criteria for ‘‘reliable evidence.’’ Bard  collagen implant, transurethral Labeled Drugs’’ and placing them in CHAMPUS can consider coverage of laser incision of the prostate (TULIP) alphabetical order to read as follows: unlabeled or off-label uses of drugs that and intraventricular administration of are otherwise approved by the FDA for narcotics from the list of unproven § 199.2 Definitions. use in humans. Approval for procedures. We will continually * * * * * reimbursement of unlabeled or off-label monitor the development of the (b) * * * uses requires review for medical literature and the status of ongoing well- Clinically Meaningful Endpoints. As necessity, and also requires controlled clinical trails regarding the used the definition of reliable evidence demonstrations from medical literature, effectiveness of the remaining in this paragraph (b) and § 199.4(g)(15), national organizations, or technology procedures on the list. If and when the the term clinically meaningful assessment bodies that the unlabeled or Director, OCHAMPUS determines that, endpoints means objectively measurable off-label use of the drug is safe, effective based on reliable evidence, a procedure outcomes of clinical interventions or and in accordance with nationally has proven medical effectiveness, the other medical procedures, expressed in Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 629 terms of survival, severity of illness or law, CHAMPUS can only cost-share (C) Unless reliable evidence shows condition, extent of adverse side effects, medically necessary supplies and that any medical treatment or procedure diagnostic capability, or other effect on services. Any drug, device or medical has been the subject of well-controlled bodily functions directly associated treatment or procedure, the safety and studies of clinically meaningful with such results. efficacy of which have not been endpoints, which have determined its * * * * * established, as described in this maximum tolerated dose, its toxicity, its Rare Diseases. CHAMPUS defines a paragraph (g)(15), is unproven and safety, and its efficacy as compared with rare disease as one which affects fewer cannot be cost-shared by CHAMPUS. standard means of treatment or than one in 200,000 Americans. (i) A drug, device, or medical diagnosis. (See the definition of reliable * * * * * treatment or procedure is unproven: evidence in § 199.2 of this part for the Reliable evidence. (1) As used in (A) If the drug or device cannot be procedures used in determining if a § 199.4(g)(15), the term reliable evidence lawfully marketed without the approval medical treatment or procedure is means only: or clearance of the United States Food unproven.) (D) If the consensus among experts (i) Well controlled studies of and Drug Administration (FDA) and regarding the medical treatment or clinically meaningful endpoints, approval or clearance for marketing has procedure is that further studies or published in refereed medical literature. not been given at the time the drug or clinical trials are necessary to determine (ii) Published formal technology device is furnished to the patient. assessments. its maximum tolerated doses, its Note: Although the use of drugs and toxicity, its safety, or its effectiveness as (iii) The published reports of national medicines not approved by the FDA for professional medical associations. compared with the standard means of commercial marketing, that is for use by treatment or diagnosis. (See the (iv) Published national medical policy humans, (even though permitted for testing organization positions; and on humans) is excluded from coverage as definition of reliable evidence in § 199.2 (v) The published reports of national unproven, drugs grandfathered by the of this part for the procedures used in expert opinion organizations. Federal Food, Drug and Cosmetic Act of 1938 determining if a medical treatment or (2) The hierarchy of reliable evidence may be covered by CHAMPUS as if FDA procedure is unproven.) of proven medical effectiveness, approved. (ii) CHAMPUS benefits for rare established by (1) through (5) of this Certain cancer drugs, designated as Group diseases are reviewed on a case-by-case paragraph, is the order of the relative C drugs (approved and distributed by the basis by the Director, Office of weight to be given to any particular National Cancer Institute) and Treatment CHAMPUS, or a designee. In reviewing source. With respect to clinical studies, Investigational New Drugs (INDs), are not the case, the Director, or a designee, covered under CHAMPUS because they are may consult with any or all of the only those reports and articles not approved for commercial marketing by containing scientifically valid data and following sources to determine if the the FDA. However, medical care related to proposed therapy is considered safe and published in the refereed medical and the use of Group C drugs and Treatment INDs scientific literature shall be considered can be cost-shared under CHAMPUS when effective: as meeting the requirements of reliable the patient’s medical condition warrants (A) Trials published in refereed evidence. Specifically not included in their administration and the care is provided medical literature. the meaning of reliable evidence are in accordance with generally accepted (B) Formal technology assessments. (C) National medical policy reports, articles, or statements by standards of medical practice. organization positions. providers or groups of providers CHAMPUS can also consider coverage of unlabeled or off-label uses of drugs that are (D) National professional associations. containing only abstracts, anecdotal Food and Drug Administration (FDA) (E) National expert opinion evidence or personal professional approved drugs that are used for indications organizations. opinions. Also not included in the or treatments not included in the approved (iii) Care excluded. This exclusion meaning of reliable evidence is the fact labeling. Approval for reimbursement of from benefits includes all services that a provider or a number of providers unlabeled or off-label uses requires review directly related to the unproven drug, have elected to adopt a drug, device, or for medical necessity, and also requires device, or medical treatment or medical treatment or procedure as their demonstrations from medical literature, national organizations, or technology procedure. However, CHAMPUS may personal treatment or procedure of cover services or supplies when there is choice or standard of practice. assessment bodies that the unlabeled or off- label use of the drug is safe, effective and in no logical or causal relationship * * * * * accordance with nationally accepted between the unproven drug, device or Unlabeled or Off-Label Drugs. Food standards of practice in the medical medical treatment or procedure and the and Drug Administration (FDA) community. treatment at issue or where such a approved drugs that are used for logical or causal relationship cannot be (B) If a medical device (as defined by indications or treatments not included established with a sufficient degree of 21 U.S.C. 321(h)) with an Investigational in the approved labeling. The drug must certainty. This CHAMPUS coverage is Device Exemption (IDE) approved by be medically necessary for the treatment authorized in the following the Food and Drug Administration is of the condition for which it is circumstances: administered, according to accepted categorized by the FDA as experimental/ (A) Treatment that is not related to the standards of medical practice. investigational (FDA Category A). unproven drug, device or medical * * * * * Note: CHAMPUS will consider for treatment or procedure; e.g., medically 3. Section 199.4 is amended by coverage a device with an FDA-approved IDE necessary in the absence of the revising paragraph (g)(15) to read as categorized by the FDA as non-experimental/ unproven treatment. investigational (FDA Category B) for follows: (B) Treatment which is necessary CHAMPUS beneficiaries participating in follow-up to the unproven drug, device § 199.4 Basic program benefits. FDA approved clinical trials. Coverage of any such Category B device is dependent on its or medical treatment or procedure but * * * * * meeting all other requirements of the laws which might have been necessary in the (g) Exclusions and limitations. * ** and rules governing CHAMPUS and upon the absence of the unproven treatment. (15) Unproven drugs, devices, and beneficiary involved meeting the FDA- (iv) Examples of unproven drugs, medical treatments or procedures. By approved IDE study protocols. devices or medical treatments or 630 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations procedures. This paragraph (g)(15)(iv) (P) Intraoperative radiation therapy. brainstem auditory evoked response, consists of a partial list of unproven (Q) Gastric bubble or balloon. somatosensory evoked potentials during drugs, devices or medical treatment or (R) Dorsal root entry zone (DREZ) spinal and orthopedic surgery, and procedures. These are excluded from thermocoagulation or micorcoagulation sensory evoked potentials monitoring of CHAMPUS program benefits. This list is neurosurgical procedure. the sciatic nerve during total hip not all inclusive. Other unproven drugs, (S) Brain electrical activity mapping replacement. Recording SEPs in devices or medical treatments or (BEAM). unconscious head injured patients to procedures, are similarly excluded, (T) Topographic brain mapping (TBM) assess the status of the somatosensory although they do not appear on this procedure. system. The use of SEPs to define partial list. This partial list will be (U) Ambulatory blood pressure conceptional or gestational age in reviewed and updated periodically as monitoring. preterm infants. new information becomes available. (V) Bilateral carotoid body resection (RR) Autolymphocyte therapy (ALT) With respect to any procedure included to relieve pulmonary system. (immunotherapy used for treating on this partial list, if and when the (W) Intracavitary administration of metastatic kidney cancer patients). Director, OCHAMPUS determines that cisplatin for malignant disease. (SS) Radioimmunoguided surgery in based on reliable evidence (as defined (X) Cervicography. the detection of cancer. in section 199.2) such procedure has (Y) In-home uterine activity (TT) Gait analysis (also known as a proven medical effectiveness, the monitoring for the purpose of walk study or electrodynogram) Director will initiate action to remove preventing preterm labor and/or (UU) Use of cerebellar stimulators/ the procedure from this partial list of delivery. pacemakers for the treatment of unproven drugs, devices or medical (Z) Sperm evaluation, hamster neurologic disorders. treatment or procedures. From the date penetration test. (VV) Signal-averaged ECG. established by the Director as the date (AA) Transfer factor (TF). (WW) Peri-urethal Teflon injections to the procedure has established proven (BB) Continuous ambulatory manage urinary incontinence. medical effectiveness until the date the esophageal pH monitoring (CAEpHM) is (XX) Extraoperative regulatory change is made to remove the considered unproven for patients under electrocorticography for stimulation and procedures from the partial list of age 12 for all indications, and for recording unproven drugs, devices or medical patients over age 12 for sleep apnea. (YY) Quantitative computed treatment or procedures the Director, (CC) Adrenal-to-brain transplantation tomography (QCT) for the detection and OCHAMPUS will suspend treatment of for Parkinson’s disease. monitoring of osteoporosis. the procedure as unproven drugs, (DD) Videofluoroscopy evaluation in (ZZ) [Reserved] devices, or medical treatments or speech pathology. (AAA) Percutaneous transluminal procedures. Following is the non- (EE) Applied kinesiology. angioplasty in the treatment of (FF) Hair analysis to identify mineral inclusive, partial list of unproven drugs, obstructive lesions of the carotoid, deficiencies from the chemical devices or medical treatment or vertebral and cerebral arteries. composition of the hair. Hair analysis (BBB) Endoscopic third procedures, all of which are excluded testing may be reimbursed when ventriculostomy. from CHAMPUS benefits: (CCC) Holding therapy—Involves (A) Radial keratotomy (refractive necessary to determine lead poisoning. holding the patient in an attempt to keratoplasty). (GG) Iridology (links flaws in eye (B) Cellular therapy. coloration with disease elsewhere in the achieve interpersonal contact, and to (C) Histamine therapy. body). improve the patient’s ability to (D) Stem cell assay, a laboratory (HH) Small intestinal bypass concentrate on learning tasks. procedure which allows a determination (jejunoileal bypass) for treatment of (DDD) In utero fetal surgery. to be made of the type and dose of morbid obesity. (EEE) Light therapy for seasonal cancer chemotherapy drugs to be used, (II) Biliopancreatic bypass. depression (also known as seasonal based on in vitro analysis of their effects (JJ) Gastric wrapping/gastric banding. affective disorder (SAD)). on cancer cells taken from an (KK) Calcium EAP/calcium orotate (FFF) Dorsal column and deep brain individual. and selenium (also known as Nieper electrical stimulation of treatment of (E) Topical application of oxygen. therapy)—Involves inpatient care and motor function disorder. (F) Immunotherapy for malignant use of calcium compounds and other (GGG) Chelation therapy, except with disease, except when using drugs non-FDA approved drugs and special products and for indications approved approved by the FDA for this purpose. diets. Used for cancer, heart disease, by the FDA. (G) Prolotherapy, joint sclerotherapy, diabetes, and multiple sclerosis. (HHH) All organ transplants except and ligamentous injections with (LL) Percutaneous balloon heart, heart-lung, lung, kidney, some sclerosing agents. valvuloplasty for mitral and tricuspid bone marrow, liver, liver-kidney, (H) Transcervical block silicone plug. valve stenosis. corneal, heart-valve, and kidney- (I) Whole body hyperthermia in the (MM) Amniocentesis performed for pancreas transplants for Type I diabetics treatment of cancer. ISO immunization to the ABO blood with chronic renal failure who require (J) Portable nocturnal hypoglycemia antigens. kidney transplants. detectors. (NN) Balloon dilatation of the (III) Implantable infusion pumps, (K) Testosterone pellet implants in the prostate. except for treatment of spasticity, treatment of females. (OO) Helium in radiosurgery. chronic intractable pain, and hepatic (L) Estradiol pellet implants. (PP) Electrostimulation of salivary artery perfusion chemotherapy for the (M) Epikeratophakia for treatment of production in the treatment of treatment of primary liver cancer or aphakia and myopia. xerostomia secondary to Sjogren’s metastic colorectal liver cancer. (N) Bladder stimulators. syndrome. (JJJ) Services related to the candidiasis (O) Ligament replacement with (QQ) Intraoperative monitoring of hypersensitivity syndrome, yeast absorbable copolymer carbon fiber sensory evoked potentials (SEP). To syndrome, or gastrointestinal scaffold. include visually evoked potentials, candidiasis (i.e., allergenic extracts of Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 631

Candida albicans for immunotherapy PART 813Ð[REMOVED] applicability to the general public. This and/or provocation/neutralization). action is the result of departmental Accordingly, 32 CFR, Chapter VII, is review. The intended effect is to ensure (KKK) Treatment of chronic fatigue amended by removing part 813. syndrome. that only regulations which Patsy J. Conner, substantially affect the public are (LLL) Extracorporeal Air Force Federal Register Liaison Officer. maintained in the Air Force portion of immunoadsorption using protein A [FR Doc. 97–88 Filed 1–3–97; 8:45 am] the Code of Federal Regulations. columns for conditions other than acute idopathic thrombocytopenia purpura. BILLING CODE 3910±01±P EFFECTIVE DATE: January 6, 1997. FOR FURTHER INFORMATION CONTACT: (MMM) Dynamic posturography (both Ms. static and computerized). Patsy J. Conner, Air Force Federal 32 CFR Part 818b Register Liaison Officer, SAF/AAX, (NNN) Laparoscopic myomectomy. Legal Assistance Program 1720 Air Force Pentagon, Washington (OOO) Growth factor, including DC 20330–1720, telephone (703) 697– platelet-derived growth factors, for AGENCY: Department of the Air Force, 4191. treating non-healing wounds. This Department of Defense.  SUPPLEMENTARY INFORMATION: includes Procurene , a platelet-derived ACTION: Final rule; removal. wound-healing formula. List of Subjects in 32 CFR Part 844 (PPP) High dose chemotherapy with SUMMARY: The Department of the Air Civil disorders, Military academies, stem cell rescue (HDC/SCR) for any of Force is amending Title 32, Chapter VII Military personnel. the following malignancies: of the CFR by removing Part 818b, Legal Assistance Program. This rule is Authority: 10 U.S.C. 8013. (1) Breast cancer, except for metastic removed because it has limited breast cancer that has relapsed after PART 844Ð[REMOVED] applicability to the general public. This responding to a first line treatment. action is the result of departmental Accordingly, 32 CFR, Chapter VII, is (2) Ovarian cancer. review. The intended effect is to ensure amended by removing part 844. (3) Testicular cancer. that only regulations which Patsy J. Conner, Dated: December 30, 1996. substantially affect the public are Air Force Federal Register Liaison Officer. L.M. Bynum, maintained in the Air Force portion of [FR Doc. 97–89 Filed 1–3–97; 8:45 am] the Code of Federal Regulations. Alternate OSD Federal Register Liaison BILLING CODE 3910±01±P Officer, Department of Defense. EFFECTIVE DATE: January 6, 1997. [FR Doc. 97–101 Filed 1–6–97; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms. BILLING CODE 5000±04±M Patsy J. Conner, Air Force Federal POSTAL SERVICE Register Liaison Officer, SAF/AAX, 1720 Air Force Pentagon, Washington 39 CFR Part 20 Department of the Air Force DC 20330–1720, telephone (703) 697– 4191. Global Package Link (Formerly 32 CFR Part 813 International Package Consignment SUPPLEMENTARY INFORMATION: Service) Schedule of Fees for Copying, List of Subjects in 32 CFR Part 818b Certifying and Searching Records and AGENCY: Postal Service. Other Documentary Material Legal services, Military law, Military ACTION: Final rule. personnel. SUMMARY: The Postal Service, after AGENCY: Department of the Air Force, Authority: 10 U.S.C. 8013. Department of Defense. considering the comments submitted in PART 818bÐ[REMOVED] response to its requests in 59 FR 65961 ACTION: Final rule; removal. (December 22, 1994) for comments on Accordingly, 32 CFR, Chapter VII, is interim regulations implementing SUMMARY: The Department of the Air amended by removing part 818b. International Package Consignment Force is amending Title 32, Chapter VII Patsy J. Conner, (IPCS) service, and in 60 FR 61660 of the CFR by removing Part 813, Air Force Federal Register Liaison Officer. (December 1, 1995) on an amendment of Schedule of Fees for Copying, Certifying [FR Doc. 97–87 Filed 1–3–97; 8:45 am] the interim regulations implementing and Searching Records and Other BILLING CODE 3910±01±P International Package Consignment Documentary Material. This rule is Service, hereby gives notice that it is removed because the source document adopting the interim regulations as has been rescinded. 32 CFR Part 844 amended on a permanent basis, without EFFECTIVE DATE: January 6, 1997. modification. The Postal Service also Distribution of Literature and Protest announces that the name of the service FOR FURTHER INFORMATION CONTACT: Ms. and Dissident Activities has been changed to Global Package Patsy J. Conner, Air Force Federal Link (GPL) service. Register Liaison Officer, SAF/AAX, AGENCY: Department of the Air Force, EFFECTIVE DATE: 12:01, a.m., January 6, 1720 Air Force Pentagon, Washington Department of Defense. 1997. DC 20330–1720, telephone (703) 697– ACTION: Final rule; removal. 4191. FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the Air Robert E. Michelson, (202) 268–5731. SUPPLEMENTARY INFORMATION: Force is amending Title 32, Chapter VII SUPPLEMENTARY INFORMATION: On List of Subjects in 32 CFR Part 813 of the CFR by removing Part 844, December 22, 1994, the Postal Service Distribution of Literature and Protest published in the Federal Register Freedom of information. and Dissident Activities. This rule is interim regulations implementing Authority: 10 U.S.C. 8013. removed because it has limited Global Package Link (GPL) to Japan and 632 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations requested comments. 59 FR 65,961 export goods to Japan more efficiently produce a reasonable contribution to (December 22, 1994). GPL is an and cheaply. It also stated that it would overhead. international mail service designed for eagerly evaluate similar programs to The Postal Service does not agree mail order companies sending additional destination countries. It did with these assertions. First, no statute merchandise packages to other not object to taking its packages to New requires the Postal Service to publish countries. The service was initially York’s JFK airport for posting but would cost or other data to support available to Japan, with Canada to be like to have additional acceptance international postage rates. Such data added as a destination country in the points in the Midwest and the West are recognized by all in the international future. Other destination countries Coast. In particular, it suggested Chicago package business as commercially would be added as customer needs O’Hare airport as an additional sensitive. Second, GPL rates produce dictated. To use GPL, a customer would acceptance point. These comments revenues greater than costs. They are be required to mail at least 25,000 confirm the Postal Service’s belief that not subsidized by other mail. As at least packages in one year to each country to GPL service will benefit U.S. exporters. one of these commenters appears to have recognized, higher volume which it wants to use the service, and Additional destinations will be customers mail packages that are lower to agree to link its information systems considered depending on customer cost than single piece packages. Insofar with the Postal Service’s so that the need. Additional acceptance points will Postal Service could extract certain as these packages cause the Postal also be considered, again depending on information about the contents of the Service to incur lower costs, lower rates customer need. See 61 FR 39,592 (July customer’s packages for customs are also justified. In addition, higher 30, 1996). In addition, under the clearance and other purposes. The volume customers have more options in notice stated that implementation of amendment of the original interim selecting service providers, and will use GPL would benefit (1) U.S. mail order regulations, the Postal Service permits other companies if they provide a better companies and other customers that mailers to do some of the work combination of service and price. If the export goods by making it easier and associated with preparing packages for Postal Service does not offer less costly to do so; and (2) all other dispatch in exchange for the Postal competitive rates and services, these users of the Postal Service by increasing Service picking up the packages at the customers will use competitive service the total contribution to fixed costs customer’s facility more than 500 miles providers, with the result that lower- realized by the Postal Service from its from the JFK facility. This new option cost packages will leave the other international operations. Comments should make the service more mailstreams anyway, and rates for those were due on or before January 31, 1995. convenient for mailers who are more services will rise. Likewise, to the extent On December 1, 1995, the Postal than 500 miles from JFK. that higher-volume customers turn to Service published an amendment of the UPS, Federal, and ACCA oppose GPL other carriers because Postal Service interim regulations. 60 FR 61660 service on various grounds and urge that international package rates are not (December 1, 1995). Under the original it be terminated immediately. UPS competitive, the burden of overhead proposal, the Postal Service would pick asserts that the regulations that they would have covered will fall up parcels from GPL users within 500 implementing GPL service are arbitrary in some part on other mailers. In sum, miles of the GPL processing facility at and capricious because the Postal the high-volume packages carried by the John F. Kennedy Airport in New York. Service did not publish any cost or Postal Service today are likely to Customers farther away from JFK would other data to support GPL rates. It migrate from the other mailstreams in be responsible for bringing their parcels asserts that such support is necessary any event, so that if users of other to the JFK facility. Under the amended because GPL rates appear to be below services are going to receive any benefit interim regulations, the Postal Service cost. Federal Express also asserts that it is better that those packages migrate would provide work stations to GPL rates may not cover costs and to another Postal Service mailstream customers farther away than 500 miles where contribution can be maintained likewise criticizes the Postal Service for that would prepare packages as required rather than to another service provider not releasing cost data underlying the by the Postal Service. Packages would where the Postal Service will receive no rates. Both companies assert that GPL then be verified and picked up from contribution at all. rates will adversely affect mailers which these customers’ plants and would be The Postal Service’s experience to do not qualify for GPL service. UPS taken to the nearest appropriate date also undermines the assertions of states that the current international international exchange office for adverse impact on non-GPL mailers. A package mix includes both relatively dispatch to Japan. Comments were due large part of the volume that GPL has higher-cost and lower-cost mail. As unit on or before January 2, 1996. attracted is new to the Postal Service, revenue decreases as presumably lower- and, indeed, appears to be new volume I. Original Regulations cost mail migrates to GPL, other package to Japan. In this respect, this new The Postal Service received comments rates will have to increase to cover the volume is doing what the Postal Service on the original interim regulations from relatively higher-cost mail that remains intended it to do: adding new four organizations: a mail order in the other rate schedules to avoid contribution to offset the need for company which sends merchandise to cross-subsidization of package mail by obtaining contribution from other Japan and other countries, Lands’ End; other mail. Other mailers would also be mailers. two companies engaged in the injured if GPL rates were below cost, UPS, Federal Express, and ACCA also international transportation of because they would be subsidizing GPL assert that GPL rates are unduly merchandise, United Parcel Service rates. Federal Express states that in the discriminatory or preferential in (UPS) and Federal Express Corporation; event that GPL rates are below cost or violation of 39 U.S.C. § 403(c). ACCA and an association of companies fail to make an adequate contribution to asserts that the rates are discriminatory engaged in the international overhead, domestic mailers will be because they are significantly lower transportation of merchandise, the Air worse off. ACCA also criticizes GPL than single-piece rates. ACCA and UPS Courier Conference of America (ACCA). rates and asserts that they are assert that the rates are discriminatory Lands’ End expressed support for GPL unreasonable because the Postal Service because in certain rate steps the rates for service because GPL would help it to did not state that the rates would express parcels are lower than the rates Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 633 for standard air parcels, and because the differences in the cost structures for behind this assertion is unclear, rates for some standard air parcels are those services. Economy service is especially since Japan is not a low-cost lower than for economy air parcels. UPS available only for items which qualify as destination. In any event, that GPL was asserts that GPL rates are unduly small packets for which the Postal initially offered only to Japan is not an discriminatory because the discounts Service pays the Japanese postal indication that it will only be offered to are tied to the annual volume tendered administration AO terminal dues rates. Japan. Every service has to start by the mailer rather than to per-mailing Standard Air service items are postal somewhere, and since there was an volumes. UPS and Federal Express parcels for which the Japanese postal expressed need for such a service to further assert that the rates are administration charges a per-kilogram Japan, that made Japan the logical place discriminatory because customers inward land rate it establishes that is to start. Since then, service has been within 500 miles of JFK are provided different from the per-kilogram rate for implemented to Canada and the U.K. ground transportation to JFK while small packets. Express items are EMS and other destination countries will be those more than 500 miles from JFK items for which the Japanese postal added as demand justifies them. must transport their packages at their administration charges a per-item Federal Express and ACCA assert that own expense. Federal Express asserts charge it establishes. The differences in the Japanese postal administration’s that the rates are discriminatory because the manner in which the Japanese postal charges for delivery in Japan might not the interconnection of the customers’ administration is compensated for the include all the costs incurred by that and the Postal Service’s computer services it provides are reflected in the administration for delivery and that, systems must be negotiated and agreed. rates the Postal Service charges its GPL therefore, the total economic cost for The Postal Service again does not customers. GPL service might not be included in agree. Section 403(c) does not prohibit Finally, it is not unduly the GPL cost base. ACCA urges that the all discriminations or preferences, only discriminatory to tie discounts to a cost base for GPL rates be revised to those that are undue or unreasonable. customer’s annual volume. First, at the include any costs that the Japanese UPS Worldwide Forwarding v. U.S. higher annual volumes customers do in postal administration might have Postal Service, 66 F.3d 621 (3d Cir. fact tender more parcels per mailing omitted. Neither cites any data source 1995). Single-piece mailers and higher- than do customers with lower annual that might support their assertions, nor volume mailers are not similarly volumes, which results in some cost is the Postal Service aware of any data situated. They require different kinds of savings. In addition, because higher- that might relate to them. While Federal services and different types of service volume customers have more options Express is correct in saying that Japan features. For example, mailers which than lower-volume customers, their charges UPU terminal dues rates for use GPL service forgo service features price sensitivity is greater than lower- those packages that are small packets, such as mailing at a local post office in volume customers, which makes them the Japanese postal administration sets favor of bulk entry of mail at the New not similarly situated. It is not unduly its own inward land rate for parcels and York gateway or performing some of the discriminatory to offer different rates to imbalance charges for EMS items. It dispatch preparation work in exchange mailers who are not similarly situated. would appear unlikely that Japan would for pick up at their facility. In addition, It should also be noted that these set those charges at levels that would it is not possible to be all things to all arguments of charging the same rate to not cover their costs. Further, the UPU customers. Judgments must be made as mailers who allegedly receive different Convention authorizes postal to which services, and how much of services were a necessary consequence administrations to negotiate terminal them, can be provided at specified rates, of the District Court’s decision in UPS dues rates different from those in the and the 500 mile limit on providing Worldwide Forwarding, Inc. v. Postal Convention. The Japanese postal ground transportation to JFK reflects Service, 853 F. Supp. 800 (D. Del. 1994), administration could negotiate different such a judgment. It is also important to which held that the Postal Service was rates for small packets if it believed that note that the Postal Service received no not authorized to negotiate customized those rates were inadequate. It has not comment from any potential user of GPL services and rates with large-volume raised that issue with the Postal Service. service objecting to the 500 mile limit. customers. Rather, the court said that Accordingly, there is no basis for In the Postal Service’s view, this the Postal Service was required to offer believing that the Japanese postal disparate treatment is reasonable. In only categories of mail services to administration’s charges do not cover addition, as pointed out above, under different types of mail and mail users. the costs of delivery in Japan, and no the amended regulation the Postal That required the Postal Service to basis to make any adjustment even if Service will pickup packages for group mailers together for the purpose there were some rational economic customers outside the 500 mile limit if of providing services and establishing reason to include any cost other than the customer is willing to do some of rates even though those mailers might what the Japanese postal administration the package preparation. That should have unique needs and might not in fact charges for its services. alleviate some of the burden on such actually use all the service features that Similarly, ACCA urges that the costs customers. might be available. This ‘‘averaging’’ of of GPL service be adjusted upward to Likewise, in any task as complex as services rendered and rates charged is a account for the economic value of the linking different computer systems, it is common feature of postal services in customs clearance services provided by impossible to treat any two customers which significantly different services the Japanese postal administration exactly alike. Even though each can be rendered at the same price, e.g., which ACCA asserts might not be customer’s computer system is different mailing a letter across the street versus correctly priced because such customs from another’s, it cannot be reasonably mailing a letter across the country. The clearance services are not available to said that the two customers are not District Court’s decision has now been other international transportation similarly situated. Accordingly, any reversed, but the Postal Service has service providers. The Postal Service differences in the computer links does decided to continue GPL as originally disagrees. First, there is no basis for not create any undue discrimination or conceived. believing that the cost of customs preference. Federal Express asserts that GPL to clearance is not included in the charges The differences in rates for the Japan is cream skimming because it is established by the Japanese postal different levels of service reflect offered only to Japan. The reasoning administration, since such services are 634 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations provided to all mail of the kind sent by published in the Federal Register on licenses of all optometrists who worked GPL regardless of the rate charged by December 19, 1994, 59 FR 65,471, the for optical companies, approximately the Postal Service. Moreover, there are President delegated to the Governors of half of the optometrists in the state. The no data which could be used to make the Postal Service whatever authority he Court held that the board was biased such an adjustment even if it were had under 39 U.S.C. § 407 to consent to and incompetent to proceed in view of appropriate. the establishment of international the pecuniary benefit the board In a similar argument, Federal Express postage rates. In accordance with that members would receive if they asserts that GPL is unfair competition delegation, the Postal Service obtained eliminated half of their competition. because it receives postal customs the consent of the Governors of the Gibson does not apply because the clearance that it asserts is simpler than Postal Service to establish GPL rates Governors of the Postal Service have no commercial customs clearance. The before implementing them, which pecuniary interest in approving Postal Service disagrees. Just because consent was confirmed in Governors international postage rates. postal customs clearance is different Resolution No. 95–4 adopted on March Carter involved a New Deal program does not make it either better or worse 6, 1995. In addition, the formality of that was intended to stabilize the coal than commercial customs clearance. In obtaining the Governors’ approval as the industry by regulating prices, wages, some respects the two are alike in that delegatee of the President has been and working conditions. The Court commercial invoices are required for rendered immaterial insofar as the Court struck down most of the legislation on both commercial and postal express of Appeals in the UPS Worldwide the theory that coal production and sale shipments. In some respects, postal Forwarding case held that the prior did not involve interstate commerce. It customs clearance is more burdensome practice of the Postal Service also struck down a feature of the because a customs declaration must be implementing international postage legislation that gave regional boards affixed to each item, a requirement that rates without the objection of the made up of coal executives and union commercial customs clearance does not President was an acceptable representatives power to regulate the have. This is additionally burdensome interpretation of 39 U.S.C. § 407 based wages and working conditions of for express items because the customs on over 120 years of practice. employees of all coal companies in the declaration is in addition to an invoice. ACCA not only asserts that GPL rates region. The Court concluded that this It is also true that postal customs are illegal because they were not gave the large companies and unions the clearance requires individual inspection approved by the President, but also power to regulate their smaller of each item, whereas commercial asserts that the President’s delegation of competitors and therefore delegated a customs clearance relies on a manifest authority to the Governors is governmental function, regulation of the and typically only limited inspection of unconstitutional because it violates the production of coal, to private persons. individual items, which also makes Due Process clause of the Fifth Carter does not apply in this case postal customs clearance more Amendment. ACCA cites several cases it because the establishment of burdensome. believes support its position: Carter v. international rates does not involve the UPS asserts that the Postal Service did Carter Coal Company, 298 U.S. 238 regulation of anyone’s business other not comply with the Administrative (1936); Gibson v. Berryhill, 411 U.S. 564 than the Postal Service, and the Procedures Act (APA) in implementing (1973); In re Murchison, 349 U.S. 133 Governors are government officials GPL rates. In short, the APA does not (1955); Ward v. Village of Monroeville, appointed by the President with the apply to the establishment of 409 U.S. 57 (1972); and Tumey v. Ohio, advice of the Senate, not private persons international rates. Except as otherwise 273 U.S. 510 (1927). The Postal Service acting in a private capacity. specifically provided by law, the APA disagrees. ACCA also asserts that GPL is a new does not apply to the Postal Service. 39 Tumey, Ward, and Murchison each classification of international mail and U.S.C. § 410(a). No provision of the involved judicial officers or city officials must be submitted to the Postal Rate Postal Reorganization Act or other acting in a judicial capacity and stand Commission for consideration and a statute makes the APA applicable to for the principle that a person cannot recommended decision. ACCA asserts international ratemaking, even though act as a judge in a case in which he or that Air Courier Conference of America there are provisions making the APA she has a personal interest. The v. Postal Service, 959 F.2d 1213 (3d Cir. applicable in specific instances. See 39 establishment of international rates is 1992), held that 39 U.S.C. 407 excepted U.S.C. § 3001(j). not a judicial act, nor are the Governors only international rates from submission UPS further asserts that even if the of the Postal Service, who are appointed to the Postal Rate Commission, not APA did not apply to the Postal Service, to represent the public interest international classifications. ACCA is the Postal Service violated its own generally, 39 U.S.C. § 202(a), acting in a mistaken. regulations by not publishing GPL rates judicial capacity when they give Section 407 has been consistently until after their effective date. Part 20 of consent to the establishment of interpreted as applying to both 39 C.F.R., to which UPS refers, does not international rates. Moreover, the international rates and classifications specify when regulations must be Governors of the Postal Service do not since the two things are largely published, and in fact contemplates that have any personal stake in the revenues inseparable from a practical point of regulations will be published from the international postage rates view: one cannot establish rates without periodically regardless of their effective charged by the Postal Service because reference to the items to which the rates date. Moreover, Part 20 does not govern they receive a fixed salary of $10,000 apply. Moreover, international mail whether regulations can be made per year and $300 per meeting up to a classifications and services are effective retroactively, which was the total of $30,000 per year regardless of established in postal treaties and case in this instance. what action they take with respect to conventions. UPS also asserts that there was no international postage rates. The basic classifications of LC, AO indication in the Federal Register notice Gibson involved a state optometry including both printed matter and small announcing GPL service that the Postal board proceeding in which the board, packets, and parcels are established in Service had obtained the consent of the composed entirely of independent the Universal Postal Convention and President to establish GPL rates. By a optometrists and acting in a quasi- Postal Parcels agreement, which are December 15, 1994, memorandum judicial capacity, sought to revoke the postal treaties ratified by the President Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 635 of the United States. The levels of customers which would not have used List of Subjects in 39 CFR Part 20 service, surface, surface air lift (SAL), GPL service as originally conceived. International postal service, Foreign airmail, and EMS are also established in This additional revenue and relations. the Convention. GPL matches these contribution more than compensate for classes and services with volume- any additional expense that might be PART 20Ð[AMENDED] discount rates that are attractive to large incurred. 1. The authority citation for 39 CFR volume mailers. It does not create any UPS also asserts that the amendment part 20 continues to read as follows: new classes of mail or service. It should is inconsistent with the original interim also be noted that the Postal Rate rule. According to UPS, the original rule Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, Commission has never asserted was based on the rationale that the 404, 407, 408. jurisdiction over either international Postal Service would incur lower costs rates or classifications. 2. Chapter 6 of the International Mail in processing GPL parcels because of Manual is amended by adding new II. Amendment greater availability of direct air subchapter 620 to read as follows: The Postal Service received one transportation from JFK airport, CHAPTER 6ÐSPECIAL PROGRAMS efficiencies from processing all GPL comment on the amendment of the * * * * * original interim regulations. This parcels at a single facility designed for commenter, United Parcel Service, that purpose, efficiencies from SUBCHAPTER 620ÐGLOBAL PACKAGE reiterated the comments it made with dispatching all GPL shipments from a LINK respect to the original interim single facility, and that general 621 Description regulations. It also alleged that the operational and managerial amendment was unduly discriminatory considerations supported handling all 621.1 General because only some mailers would GPL shipments at a single facility. Global Package Link (GPL) is a bulk receive workstations with which to UPS’s assertions in this regard are mailing system that provides fast, perform package preparation. In incorrect. The original interim rule was economical international delivery of addition, it alleged that the Postal not based on the rationale that the packages containing merchandise. GPL Service would incur additional surface Postal Service would incur lower costs is designed to make it easier and less transportation costs in transporting mail because of the four factors cited. The costly for mail order companies to to the nearest airmail facility, and original interim rule was based on a export goods. The Postal Service would incur additional air rationale stated in section II. A. of the provides GPL on a destination county- transportation costs in transporting mail Federal Register notice, which said that specific basic pursuant to the terms and from airmail facilities other than JFK, the Postal Service was implementing conditions stipulated in 620. but would not charge rates different this new international service ‘‘In order 621.2 Admissible Items from those it established originally. more closely to meet the needs of mail Finally, UPS alleges that the reasons order companies and other customers 621.21 Prohibited Enclosures given in support of the amended interim that send merchandise packages from GPL packages may not contain: regulations are contrary to the reasons the United States to multiple given in the original interim regulations a. Typewritten and handwritten international addressees.’’ The four communications having the character of for the lower costs of GPL service. factors cited by UPS were, indeed, Insofar as the comments with respect current correspondence. factors that led to the decision to to the amendment are the same as the b. Any item that is prohibited in process and dispatching GPL parcels comments on the original interim international mail. Refer to the Country from the JFK Processing Plant. That regulations, the same responses apply, Conditions of Mailing in the Individual decision provided economies of scale and will not be repeated. Country Listings for individual UPS alleges that the amendment is and allowed the implementation of this destination country prohibitions. new service in an efficient manner. As defective because the Postal Service 621.22 Exceptions would provide workstations only to clearly stated in the amendment to the ‘‘selected’’ mailers. According to UPS, interim rule, however, the Postal GPL packages may contain an invoice this would lead to discriminatory Service subsequently determined, as as long as the invoice is limited to the treatment of mailers. The Postal Service volumes grew, that it could further particulars that constitute an invoice. reduce costs and improve service by disagrees. The option of receiving work 621.3 Availability stations and performing the package allowing mailers to share the package preparation is selected by the mailer, processing workload if they met certain GPL is available only to destination not the Postal Service. Insofar as the conditions. GPL is growing, both in countries identified in 620. numbers of mailers using the service option is available to all similarly 622 Qualifying Mailers situated mailers, there is no undue and in volume, and the Postal Service discrimination or preference. will continue to develop procedures To qualify, a mailer must enter into a UPS also alleges that the Postal that will facilitate the use of this service service agreement containing the Service would incur additional surface by its customers. commitments stipulated in 625.2 and and air transportation expenses Accordingly, the Postal Service must be able to meet the general and compared to the original proposal. The adopts the following amendments to the destination country-specific preparation Postal Service might incur some International Mail Manual, which is requirements stipulated in 620. additional transportation costs, but it incorporated by reference in the Code of 623 General will also save mail processing costs Federal Regulations. See 39 CFR 20.1. based on the package preparation All other changes in the original interim 623.1 Special Services performed by the mailer. These savings rule for Global Package Link which were The special services provided for in should largely off-set the additional published in the Federal Register as Chapter 3 are not available for packages expenses incurred, if any. In addition, amendments of the interim rule remain sent by GPL unless specifically the new option should attract new in effect as interim rules. provided for in 620. 636 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

623.2 Customs Documentation 625 GPL Service Agreements Post and expedited delivery. The mailer The requirements for customs forms 625.1 General can track Express Service packages through delivery. Reports of delivery vary by destination country as The mailer must enter into a separate stipulated in 620. performance are furnished to the mailer service agreement for each destination in the formats and at the frequencies 623.3 Size and Weight Limits country to which it wants to use GPL. agreed upon by the Postal Service and Size and weight limits for packages 625.2 Required Provisions the mailer. sent by GPL vary by destination country Each service agreement must contain 626.132 Standard Air Service as stipulated in 620. the following: Packages sent through Standard Air 623.4 Postage a. The mailer’s commitment to send at Service are transported by air to Japan, least 25,000 packages by GPL during the 623.41 Rates where they enter Japan Post’s domestic next 12 months to the specified airmail system for delivery. The mailer Rates vary by destination country as destination country. can track Standard Air Service packages stipulated in 620. b. The mailer’s commitment to through dispatch from the JFK 623.42 Postage Payment Method designate the Postal Service as its carrier Processing Facility or the appropriate of choice to the specified destination airmail facility. Postage must be paid by permit country. imprint. c. The mailer’s commitment to link its 626.133 Economy Air Service 623.43 Documentation information systems with the Postal Packages sent through Economy Air Service’s so that (1) the Postal Service Service are transported by air to Japan, Each mailing of GPL packages must be and the mailer can exchange data accompanied by a manifest and other where they enter Japan Post’s domestic transmissions concerning the mailer’s surface mail system for delivery. The documentation in the form specified by packages, and (2) by scanning the the Postal Service. mailer can track Economy Air Service mailer-provided barcode on each packages through dispatch from the JFK 624 Preparation Requirements package, the Postal Service can extract, Processing Facility or the appropriate on an as-needed basis, certain airmail facility. 624.1 General Requirements information about the package. The 624.11 Barcode package-specific information that the 626.2 Acceptance Every GPL package must bear a mailer is required to make available 626.21 Within 500 Miles of JFK barcode, in a format acceptable to the varies by destination country as stipulated in 620. If the plant at which the mailer’s GPL Postal Service, that identifies the packages originate is located within 500 package by a unique number. The d. For a mailer processing packages at the mailer’s plant, the mailer’s miles of the JFK Processing Facility, the mailer must place the barcode on the Postal Service accepts the packages at address side of the package. commitment to use Postal Service provided workstations to process all the plant and transports them by truck 624.12 Addressing GPL packages and to sort and prepare to the JFK Processing Facility according those packages for dispatch as specified to a schedule agreed upon by the Postal See 122. The name and address of the Service and the mailer. mailer and of the addressee also should by the Postal Service. be recorded on a separate slip enclosed 625.3 Optional Provisions 626.22 More Than 500 Miles From JFK in the package. Each service agreement may set forth 626.221 Drop Shipment to JFK 624.13 Sealing any GPL-related arrangements between If the plant at which the mailer’s GPL Every GPL package must be sealed by the Postal Service and the mailer that packages originate is more than 500 the mailer. Wax, gummed-paper tape, are technical in nature. miles from the JFK Processing Facility, the mailer may present the packages for nails, screws, wire, metal bands, or 626 GPL to Japan other materials may be used as suitable. verification at the plant and transport The seal must be sufficient to allow 626.1 Description them as a drop shipment to the JFK detection of tampering. 626.11 General Processing Facility according to a schedule agreed upon by the Postal 624.14 Packaging GPL to Japan provides the mailer with Service and the mailer. three delivery options, and with Every GPL package must be securely 626.222 Transport to Airmail Facility and substantially packed. In packing, preparation by the Postal Service (or on the mailer should consider the nature of Postal Service-provided equipment) of Alternatively, the mailer may process the contents, the climate, and the the customs forms required by Japan the packages, using Postal Service- delivery method. The Postal Service Post. provided workstations, and prepare will determine whether the 626.12 JFK Processing Facility dispatches as specified by the Postal contemplated packaging is suitable prior Service. The Postal Service verifies and All GPL packages processed by the to the mailer’s use of GPL. accepts the dispatches at the mailer’s Postal Service are processed at, and plant according to a schedule agreed 624.15 Nonpostal Documentation dispatched to Japan from, a dedicated upon by the mailer, and the Postal Forms required by nonpostal export facility located at JFK International Service transports the packages to an regulations are described in Chapter 5. Airport (the JFK Processing Facility). appropriate airmail facility for dispatch to Japan. 624.2 Destination Country-Specific 626.13 Delivery Options Requirements 626.131 Express Service 626.3 Required Package-Specific Certain preparation requirements vary Packages sent through Express Service Information by destination country as stipulated in are transported by air to Japan, where The mailer must make available to the 620. they receive special handling by Japan Postal Service, by means of data Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 637 transmissions in the formats and at the GLOBAL PACKAGE LINK TO JAPAN a. Minimum length and width: large frequencies agreed upon by the Postal BASE RATES EXHIBIT 626.51ÐCon- enough to accommodate the necessary Service and the mailer, the following tinued labels and customs forms on the address information about each GPL package: side. a. Order number. Weight not Express Stand- Econ- b. Maximum length: 42 inches (24 b. Package identification number. over lbs. service ard air omy air inches for packages weighing 1 pound c. Delivery option used for package. service Service or less). d. Buyer’s name and address. c. Maximum length and girth e. Recipient’s name and address. 16 ...... 54.29 65.78 17 ...... 56.82 68.32 combined: 90 inches (79 inches until f. Total weight. 18 ...... 59.36 73.60 January 9, 1995). Maximum length, g. Total value. 19 ...... 61.89 76.13 height, depth (thickness) combined for h. Total number of items in package. 20 ...... 64.42 81.42 packages weighing 1 pound or less is 36 i. Number of each individual item in 21 ...... 71.42 89.55 inches. package. 22 ...... 74.12 92.25 j. SKU and/or key-word description of 23 ...... 76.83 97.88 626.613 Economy Air Service each item. 24 ...... 79.53 100.58 Economy Air Service packages must k. Value of each item. 25 ...... 82.23 106.22 l. Country of origin (if available) of 26 ...... 84.93 108.92 meet these size limits: 27 ...... 87.63 114.56 each item. a. Minimum length and width: large 28 ...... 90.34 117.26 enough to accommodate the necessary 626.4 Insurance and Indemnity 29 ...... 93.04 122.89 labels and customs forms on the address 30 ...... 95.74 125.59 626.41 Express Service 31 ...... 104.59 139.43 side. Packages sent through Express Service 32 ...... 107.47 142.30 b. Maximum length: 24 inches. are insured against loss, damage, or 33 ...... 110.34 145.17 c. Maximum length, height, depth 34 ...... 113.21 151.16 (thickness) combined: 36 inches. rifling at no additional cost. Indemnity 35 ...... 116.08 154.03 will be paid by the Postal Service as 36 ...... 118.95 160.02 626.62 Weight Limits provided in DMM S500. However, 37 ...... 121.82 162.89 Express Service packages are not 38 ...... 124.69 168.88 626.621 Express Service insured against delay in delivery. 39 ...... 127.56 171.75 Maximum weight: 44 pounds. Neither indemnity payments nor 40 ...... 130.43 177.73 postage refunds will be made in the 41 ...... 141.15 191.23 626.612 Standard Air Service event of delay. 42 ...... 144.19 197.57 43 ...... 147.23 200.61 Maximum weight: 44 pounds. 626.42 Standard Air Service 44 ...... 150.27 203.65 626.613 Economy Air Service Packages sent through Standard Air Service weighing more than 1 pound 626.52 Discounts Maximum weight: 4 pounds. may be insured at an additional cost. Postage is reduced by the following 627 Customs Forms Required See 320. additive discounts once the applicable The mailer is not normally required to 626.43 Economy Air Service volume thresholds are reached during a 12-month period: affix customs forms to GPL packages Packages sent through Economy Air a. 25,000 to 100,000 packages: 0.00%. sent to Japan if the packages are Service may not be insured. b. 100,001 to 250,000 packages: processed at the JFK Processing Facility. In such cases, the Postal Service prints 626.5 Postage 4.75%. c. 250,001 to 500,000 packages: the necessary customs forms based on 626.51 Base Rates additional 5.75%. the package-specific information transmitted by the mailer, and affixes See Exhibit 626.51. Postage is paid on d. 500,001 to 1,000,000 packages: them to the packages. If the packages are a per-package basis. additional 6.00%. e. More than 1,000,000 packages: processed at the mailer’s plant on Postal Service-provided workstations, those GLOBAL PACKAGE LINK TO JAPAN additional 6.25%. workstations print the necessary forms BASE RATES EXHIBIT 626.51 626.6 Size and Weight Limits that the mailer normally affixes to the 626.61 Size Limits packages. During the interim period in Weight not Express Stand- Econ- ard air omy air 626.611 Express Service which the Postal Service and the mailer over lbs. service service Service are establishing the information systems Express Service packages must meet linkages to enable the Postal Service to 1 ...... $14.35 $6.64 $5.43 these size limits: accomplish this, the mailer is required 2 ...... 15.69 9.23 9.35 a. Minimum length and width: large to affix the appropriate customs forms to 3 ...... 17.80 13.63 13.27 enough to accommodate the necessary the packages, as follows: 4 ...... 19.91 15.74 17.20 labels and customs forms on the address a. Express Service: Form 2966–A, 5 ...... 22.02 20.14 side. Parcel Post Customs Declaration— 6 ...... 27.03 24.93 b. Maximum length: 42 inches (36 United States of America. 7 ...... 29.39 29.86 inches until January 9, 1995). 8 ...... 31.76 32.22 b. Standard Air Service: Form 2966– 9 ...... 34.12 37.15 c. Maximum length and girth combined: 90 inches (79 inches until A, Parcel Post Customs Declaration— 10 ...... 36.49 39.52 United States of America (packages 11 ...... 38.85 41.88 January 9, 1995). weighing 1 pound or less must bear 12 ...... 41.21 46.81 626.612 Standard Air Service 13 ...... 43.58 49.17 Form 2976, Customs—Douane C1). 14 ...... 45.94 54.10 Standard Air Service packages must c. Economy Air Service: Form 2976, 15 ...... 48.31 56.47 meet these size limits: Customs—Douane C1. 638 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

628 Preparation Requirements (March 28, 1996) for comments on Universal Postal Union because the 628.1 Express Service interim regulations implementing rates for the highest level of GPL service International Package Consignment are lower than domestic rates for single- 628.11 Processing at JFK (IPCS) service to Canada and the United piece Express Mail. No citation of Every package sent through Express Kingdom, hereby gives notice that it is authority is given, but the Postal Service Service must bear a label identifying it adopting the interim regulations as believes that the commenter is referring as an Express Service package. The amended on a permanent basis, without to article 6.2, of the Universal Postal mailer is not normally required to affix substantive modification. The name of Convention, which provides, ‘‘The this label when such packages are this service has subsequently been charges collected, including those laid processed at the JFK Processing Facility. changed to Global Package Link (GPL). down for guideline purposes in the In this case, the Postal Service prints the EFFECTIVE DATE: 12:01 a.m., January 6, Acts, shall be at least equal to those necessary label and affixes it to the 1997. collected on internal service items Express Service package. During the FOR FURTHER INFORMATION CONTACT: presenting the same characteristics interim period in which the Postal Robert Michelson, (202) 268–5731. (category, quantity, handling time, etc.).’’ The Postal Service does not agree Service and the mailer are establishing SUPPLEMENTARY INFORMATION: On March the information systems linkages to 28, 1996, the Postal Service published that GPL rates are inconsistent with enable the Postal Service to accomplish in the Federal Register interim article 6.2. In the Postal Service’s view, this, the mailer is required to affix Label regulations implementing Global it is inappropriate to compare rates for 11–B, Express Mail Service Post Office Package Link (GPL) to Canada and the the highest level of GPL service with to Addressee, or an alternative label as United Kingdom and requested single-piece Express Mail rates. GPL is instructed by the Postal Service, to comments (61 FR 13765 (March 28, a bulk service, in which customers every Express Service package. 1996)). GPL is an international mail tender many packages at one time. There is no bulk Express Mail service 628.12 Processing at Mailer’s Plant service designed for mail order companies sending merchandise and therefore no bulk Express Mail When packages are processed at the packages to other countries. The service rates. Insofar as quantity is specifically mailer’s plant on Postal Service- was initially available to Japan. a characteristic that article 6.2 provided workstations, the workstations For the service to Canada, a customer recognizes as making a difference, print the necessary label, and the mailer would be required to mail at least article 6.2 does not require a affixes it to the Express Service package. 25,000 packages annually and to comparison with single-piece rates. In addition, GPL does not guarantee 628.2 Standard Air Service connect its information systems to the Postal Service so that the Postal Service delivery within any specific time. There are no Japan-specific and the customer could exchange Express Mail guarantees delivery within preparation requirements for packages information about the customer’s one or two days, depending on sent through Standard Air Service packages. The customer would also be destination, and postage is refunded if (packages weighing 1 pound or less required to designate the Postal Service the service standard is not met. This must bear the SMALL PACKET as its carrier of choice to Canada. There also makes any comparison with marking). See 264.21. were two levels of service to Canada and domestic Express Mail rates 628.3 Economy Air Service there were rate discounts for sending inappropriate. Accordingly, the Postal Service concludes that GPL rates are not Packages sent through Economy Air larger numbers of parcels during the year. lower than the rates for any service Service must bear the SMALL PACKET having the same characteristics. marking. See 264.21. For service to the United Kingdom, a customer would be required to mail at WorldPak also asserts that GPL * * * * * least 10,000 packages annually and to service to Canada is unauthorized A transmittal letter making the connect its information systems to the because it is a freight service, not a changes in the pages of the International Postal Service so that the Postal Service postal service. WorldPak asserts that Mail Manual will be published and and the customer could exchange GPL is a freight service because GPL transmitted automatically to information about the customer’s items are delivered by a private sector subscribers. Notice of issuance of the packages. The customer would also be contractor, not Canada Post Corporation, transmittal letter will be published in required to designate the Postal Service and GPL items are cleared through the Federal Register as provided by 39 as its carrier of choice to the United customs using commercial customs CFR 20.3. Kingdom. There were three levels of clearance procedures. The commenter Stanley F. Mires, service to the United Kingdom and there also asserts, contrary to its argument Chief Counsel, Legislative. were rate discounts for sending more that GPL rates are illegal because they [FR Doc. 97–107 Filed 1–3–97; 8:45 am] than 100,000 packages annually. are lower than domestic Express Mail BILLING CODE 7710±12±P Comments were due on or before May rates, that GPL delivery by private 31, 1996. Comments were received from contractors is not authorized by the two commenters, a company engaged in Universal Postal Convention because it 39 CFR Part 20 international package delivery, is not EMS service. The Postal Service WorldPak, Inc., and an association of does not agree that GPL service is Global Package Link (Formerly companies engaged in international unauthorized. The distinction this International Package Consignment package delivery, the Air Courier commenter attempts to draw does not Service) Conference of America (ACCA). After appear to have any significance. AGENCY: Postal Service. considering these comments, the Postal Delivery by a private contractor is, and ACTION: Final rule. Service has decided to adopt the long has been, one of the ways mail is regulations without substantive change. delivered. Moreover, in the current SUMMARY: The Postal Service, after WorldPak asserts that GPL rates to environment in which postal considering the comments submitted in Canada and the United Kingdom are not administrations in other countries are response to its request in 61 FR 13,765 permitted under the Acts of the being privatized, e.g., Netherlands and Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 639

Germany, delivery of international mail does not create any new classes of mail not cover the costs of delivery in the by privately owned companies is or service. It should also be noted that destination country, and no basis to becoming more commonplace. The use the Postal Rate Commission has never make any adjustment even if there were of commercial customs clearance asserted jurisdiction over either some rational economic reason to procedures is likewise not a international rates or classifications. include any cost other than what the consideration in determining whether Both WorldPak and the ACCA assert delivery agent in fact charges for its GPL service is authorized. While the that GPL rates do not make an services. Acts of the Universal Postal Union appropriate contribution to overhead Similarly, ACCA urges that the costs provide for documentation that is used and do not take into account all of the of GPL service be adjusted upward to for clearing most postal items through cost attributable to the service. account for the economic value of the customs, the procedures that are WorldPak asserts that the Postal customs clearance services provided by followed in the destination country are Service’s measurement of costs do not the delivery agent, which ACCA asserts prescribed by that country. In most take into account the program managers might not be correctly priced because cases, the main difference between of the service, do not take into account such customs clearance services are not commercial and postal customs the travel, marketing, and related costs available to other international clearance is the preparation of a of the service, and do not take into transportation service providers. The manifest. For most postal items, account the costs of contractors to Postal Service disagrees. First, insofar as customs clearance can be accomplished operate the GPL and CPAS information Canada is concerned, the Postal Service using documents on the package systems. ACCA asserts that the costs are uses commercial customs clearance without preparing a manifest, although understated because they use terminal procedures using a customs broker. This nothing in the Acts precludes the dues expense as opposed to the actual is the same customs clearance that preparation of a manifest if the law of cost of delivery incurred by the country private sector delivery companies use. the destination country requires it. of destination and do not take into Second, insofar as the United Kingdom Finally, this argument does not take into account the value of services provided is concerned, there is no basis for account that the Postal Service is in the country of destination that are not believing that the cost of customs authorized to provide nonpostal as well generally available to the public. The clearance is not included in the charges as postal services. 39 U.S.C. § 404(a)(6). Postal Service disagrees. established by the United Kingdom Even if GPL could be correctly WorldPak appears not to understand postal administration, since such characterized as not being a postal which costs are attributable and which services are provided to all mail of the service, that would not make it are not. It also appears not to kind sent by GPL regardless of the rate unauthorized. understand that cost evaluations are charged by the Postal Service. Moreover, done at a service or category level, i.e. there are no data which could be used ACCA also asserts that GPL service is GPL as a whole, not at a country specific to make such an adjustment even if it unauthorized, but argues that it is level. In general, attributable costs are were appropriate. unauthorized because it is a new those that vary with volume. The costs ACCA asserts that the contribution to classification of mail and must be of program managers, travel, marketing, overhead could be as low as one cent, recommended by the Postal Rate etc., do not vary with volume and are and that such a low contribution would Commission before it can be not attributable. The other costs that are not be appropriate. ACCA provided no established. The association asserts that attributable are those that, while not data or analysis to support its position. Air Courier Conference of America v. volume variable, are exclusively The Postal Service has reviewed the cost Postal Service, 959 F.2d 1213 (3d Cir. associated with a particular service. An and revenue for GPL and has concluded 1992), held that 39 U.S.C. § 407 example of this from the domestic that in view of the competitive nature of excepted only international rates from context is Express Mail advertising. the parcel market, GPL does make a submission to the Postal Rate Since postal managers, regardless of reasonable and appropriate contribution Commission, not international title, perform duties pertaining to more to overhead. classifications. The association is than one service or category of mail, ACCA asserts that the rates for GPL to mistaken. Section 407 has been there are no such costs exclusively Canada and the United Kingdom are consistently interpreted as applying to associated with GPL service as a whole, unduly discriminatory because they are both international rates and much less GPL service to any one lower than rates for single-piece EMS to classifications since the two things are country. Insofar as GPL incurs those countries. The Postal Service largely inseparable from a practical contractor costs to operate the GPL and disagrees. Rates for GPL service reflect point of view: one cannot establish rates CPAS information systems, to the extent differences in the markets for bulk without reference to the items to which that these costs are volume variable they parcels and single-piece parcels. The the rates apply. Moreover, most are included in the costs of the service. market for bulk parcels is highly international mail classifications and ACCA argues that the charges for competitive and is characterized by services are established in postal treaties delivery in the destination country substantial discounting by the various and conventions. The basic might not include all the costs incurred competitors. No such discounting is classifications of LC, AO including both by the delivery agent for delivery and present in the market for single-piece printed matter and small packets, and that, therefore, the total economic cost parcels. The costs of the two kinds of parcels are established in the Universal for GPL service might not be included service are also different, with the bulk Postal Convention and Postal Parcels in the GPL cost base. ACCA urges that parcels being less costly to handle. agreement, which are postal treaties the cost base for GPL rates be revised to These differences in costs and market ratified by the President of the United include any costs that the delivery agent conditions lead the Postal Service to States. The levels of service, surface, might have omitted. The association conclude that the rates for GPL to surface air lift (SAL), airmail, and EMS does not cite any data source that might Canada and the United Kingdom are not are also established in the Convention. support its assertion, nor is the Postal unduly discriminatory. GPL matches these classes and services Service aware of any data that might WorldPak asserts that the interim with volume-discount rates that are relate to them. Accordingly, there is no regulations are unlawful because they attractive to large volume mailers. It basis for believing that the charges do contain misstatements and lend 640 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations themselves to unreasonable provision in question was addressed in Link is designed to make it easier and discrimination. As an example, that publication. less costly for mail-order companies to WorldPak asserts that the regulations As a fourth example, WorldPak export goods. The Postal Service are inaccurate in that they state that the asserts that GPL to Canada and the provides Global Package Link on a Postal Service’s Customs Pre-Advisory United Kingdom will not benefit all destination country-specific basis System (CPAS) electronically advises postal customers by generating revenues pursuant to the terms and conditions the GPL delivery agent and Canadian which will contribute to fixed costs stipulated in 620 and the Individual Customs of the contents of each because the Postal Service does not Country Listings. package. According to WorldPak, the know enough about the costs of these * * * * * information is transmitted customs new services. According to WorldPak, clearance information is transmitted GPL to Canada and GPL to the United 621.3 Availability electronically to a customs broker. The Kingdom should be considered as Global Package Link is available only Postal Service agrees that this provision separate services which should to destination countries identified in is technically inaccurate, in that the individually satisfy the requirements of 620 and the Individual Country Listings. data is transmitted to a customs broker the Postal Reorganization Act. The who is an agent for the Postal Service’s Postal Service disagrees. First, the prices 622 Qualifying Customers delivery agent and who provides the for GPL to Canada and the United To qualify, a customer must enter into data to Canadian Customs. The Kingdom take into account the variable a service agreement containing the technical inaccuracy does not, in the costs and are designed to make a commitments stipulated in 625.2 and Postal Service’s view, make the interim contribution to fixed costs on an must be able to meet the general and regulations illegal. The provision will be individual basis. However, the Postal destination country-specific preparation amended, however, to remove the Reorganization Act does not require that requirements stipulated in 620 and the reference to transmitting data to the the rates of international postal services Individual Country Listings. delivery agent and Canadian Customs. be evaluated on a country by country As a second example, WorldPak basis. It requires only that each type or 623 General asserts that the provisions concerning category of service cover its variable 623.1 Special Services Air Courier Service are inaccurate in costs and make a contribution to fixed that they state that Air Courier Service costs. GPL as a whole certainly meets The special services provided for in packages will be transported to Canada this requirement. Moreover, differences Chapter 3 are not available for packages overnight. According to WorldPak, in the details of how a service is sent by Global Package Link unless overnight air transportation to Canada provided to different countries do not specifically provided for in 620 or the depends on a number of variables, and change how the requirements of the Act Individual Country Listings. in certain hypothetical cases, might not are applied to the service as a whole. 623.2 Customs Documentation be transported overnight. The Postal Accordingly, the Postal Service Service disagrees with this assertion. adopts the following amendments to the The requirements for customs forms Overnight transportation to Canada is International Mail Manual which is vary by destination country as the service commitment for Air Courier incorporated by reference in the Code of stipulated in 620 and the Individual Service and the Postal Service sees no Federal Regulations, See 39 CFR 20.1. Country Listings. problem in meeting this commitment. All other interim changes in the rule for 623.3 Size and Weight Limits As a third example, WorldPak asserts Global Package Link service which were that the interim regulations suggest that published in the Federal Register as Size and weight limits for packages there are or will be more GPL processing amendments of this interim rule remain sent by Global Package Link vary by facilities than the one at New York’s JFK in effect as interim rules. destination country as stipulated in 620 Airport. According to WorldPak, this and the Individual Country Listings. could be unduly discriminatory in that List of Subjects in 39 CFR part 20 additional facilities could be located International postal service, Foreign 623.41 Rates close to favored customers. WorldPak relations. Rates vary by destination country as also asserts that the use in the stipulated in 620 and the Individual regulations of the term ‘‘in general’’ PART 20Ð[AMENDED] Country Listings. suggests that subjective criteria would govern where facilities would be 1. The authority citation for 39 CFR 623.42 Postage Payment Method located. The Postal Service concludes part 20 continues to read as follows: Postage must be paid by permit that these objections have no merit. The Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, phrase ‘‘in general’’ allows the 404, 407, 408. imprint or any other Postal Service approved method. possibility for customers who are more 2. Subchapter 620 of the International than 500 miles from a GPL processing Mail Manual, Issue 16, is amended as 624 Preparation Requirements facility to process packages at their follows: facility for pickup by the Postal Service. 624.1 General Requirements At the time the interim regulations were 6 Special Programs * * * * * published, the Postal Service was * * * * * 624.2 Destination Country-Specific constructing an additional GPL facility Requirements near the Dallas-Fort Worth International 620 Global Package Link Airport and was planning facilities in 621 Description Certain preparation requirements vary Chicago, San Francisco, Seattle, and by destination country as stipulated in Miami. Those new facilities were 621.1 General 620 and the Individual Country Listings. announced in the Federal Register on Global Package Link is a bulk mailing July 30, 1996, 61 FR 39592–93. system that provides fast, economical 625 Global Package Link Service Whatever concern might have been international delivery of packages Agreements engendered by the wording of the containing merchandise. Global Package * * * * * Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 641

625.2 Required Provisions Postal Service of the customs forms and schedule agreed upon by the Postal a. The customer’s commitment to delivery labels required by Canada. Service and the customer. Option Two: The customer will send at least 25,000 packages (or 10,000 Delivery Options process the packages using Postal to the United Kingdom) by Global Service-provided computer system Package Link during the next 12 months Air Courier Service workstations and sort and prepare the to the specified destination country. Air Courier Service is the fastest packages as required by the Postal * * * * * option. The Postal Service will transport Service. Then, the Postal Service Air Courier Service packages from the 626 Global Package Link to Japan verifies and accepts the packages at the customer’s plant or from the designated customer’s plant and transports them by * * * * * Global Package Link processing facility truck to the nearest air mail facility [Change 627 to 626.7 Customs Forms to Canada overnight where they will according to a schedule agreed upon by Required] receive expeditious customs clearance the Postal Service and the customer. * * * * * and be released to the delivery agent. From the air mail facility, the Postal [Change 628 to 626.8 Preparation From there, the packages will receive Service dispatches the Global Package Requirements] courier service throughout Canada and Link packages to Canada, bypassing a * * * * * be delivered to major population centers Global Package Link processing facility. overnight. Normal delivery times will be [Change 628.1 to 626.81 Express Required Package Specific Information Service] two to three days from dispatch to final delivery. Requirements are the same as those * * * * * detailed in Section 626.3. [Change 628.11 to 626.811 Processing at Ground Courier Service JFK] Insurance and Indemnity Ground Courier Service will offer * * * * * overnight transportation to Canada and Air Courier Service [Change 628.12 to 626.812 Processing ground transportation to final Mailer’s Plant] Packages sent through Air Courier destination in Canada. It will receive the Service are insured against loss, * * * * * same expeditious customs clearance as damage, or rifling at no additional cost. [Change 628.2 to 626.82 Standard Air Air Courier Service and normal delivery Indemnity will be paid by the Postal Service] times for 95 percent of all Canadian Service as provided in DMM S500. * * * * * addresses will be three to six days after However, packages are not insured [Change 628.3 to 626.83 Economy Air dispatch from the customer’s plant, against delay in delivery. Neither Service] depending on the location of final indemnity payments nor postage destination. (For addresses in the * * * * * refunds will be made in event of delay. Maritimes and extreme northern 3. Effective immediately, chapter 6 of territories where distance and poor Ground Courier Service the International Mail Manual, Issue 16, roads affect transportation, delivery is amended by adding new section 627 Packages sent through Economy times could be as long as eight days.) as follows: Service may be insured at an additional Processing and Acceptance cost. See 320. 6 Special Programs Postage * * * * * Within 500 Miles of a Global Package Link Processing Facility General 620 Global Package Link If the plant at which the customer’s The base rates for the two currently * * * * * Global Package Link packages originate available options are set forth below. 627 Global Package Link to Other is located within 500 miles of a Global These rates may be reduced by one or Destination Countries Package Link processing facility, the more of the three additive annual Postal Service will verify and accept the discounts depending on how many Information concerning Global packages at the customer’s plant and packages the customer mails to Canada Package Link for the following transport them to the Global Package using either of the two Global Package designated countries is detailed in the Link processing facility according to a Link delivery options in a twelve month Individual Country Listings (ICLs) schedule agreed upon by the Postal period. section. Service and the customer. a. Canada. Base Rates b. Great Britain and Northern Ireland. More than 500 Miles from a Global The Postal Service will charge the * * * * * Package Link Processing Facility base rates, in 1-pound increments, for the first 100,000 packages mailed by the 4. Effective immediately, the If the customer’s plant from which the customer during a 12-month period. Individual Country Listing for Canada Global Package Link packages will in the International Mail Manual, Issue originate is located more than 500 miles Rate Reductions 16, is amended by adding the following from a Global Package Link processing information, concerning Global Package facility, the customer can choose one of Number of packages Percent discount Link, to the end of the listing. two processing options. Up to 100,000 ...... Base Rate. Global Package Link Option One: The customer will be 100,001 to 500,000 ... 3% off base rates. required to present the packages to the Description 500,001 to 1,000,000 4% off previously dis- Postal Service for verification at the counted rates. Global Package Link to Canada customer’s plant and transport them as 1,000,001 and over ... 5% off previously dis- provides the customer with two delivery a drop shipment to a Global Package counted rates. options and with preparation by the Link processing facility according to a 642 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

GLOBAL PACKAGE LINK TO CANADA

Base Rates <100k 101k±500k 3.00% Volume Discounts 501k± >1m 5.00% Pounds to: 1m 4.00% Air Ground Air Ground Air Ground Air Ground

1 ...... 10.15 8.55 9.85 8.29 9.45 7.96 8.98 7.56 2 ...... 11.09 9.37 10.76 9.09 10.33 8.72 9.81 8.29 3 ...... 12.74 10.92 12.36 10.60 11.86 10.17 11.27 9.66 4 ...... 14.38 11.93 13.95 11.57 13.39 11.10 12.73 10.55 5 ...... 16.03 12.95 15.55 12.56 14.93 12.06 14.18 11.46 6 ...... 17.55 13.98 17.03 13.56 16.35 13.02 15.53 12.37 7 ...... 19.19 14.93 18.61 14.48 17.87 13.90 16.98 13.20 8 ...... 20.83 15.85 20.20 15.38 19.39 14.76 18.42 14.03 9 ...... 22.46 16.80 21.79 16.29 20.92 15.64 19.87 14.86 10 ...... 24.10 17.72 23.37 17.19 22.44 16.51 21.32 15.68 11 ...... 25.55 18.55 24.78 17.99 23.79 17.27 22.60 16.41 12 ...... 27.17 19.49 26.36 18.91 25.30 18.15 24.04 17.25 13 ...... 28.81 20.45 27.95 19.84 26.83 19.05 25.49 18.09 14 ...... 30.44 21.40 29.52 20.76 28.34 19.93 26.92 18.93 15 ...... 32.06 22.36 31.10 21.69 29.85 20.82 28.36 19.78 16 ...... 33.68 23.86 32.67 23.14 31.37 22.21 29.80 21.10 17 ...... 35.32 24.84 34.26 24.09 32.89 23.13 31.25 21.97 18 ...... 36.95 25.81 35.84 25.03 34.40 24.03 32.68 22.83 19 ...... 38.57 26.99 37.41 26.18 35.92 25.14 34.12 23.88 20 ...... 40.19 27.97 38.99 27.13 37.43 26.05 35.56 24.74 21 ...... 41.53 28.74 40.29 27.88 38.68 26.76 36.74 25.43 22 ...... 43.15 29.71 41.85 28.82 40.18 27.67 38.17 26.28 23 ...... 44.76 30.69 43.42 29.77 41.68 28.58 39.59 27.15 24 ...... 46.37 31.66 44.98 30.71 43.18 29.48 41.02 28.01 25 ...... 48.00 32.65 46.56 31.67 44.69 30.40 42.46 28.88 26 ...... 49.61 33.61 48.12 32.61 46.20 31.30 43.89 29.74 27 ...... 50.85 34.60 49.32 33.56 47.35 32.22 44.98 30.61 28 ...... 52.83 35.57 51.25 34.50 49.20 33.12 46.74 31.46 29 ...... 54.46 36.55 52.83 35.45 50.71 34.03 48.18 32.33 30 ...... 56.07 37.52 54.39 36.39 52.21 34.94 49.60 33.19 31 ...... 57.27 38.21 55.55 37.06 53.33 35.58 50.66 33.80 32 ...... 58.87 39.17 57.10 37.99 54.82 36.47 52.08 34.65 33 ...... 60.49 40.14 58.67 38.94 56.32 37.38 53.51 35.51 34 ...... 62.09 41.11 60.22 39.87 57.81 38.28 54.92 36.36 35 ...... 63.69 42.08 61.78 40.82 59.31 39.19 56.34 37.23 36 ...... 65.29 43.04 63.33 41.75 60.80 40.08 57.76 38.08 37 ...... 66.90 44.02 64.90 42.70 62.30 40.99 59.18 38.94 38 ...... 68.50 45.33 66.45 43.97 63.79 42.21 60.60 40.10 39 ...... 70.10 46.49 68.00 45.09 65.28 43.29 62.02 41.12 40 ...... 71.70 47.64 69.55 46.21 66.77 44.36 63.43 42.14 41 ...... 72.79 48.26 70.60 46.81 67.78 44.94 64.39 42.69 42 ...... 74.38 49.23 72.15 47.75 69.26 45.84 65.80 43.55 43 ...... 75.97 50.21 73.69 48.71 70.74 46.76 67.20 44.42 44 ...... 77.56 51.57 75.23 50.03 72.22 48.02 68.61 45.62 45 ...... 79.16 52.56 76.78 50.99 73.71 48.95 70.03 46.50 46 ...... 80.16 53.13 77.75 51.54 74.64 49.48 70.91 47.00 47 ...... 81.74 54.94 79.28 53.29 76.11 51.16 72.31 48.60 48 ...... 83.31 56.77 80.81 55.06 77.58 52.86 73.70 50.22 49 ...... 84.78 58.64 82.24 56.88 78.95 54.60 75.00 51.87 50 ...... 86.48 60.96 83.89 59.13 80.53 56.76 76.51 53.92 51 ...... 88.06 62.45 85.42 60.58 82.00 58.15 77.90 55.24 52 ...... 89.65 63.97 86.96 62.05 83.48 59.57 79.31 56.59 53 ...... 91.23 65.52 88.49 63.56 84.95 61.01 80.70 57.96 54 ...... 92.82 67.08 90.04 65.06 86.43 62.46 82.11 59.34 55 ...... 94.40 68.64 91.57 66.58 87.90 63.92 83.51 60.72 56 ...... 95.28 69.28 92.42 67.20 88.73 64.51 84.29 61.29 57 ...... 96.85 70.37 93.94 68.26 90.19 65.53 85.68 62.25 58 ...... 98.43 71.48 95.48 69.34 91.66 66.56 87.07 63.24 59 ...... 99.99 72.58 96.99 70.40 93.11 67.58 88.46 64.20 60 ...... 101.57 74.18 98.53 71.96 94.59 69.08 89.86 65.62 61 ...... 103.14 75.30 100.05 73.04 96.04 70.12 91.24 66.61 62 ...... 104.72 76.40 101.58 74.11 97.51 71.14 92.64 67.59 63 ...... 105.51 77.48 102.35 75.16 98.25 72.15 93.34 68.54 64 ...... 107.07 78.55 103.85 76.19 99.70 73.15 94.71 69.49 65 ...... 108.63 79.70 105.37 77.31 101.16 74.22 96.10 70.51 66 ...... 110.19 80.85 106.88 78.42 102.61 75.29 97.48 71.52 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 643

Size and Weight Limits Package Link facility or the customer’s through delivery and reports on delivery All Air Courier and Ground Courier plant. The system electronically advises performance are furnished to the Service packages must meet the the USPS agent of the contents of each customer in the formats and at the following size and weight limits: package mailed. Since this advisory frequencies agreed upon by the Postal information arrives before the mail, Service and the customer. Size Limits CPAS facilitates and simplifies customs Standard Service a. Minimum length and width: large clearance. Electronic pre-notification of enough to accommodate the necessary the package contents and automatic The Postal Service will transport Standard packages to the U.K. by air. labels and customs forms on the address preparation of required customs Once a package is dispatched from the side. declarations assures the fastest b. Maximum length: 60 inches. clearance through Canadian Customs customer’s facility, it should clear c. Maximum length and girth and reduces costs for the customer and Customs and be delivered by close of combined: 108 inches. the Postal Service. business on the fourth working day. The customer can track packages through Weight Limit Preparation Requirements delivery and reports on delivery Maximum weight: 66 pounds. Air Courier Service performance are furnished to the customer in the formats and at the Customs Every package sent through Air frequencies agreed upon by the Postal Courier Service must bear a label Service and the customer. Customs Forms identifying it as an Air Courier Service Normally all necessary Canadian package. The customer is not normally Economy Service customs forms will be automatically required to affix this label. The Postal The Postal Service will transport generated by the Postal Service Service prints the necessary label and Economy packages to the U.K. by air. computer workstations. Packages mailed affixes it to the Air Courier Service Once a package is dispatched from a to Canada through a Global Package package. However, during the interim customer’s facility, it should clear Link facility will not be required to bear period in which the Postal Service and Customs and be delivered by close of customs forms when they are tendered the customer are establishing the business the fifth or sixth working day. to the Postal Service. The Postal Service information systems linkages to enable Tracking and tracing is available to the will verify, accept, and transport these the Postal Service to accomplish this, point of entry into the U.K. domestic packages to a designated Global Package the customer is required to affix an mail stream. Link processing facility. After scanning alternative label as instructed by the Processing and Acceptance the customer-printed barcode on each Postal Service to every Air Courier package and correlating it with the Service package. Within 500 Miles of a Global Package package-specific information Link Processing Facility Ground Courier Service transmitted by the customer, the Postal If the plant at which the customer’s Service will print the necessary customs There are no Canada-specific Global Package Link packages originate forms and then affix them to the preparation requirements for packages is located within 500 miles of a Global customer’s packages as part of the sent through Ground Courier Service. Package Link processing facility, the processing operation at the Global Packages weighing 1 pound or less must Postal Service will accept the packages Package Link processing facility. bear the Small Packet marking (see at the customer’s plant and transport However, during the interim period in 264.21). them by truck to the Global Package which the Postal Service and the * * * * * Link processing facility according to a customer are working together to 5. Effective immediately, the schedule agreed upon by the Postal establish the information systems Individual Country Listing for the Great Service and the customer. linkages to enable the Postal Service to Britain and Northern Ireland in the accomplish this, the customer may be International Mail Manual, Issue 16, is More than 500 Miles from a Global required to prepare the necessary amended by adding the following Package Link Processing Facility customs forms on its own and affix the information, concerning Global Package If the customer’s plant from which the forms to the packages before tendering Link, to the end of the listing. Global Package Link packages will them to the Postal Service. In those originate is located more than 500 miles cases where the computer workstations Global Package Link from a Global Package Link processing are located at the customer’s plant and Description facility, the customer can choose one of operated by customer employees, the two processing options. Global Package Link to the United USPS computer will print the customs Option One: The customer will be Kingdom (U.K.) provides the customer forms, and the customer will be required to present the packages to the with three delivery options and with required to affix these forms to the Postal Service for verification at the preparation by the Postal Service of the appropriate packages as instructed by customer’s plant and transport them as customs and delivery labels required by the Postal Service prior to verification a drop shipment to a Global Package the British Post Office. and acceptance of the mail. Link processing facility according to a Delivery Options schedule agreed upon by the Postal Customs Clearance Service and the customer. The Postal Service has developed the Premium Service Option Two: The customer will Customs Pre-Advisory System (CPAS) The Postal Service will transport process the packages using Postal as part of Global Package Link Premium packages to the U.K. by air. Service-provided computer system processing. This electronic system Once a package is dispatched from the workstations and sort and prepare the collects package-specific data to satisfy customer’s facility, it should clear packages as required by the Postal customs requirements as packages are Customs and be delivered in the U.K. by Service. Then, the Postal Service processed using the USPS computer close of business on the third working accepts the packages at the customer’s workstations located at either a Global day. The customer can track packages plant and transports them by truck to 644 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations the nearest air mail facility according to Postal Service as provided in DMM many packages the customer mails to a schedule agreed upon by the Postal S500. However, Premium and Standard the U.K. using any of the three Global Service and the customer. From the air packages are not insured against delay Package Link delivery options in a mail facility, the Postal Service in delivery. Neither indemnity twelve month period. dispatches the Global Package Link payments nor postage refunds will be Base Rates packages to the U.K., bypassing a Global made in event of delay. Package Link processing facility. The Postal Service will charge the Economy Service base rates, in 1-pound increments, for Required Package-Specific Information Packages sent through Economy the first 100,000 packages mailed by the Requirements are the same as those Service may be insured at an additional customer during a 12-month period. detailed in Section 626.3. cost. See 320. Insurance and Indemnity Postage RATE REDUCTIONS Premium and Standard Services General Packages sent through the Premium or The base rates for the three available Number of packages Percent discount Standard Services are insured against delivery options are set forth below. Up to 100,000 ...... Base Rate. loss, damage, or rifling at no additional These rates may be reduced by an 100,001 and over ...... 2% cost. Indemnity will be paid by the annual discount depending on how

GLOBAL PACKAGE LINK

Base rates For volumes > 100,000 Pounds to: Premium Standard Economy Premium Standard Economy

1 ...... 13.87 11.17 9.95 13.59 10.95 9.75 2 ...... 15.21 12.46 11.19 14.90 12.21 10.97 3 ...... 16.54 13.75 12.43 16.21 13.47 12.18 4 ...... 17.88 15.04 13.67 17.52 14.73 13.39 5 ...... 19.21 16.32 14.91 18.83 16.00 14.61 6 ...... 20.55 17.61 16.15 20.14 17.26 15.82 7 ...... 21.88 18.90 17.39 21.44 18.52 17.04 8 ...... 23.71 20.18 18.63 23.24 19.78 18.25 9 ...... 25.08 21.47 19.87 24.58 21.04 19.47 10 ...... 26.63 22.76 21.11 26.09 22.30 20.68 11 ...... 28.00 24.05 22.35 27.44 23.57 21.90 12 ...... 29.37 25.33 23.59 28.79 24.83 23.11 13 ...... 30.96 26.62 24.82 30.34 26.09 24.33 14 ...... 32.34 27.91 26.06 31.70 27.35 25.54 15 ...... 33.96 29.20 27.30 33.28 28.61 27.76 16 ...... 35.35 30.48 28.54 34.64 29.87 27.97 17 ...... 36.99 31.77 29.78 36.25 31.13 29.19 18 ...... 38.66 33.06 31.02 37.88 32.40 30.40 19 ...... 40.61 34.35 32.26 39.80 33.66 63.62 20 ...... 42.04 35.63 33.50 41.20 34.92 32.83 21 ...... 43.47 36.92 34.74 42.60 36.18 34.05 22 ...... 44.90 38.21 35.98 44.00 37.44 35.26 23 ...... 46.33 39.49 37.22 45.40 38.70 36.48 24 ...... 47.76 40.78 38.46 46.81 39.97 37.69 25 ...... 49.19 42.07 39.70 48.21 41.23 38.91 26 ...... 50.62 43.36 40.94 49.61 42.49 40.12 27 ...... 53.44 44.64 42.18 52.37 43.75 41.34 28 ...... 54.91 45.93 43.42 53.81 45.01 42.55 29 ...... 56.38 47.22 44.66 55.25 46.27 43.77 30 ...... 57.85 48.51 45.90 56.69 47.54 44.98 31 ...... 59.31 49.79 47.14 58.13 48.80 46.20 32 ...... 60.78 51.08 48.38 59.57 50.06 47.41 33 ...... 62.25 52.37 49.62 61.01 51.32 48.63 34 ...... 63.72 53.65 50.86 62.45 52.58 49.84 35 ...... 65.19 54.94 52.10 63.88 53.84 51.06 36 ...... 66.66 56.23 53.34 65.32 55.10 52.27 37 ...... 68.13 57.52 54.58 66.76 56.37 53.48 38 ...... 69.59 58.80 55.82 68.20 57.63 54.70 39 ...... 72.45 60.09 57.06 71.00 58.89 55.91 40 ...... 73.94 61.38 58.30 72.46 60.15 57.13 41 ...... 75.44 62.67 59.54 73.93 61.41 58.34 42 ...... 76.94 63.95 60.77 75.40 62.67 59.56 43 ...... 78.44 65.24 62.01 76.87 63.94 60.77 44 ...... 79.93 66.53 63.25 78.33 65.20 61.99 45 ...... 81.43 67.82 64.49 79.80 66.46 63.20 46 ...... 82.93 69.10 65.73 81.27 67.72 64.42 47 ...... 84.42 70.39 66.97 82.74 68.98 65.63 48 ...... 85.92 71.68 68.21 84.20 70.24 66.85 49 ...... 87.42 72.96 69.45 85.67 71.51 68.06 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 645

GLOBAL PACKAGE LINKÐContinued

Base rates For volumes > 100,000 Pounds to: Premium Standard Economy Premium Standard Economy

50 ...... 88.91 74.25 70.69 87.14 72.77 69.28 51 ...... 90.41 75.54 71.93 88.60 74.03 70.49 52 ...... 91.91 76.83 73.17 90.07 75.29 71.71 53 ...... 93.41 78.11 74.41 91.54 76.55 72.92 54 ...... 94.90 79.40 75.65 93.01 77.81 74.14 55 ...... 96.40 80.69 76.89 94.47 79.07 75.35 56 ...... 97.90 81.98 78.13 95.94 80.34 76.57 57 ...... 99.39 83.26 79.37 97.41 81.60 77.78 58 ...... 100.89 84.55 80.61 98.87 82.86 79.00 59 ...... 102.39 85.84 81.85 100.34 84.12 80.21 60 ...... 103.89 87.13 83.09 101.81 85.38 81.43 61 ...... 105.38 88.41 84.33 103.28 86.64 82.64 62 ...... 106.88 89.70 85.57 104.74 87.91 83.86 63 ...... 108.38 90.99 86.81 106.21 89.17 85.07 64 ...... 109.87 92.27 88.05 107.68 90.43 86.29 65 ...... 111.37 93.56 89.29 109.14 91.69 87.50 66 ...... 112.87 94.85 90.53 110.61 92.95 88.72

Size and Weight Limits customs forms on its own and affix the affixes it to the package. However, All packages must meet the following forms to the packages before tendering during the interim period in which the size and weight limits: them to the Postal Service. In those Postal Service and the customer are cases where the computer workstations establishing the information systems Size Limits are located at the customer’s plant and linkages to enable the Postal Service to a. Minimum length and width: large operated by customer employees, the accomplish this, the customer is enough to accommodate the necessary USPS computer workstations will print required to affix an alternative label as customs/delivery label on the address the customs forms, and the customer instructed by the Postal Service to every side. will be required to affix these forms to package. b. Maximum length: 60 inches. the appropriate packages as instructed Stanley F. Mires, c. Maximum length and girth by the Postal Service prior to Chief Counsel, Legislative. combined: 108 inches. verification and acceptance of the mail. [FR Doc. 97–106 Filed 1–3–97; 8:45 am] Weight Limit Customs Clearance BILLING CODE 7710±12±P Maximum weight: 66 pounds. The Postal Service has developed the Customs Customs Pre-Advisory System (CPAS) 39 CFR Part 111 as part of Global Package Link Customs Forms processing. This electronic system Domestic Mail Manual; Miscellaneous Normally all necessary U.K. customs collects package-specific data to satisfy Amendments; Correction forms will be automatically generated customs requirements as packages are AGENCY: Postal Service. by the Postal Service computer processed using the USPS computer workstations. Packages mailed to the workstations located at either a Global ACTION: Final rule; correction. Package Link facility or the customer’s U.K. through a Global Package Link SUMMARY: This document contains plant. The system electronically advises processing facility will not be required corrections to the final rule published in the USPS delivery agent and Customs in to bear customs forms when they are the Federal Register on December 6, the U.K. of the contents of each package tendered to the Postal Service. The 1996 (61 FR 64618–64622). That rule mailed. Since this advisory information Postal Service will verify, accept, and announced minor amendments to arrives before the mail, CPAS facilitates transport these packages to a designated mailing standards and updated and simplifies customs clearance. Global Package Link processing facility. references to the Domestic Mail Manual, Electronic pre-notification of the After scanning the customer-printed which is incorporated by reference in package contents and automatic barcode on each package and correlating the Code of Federal Regulations under preparation of required customs it with the package-specific information 39 CFR 111.1. transmitted by the customer, the Postal declarations assures the fastest Service will print the necessary customs clearance through U.K. Customs and EFFECTIVE DATE: January 1, 1997. forms and then affix them to the reduces costs for the customer and the FOR FURTHER INFORMATION CONTACT: Neil customer’s packages as part of the Postal Service. Berger, (202) 268–2859. processing operation at the Global Preparation Requirements SUPPLEMENTARY INFORMATION: The Package Link Processing Facility. Domestic Mail Manual (DMM), However, during the interim period in Every package sent through Premium, incorporated by reference in title 39, which the Postal Service and the Standard or Economy Service must bear Code of Federal Regulations, part 111, customer are working together to a label identifying it as a Premium, a contains the basic standards of the U.S. establish the information systems Standard or an Economy Service Postal Service governing its domestic linkages to enable the Postal Service to package. The customer is not normally mail services; descriptions of the mail accomplish this, the customer may be required to affix this label. The Postal classes and special services and required to prepare the necessary Service prints the necessary label and conditions governing their use; and 646 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations standards for rate eligibility and mail Mailings With Different Payment under manufacturer warranty; it also preparation. The final rule that is the Methods’’ is corrected to read ‘‘P760 does not apply to owners whose subject of these corrections summarizes First-Class or Standard Mail Mailings vehicles have been mal-maintained or minor amendments to mailing standards With Different Payment Methods’’. whose emission control devices have and updated references to the contents 12. On page 64621, in the third been tampered with. The extension of of the DMM. As published, the final rule column, in § 111.5, on a separate line time applies to the automobile owner to contains minor errors and omissions above the heading ‘‘R000 Stamps and which the immediate repair of the failed that do not accurately reflect the Stationery’’, add the module heading vehicle would present a hardship. contents of the DMM. Accordingly, the ‘‘R—Rates and Fees’’. The changes to the E-Check program publication on December 6, 1996, of the 13. On page 64621, in the third are the result of concerns expressed by final rule, which was the subject of FR column, in § 111.5, on a separate line citizens affected by the program in the Doc. 96–31116, is corrected as set forth above the heading ‘‘S000 Miscellaneous areas where E-Check has been below: Services’’, add the module heading ‘‘S— implemented, and by Ohio legislators Special Services’’. representing them. The rule changes do § 111.5 [Corrected] 14. On page 64621, in the third not affect the emission reduction 1. On page 64620, in the third column, in § 111.5, on a separate line potential of the measure, and, therefore, column, in § 111.5, on a separate line above the heading ‘‘I000 Information’’, do not affect the expected emission above the heading ‘‘A000 Basic add the module heading ‘‘I—Index reductions in the maintenance plan for Addressing’’, add the module heading Information’’. Cleveland and Dayton or in the 15 ‘‘A—Addressing’’. 15. On page 64621, in the third percent reasonable further progress plan 2. On page 64620, in the third column, in § 111.5, the table of contents for Cincinnati. Therefore, the EPA is column, in § 111.5, the table of contents entry ‘‘1021 Forms Glossary’’ is approving the changes to the rule. entry ‘‘A920 Addressing Sequencing corrected to read ‘‘I021 Forms DATES: This action is effective March 7, Service’’ is corrected to read ‘‘A920 Glossary’’. 1997 unless adverse or critical Address Sequencing Services’’. 16. On page 64622, in the first comments are received by February 5, 3. On page 64620, in the third column, in § 111.5, the table of contents 1997. If the effective date is delayed, column, in § 111.5, on a separate line entry ‘‘1022 Subject Index’’ is corrected timely notice will be published in the above the heading ‘‘C000 General to read ‘‘I022 Subject Index’’. Federal Register. Information’’, add the module heading ‘‘C—Characteristics and Content’’. Stanley F. Mires, ADDRESSES: Written comments should 4. On page 64621, in the first column, Chief Counsel, Legislative. be addressed to: J. Elmer Bortzer, Chief, in § 111.5, on a separate line above the [FR Doc. 97–105 Filed 1–3–97; 8:45 am] Regulation Development Section, Air heading ‘‘D000 Basic Information’’, add BILLING CODE 7710±12±P Programs Branch (A–18J), United States the module heading ‘‘D—Deposit, Environmental Protection Agency, 77 Collection, and Delivery’’. West Jackson Boulevard, Chicago, 5. On page 64621, in the first column, ENVIRONMENTAL PROTECTION Illinois 60604. Copies of the SIP revision request and in § 111.5, on a separate line above the AGENCY heading ‘‘E000 Special Eligibility EPA’s analysis are available for public Standards’’, add the module heading 40 CFR Part 52 inspection during normal business ‘‘E—Eligibility’’. hours at the following address: United [OH69±2±6680a; FRL±5646±2] 6. On page 64621, in the first column, States Environmental Protection Agency, Region 5, Air and Radiation in § 111.5, on a separate line above the Approval and Promulgation of Air Division, 77 West Jackson Boulevard heading ‘‘F000 Basic Services’’, add the Quality Implementation Plans Ohio; (A–18J), Chicago, Illinois 60604 module heading ‘‘F—Forwarding and Revision to the Enhanced Motor Related Services’’. Vehicle Inspection and Maintenance FOR FURTHER INFORMATION CONTACT: John 7. On page 64621, in the second Program Paskevicz, Air Programs Branch, column, in § 111.5, on a separate line Regulation Development Section (A– above the heading ‘‘G000 The USPS and AGENCY: Environmental Protection 18J), United States Environmental Mailing Standards’’, add the module Agency (EPA). Protection, Region 5, Chicago, Illinois heading ‘‘G—General Information’’. ACTION: Direct final rule. 60604, (312) 886–6084. 8. On page 64621, in the second SUPPLEMENTARY INFORMATION: column, in § 111.5, on a separate line SUMMARY: The EPA approves submitted above the heading ‘‘L000 General Use’’, changes to Ohio’s enhanced vehicle I. Summary of State Submittal inspection and maintenance program add the module heading ‘‘L—Labeling On August 29, 1996, the Director, (known as E-Check) as a revision to the Lists’’. Ohio Environmental Protection Agency, State Implementation Plan (SIP) for 9. On page 64621, in the second (Ohio EPA) submitted a revision to the ozone in all areas where the State’s column, in § 111.5, on a separate line previously approved 1 E-Check program. inspection and maintenance (I/M) above the heading ‘‘M000 General The submittal was reviewed for program is operated. The EPA’s action Preparation Standards’’, add the module completeness and was found to meet all is based upon a request for a revision heading ‘‘M—Mail Preparation and of the requirements of appendix V which was received by EPA from Ohio Sortation’’. necessary to obtain EPA approval under on August 29, 1996. The revision 10. On page 64621, in the third section 110 of the Clean Air Act. The includes a vehicle repair spending cap column, in § 111.5, on a separate line SIP revision included: copy of the rule and a temporary hardship extension of above the heading ‘‘P000 Basic changes, notice of public hearing, time for automobile owners with failed Information’’, add the module heading transcripts, analysis of impact, and ‘‘P—Postage and Payment Methods’’. vehicles to perform necessary repairs on 11. On page 64621, in the third vehicles which fail the E-Check test. 1 Enhanced Motor Vehicle Inspection and column, in § 111.5, the table of contents The repair spending cap does not affect Maintenance Program, 60 FR 16989, dated April 4, entry ‘‘P760 Fist-Class or Standard Mail vehicles which require repairs and are 1995. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 647 responses to public comments. The legal failure of the vehicle to pass an I/M test. Check program and will improve citizen authority was previously established, The spending cap, which is set at $300, acceptability of this mobile source and a schedule for implementation was represents the maximum dollar amount emission reduction program. The EPA not required since the State had already required to be spent for emission related finds there is good cause for this direct begun to implement the changes. The repair. It includes the diagnostic fees, final approval to become effective thirty revision, which is expected to provide labor and parts, as well as any costs days from date of publication, and that for broader consumer acceptance of the incurred prior to the test if performed a delayed effective date is unnecessary E-Check program, is expressed in two of within 60 days prior to the test and if due to the noncontroversial nature of the State’s rules: Ohio Administrative related to the vehicle’s emission control the changes. Code (OAC) 3745–26–01 and OAC equipment. The spending cap does not 3745–26–12. include the cost of repair of tampering, III. Rulemaking Action nor does it include the cost of repair of The EPA is publishing this action II. Analysis of State Submittal any item covered by a dealer or without prior proposal because EPA The rule amendments include: manufacturer recall or warranty. views this action as a noncontroversial broadening the definition of ‘‘extension The temporary hardship extension is revision and anticipates no adverse certificate’’ which has the effect of available to a vehicle owner whose comments. The changes were made to providing a temporary hardship vehicle fails the emissions test and address concerns expressed by citizens extension of time for qualified vehicle meets certain criteria. The extension and legislators in Ohio and are expected owners to perform necessary repairs on allows an extra six months from the date to be received favorably. Since this failed vehicles, and adds a vehicle of the test to have the repairs performed. action is in response to previously repair spending cap. The amendments The hardship extension is not available expressed public concerns, no adverse also define ‘‘low income’’ in the context for gas cap failures nor is it available for comments are expected. However, EPA of the E-Check program in order to vehicles covered by warranty or if the is publishing a separate document in qualify for the temporary hardship failure is covered by a recall. The ‘‘low this Federal Register publication, which extension. income’’ test is met if the applicant for constitutes a ‘‘proposed approval’’ of the The Director of the Ohio EPA issued a hardship extension can demonstrate requested SIP revision and clarifies that a notice to amend rule 3745–26–01 and the household income for the previous the rulemaking will not be deemed final rule 3745–26–12 which govern the E- 12 months is not more than one- if timely significant adverse or critical Check I/M program in the 14 affected hundred fifty percent of the poverty comments are filed. The ‘‘direct final’’ counties in the State. The rule threshold level established by the U.S. approval shall be effective on March 7, amendments are intended to address the Department of Health and Human 1997, unless EPA receives adverse or concerns of citizens affected by the I/M Services. critical comments (which have not been program and are a result of the opinions The Ohio EPA contacted EPA for already addressed) by February 5, 1997. expressed by the public in the State’s assistance in assessing the impact of the If EPA receives such comments outreach program. Public hearings were amendments. However, the changes adverse to or critical of the approval announced and held in the three proposed by Ohio EPA do not lend discussed above, EPA will publish a affected areas of Cincinnati, Cleveland themselves to assessment of emission Federal Register document which and Dayton. impacts in the traditional manner using withdraws this final action. All public The USEPA reviewed the proposed the MOBILE5a emission factor model. amendments to determine the impact comments received will then be The extent of the temporary hardship addressed in a subsequent rulemaking the changes will have on emissions in extension cannot be accurately the affected areas. Further, the EPA action. determined or estimated because Ohio Any parties interested in commenting reviewed the proposed changes for their EPA has no historical data with respect impact on the maintenance plan in the on this action should do so at this time. to the number of vehicle owners or If no such comments are received, EPA Cleveland and Dayton areas and the 15 lessees who would be eligible for this percent plan in the Cincinnati area. The hereby advises the public that this delay in compliance. However, the action will be effective on March 7, amendments include a vehicle repair compliance extension is for a short spending cap and a temporary hardship 1997. duration relative to the compliance Nothing in this action should be extension of time for automobile owners period, and vehicles in this category construed as permitting, allowing or to perform necessary repairs on vehicles will eventually be repaired. Although establishing a precedent for any future which fail the E-Check test. Neither of delayed, vehicle emission reductions request for revision to any SIP. EPA the changes have a direct impact on the are assured. Further, the scarcity of shall consider each request for revision emission reductions available from the available information on the number of to the SIP in light of specific technical, program. The only emissions vehicle owners who would take economic, and environmental factors assessment method available at present advantage of the limit to the spending and in relation to relevant statutory and is the MOBILE5a model. This model cap prevents Ohio EPA from making a regulatory requirements. does not accommodate the program useful estimate of the effect on changes in this case and therefore emissions. This spending cap does not IV. Administrative Requirements changes in emissions, if any, cannot be affect vehicles which require repairs A. Executive Order 12866 determined by its use. Indirectly, the and are under manufacturer emissions amendments may have some impact on warranty; it also, does not apply to This action has been classified as a the ability of the program to achieve owners whose vehicles have been mal- Table 3 action for signature by the total reductions expected as discussed maintained or tampered. All tampering Regional Administrator under the below. However, there are no data or mal-maintenance are to be repaired procedures published in the Federal available to show the effect of these by the owner. Register on January 19, 1989 (54 FR indirect results. The EPA believes that the rule 2214–2225), as revised by a July 10, The repair spending cap applies in changes proposed by Ohio EPA will not 1995 memorandum from Mary D. situations where an automobile owner is have a significant impact on the Nichols, Assistant Administrator for Air required to obtain repairs because of emission reduction potential of the E- and Radiation. The Office of 648 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Management and Budget (OMB) has not a major rule as defined by 5 U.S.C. automobile inspection and maintenance exempted this regulatory action from 804(2). program, effective May 15, 1996. Executive Order 12866 review. E. Petitions for Judicial Review [FR Doc. 97–194 Filed 1–3–97; 8:45 am] B. Regulatory Flexibility Act BILLING CODE 6560±50±P Under section 307(b)(1) of the Clean Under the Regulatory Flexibility Act, Air Act, petitions for judicial review of 5 U.S.C. 600 et seq., EPA must prepare this action must be filed in the United 40 CFR Parts 52 and 81 a regulatory flexibility analysis States Court of Appeals for the assessing the impact of any proposed or appropriate circuit by March 7, 1997. [LA±34±1±7300; FRL±5670±4] final rule on small entities. 5 U.S.C. 603 Filing a petition for reconsideration by and 604. Alternatively, EPA may certify the Administrator of this final rule does Approval and Promulgation of that the rule will not have a significant not affect the finality of this rule for the Implementation Plans and Designation impact on a substantial number of small purposes of judicial review nor does it of Areas for Air Quality Planning entities. Small entities include small extend the time within which a petition Purposes; State of Louisiana; businesses, small not-for-profit for judicial review may be filed, and Correction of Classification; Approval enterprises, and government entities shall not postpone the effectiveness of of the Maintenance Plan; with jurisdiction over populations of such rule or action. This action may not Redesignation of Pointe Coupee less than 50,000. be challenged later in proceedings to Parish to Attainment for Ozone SIP approvals under section 110 and enforce its requirements. (See Section AGENCY: Environmental Protection subchapter I, part D of the Clean Air Act 307(b)(2).) do not create any new requirements but Agency (EPA). simply approve requirements that the List of Subjects in 40 CFR Part 52 ACTION: Final rule. State is already imposing. Therefore, Environmental protection, Air because the Federal SIP approval does SUMMARY: On July 22, 1996, EPA pollution control, Hydrocarbons, simultaneously published a direct final not impose any new requirements, the Incorporation by reference, Administrator certifies that it does not notice of rulemaking and a notice of Intergovernmental relations, Ozone, proposed rulemaking in which EPA have a significant impact on any small Volatile organic compounds. entities affected. Moreover, due to the published its decision to approve a nature of the Federal-State relationship Dated: October 16, 1996. revision to the Louisiana State under the Clean Air Act, preparation of William E. Muno, Implementation Plan (SIP) to a flexibility analysis would constitute Acting Regional Administrator. redesignate Pointe Coupee Parish to attainment for ozone. During the 30-day Federal inquiry into the economic Title 40 of the Code of Federal reasonableness of state action. The comment period, EPA received an Regulations, chapter I, part 52, subpart adverse comment letter in response to Clean Air Act forbids EPA to base its KK, is amended as follows: actions concerning SIPs on such the July 22, 1996, rulemaking. This final grounds. Union Electric Co. v. U.S. EPA, PART 52Ð[AMENDED] rule summarizes the comments and 427 U.S. 246, 255–66 (1976); 42 U.S.C. EPA’s responses, and finalizes EPA’s 7410(a)(2). 1. The authority citation for part 52 decision to correct the classification of continues to read as follows: Pointe Coupee Parish from a serious to C. Unfunded Mandates a marginal ozone nonattainment area. Authority: 42 U.S.C. 7401—7671q. Under Section 202 of the Unfunded This action also approves the Mandates Reform Act of 1995, signed Subpart KKÐOhio redesignation of Pointe Coupee Parish, into law on March 22, 1995, EPA must Louisiana to attainment for ozone. undertake various actions in association 2. Section 52.1870 is amended by EFFECTIVE DATE: This action is effective with any proposed or final rule that adding paragraph (c)(112) to read as on December 20, 1996. follows: includes a Federal mandate that may ADDRESSES: Copies of the State’s request result in estimated costs to state, local, § 52.1870 Identification of plan. and other information relevant to this or tribal governments in the aggregate; * * * * * action are available for inspection or to the private sector, of $100 million during normal hours at the following or more. This Federal action approves (c) * * * (112) On August 29, 1996, the United locations: pre-existing requirements under state or Environmental Protection Agency, local law, and imposes no new Federal States Environmental Protection Agency received from the Ohio Environmental Region 6, Air Planning Section (6PD– requirements. Accordingly, no L), 1445 Ross Avenue, Suite 700, additional costs to state, local, or tribal Protection Agency, changes to the approved vehicle inspection and Dallas, Texas 75202–2733. governments, or the private sector, Air and Radiation Docket and result from this action. maintenance (I/M) program which control the release of volatile organic Information Center, Environmental D. Submission to Congress and the compounds from vehicles. These Protection Agency, 401 M Street, General Accounting Office changes provide a repair spending cap S.W., Washington, D.C. 20460. Under 5 U.S.C. 801(a)(1)(A) as added of $300 and a temporary hardship Louisiana Department of by the Small Business Regulatory extension of time up to 6 months for Environmental Quality, Office of Air Enforcement Fairness Act of 1996, EPA owners to perform needed repairs on Quality, 7290 Bluebonnet Boulevard, submitted a report containing this rule vehicles which fail the I/M program test. Baton Rouge, Louisiana 70810. and other required information to the (i) Incorporation by reference. Anyone wishing to review this U.S. Senate, the U.S. House of (A) Rule 3745–26–01—Definitions petition at the EPA office is asked to Representatives and the Comptroller effective May 15, 1996. contact the person below to schedule an General of the General Accounting (B) Rule 3745–26–12—Requirements appointment 24 hours in advance. Office prior to publication of the rule in for motor vehicle owners in the FOR FURTHER INFORMATION CONTACT: Lt. today’s Federal Register. This rule is enhanced or opt-in enhanced Mick Cote, Air Planning Section (6PD– Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 649

L), Environmental Protection Agency, 107(d)(4)(A)(iv) of the Act requires that the biogenic emission development was Region 6, 1445 Ross Avenue, Dallas, the boundaries of any such area derived from four different sources: the Texas 75202–2733, telephone (214) classified as serious, severe, or extreme Louisiana Department of Transportation 665–7219. nonattainment for ozone shall include and Development; a study of Baton the entire Metropolitan Statistical Area Rouge’s biogenic hydrocarbon emissions SUPPLEMENTARY INFORMATION: (MSA) or Consolidated Metropolitan by Carlos Cardolino and William I. Background Statistical Area (CMSA), unless notice is Chameides at the Georgia Institute of On July 22, 1996, EPA published a received by the Administrator from the Technology using LANDSAT imagery; direct final rulemaking approving a Governor of the State that additional the U.S. Geological Survey’s geo-ecology revision to the existing Louisiana SIP to time is necessary to evaluate the database; and the U.S. Forest Service’s redesignate Pointe Coupee Parish to application of this clause. This notice 1991 forest statistics for the southeast attainment for ozone (61 FR 37833). At must be received within 45 days of the Louisiana parishes and forest statistics the same time that EPA published the initial classification. It should be noted of south delta Louisiana parishes. The direct final rule, a separate notice of that MSA and CMSA boundaries are emission factors used in estimating proposed rulemaking was published in established by the Bureau of the Census. biogenic emissions in the Baton Rouge the Federal Register (61 FR 37875). This Section 107(d)(4)(A)(v) of the Act area were obtained from the Rasmussen proposed rulemaking specified that EPA further states that, in order to make a and Khalil and Zimmermann studies of would withdraw the direct final rule if finding that a portion of the MSA or biogenic sources. The emission factors adverse or critical comments were filed CMSA should be excluded from the from the Rasmussen and Khalil and on the rulemaking within 30 days of its nonattainment area boundaries, the Zimmermann studies were derived from publication. The EPA received a letter Administrator should take into account direct measurements of various types of containing adverse comments regarding such factors as population density, vegetation in the Baton Rouge and the direct final rule on August 21, 1996, traffic congestion, commercial Tampa Bay, Florida areas, respectively. and published the withdrawal of the development, meteorological In addition, the correction factors direct final rule on September 25, 1996 conditions, and pollution transport. The based on Guenther, et. al., were used to (61 FR 50238). EPA agrees that these requirements adjust both temperature and solar The specific rationale EPA used to must be considered when evaluating a radiation for isoprene, while the approve the redesignation of Pointe proposed change to an existing MSA’s correction factors developed by Tingey, Coupee Parish to attainment for ozone or CMSA’s boundary condition. As et. al., were used to address temperature was explained in the direct final rule detailed in the July 22, 1996, Federal concerns for alpha-pinene and beta- and will not be restated here. This final Register, EPA considered all of the pinene. The EPA believes this approach rule addresses the comments received aforementioned factors prior to making represents a site-specific approach during the public comment period and the decision to correct Pointe Coupee which describes the VOC biogenic announces EPA’s final action regarding Parish’s classification. However, it source inventory in Baton Rouge more approval of the redesignation request. should be noted once again that Pointe accurately than BEIS–2. Coupee Parish is not part of the Baton Comment: The Baton Rouge UAM II. Response to Public Comments Rouge CMSA, and thus the study lacked an updated chemistry The EPA received an adverse requirements of 107(d)(4)(A)(iv) and component (CB–4). The EPA would be comment letter dated August 21, 1996, 107(d)(4)(A)(v) of the Act do not remiss in not reconsidering these from the Citizens Commission for Clean demand our consideration when improvements in UAM capability and Air in the Lake Michigan Basin, and correcting this error under section reevaluating the accuracy of the Baton thus proceeded to withdraw the direct 110(k)(6)of the Act. Rouge UAM study. final rule and adequately address each Response: The updated CB–4 has B. Comments on the Urban Airshed comment. The EPA’s responses to each been developed for use with BEIS–2. As Modeling (UAM) Study comment are detailed below. explained above, the Louisiana Comment: The Baton Rouge UAM Department of Environmental Quality A. Comments on the Correction Action study utilized an outdated and (LDEQ) developed its VOC biogenic Comment: The commenters challenge underestimated biogenic volatile inventory based on area-specific data the authority of the Administrator under organic compound (VOC) inventory, instead of the BEIS–2 program. In section 110(k)(6) of the Clean Air Act which recent EPA modeling guidance addition, the updated chemistry (the Act) to reclassify an ozone and Ozone Transport Assessment Group component was not available at the time nonattainment area by asserting that the (OTAG) participants concluded when LDEQ conducted the Baton Rouge original classification was made in warranted replacement with the UAM study. error. The EPA failed to pause and Biogenic Emission Inventory System–2 Comment: It appears unreasonable for consider section 110(k)(6) in (BEIS–2) inventory of biogenic VOCs. EPA to claim sufficient confidence in conjunction with section 107(d)(4)(A). The Baton Rouge UAM study would the accuracy of the Baton Rouge UAM Response: The EPA disagrees with the likely not model nitrogen oxides (NOX) study, that reliance upon it warrants commenter’s contention that the reduction disbenefits if it incorporated reclassification of Pointe Coupee under Administrator exceeded her authority in the BEIS–2 inventory. section 110(k)(6) of the Act. correcting the classification of Pointe Response: Biogenic hydrocarbon Response: The LDEQ used UAM Coupee Parish from serious to marginal. emissions have been determined to play version IV, an EPA-approved Section 110(k)(6) of the Act clearly an important role in the chemistry of photochemical grid model, for allows the Administrator to revise an urban ozone formation, especially in reclassification of Point Coupee under area’s classification when a warm southern cities. In light of this, section 110(k)(6) of the Act. The State determination is made that the original the State developed the biogenic has followed EPA guidance on the classification was made in error. Section emission inventory for the Baton Rouge application of UAM. As required, the 107(d)(4)(A) of the Act discusses area based on area-specific data rather State performed quality assurance nonattainment designations for ozone than using EPA BEIS–2 program. The testing of model inputs and diagnostic and carbon monoxide. Section area-specific land-use database used in testing of the base meteorological 650 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations episode simulation to ensure that the precursor advection upwind and available. Areas redesignated to model functioned properly and that downwind of the area of interest. The attainment have approved maintenance accurate results were obtained for the Baton Rouge modeling domain covers plans with contingency measures that right reasons. The State applied a all or part of 20 parishes in Louisiana, are and will be implemented in order to number of performance evaluation including Point Coupee Parish. The address any violations monitored in the techniques such as diagnostic analyses ozone precursor emissions from all the area after redesignation. The to examine the effects of uncertainty parishes in the Baton Rouge modeling maintenance plans for these areas were and identify possible deficiencies in the domain were taken into consideration in deemed appropriate and adequate for model input. The sensitivity analysis the UAM study. The Baton Rouge purposes of addressing a future investigated the sensitivity of the model boundary conditions were based on violation as they were fully approved to the various model inputs and ensured aircraft measurements, surface based into the area’s SIPs. Furthermore, if the that the response of the model to measurements, and EPA-recommended contingency measures implemented by changes in the inputs was physically background values. the State do not address future realistic. In addition, the State C. Comments on the Redesignation violations of the NAAQS, EPA has the conducted a model performance Action authority to call for a plan revision evaluation using graphical and requiring the adoption of additional statistical analyses to demonstrate that Comment: The commenters noted that control measures and/or redesignate the its model results acceptably replicated between December 1, 1990, and June 1, area to nonattainment which in turn the historical ozone episodes. 1995, EPA had approved approximately would require the area to adopt and Comment: The commenters believe forty-one (41) redesignation requests implement additional control measures that the Baton Rouge UAM study is nationwide. Several of these appropriate for its classification. See equivocal and disputed by other peer- redesignated areas, such as Kansas City, sections 110(k)(5) and 107(d)(3). Kansas/Missouri, Detroit, Michigan, San reviewed UAM studies and field Comment: The commenters state that Francisco, California, Charlotte, North research. The commenters cited a recent EPA should stay approval of the Carolina; Huntington-Ashland, West analysis prepared by ENVIRON redesignation until all specified Act Virginia/Kentucky, and Grand Rapids Corporation which reviewed the Baton requirements are met. Further, EPA violated the ozone standard after Rouge UAM study. This review should stay action on ozone redesignation. The commenters state commented that the model-predicted redesignation requests from States that the application of EPA’s diluted peak always occurred late in the participating in the OTAG until regional redesignation guidance in reviewing afternoon (5 p.m.), whereas the observed ozone precursor emission strategies are these maintenance plans contributed to peak occurred late in the morning (11 proposed and implemented. a.m. or noon). This suggested that there the violations. The commenters also Response: As discussed in the July 22, were meteorological and/or chemical noted that the Baton Rouge area 1996, rulemaking action, EPA has phenomena occurring that were not observed 11 exceedances of the ozone identified five general criteria which being captured by the model. standard in 1995. Response: The mistiming of the Response: To date EPA has must be met prior to any approval of a observed peak with the simulated peak redesignated a total of 41 areas to redesignation request. Redesignation at one monitoring site is not as attainment for ozone. Of these areas, requests which meet these five criteria important a criterion in evaluating only five (Detroit, Michigan, Memphis, have demonstrated compliance with the performance as the model’s ability to Tennessee, San Francisco, California, ozone standard and all the necessary simulate the concentrations of the Kansas City, Kansas-Missouri, and requirements of the Act. As discussed in observed peaks. The base case model Lafourche Parish, Louisiana) the July 22, 1996, rulemaking action, simulations provided a good subsequently monitored violations of EPA believes that the Pointe Coupee representation of the spatial and the ozone standard. The EPA believes Parish redesignation request has met all temporal characteristics of the episodes that this demonstrates that for the vast of the Act requirements and the as a whole. There was good replication majority of instances the redesignation redesignation criteria. Therefore, EPA is of the average ozone concentration policy is appropriate, since most of the compelled to approve the request. throughout the entire domain and the redesignated areas have not violated the However, it should be noted that observed peaks were well simulated. ozone standard to date. Furthermore, redesignation to attainment does not Model performance is judged by the the Act and Congress contemplated that necessarily preclude an area from any overall statistics at all the monitoring such events may occur and therefore, future control strategy developed by sites, not by a microscale effect of the required that the Administrator fully OTAG. model being able to simulate the exact approve a maintenance plan for the area Comment: Exception was taken to the timing of the observed peak at one consistent with the requirements of use of EPA’s redesignation guidance, monitoring site. All EPA model section 175A of the Act before the area entitled Reasonable Further Progress; performance criteria fell well within the can be redesignated to attainment. Attainment Demonstration, and Related limits established by EPA to judge Section 175A(d) of the Act requires that Requirements for Ozone Nonattainment model performance. The EPA has a maintenance plan contain contingency Areas Meeting the Ozone National confidence in the accuracy of the UAM provisions deemed necessary by the Ambient Air Quality Standard (Seitz study and its results. Administrator to assure that the State memo), John S. Seitz, Director, Office of Comment: The commenters were will promptly correct any violation of Air Quality Planning and Standards concerned that the Baton Rouge UAM the standard which occurs after the (OAQPS), dated May 10, 1995. The study excluded potentially significant redesignation of the area to attainment. Pointe Coupee redesignation is contributions of ozone precursor Clearly, the Act and Congress exempted from sections 172(c)(2) and emissions from Pointe Coupee in the anticipated that areas redesignated to 172(c)(6) of the Act, apparently Baton Rouge boundary conditions. attainment may violate the National pursuant to the Seitz memo. The EPA Response: The LDEQ selected a large Ambient Air Quality Standard (NAAQS) apparently utilized the 1995 Seitz memo modeling domain to ensure that it in the future and ensured that control in determining that Pointe Coupee allowed resolution of ozone and measures to remedy the violation are Parish had attained the ozone standard. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 651

Response: The EPA’s interpretation of longstanding rationale articulated in the Comment: Exempting marginal ozone the requirements of sections 172(c)(2) General Preamble and the Calcagni nonattainment areas from compliance and (c)(6) of the Act was not based upon memo. with applicable Title I, part D the May 10, 1995 Seitz memo, but rather Comment: The Administrative requirements, for purposes of upon the consistent rationale articulated Procedures Act (APA) requires that facilitating redesignation requests for much earlier in the General Preamble ‘‘substantive rules of general these areas is inconsistent and illegal for the Implementation of Title I of the applicability’’ be subjected to public under section 107(d)(3)(E) of the Act. Clean Air Act Amendments of 1990 (57 comment before promulgation. The Response: The EPA has not exempted FR 13498) and the guidance EPA’s guidance interpreting section marginal ozone nonattainment areas memorandum entitled Procedures for 107(d)(3)(E) of the Act’s requirements from the applicable requirements of Processing Requests to Redesignate constitutes substantive rules of general Title I, part D of the Act. As discussed Areas to Attainment (Calcagni memo), applicability and thus, required to be in the July 22, 1996, rulemaking action, dated September 4, 1992. As the Tenth subjected to public comment. Pointe Coupee would be subject to the Circuit recently observed: Response: The EPA’s reference to and marginal requirements of section 182(a) of the Act rather than section 182(c) of In that preamble, the Environmental reliance on guidance documents Protection Agency determined that certain interpreting section 107(d)(3)(E) of the the Act. Therefore, in order to be general nonattainment plan requirements do Act, all of which are either published or redesignated, the State must have met not apply in evaluating a request for publicly available and a part of the the applicable requirements of subpart 1 redesignation to attainment under record of the July 22, 1996, rulemaking of part D—specifically sections 172(c) circumstances where (1) an area has in fact and this rulemaking, is in no way illegal and 176 of the Act, as well as the monitored attainment of the standard, and (2) applicable requirements of subpart 2 of those requirements are expressly linked by under provisions of either the Act or the APA. The commenters cite the APA’s part D. As explained in the July 22, statutory language with the notion of 1996, Federal Register (61 FR 37835), reasonable further progress. See 57 FR 13564. requirement that ‘‘substantive rules of The Environmental Protection Agency general applicability’’ be published in EPA evaluated the redesignation request rezoned that when an area requests the Federal Register and subject to against those applicable part D redesignation to attainment status, ‘‘at a public comment before promulgation. requirements and determined that those minimum, the air quality data for the area These documents do not purport to be requirements had been met. must show that the area has already attained anything but guidance. That is precisely [the National Ambient Air Quality D. Miscellaneous Comments why EPA instituted a notice and Standards]. Showing the State will make Comment: There is a strong argument comment rulemaking to take comment [reasonable further progress] towards that the Louisiana State and Local Air on its statutory interpretations and attainment will, therefore, have no meaning Monitoring Network is inadequate for at that point.’’ factual determinations in order to make Pointe Coupee Parish. See 57 FR 13564. Sierra Club v. EPA, a binding and enforceable determination Response: The Air quality No. 95–9541 (10th Cir. November 13, regarding the Pointe Coupee surveillance plan developed for the 1996) Slip Opinion at 12–13. reclassification and redesignation. The Baton Rouge area included Pointe Similarly, the General Preamble found EPA explained the legal and factual Coupee Parish. The EPA evaluated the that, with respect to section 172(c)(6)of basis for its rulemaking in the July 22, established air quality monitoring the Act, ‘‘since attainment will have 1996, rulemaking and afforded the network and the surveillance plan been reached, no other measures are public a full opportunity to comment on against the 40 CFR part 58 Ambient Air needed to provide for attainment.’’ See EPA’s proposed interpretation and Quality Surveillance requirements, 57 FR 13564. determination fully consistent with the determined its compliance with all The Calcagni memo reiterated EPA’s applicable procedural requirements of applicable part 58 requirements, and reading of sections 172 (c)(2) and (c)(6) the APA. approved the plan. The EPA performs of the Act. The Calcagni memo stated Comment: The 1993 Nichols and 1995 annual reviews of this established air that ‘‘the requirements for reasonable Seitz memoranda are inconsistent with quality surveillance plan to ensure its further progress * * * and other earlier redesignation guidance (General continued compliance with part 58. The measures needed for attainment will not Preamble, Calcagni and Shapiro EPA believes that the current apply for redesignations because they memoranda) pertaining to required SIP monitoring location in New Roads only have meaning for areas not revisions for redesignations. adequately represents ambient ozone attaining the standard.’’ See Calcagni Response: The October 1994 Nichols levels in Pointe Coupee Parish. memo at page 6. memorandum and the May 1995 Seitz The commenters cite the May 10, memorandum represented III. Final Rulemaking Action 1995, Seitz memo as the basis for EPA’s modifications of earlier policies. That In this final action EPA is interpretation that sections 172 (c)(2) does not necessarily mean these promulgating a revision to the Louisiana and (c)(6) do not require area to adopt memoranda were by any means SIP and the Code of Federal additional control strategies if that area completely inconsistent with prior Regulations, parts 52 and 81, to correct has attained the standard. However, this policies. For example, the May 1995 the classification of Pointe Coupee cite is misdirected. Although the May Seitz memorandum interpreted the Parish from serious to marginal, and to 10, 1995, Seitz memo and more specific RFP requirements of redesignate the Parish to attainment for determinations that rely upon it are ‘‘a section 182(b)(1) of the Act in a manner ozone. This redesignation request was logical extension of EPA’s original, consistent with EPA’s previous submitted by the Governor to EPA by general interpretation of the 1990 Clean interpretation of the more general letter dated December 20, 1995. Air Act Amendments’’ Sierra Club v. section 171 and 172 Act requirements. Nothing in this action should be EPA, supra at 13, the Seitz memo Furthermore, EPA notes that it is construed as permitting or allowing or concerns provisions applicable to permissible to revise its policies establishing a precedent for any future designations of moderate and above. provided that the revised policies, as is request for revision to any SIP. Each Thus, EPA does not rely upon the Seitz the case with these, are legally justified request for revision to the SIP shall be memo here, but rather upon the and reasonable. considered separately in light of specific 652 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations technical, economic, and environmental to establish a plan for informing and Dated: December 20, 1996. factors and in relation to relevant advising any small governments that Carol M. Browner, statutory and regulatory requirements. may be significantly or uniquely Administrator. IV. Administrative Requirements impacted by the rule. 40 CFR Part 52 is amended as follows: The EPA has determined that the A. Executive Order (E.O.) 12866 approval action promulgated does not PART 52Ð[AMENDED] This action has been classified for include a Federal mandate that may 1. The authority citation for part 52 signature by the Administrator under result in estimated costs of $100 million continues to read as follows: the procedures published in the Federal or more to either State, local, or tribal Authority: 42 U.S.C. 7401–7671q. Register on January 19, 1989 (54 FR governments in the aggregate, or to the 2214–2225), as revised by a July 10, private sector. This Federal action Subpart TÐLouisiana 1995, memorandum from Mary Nichols, approves preexisting requirements Assistant Administrator for Air and under State or local law, and imposes 2. Section 52.970 is amended by Radiation. The Office of Management no new Federal requirements. adding paragraph (c)(70) to read as and Budget has exempted this Accordingly, no additional costs to follows: regulatory action from E.O. 12866 State, local, or tribal governments, or to § 52.970 Identification of Plan. review. the private sector, result from this * * * * * B. Regulatory Flexibility Act action. (c) * * * Under the Regulatory Flexibility Act, D. Submission to Congress and the (70) The Louisiana Department of 5 U.S.C. 600 et seq., EPA must prepare General Accounting Office Environmental Quality submitted a a regulatory flexibility analysis redesignation request and maintenance assessing the impact of any proposed or Under 5 U.S.C. section 801(a)(1)(A) as plan for Pointe Coupee Parish on final rule on small entities. See 5 U.S.C. added by the Small Business Regulatory December 20, 1995. The redesignation 603 and 604. Alternatively, EPA may Enforcement Fairness Act of 1996, EPA request and maintenance plan meet the certify that the rule will not have a submitted a report containing this rule redesignation requirements in section significant impact on a substantial and other required information to the 107(d)(3)(E) of the Act as amended in number of small entities. Small entities U.S. Senate, the U.S. House of 1990. The redesignation meets the include small businesses, small not-for- Representatives and the Comptroller Federal requirements of section profit enterprises, and government General of the General Accounting 182(a)(1) of the Clean Air Act as a entities with jurisdiction over Office prior to publication of this rule in revision to the Louisiana ozone State populations of less than 50,000. today’s Federal Register. This rule is Implementation Plan for Pointe Coupee The SIP approvals under section 110 not a ‘‘major rule’’ as defined by 5 Parish. The EPA therefore approved the and subchapter I, part D of the Act do U.S.C. section 804(2). request for redesignation to attainment not create any new requirements but with respect to ozone for Pointe Coupee simply approve requirements that the E. Petitions for Judicial Review Parish on December 20, 1996. (i) Incorporation by reference. Letter State is already imposing. Therefore, Under section 307(b)(1) of the Act, dated August 31, 1995, from Mr. because the Federal SIP approval does petitions for judicial review of this Gustave Von Bodungen, P.E., Assistant not impose any new requirements, I action must be filed in the United States Secretary, Louisiana Department of certify that it does not have a significant Court of Appeals for the appropriate Environmental Quality, transmitting a impact on any small entities affected. circuit by March 7, 1997. Filing a copy of the Pointe Coupee Parish Moreover, due to the nature of the petition for reconsideration by the maintenance plan for the EPA’s Federal-State relationship under the Administrator of this final rule does not approval. Act, preparation of a flexibility analysis affect the finality of this rule for the (ii) Additional material. (A) Letter would constitute Federal inquiry into purposes of judicial review nor does it dated August 28, 1995, from Governor the economic reasonableness of State extend the time within which a petition Edwin E. Edwards of Louisiana to Ms. action. The Act forbids EPA to base its for judicial review may be filed, and Jane Saginaw, Regional Administrator, actions concerning SIPs on such shall not postpone the effectiveness of requesting the reclassification and grounds. See Union Electric Co. v. U.S. such rule or action. This action may not redesignation of Pointe Coupee Parish to EPA, 427 U.S. 246, 255–66 (1976); 42 be challenged later in proceedings to attainment for ozone. U.S.C. 7410(a)(2). enforce its requirements. See section (B) The ten year ozone maintenance C. Unfunded Mandates 307(b)(2) of the Act. plan, including emissions projections and contingency measures, submitted to Under section 202 of the Unfunded List of Subjects EPA as part of the Pointe Coupee Parish Mandates Reform Act of 1995, signed redesignation request on December 20, into law on March 22, 1995, EPA must 40 CFR Part 52 1995. prepare a budgetary impact statement to Environmental protection, Air 3. Section 52.975 is amended by accompany any proposed or final rule adding paragraph (d) to read as follows: that includes a Federal mandate that pollution control, Hydrocarbons, may result in estimated costs to State, Incorporation by reference, § 52.975 Redesignations and Maintenance local, or tribal governments in the Intergovernmental regulations, Ozone, Plans: Ozone. aggregate; or to private sector, of $100 Reporting and recordkeeping * * * * * million or more. Under section 205, requirements, Volatile organic (d) Approval—The Louisiana EPA must select the most cost-effective compounds. Department of Environmental Quality and least burdensome alternative that 40 CFR Part 81 submitted a redesignation request and achieves the objectives of the rule and maintenance plan for Pointe Coupee is consistent with statutory Air Pollution control, Designation of Parish on December 20, 1995. The requirements. Section 203 requires EPA areas for air quality planning purposes. redesignation request and maintenance Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 653 plan meet the redesignation redesignation to attainment with respect 2. In § 81.319, the ozone table is requirements in section 107(d)(3)(E) of to ozone for Pointe Coupee Parish on amended by revising the entry for the the Act as amended in 1990. The December 20, 1996. Baton Rouge area and by adding an redesignation meets the Federal entry for the Pointe Coupee area to read requirements of section 182(a)(1) of the PART 81Ð[AMENDED] as follows: Clean Air Act as a revision to the Louisiana ozone State Implementation 1. The authority citation for part 81 § 81.319 Louisiana. Plan for Pointe Coupee Parish. The EPA continues to read as follows: * * * * * therefore approved the request for Authority: 42 U.S.C. 7401–7671q.

LOUISIANAÐOZONE

Designation Classification Designated area Date 1 Type Date 1 Type

Baton Rouge Area: Ascension Parish ...... Nonattainment ...... Serious. East Baton Rouge Parish ...... Nonattainment ...... Serious. Iberville Parish ...... Nonattainment ...... Serious. Livingston Parish ...... Nonattainment ...... Serious. West Baton Rouge Parish ...... Nonattainment ...... Serious.

******* Pointe Coupee Area: Pointe Coupee Parish ...... Dec. 20, 1996 ...... 1 This date is November 15, 1990, unless otherwise noted.

* * * * * for particular types of service; increase to Establish New Personal [FR Doc. 97–42 Filed 1–3–97; 8:45 am] competition by allowing market entry Communications Services, GEN Docket BILLING CODE 6560±50±P by new entrants; and expedite the No. 90–314, Memorandum Opinion and provision of service to areas that Order, 59 FR 32830 (June 24, 1994) otherwise may not receive broadband (Broadband PCS Memorandum Opinion FEDERAL COMMUNICATIONS PCS service in the near term. and Order). In the Broadband PCS COMMISSION EFFECTIVE DATE: March 7, 1997. Memorandum Opinion and Order, the FOR FURTHER INFORMATION CONTACT: Commission declined to adopt 47 CFR Part 24 Shaun A. Maher, Commercial Wireless unrestricted geographic partitioning for Division, Wireless Telecommunications broadband PCS based on its concern [WT Docket No. 96±148; GN Docket No. 96± that licensees might use partitioning as 113; FCC 96±474] Bureau at (202) 418–0620. SUPPLEMENTARY INFORMATION: This a means of circumventing construction Geographic Partitioning and Spectrum Report and Order in WT Docket No. 96– requirements. However, the Disaggregation by Commercial Mobile 148 and GN Docket No. 96–113, adopted Commission stated that it would Radio Services Licensees; and on December 13, 1996, and released consider the issue of geographic Implementation of Section 257 of the December 20, 1996, is available for partitioning for rural telephone Communications Act; Elimination of inspection and copying during normal companies (rural telcos) and other Market Entry Barriers business hours in the FCC Reference designated entities in a future Center, Room 234, 1919 M Street, N.W., proceeding to establish competitive AGENCY: Federal Communications Washington, D.C. The complete text bidding rules for broadband PCS. The Commission. may also be purchased from the Commission then permitted broadband ACTION: Final rule. Commission’s copy contractor, PCS geographic partitioning for rural International Transcription Service, telcos in the Competitive Bidding Fifth SUMMARY: In this Report and Order in Inc., 2100 M Street, N.W., Suite 140, Report and Order, Implementation of WT Docket No. 96–148, the Commission Washington, D.C. 20037, (202) 857– Section 309(j) of the Communications adopts rules concerning geographic 3800. Synopsis of Report and Order. Act—Competitive Bidding, PP Docket partitioning and spectrum No. 93–253, Fifth Report and Order, 59 disaggregation by broadband personal I. Background FR 37566 (July 22, 1995) (Competitive communications service (PCS) 1. The Commission’s initial Bidding Fifth Report and Order). The licensees. The rules adopted for regulations and policies for broadband Commission observed that partitioning broadband PCS will permit partitioning PCS were adopted in the Broadband was one method to satisfy Congress’ and disaggregation by all broadband PCS Second Report and Order, mandate to provide an opportunity for PCS licensees. This will provide Amendment of the Commission’s Rules rural telcos to participate in the broadband PCS licensees with desirable to Establish New Personal provision of broadband PCS. The flexibility to determine the amount of Communications Services, GEN Docket Commission also found that rural telcos spectrum they will occupy and the No. 90–314, Second Report and Order, could take advantage of their existing geographic area they will serve. Such 58 FR 59174 (November 8, 1993) infrastructure to provide broadband PCS flexibility will: facilitate the efficient (Broadband PCS Second Report and services, thereby speeding service to use of spectrum by providing licensees Order), and amended in the Broadband rural areas. In the Competitive Bidding with the flexibility to make offerings PCS Memorandum Opinion and Order, Further Notice of Proposed Rule directly responsive to market demands Amendment of the Commission’s Rules Making, Implementation of Section 654 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

309(j) of the Communications Act— may obtain partitioned PCS licenses Commission retains its current Competitive Bidding, PP Docket No. 93– will lead to more efficient use of PCS restriction because PCS licensees will be 253, Further Notice of Proposed Rule spectrum and will speed service to unwilling to partition their licenses to Making, 59 FR 41426 (August 12, 1994) underserved or rural areas. PCS rural telcos and will choose to partition (Competitive Bidding Further Notice of licensees will be able to partition to Commercial Mobile Radio Service Proposed Rule Making), the portions of their markets to entities (CMRS) providers with greater financial Commission sought comment on more willing to serve niche markets resources. The rural telco commenters whether to extend post-auction instead of postponing service to those also argue that they relied to their geographic partitioning of broadband areas. The Commission believes that detriment upon the current partitioning PCS licenses to women- and minority- retaining the existing partitioning restrictions when devising their owned businesses. restrictions, as recommended by the business plans and that many of them 2. Section 24.229(c) of the rural telco commenters, would prevent Commission’s rules permits a additional small businesses and other chose not to participate in the broadband PCS licensee that has met its entities from using partitioning to enter broadband PCS auctions because they five-year construction requirement to the broadband PCS market. In addition, believed that they would be the only disaggregate its licensed PCS spectrum restricting the number of parties that are parties that could obtain partitioned after January 1, 2000. In the Broadband eligible for partitioned PCS licenses PCS licenses. The Commission is PCS Memorandum Opinion and Order, only serves to unreasonably reduce the unpersuaded that its action herein will the Commission reasoned that this limit number of potential entrants into the harm the rural telcos’ business plans. on spectrum disaggregation for PCS marketplace without any Under the new rules adopted herein, broadband PCS would allow the PCS corresponding public interest benefit. rural telcos will be fully able to obtain market to develop and prevent anti- 6. The rural telco commenters claim partitioned PCS licenses, as they were competitive practices with regard to that changing the current partitioning previously. Moreover, in many disaggregation. rules would be inconsistent with the instances, rural telcos are likely to be in 3. The Commission believes that it is mandate set forth in Section 309(j)(3)(B) a superior position to obtain partitioned appropriate at this time to liberalize its of the Communications Act of 1934, as licenses. rules to allow partitioning and amended (Communications Act), 47 disaggregation for broadband PCS. The U.S.C. 309(j)(3)(B), to ensure that 8. The Commission declines to adopt rules adopted in the Report and Order licenses are disseminated among a wide the rural telcos’ proposal to require a will provide licensees with the variety of applicants including rural right of first refusal. Granting the rural flexibility to use their spectrum more telcos. They contend that partitioning telcos a right of first refusal would limit efficiently, will increase opportunities was the sole means by which the the number of parties that could obtain for small businesses and other entities Commission sought to fulfill the partitioned PCS licenses which would to enter into the broadband PCS market, mandate of Section 309(j)(3)(B) of the be at odds with the Commission’s goals and will speed service to underserved or Communications Act, 47 U.S.C. of encouraging participation in the PCS unserved areas. 309(j)(3)(B) for rural telcos. The marketplace by as many parties as II. Discussion Commission disagrees. Rural telcos are possible and reducing barriers to entry able to take advantage of the special for small businesses. The Commission A. Partitioning provision for small businesses the finds that increasing the number of 1. License Eligibility Commission designed in its auction potential entities that can acquire rules to obtain licenses in the partitioned PCS licenses will result in 4. The Commission concludes that entrepreneur block auctions. better service and increased competition relaxing its PCS geographic partitioning Furthermore, Sections 309(j)(3)(A), (B), rules, as discussed herein, will help to which may result in lower prices for and (D) of the Communications Act, 47 PCS service. (1) remove potential barriers to entry U.S.C. 309(j)(A), (B) & (D), direct the thereby increasing competition in the Commission to further the rapid 9. The Commission also finds that the PCS marketplace; (2) encourage parties deployment of new technologies for the right of first refusal would be difficult to use PCS spectrum more efficiently; benefit of the public including those to administer and could discourage and (3) speed service to unserved and residing in rural areas, to promote partitioning. The area proposed in a underserved areas. Parties that were economic opportunity and competition, partitioning agreement may not coincide unsuccessful bidders or that did not and to ensure the efficient use of exactly with the area for which a rural participate in the PCS auctions will be spectrum. While encouraging rural telco telco would have a right of first refusal able to use partitioning as a method to participation in PCS service offerings is or a single partitioning transaction may acquire PCS licenses after the auctions. an important element in meeting these encompass more than one rural telcos’ Smaller or newly-formed entities, for goals, Congress did not dictate that this service area. In those cases, the consent example, may enter the PCS market for should be the sole method of ensuring of multiple rural telcos would be the first time through partitioning. the rapid deployment of service in rural required before a partitioning Under the prior rules, such entities areas. The Commission concludes that transaction could be consummated. would have been unable to qualify for allowing open partitioning will further Additionally, a partitioning agreement partitioning because of the the goals of Section 309(j)(3) of the may be part of a larger assignment Commission’s rural telco restriction. By Communications Act, 47 U.S.C. transaction. If a rural telco were to eliminating that restriction, these 309(j)(3), by allowing PCS licensees to entities will be able to negotiate for partition to multiple entities within exercise its right of first refusal to licenses for portions of the original their markets rather than limiting acquire the partitioned area, it may not service area at a cost that is partitioning to a small number of rural be possible to separate out the proportionately less than that of the full telcos. partitioning agreement to stand on its geographic market. 7. The rural telcos argue further that own and the entire assignment 5. The Commission also finds that they will not be able to compete for transaction could not be consummated. increasing the number of parties that partitioned PCS licenses unless the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 655

2. Available License Area, Restrictions allowing non-entrepreneur block licensee. The Commission adopts the on Timing of Partitioning, and Matters licensees to freely partition their following rules to address the various Related to Entrepreneur Block Licensees licenses to any other qualifying entity combinations of parties and the relative a. License Area. 10. The Commission following the issuance of the license. obligations for each in the event an is persuaded by the commenters’ Since non-entrepreneur block licensees entrepreneur seeks to partition its arguments that limiting geographic are permitted to assign their entire license: partitioning of PCS licenses to those license after grant, the Commission (a) No Continued Installment areas defined by county lines may not finds they should be able to assign a Payments. When an entrepreneur block be reflective of market realities and may portion of their license following the licensee with installment payments otherwise inhibit partitioning. As the issuance of their license. PCS licensees partitions its license after the five-year commenters note, parties seeking a will be permitted to partition their holding period to a party that would not partitioned license may not desire to licensed market areas without limitation qualify for installment payments under on the overall size of the partitioned serve an entire county but rather a our rules or to an entity that does not areas consistent with the Commission’s smaller niche market. The Commission desire to pay for its share of the license rules. with installment payments, the believes that permitting partitioning c. Entrepreneur block licenses. 13. along any service area defined by the Commission will first apportion the The Commission will permit percentage of the remaining government partitioner and partitionee is the most entrepreneur block PCS licensees to logical approach, provided they submit obligation (including accrued and partition at any time to other parties that unpaid interest calculated on the date sufficient information to the would be eligible for licenses in those the partial assignment application is Commission to maintain its licensing blocks. Partitioning of entrepreneur filed) between the partitionee and records. This will be the rule for all block license areas to non-entrepreneurs original licensee based upon the ratio of parties, including rural telcos. will not be permitted for the first five the population of the partitioned area to 11. Partitioning applicants will be years of an entrepreneur block license the population of the entire original required to submit, as separate term. This restriction is necessary in licensed area. Under this procedure, attachments to the partial assignment order to ensure that entrepreneurs do both parties will be responsible to the application, a description of the not circumvent the Commission’s U.S. Treasury for their proportionate partitioned service area and a restrictions on full license transfers by share of the balance due including calculation of the population of the attempting to immediately partition a partitioned service area and licensed portion of their licenses to non- accrued and unpaid interest calculated market. The partitioned service area entrepreneurs. on the date the partial assignment must be defined by coordinate points at 14. The Commission finds that its application is filed. The Commission every 3 seconds along the partitioned unjust enrichment requirements should will require, as a condition of grant of service area agreed to by both parties, be applied if an entrepreneur block the partial assignment application, that unless either (1) an FCC-recognized licensee partitions a portion of its the partitionee pay its entire pro rata service area is utilized (i.e., Major license area to a non-entrepreneur, after amount within 30 days of Public Notice Trading Area, Basic Trading Area, the initial five-year license term. The conditionally granting the partial Metropolitan Service Area, Rural Commission will apply its unjust assignment application. Failure to meet Service or Economic Area) or (2) county enrichment rules to transactions where this condition will result in the lines are followed. These geographical entrepreneurs obtain partitioned automatic cancellation of the grant of coordinates must be specified in licenses from other entrepreneurs and the partial assignment application. The degrees, minutes and seconds to the subsequently seek to assign their partitioner will receive new financing nearest second of latitude and partitioned license to a non- documents (promissory note and longitude, and must be based upon the entrepreneur. The Commission will also security agreement) with a revised 1927 North American Datum (NAD27). apply the unjust enrichment provisions payment obligation, based on the Applicants may also supply to an entrepreneur block licensee that remaining amount of time on the geographical coordinates based on 1983 qualifies as a small business who original installment payment schedule. North American Datum (NAD83) in partitions to an entity that satisfies the These financing documents will replace addition to those required based on entrepreneur block eligibility criteria the partitioner’s existing financing NAD27. This coordinate data should be but is not a small business that would documents which will be marked supplied as an attachment to the partial be eligible for bidding credits or ‘‘superseded’’ and returned to the assignment application, and maps need installment payments. licensee upon receipt of the new not be supplied. In cases where an FCC 15. The Commission will use financing documents. The original recognized service area or county lines population as the objective measure to interest rate, established at the time of are being utilized, applicants need only calculate the relative value of the the issuance of the initial license in the list the specific area(s) (through use of partitioned area for determining all of market, will continue to be applied to FCC designations) or counties that make its unjust enrichment obligations. the partitioner’s portion of the up the newly partitioned area. Allowing Population will be calculated based remaining government obligation. The partitioning along any agreed-upon upon the latest census data. Commission will require, as a further service area will provide an opportunity 16. In partitioning cases involving condition to approval of the partial for PCS licensees to design flexible and installment payments, the Commission assignment application, that the efficient partitioning agreements. By finds that separating the payment partitioner execute and return to the providing such flexibility to licensees obligations and default provisions of the U.S. Treasury the new financing for determining partitioned areas, the original licensee and partitionee is the documents within 30 days of the Public Commission will permit the market to best approach because it reduces each Notice conditionally granting the partial decide the most suitable service areas. party’s risk and creates payment assignment application. Failure to meet b. Non-entrepreneur block licenses. obligations that can be enforced this condition will result in the 12. The Commission concludes that the separately against the defaulting party automatic cancellation of the grant of public interest will be served by without adversely affecting the other the partial assignment application. A 656 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations default on an obligation will only affect while the partitioner remains concludes that disaggregation should that portion of the market area held by responsible for meeting those generally be allowed, it emphasizes that the defaulting party. The payments to requirements in the area it has retained. all proposed disaggregation agreements, the U.S. Treasury are required Under the second option, the partitioner like partitioning agreements, will be notwithstanding any additional terms certifies that it has already met or will subject to Commission review and and conditions agreed to between or meet its five-year construction approval under the public interest among the parties. requirement and that it will meet the standard of Section 310 of the Act. In (b) Partitioning With Continued ten-year construction requirement for addition, as discussed below, Installment Payments. Where both the entire market. Because the disaggregatees will be subject to the parties to the partitioning arrangement partitioner retains the responsibility for CMRS spectrum cap to ensure that qualify for installment payments under meeting the construction requirements disaggregation is not used to accumulate § 24.720(b)(1), 47 CFR 24.720(b)(1), the for the entire market, the partitionee large amounts of spectrum in order to Commission will permit the partitionee will only be required to meet the preclude entry by other competitors. to make installment payments on its substantial service requirement for its 2. Amount of Spectrum to Disaggregate portion of the remaining government partitioned area at the end of the ten- obligation. Partitionees are free, year license term. The definition of 20. The Commission concludes that however, to make a lump sum payment substantial service will be that there should be no restriction on the of their pro rata portion of the definition found at § 24.16(a) of the amount of broadband PCS spectrum that remaining government obligation within rules, 47 CFR 24.16(a). If a partitionee can be disaggregated. Providing the 30 days of the Public Notice fails to meet its construction flexibility to allow parties to decide the conditionally granting the partial requirements, the license for the exact amount of spectrum to be assignment application. Should a partitioned area will automatically disaggregated is preferable because it partitionee choose to make installment cancel without further Commission will encourage more efficient use of payments, the Commission will require, action. spectrum and will permit the as a condition to approval of the partial 18. At the five- and ten-year deployment of a broader mix of service assignment application, that both benchmarks, partitionees are required to offerings, leading to a more competitive parties execute financing documents file supporting documentation showing wireless marketplace. The Commission (promissory note and security compliance with the construction finds that requiring parties to obtain agreement) agreeing to pay the U.S. requirements. Licensees failing to meet disaggregated spectrum in a Treasury their pro rata portion of the the coverage requirements will be predetermined amount, such as a block balance due (including accrued and subject to forfeiture, license of 1 MHz, may result in parties unpaid interest on the date the partial cancellation, or other penalties. obtaining more spectrum they need, assignment application is filed) based leaving some spectrum unused, and upon the installment payment terms for B. Disaggregation may foreclose some parties from using which they would qualify. These 1. Timing of Disaggregation disaggregation as a means of obtaining documents must be executed and the spectrum they need to provide their returned to the U.S. Treasury within 30 19. The Commission concludes that service offerings. Therefore, the days of the Public Notice conditionally disaggregation of broadband PCS Commission will not restrict the amount granting the partial assignment spectrum should be allowed prior to of broadband PCS spectrum that can be application. Either party’s failure to January 1, 2000, and that the condition disaggregated. Similarly, it will not meet this condition will result in the that the licensee must first satisfy the require the disaggregator to retain a automatic cancellation of the grant of five-year build out requirement before minimum amount of spectrum. the partial assignment application. The disaggregating should be eliminated. To 21. The Commission is not adopting original interest rate, established at the the extent that disaggregation would a limit on the maximum amount of time of the issuance of the initial license enable other entities to provide spectrum that licensees may in the market, will apply to both parties’ broadband PCS within geographic disaggregate, provided that the portion of the remaining government market areas, the Commission finds that disaggregatee complies with the CMRS obligation. Each party will receive a allowing immediate disaggregation spectrum cap. The Commission finds no license for its portion of the market area would encourage rather than impede evidence at this time that a maximum and each party’s financing documents competition by enabling the entry of limitation for disaggregation is will provide that a default on its new competitors. Moreover, the current necessary. PCS licensees shall be obligation would only affect their prohibition on disaggregation may permitted to disaggregate spectrum portion of the market area. These constitute a barrier to entry for small without limitation on the overall size of payments to the U.S. Treasury are businesses that lacked the resources to the disaggregation as long as such required notwithstanding any additional participate successfully at auction for 30 disaggregation is otherwise consistent terms and conditions agreed to between MHz and 10 MHz spectrum blocks. In with the rules. or among the parties. furtherance of the mandate prescribed by Section 257 of the Communications 3. Matters Relating to Entrepreneur 3. Construction Requirements Act, the Commission is eliminating such Block Licensees 17. The Commission will adopt two market entry barriers by permitting non- 22. In keeping with the proposals the alternative construction options for entrepreneur block (A, B, D, and E Commission is adopting for partitioning, broadband PCS partitioning. Under the block) PCS licensees to disaggregate it will permit entrepreneur block first option, the partitionee certifies that spectrum at any time to other entities licensees to disaggregate at any time to it will satisfy the same construction with minimum eligibility qualifications. other parties that qualify as requirements as the original licensee. Entrepreneur block (C and F block) entrepreneurs. Disaggregation to entities The partitionee then must meet the licensees may disaggregate at any time that do not qualify as entrepreneurs is same five- and ten-year service to other entrepreneurs, or to non- not permitted for the first five years of requirements as the original 10 MHz or entrepreneurs after a five-year holding a license term. Allowing unrestricted 30 MHz licensee in its partitioned area, period. While the Commission entrepreneur block disaggregation Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 657 would be inconsistent with the five-year disaggregation to circumvent its rules, the partitioning rules should restriction on full license transfers to underlying construction requirements. prevail. For the purpose of applying the non-entrepreneurs which was designed Therefore, the Commission adopts a unjust enrichment requirements and/or to ensure that entrepreneurs do not take flexible approach analogous to its for calculating obligations under advantage of special entrepreneur block approach in the partitioning context: to installment payment plans, when a provisions by immediately seeking to retain the underlying five- and ten-year combined partitioning and transfer their licenses to non- construction requirements for the disaggregation is proposed, the entrepreneurs. The Commission spectrum block as a whole, but allow Commission will use a combination of believes the same rationale would apply either party to meet the requirements on both population of the partitioned area to entrepreneur block disaggregation, as its disaggregated portion. Thus, a PCS and amount of spectrum disaggregated licensees who have benefited from such licensee who disaggregates a portion of to make these pro rata calculations. provisions could immediately its spectrum may elect to retain 2. Licensing disaggregate spectrum to parties that responsibility for meeting the five- and would not qualify for such benefits. ten-year coverage requirements, or it 28. The Commission will follow 23. The Commission declines to may negotiate a transfer of this existing partial assignment procedures permit entrepreneur block licensees to obligation to the disaggregatee. In either for broadband PCS licenses in reviewing swap equivalent blocks of entrepreneur case, the rules ensure that the spectrum requests for geographic partitioning, spectrum with non-entrepreneurs will be developed to at least the same disaggregation, or a combination of within the same market area. The degree that was required prior to both. Such applications will be placed administrative burden of keeping track disaggregation. on Public Notice and will be subject to of such arrangements would far 26. To ensure compliance with the petitions to deny. A licensee will be outweigh any benefit to the public. rules, the Commission will require that required to file an FCC Form 490 that 24. The Commission will follow the parties seeking Commission approval of is signed by both the licensee and the approach outlined for partitioning and a disaggregation agreement include a qualifying entity. With respect to apply unjust enrichment payments to certification as to which party will be partitioning, the FCC Form 490 must entrepreneur block licensees that responsible for meeting the applicable include the attachment defining the disaggregate to non-entrepreneurs after five- and ten-year construction partitioned license area and an the five-year holding period and to requirements. Parties may also propose attachment demonstrating the entrepreneur block licensees that to share the responsibility for meeting population of the partitioned license qualified for bidding credits and the construction requirements. The area. Partial assignment applications installment payments and that specific requirements to be met will that are filed seeking partitioning or disaggregate to other entrepreneurs that depend on whether the spectrum being disaggregation in the entrepreneur would not have qualified for such disaggregated was originally licensed as blocks must include an attachment benefits. All such unjust enrichment a 30 MHz block or a 10 MHz block. In demonstrating compliance with the five payments will be calculated based upon the event that only one party agrees to year entrepreneur block holding period. the ratio of the amount of spectrum take responsibility for meeting the The qualifying entity will also be disaggregated to the amount of spectrum construction requirement and later fails required to file an FCC Form 430 unless retained by the original licensee. With to do so, that party’s license will be a current FCC Form 430 is already on respect to disaggregation from an subject to forfeiture, but the other file with the Commission. An FCC Form entrepreneur block licensee to another party’s license will not be affected. 600 must be filed by the qualifying entrepreneur that would also qualify for Should both parties agree to share the entity to receive authorization to operate installment payments, the Commission responsibility for meeting the in the market area being partitioned or adopts an approach similar to the one it construction requirements and either to operate the disaggregated spectrum or adopted for partitioning. The party later fails to do so, both parties’ to modify an existing license of the Commission will apportion the payment licenses will be subject to forfeiture. So qualifying entity to include the new/ obligations between the disaggregator that the CMRS rules remain consistent additional market area being partitioned and disaggregatee based upon the and competitively neutral, or the spectrum that is disaggregated. amount of spectrum disaggregated and disaggregatees that already hold a Any requests for a partitioned license or require separate payment obligations, broadband PCS license or other CMRS disaggregated spectrum must contain promissory notes and default liabilities license in the same geographic market the FCC Forms 490, 430, and 600 and for each party. will be subject to the same coverage be filed as one package under cover of 4. Construction Requirements requirements as disaggregatees who do the FCC Form 490. 29. The 45 MHz CMRS spectrum cap 25. The Commission concludes that not hold other licenses for disaggregated spectrum. contained in Section 20.6 of the rules the proposed construction requirements applies to partitioned license areas and for disaggregation set forth in the NRPM C. Related Matters disaggregated spectrum. would be inconsistent with the approach adopted in its partitioning 1. Combination of Partitioning and 3. License Term rules, and that a more flexible approach Disaggregation 30. The Commission will allow is appropriate. Because the rules do not 27. To allow parties flexibility to partitionees and disaggregatees to hold dictate a minimum level of spectrum design the types of agreements they their licenses for the remainder of the usage by the original PCS licensee, the desire, the Commission will permit original licensee’s ten-year license term. Commission believes it would be combined partitioning and Partitionees and disaggregatees may also inconsistent to impose separate disaggregation. For example, this will earn a renewal expectancy on the same construction requirements on both allow a party to obtain a license for a basis as other PCS licensees. disaggregator and disaggregatee for their single county of an A block market with 31. The Commission will not permit respective spectrum portions. At the only 15 MHz of spectrum. In the event an existing broadband PCS licensee same time, the Commission wishes to that there is a conflict in the application acquiring a partitioned license or ensure that the parties do not use of the partitioning and disaggregation disaggregated spectrum in a market in 658 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations which it is already a licensee to apply databases, concerning geographic areas to acquire wholesale an existing license its original license term to the open to partitioning and spectrum that (with all of the bundle of rights partitioned license or spectrum. Such a would be available through currently associated with the existing proposal would be burdensome to disaggregation. Although a few entities license). Acquiring less than the current administer because the processing staff offered to serve as commercial license will presumably be a more would be required to determine the clearinghouses of PCS spectrum flexible and less expensive alternative licensee’s other licenses in the market information, the Commission declines for entities desiring to enter these and calculate the correct expiration date to establish an official Commission services. for the partitioned or disaggregated clearinghouse. license. The Commission finds that such Summary of Issues Raised in Response VI. Conclusion an administrative burden would to the Initial Regulatory Flexibility outweigh the benefit that may result 36. The partitioning and Analysis from such a proposal. disaggregation proposals the Only one commenter, National Commission has adopted are consistent 4. Technical Rules Telephone Cooperative Association with a pro-competitive policy (NTCA), submitted comments that were 32. The Commission finds that its framework. These rules will eliminate specifically in response to the IRFA. existing technical rules are sufficient for barriers to entry for small businesses NTCA argues that the Commission is application in the partitioning and seeking to enter the PCS marketplace required under the RFA to identify disaggregation contexts and that no and will promote the rapid creation of significant alternatives to the proposed additional technical rules are required a competitive market for the provision rules in order to accomplish the stated at this time. Should technical of PCS services. These rules also meet objectives of Sections 309(j) and 257 of difficulties arise, however, the the Congressional objectives to further the Communications Act of 1934, as Commission will take whatever action is the rapid development of new amended (Communications Act). necessary to alleviate any technical or technologies for the benefit of the public Specifically, NTCA argues that the interference problems that result from including those residing in rural areas, Commission must consider the right of partitioning or disaggregation, including without administrative delay, to first refusal approach suggested by some appropriate modifications to its promote economic opportunity and commenters as an alternative to technical rules. competition, and to ensure that new allowing open partitioning of PCS technologies are available by avoiding 5. Microwave Relocation licenses and how it might minimize excessive concentration of licenses. 33. The Commission concludes that significant economic impacts on rural partitionees and disaggregatees should VII. Procedural Matters and Ordering telcos. NTCA contends that, for the be treated the same as all other PCS Clauses purposes of determining which businesses are to be included in an RFA licensees with respect to microwave A. Regulatory Flexibility Act relocation issues. In particular, analysis, the Commission should adopt partitionees will have the same rights Summary the U.S. Small Business and obligations as other broadband PCS As required by Section 603 of the Administration’s (SBA) definition of licensees under the cost-sharing plan Regulatory Flexibility Act (RFA), 5 small business, which is any company adopted in Amendment of the U.S.C. 603 (RFA), an Initial Regulatory with fewer than 1,500 employees. Commission’s Rules Regarding a Plan Flexibility Analysis (IRFA) was In the Report and Order, significant for Sharing the Costs of Microwave incorporated in the Notice of Proposed alternatives were identified and Relocation, WT Docket No. 95–157, Rulemaking (NRPM) in WT Docket No. considered in order to further the Report and Order and Further Notice of 96–148. The Commission sought written mandates of Sections 309(j) and 257 of Proposed Rulemaking, 61 FR 24470 public comment on the proposals in the the Communications Act. In addition, (May 15, 1996). Thus, partitionees and NPRM, including the IRFA. The significant consideration was given to disaggregatees may seek reimbursement Commission’s Final Regulatory the rural telcos’ right of first refusal under the plan if they relocate Flexibility Analysis in this Report and approach for partitioning; however, the incumbents and they will be required to Order conforms to the RFA, as amended Commission concluded that such an pay their share of microwave relocation by the Contract With America approach was unworkable and would costs if they benefit from the spectrum- Advancement Act of 1996. actually discourage partitioning. Finally, the Commission declined to clearing efforts of another party, Need for and Purpose of this Action according to the cost-sharing formula adopt NTCA’s suggestion to utilize the adopted by the Commission. In this Report and Order the SBA definition of small business 34. The Commission declines to Commission modifies the broadband (businesses with fewer than 1,500 require that the original PCS licensee PCS rules to permit partitioning and employees). As noted below, the guarantee payments under the cost- disaggregation for all Part 24 licenses. existing definition of small business sharing plan by the partitionee or The proposals adopted herein also (firms with revenues of less than $40 disaggregatee. To require licensees to implement Congress’ goal of giving million in each of the last three years) guarantee such payments would be small businesses the opportunity to was used in the PCS C-Block auction unfair because the original licensees participate in the provision of spectrum- and was approved by the SBA. The would have no control over the actions based services in accordance with 47 Commission also notes that it has found of the partitionees and disaggregatees. U.S.C. 309(j)(4)(D) and to reduce entry incumbent LECs to be ‘‘dominant in barriers for small businesses in their field of operation’’ since the early 6. Clearinghouse for Spectrum accordance with 47 U.S.C. 257. With 1980’s, and it has consistently certified 35. The Commission declines to more open partitioning and under the RFA that incumbent LECs are create a Commission-based resource of disaggregation, additional entities, not subject to regulatory flexibility information, but will continue to make including small businesses, may analyses because they are not small available, in a user-friendly manner, participate in the provision of businesses. The Commission has made information contained in its existing broadband PCS service without needing similar determinations in other areas. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 659

Description and Number of Small years of their license term. The A, B, D, Congress’ goal of giving small Entities Involved and E block licensees and potential businesses, as well as other entities, the The rules adopted in the Report and licensees (holding a total of 1,088 opportunity to participate in the Order will affect all small businesses licenses) will also be permitted under provision of spectrum-based services which avail themselves of these rule the proposed rules to partition and/or and are consistent with the changes, including small businesses disaggregate to small businesses. Communications Act’s mandate to The Commission is presently currently holding broadband PCS identify and eliminate market entry conducting auctions for the D, E, and F licenses who choose to partition and/or barriers for entrepreneurs and small blocks of broadband PCS spectrum. The disaggregate, and small businesses who businesses in the provision and Commission anticipates that a total of may acquire licenses through ownership of telecommunications 1,479 licenses will be awarded in the D, partitioning and/or disaggregation. The services. E, and F block PCS auctions. Eligibility Allowing non-restricted partitioning rules will also affect rural telephone for the F block licenses is limited to of PCS licenses will facilitate market companies which, under the current entrepreneurs with average revenues of entry by parties who may lack the rules, have the exclusive right to obtain less than $125 million. It is not possible financial resources for participation in partitioned broadband PCS licenses. to estimate the number of licenses that PCS auctions, including small Small businesses will be defined for will be awarded to small businesses in businesses. Some small businesses may these purposes as firms that have the F block nor is it possible to estimate have been unable to be winning bidders revenues of less than $40 million in how many small businesses will win the at the PCS auctions due to high bidding each of the last three calendar years. D or E block licenses. The Commission and would have been unable to qualify This definition was used in the PCS C- believes that it is possible that small for partitioning because of our current Block auction and approved by the SBA. businesses will constitute a significant restriction which permits partitioning of The definition of rural telephone number of the up to 10,370 PCS PCS licenses to only rural telephone company shall be that definition found licensees or potential licensees who companies (rural telcos). By eliminating at § 24.720(e) of the rules, 47 CFR could take the opportunity to partition this restriction, small businesses will be 24.720(e). and/or disaggregate or who could obtain able to obtain partitioned PCS licenses The broadband PCS spectrum is a license through partitioning and/or for smaller service areas at presumably divided into six frequency blocks disaggregation. reduced costs, thereby providing a designated A through F. The method for small businesses to enter the Summary of Projected Reporting, Commission has auctioned broadband PCS marketplace. PCS licenses in blocks A, B, and C. The Recordkeeping and Other Compliance Similarly, allowing immediate Commission does not have sufficient Requirements disaggregation of PCS licenses will information to determine whether any The rules adopted in the Report and facilitate the entry of new competitors to small businesses within the SBA- Order will impose reporting and the provision of PCS services, many of approved definition bid successfully for recordkeeping requirements on small whom will be small businesses seeking licenses in the A or B block PCS businesses seeking licenses through to acquire a smaller amount of PCS auctions. There were 89 winning partitioning and disaggregation. The spectrum at a reduced cost. bidders that qualified as small information requirements will be used Allowing geographic partitioning of businesses in the C block PCS auctions. to determine whether the licensee is a PCS licenses by services areas defined Based upon this information, the qualifying entity to obtain a partitioned by the parties rather than only by Commission concludes that the number license or disaggregated spectrum. This county lines will provide an of broadband PCS licensees affected by information will be given in a one-time opportunity for small businesses to the rules adopted herein includes the 89 filing by any applicant requesting such obtain partitioned PCS license areas winning bidders that qualified as small a license. The information will be designed to serve smaller, niche entities in the block C broadband PCS submitted on the FCC Form 490 (or 430 markets. This will permit small auctions. and/or 600 filed as one package under businesses to enter the PCS marketplace The Commission anticipates that a cover of the Form 490) which are by reducing the overall cost of acquiring total of 10,370 PCS licensees or currently in use and have already a partitioned PCS license. potential licensees could take the received OMB clearance. The Allowing disaggregation of spectrum opportunity to partition or disaggregate Commission estimates that the average in any amount will also promote a license or obtain a license through burden on the applicant is three hours participation by small businesses who partitioning and/or disaggregation. This for the information necessary to may seek to acquire a smaller amount of estimate is based on the total number of complete these forms. The Commission PCS spectrum tailored to meet the needs broadband PCS licenses auctions and estimates that 75 percent of the of their proposed service. subject to auction, 2,074, and the respondents (which may include small The Commission’s proposals to allow Commission’s estimate that each license businesses) will contract out the burden non-entrepreneur block licensees to would probably not be partitioned and/ of responding. The Commission partition or disaggregate to any party or disaggregated to more than five estimates that it will take approximately and to allow entrepreneurs to partition parties. Currently, the C and F block 30 minutes to coordinate information or disaggregate to other entrepreneurs at licensees and potential licensees with those contractors. The remaining any time and to non-entrepreneurs after (holding a total of 986 licenses) must be 25 percent of respondents (which may a five year holding period will small businesses or entrepreneurs with include small businesses) are estimated significantly increase the opportunities average gross revenues over the past to employ in-house staff to provide the for small businesses to enter the PCS three years of less than $125 million. information. marketplace. Allowing entrepreneur Under the rules adopted in the Report partitionees and disaggregatees to pay and Order, they will be permitted to Steps Taken To Minimize Burdens on their proportionate share of the partition and/or disaggregate to other Small Entities remaining government obligation qualified entrepreneurs at any time and The rules adopted in the Report and through installment payments will to non-entrepreneurs after the first five Order are designed to implement provide a further opportunity for small 660 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations businesses to participate in the to design flexible partitioning entrant PCS licensees with respect to provision of PCS services. agreements. microwave relocation costs. The Commission’s decision to allow The Commission rejected proposals to partitioning parties to choose between permit partitioning and disaggregation Report to Congress: two construction requirements will during the first five years of an The Commission shall include a copy provide small businesses with more entrepreneur’s license term. While of this Final Regulatory Flexibility flexibility to construct their systems at allowing entrepreneurs to immediately Analysis, along with this Report and a rate that is determined by market partition or disaggregate to non- Order, in a report to be sent to Congress forces, thus allowing them to conserve entrepreneurs may have resulted in pursuant to the Small Business their resources. additional entities participating in the Regulatory Enforcement Fairness Act of provision of PCS services, the Significant Alternatives Considered and 1996, 5 U.S.C. 801(a)(1)(A). A copy of Commission concluded that the five Rejected this Final Regulatory Flexibility year holding period restriction is The Commission considered and Analysis will also be published in the necessary in order to ensure that Federal Register. rejected a number of alternative entrepreneurs do not take advantage of proposals concerning partitioning and the special entrepreneur block benefits B. Ordering Clauses disaggregation. by immediately partitioning a portion of The rural telephone companies (rural their licenses or disaggregating a portion Accordingly, it is ordered That, telcos) argued that the Commission of their spectrum to parties that would pursuant to the authority of Sections should either retain the current not have qualified at auction, on their 4(i), 257, 303(g), 303(r) and 332(a) of the partitioning restriction or adopt a right own merits, for such benefits. Communications Act of 1934, as of first refusal approach that would Furthermore, limiting partitioning and amended, 47 U.S.C. 154(i), 257, 303(g), require partitioning parties to notify the disaggregation during the first five years 303(r), and 332(a), Part 24 of the rural telco and offer it the partitioned of an entrepreneur’s license term will Commission’s Rules, 47 CFR 24, is license area under similar terms and increase the possibility that small amended as set forth below. conditions. The Commission found that businesses will be able to acquire PCS It is further ordered That the rules retaining the current partitioning licenses. adopted herein will become effective restriction would prevent small The Commission declined to adopt March 7, 1997. This action is taken businesses from using partitioning to proposals to apply a new license term pursuant to 4(i), 303(r) and 332(a) of the enter the broadband PCS market. Since to partitioned license areas and Communications Act of 1934, as retaining the partitioning restriction disaggregated spectrum. Under this amended, 47 U.S.C. 154(i), 303(r), and would constitute a significant barrier to approach, entities obtaining partitioned 332(a). entry for small businesses, the licenses or disaggregated spectrum Commission declined to continue to would receive a new ten-year license List of Subjects in 47 CFR Part 24 limit partitioning to rural telcos. term beginning from the date the Communications common carriers, The Commission found that the right Commission approved the partitioning Reporting and recordkeeping of first refusal would be difficult to or disaggregation. The Commission requirements. implement and could discourage found that permitting parties to ‘‘re- partitioning. Areas proposed in start’’ their license term would Federal Communications Commission. partitioning agreements may not effectively allow a licensee to extend its William F. Caton, coincide exactly with areas for which a license term and could lead to Acting Secretary. rural telco may have a right of first circumvention of our license term rules. refusal. A single partitioning transaction The Commission rejected the proposal Rule Changes may encompass more than one rural to require disaggregation of broadband Part 24 of Chapter I of Title 47 of the telco’s service area, or a partitioning PCS spectrum in blocks of 1 MHz of Code of Federal Regulations is amended agreement may be part of a larger paired frequencies (500 kHz plus 500 as follows: assignment transaction. Parties would kHz). The Commission found that be unwilling to enter into partitioning requiring parties to obtain that large a PART 24ÐPERSONAL agreements not knowing how much of block of spectrum could act as a barrier COMMUNICATIONS SERVICES an area would ultimately be partitioned to entry for entities that do not require or whether they could consummate the that much spectrum to provide service. 1. The authority citation for Part 24 transaction. This determination will Finally, the Commission declined the continues to read as follows: make it easier for non-rural-telcos, proposal put forth by some commenters that PCS licensees be required to Authority: 47 U.S.C. 154, 301, 302, 303, including some small business entities, 309, and 332, unless otherwise noted. to enter partitioning agreements. assume the obligations and The Commission declined to adopt responsibilities for microwave § 24.229 [Amended] the proposal set forth in the NPRM to relocation costs for their entire license limit partitioning to areas defined by area and spectrum block even if they 2. Section 24.229 is amended by county lines. The Commission was partition a portion of their license area removing paragraph (c). convinced by the majority of or disaggregate a portion of their § 24.707 [Amended] commenters that geographic partitioning spectrum to another party. The along county lines is too restrictive. The Commission found that requiring 3. Section 24.707 is amended by Commission found that parties seeking licensees to guarantee the payments of removing the phrase from the third a partitioned license may not desire to partitionees and disaggregatees would sentence: ‘‘(and applicants seeking serve an entire county but rather a be unfair because licensees would not partitioned licenses pursuant to smaller niche market. Therefore, the have control over the actions of agreements with auction winners under Commission found that allowing partitionees and disaggregatees and § 24.714).’’ partitioning along service areas defined because there was no reason to treat 4. Section 24.714 is revised to read as by the parties would allow the parties those parties differently than other late- follows: Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 661

§ 24.714 Partitioned licenses and consider requests for partial assignment plan, and partitions its license or disaggregated spectrum. of licenses that propose combinations of disaggregates spectrum to another party (a) Eligibility. (1) Parties seeking partitioning and disaggregation. that would not qualify for an approval for partitioning and (c) Unjust enrichment—(1) installment payment plan or elects not disaggregation shall request an Installment payments. Licensees in to pay for its share of the license authorization for partial assignment of a frequency Blocks C and F making through installment payments, the license pursuant to § 24.839. installment payments that partition outstanding balance owed by the (2) Broadband PCS licensees in their licenses or disaggregate their licensee (including accrued and unpaid spectrum blocks A, B, D, and E may spectrum to entities not meeting the interest) shall be apportioned according apply to partition their licensed eligibility standards for installment to § 24.714(d)(1). geographic service area or disaggregate payments, will be subject to the (ii) The partitionee or disaggregatee their licensed spectrum at any time provisions concerning unjust shall, as a condition of the approval of following the grant of their licenses. enrichment as set forth in §§ 1.2111 of the partial assignment application, pay (3) Broadband PCS licensees in this chapter and 24.716(d). its entire pro rata amount within 30 spectrum blocks C and F may not (2) Bidding credits. Licensees in days of Public Notice conditionally partition their licensed geographic frequency Blocks C and F that received granting the partial assignment service area or disaggregate their a bidding credit and partition their application. Failure to meet this licensed spectrum for the first five years licenses or disaggregate their spectrum condition will result in a rescission of of the license term unless it is to an to entities not meeting the eligibility the grant of the partial assignment entity that meets the eligibility criteria standards for such a bidding credit, will application. set forth in § 24.709 at the time the be subject to the provisions concerning (iii) The licensee shall be permitted to request for partial assignment of license unjust enrichment as set forth in continue to pay its pro rata share of the is filed or to an entity that holds §§ 1.2110(f) of this chapter and outstanding balance and shall receive license(s) for frequency blocks C and F 24.717(c). new financing documents (promissory that met the eligibility criteria set forth (3) Apportioning unjust enrichment note, security agreement) with a revised in § 24.709 at the time of receipt of such payments. Unjust enrichment payments payment obligation, based on the license(s). Partial assignment for partitioned license areas shall be remaining amount of time on the applications seeking partitioning or calculated based upon the ratio of the original installment payment schedule. disaggregation of broadband PCS population of the partitioned license These financing documents will replace licenses in spectrum blocks C and F area to the overall population of the the licensee’s existing financing must include an attachment license area and by utilizing the most documents which shall be marked demonstrating compliance with this recent census data. Unjust enrichment ‘‘superseded’’ and returned to the section. payments for disaggregated spectrum licensee upon receipt of the new (b) Technical standards—(1) shall be calculated based upon the ratio financing documents. The original Partitioning. In the case of partitioning, of the amount of spectrum disaggregated interest rate, established pursuant to requests for authorization for partial to the amount of spectrum held by the § 1.2110(e)(3)(i) of this chapter at the assignment of a license must include, as licensee. time of the grant of the initial license in attachments, a description of the (d) Installment payments—(1) the market, shall continue to be applied partitioned service area and a Apportioning the balance on to the licensee’s portion of the calculation of the population of the installment payment plans. When a remaining government obligation. We partitioned service area and the licensed winning bidder elects to pay for its will require, as a further condition to geographic service area. The partitioned license through an installment payment approval of the partial assignment service area shall be defined by plan pursuant to §§ 1.2110(e) of this application, that the licensee execute coordinate points at every 3 seconds chapter or 24.716, and partitions its and return to the U.S. Treasury the new along the partitioned service area unless licensed area or disaggregates spectrum financing documents within 30 days of an FCC recognized service area is to another party, the outstanding the Public Notice conditionally granting utilized (i.e., Major Trading Area, Basic balance owed by the licensee on its the partial assignment application. Trading Area, Metropolitan Service installment payment plan (including Failure to meet this condition will result Area, Rural Service Area or Economic accrued and unpaid interest) shall be in the automatic cancellation of the Area) or county lines are followed. The apportioned between the licensee and grant of the partial assignment geographic coordinates must be partitionee or disaggregatee. Both application. specified in degrees, minutes, and parties will be responsible for paying (iv) A default on the licensee’s seconds to the nearest second of latitude their proportionate share of the payment obligation will only affect the and longitude and must be based upon outstanding balance to the U.S. licensee’s portion of the market. the 1927 North American Datum Treasury. In the case of partitioning, the (3) Parties qualified for installment (NAD27). Applicants may supply balance shall be apportioned based payment plans. (i) Where both parties to geographical coordinates based on 1983 upon the ratio of the population of the a partitioning or disaggregation North American Datum (NAD83) in partitioned area to the population of the agreement qualify for installment addition to those required (NAD27). In entire original license area calculated payments, the partitionee or the case where an FCC recognized based upon the most recent census data. disaggregatee will be permitted to make service area or county lines are utilized, In the case of disaggregation, the installment payments on its portion of applicants need only list the specific balance shall be apportioned based the remaining government obligation, as area(s) (through use of FCC designations upon the ratio of the amount of calculated according to § 24.714(d)(1). or county names) that constitute the spectrum disaggregated to the amount of (ii) Each party will be required, as a partitioned area. spectrum allocated to the licensed area. condition to approval of the partial (2) Disaggregation. Spectrum may be (2) Parties not qualified for assignment application, to execute disaggregated in any amount. installment payment plans. (i) When a separate financing documents (3) Combined partitioning and winning bidder elects to pay for its (promissory note, security agreement) disaggregation. The Commission will license through an installment payment agreeing to pay their pro rata portion of 662 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations the balance due (including accrued and will result in the automatic cancellation business hours in the FCC Reference unpaid interest) based upon the of the partitioned or disaggregated Center (Room 239), 1919 M St., NW., installment payment terms for which license without further Commission Washington, DC. The complete text also they qualify under the rules. The action. may be obtained through the World financing documents must be returned (2) Requirements for disaggregation. Wide Web, at http://www.fcc.gov/ to the U.S. Treasury within thirty (30) Parties seeking authority to disaggregate Bureaus/Common Carrier/Orders/ days of the Public Notice conditionally must submit with their partial fcc96483.wp, or may be purchased from granting the partial assignment assignment application a certification the Commission’s copy contractor, application. Failure by either party to signed by both parties stating which of International Transcription Service, meet this condition will result in the the parties will be responsible for Inc., (202) 857–3800, 2100 M St., NW., automatic cancellation of the grant of meeting the five- and ten-year Suite 140, Washington, DC 20037. the partial assignment application. The construction requirements for the PCS Regulatory Flexibility Analysis interest rate, established pursuant to market as set forth in § 24.203. Parties § 1.2110(e)(3)(i) of this chapter at the may agree to share responsibility for There are no new rules or time of the grant of the initial license in meeting the construction requirements. modifications to existing rules adopted the market, shall continue to be applied Parties that accept responsibility for in this Order. meeting the construction requirements to both parties’ portion of the balance Paperwork Reduction Act due. Each party will receive a license for and later fail to do so will be subject to their portion of the partitioned market license forfeiture without further There are no new or modified or disaggregated spectrum. Commission action. collections of information required by (iii) A default on an obligation will this Order. [FR Doc. 97–98 Filed 1–3–97; 8:45 am] only affect that portion of the market Synopsis of Order area held by the defaulting party. BILLING CODE 6712±01±P (iv) Partitionees and disaggregatees I. Introduction that qualify for installment payment 47 CFR Part 51 1. On August 1, 1996, the Commission plans may elect to pay some of their pro adopted rules implementing the local [CC Docket No. 96±98; FCC 96±483] rata portion of the balance due in a competition provisions of the lump sum payment to the U.S. Treasury Implementation of the Local Telecommunications Act of 1996 (1996 and to pay the remaining portion of the Act). On October 2, 1996, the Rural balance due pursuant to an installment Competition Provisions in the Telecommunications Act of 1996 Telephone Coalition (RTC) filed a payment plan. motion for stay of three rules adopted in (e) License term. The license term for AGENCY: Federal Communications the First Report and Order, 61 FR 45476 a partitioned license area and for Commission. (August 29, 1996), pending judicial disaggregated spectrum shall be the ACTION: Final rule; motion for stay and review. Oppositions to the motion for remainder of the original licensee’s notification of court stay. stay were filed by MCI, the Association license term as provided for in § 24.15. for Local Telecommunications Service (f) Construction requirements—(1) SUMMARY: The Order released December (ALTS), and the National Cable Requirements for partitioning. Parties 18, 1996 dismisses the motion for stay Television Association (NCTA). For the seeking authority to partition must meet of three rules adopted in the First Report reasons set forth below, we dismiss the one of the following construction and Order, (August 29, 1996), filed by motion in part, and otherwise deny the requirements: the Rural Telephone Coalition (RTC) to motion for stay. (i) The partitionee may certify that it the extent that RTC seeks a stay of 47 will satisfy the applicable construction CFR 51.809, and otherwise denies the II. Background requirements set forth in § 24.203 for the motion for stay. Denial of the motion for 2. Section 251(c) of the partitioned license area; or stay allows the rules relating to local Communications Act of 1934, as (ii) The original licensee may certify competition which have not been stayed that it has or will meet its five-year amended, (the Act) imposes on by the United States Court of Appeals incumbent local exchange carriers construction requirement and will meet for the Eighth Circuit (Iowa Utilities the ten-year construction requirement, (LECs) obligations regarding Board v. Federal Communications interconnection, resale of services, and as set forth in § 24.203, for the entire Commission, No. 96–3321 et al., 1996 license area. In that case, the partitionee unbundled network elements. Section WL 589284 (8th Cir. 1996 Oct. 15, 251(f)(1) of the Act provides that a rural must only satisfy the requirements for 1996)) to go into effect without delay. ‘‘substantial service,’’ as set forth in telephone company is exempt from the EFFECTIVE DATE: Sections 51.501–51.515 § 24.16(a), for the partitioned license requirements of section 251(c) unless (inclusive), 51.601–51.611 (inclusive), the state commission finds that the rural area by the end of the original ten-year 51.705–51.715 (inclusive), and 51.809 license term of the licensee. carrier has received a bona fide request (iii) Applications requesting partial are stayed effective October 15, 1996 for interconnection, services, or network assignments of license for partitioning pursuant to court order. Motion for stay elements, and the state commission must include a certification by each by the Rural Telephone Coalition is determines that the request ‘‘is not party as to which of the above dismissed effective January 6, 1997. unduly economically burdensome, is construction options they select. FOR FURTHER INFORMATION CONTACT: Lisa technically feasible, and is consistent (iv) Partitionees must submit Gelb, Attorney, Common Carrier with section 254 (other than subsections supporting documents showing Bureau, Policy and Program Planning (b)(7) and (c)(1)(D) thereof).’’ Section compliance with the respective Division, (202) 418–1580. 251(f)(2) of the Act permits LECs ‘‘with construction requirements within the SUPPLEMENTARY INFORMATION: This is a fewer than 2 percent of the Nation’s appropriate five- and ten-year summary of the Commission’s Order subscriber lines installed nationwide’’ construction benchmarks set forth in adopted December 18, 1996, and to petition a state commission for § 24.203. released December 18, 1996. The full suspension or modification of (v) Failure by any partitionee to meet text of this Order is available for application of one or more requirements its respective construction requirements inspection and copying during normal of sections 251(b) or 251(c). The petition Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 663 shall be granted to the extent that, and individual interconnection, service, or Commission adopted in the First Report for such duration as, the state network element arrangement contained and Order (i.e., 47 CFR 51.501–51.515, commission determines that the in any agreement approved by the state 51.601–51.611, 51.705–51.715, and suspension or modification: under section 252 to which the 51.809). Therefore, we need not address (A) is necessary— incumbent LEC is a party. RTC’s motion for administrative stay of (i) to avoid a significant adverse § 51.809. economic impact on users of III. Summary of the Motion and 9. We examine the remaining portions telecommunications services generally; Oppositions of RTC’s motion for stay pursuant to (ii) to avoid imposing a requirement 5. RTC requests a stay of the well-established legal principles. A that is unduly economically Commission rules described above. RTC party seeking a stay is required to burdensome; or contends that the Commission demonstrate: (1) That it is likely to (iii) to avoid imposing a requirement unlawfully modified the standard to be prevail on the merits; (2) that it will that is technically infeasible; and used by states in considering whether to suffer irreparable harm if a stay is not (B) is consistent with the public terminate the rural exemption. RTC granted; (3) that other interested parties interest, convenience, and necessity. contends that placing the burden of will not be harmed if the stay is granted; 3. In the First Report and Order, and proof on the incumbent LEC, and the and (4) that the public interest favors in § 51.405 of the Commission’s rules, Commission’s definition of ‘‘unduly the grant of a stay. the Commission held that, once a economically burdensome,’’ will cause 10. With respect to RTC’s motion for requesting carrier has made a bona fide rural LECs to suffer irreparable harm. stay of §§ 51.303, concerning filing of request for interconnection, services, or RTC claims that certain rural LECs will interconnection agreements negotiated network elements, incumbent rural lose exemptions that they would not before the 1996 Act became law, and LECs bear the burden of proving that have lost if the requesting carrier bore 51.405, concerning rural carriers’ they should continue to be exempt from the burden of proof. RTC also asserts burden of proof under section 251(f)(1) the requirements of section 251(c). The that the Commission’s rules will cause of the Act, we conclude that RTC has Commission also offered guidance on rural LECs to incur costs and expend not shown that it will suffer irreparable what would constitute an ‘‘unduly’’ resources to retain exemptions from harm absent a stay. A concrete showing economically burdensome requirement section 251(c) obligations. RTC further of irreparable harm is an essential factor for purposes of sections 251(f)(1) and argues that the Commission’s rules in any request for a stay. As the U.S. 251(f)(2), holding that the incumbent ignore two of the three statutory factors Court of Appeals for the District of rural carrier must offer evidence that the that must be considered in deciding Columbia Circuit has observed, application of the requirements of whether to terminate a rural LEC’s ‘‘economic loss does not, in and of section 251(c) of the Act would be likely exemption. RTC also contends that the itself, constitute irreparable harm.’’ to cause economic burden ‘‘beyond the Commission failed to give adequate Moreover, competitive harm is merely a economic burden that is typically public notice of its intent to establish a type of economic loss, and ‘‘revenues associated with efficient competitive test concerning the burden of proof and and customers lost to competition entry.’’ its intent to establish a rule interpreting which can be regained through 4. Section 252(a) of the Act, entitled the phrase ‘‘unduly economically competition are not irreparable.’’ Even if ‘‘Agreements Arrived at Through burdensome.’’ the alleged harm is not fully remediable, Negotiation,’’ provides, in part, that, 6. In addition, RTC maintains that the the irreparable harm factor is not ‘‘[t]he agreement, including any Commission exceeded its authority by satisfied absent a demonstration that the interconnection agreement negotiated requiring incumbent LECs to file with harm is ‘‘both certain and great; * ** before the date of enactment of the state commissions interconnection actual and not theoretical.’’ We find that Telecommunications Act of 1996, shall agreements with neighboring LECs that RTC’s claims of harm do not satisfy be submitted to the State commission predate the 1996 Act, and by requiring these exacting standards. under subsection (e) of this section.’’ In incumbent LECs to make the individual 11. RTC argues that certain rural LECs the First Report and Order, and as set provisions of such agreements available will be irreparably harmed by our forth in Section 51.303 of its rules, the to competing carriers. RTC asserts that finding that the LECs seeking to avoid Commission concluded that requiring incumbent LECs to file application of section 251(c) bear the interconnection agreements that were interconnection agreements negotiated burden of proof under section 251(f), reached before the 1996 Act was prior to the 1996 Act ultimately will and by our interpretation that, in order enacted must be submitted to the state force rural LECs to pay higher for a requirement to be ‘‘unduly commission for review under section interconnection rates that in turn will economically burdensome’’ within the 252, including agreements between result in higher rates for rural LEC’s meaning of section 251(f), it must cause adjacent incumbent local service customers. economic burden beyond the economic providers. In addition, section 252(i) of 7. In general, parties opposing the stay burden typically associated with the Act requires an LEC to make motion contend that RTC’s motion does efficient competitive entry. RTC available ‘‘any interconnection, service, not meet the four-part test for granting complains that the Commission’s or network element provided under an a stay of an agency order. These parties ‘‘burden of proof and standards agreement approved under’’ section 252 contend that RTC is unlikely to prevail requirements substantially increase the to which the LEC is a party to any other on the merits of its claims; that it will probability that the exemption will be requesting telecommunications carrier suffer no irreparable harm if a stay is not terminated.’’ upon the same terms and conditions as granted; that grant of a stay will harm 12. We find that RTC has not those provided in the agreement. In the third parties; and that the public interest demonstrated that application of these First Report and Order and § 51.809 of weighs in favor of denying a stay. rules has caused or will cause harm to its rules, the Commission interpreted rural incumbent LECs that is certain, that provision to require an incumbent IV. Discussion irreparable, or great. As NCTA and MCI LEC to make available to a requesting 8. As a threshold matter, the United assert, RTC has not shown that rural telecommunications carrier, upon the States Court of Appeals for the Eighth LECs would otherwise be exempt from same rates, terms, and conditions, any Circuit granted a stay of certain rules the the obligations of section 251(c), absent 664 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations the Commission’s rules. Moreover, even customers will in fact occur if § 51.303 Federal Communications Commission. if RTC could establish with certainty of the Commission’s rules is not stayed. William F. Caton, that rural carriers would lose 15. Because, as discussed above, RTC Acting Secretary. exemptions as a result of the has failed to demonstrate that any rural [FR Doc. 97–50 Filed 1–3–97; 8:45 am] telephone company would suffer Commission’s rules, its contention that BILLING CODE 6712±01±P LECs would be irreparably harmed is irreparable harm due to the application speculative. First, economic harm that of § 51.303 or 51.405 of our rules, we results from loss of customers to need not address RTC’s remaining 47 CFR Part 73 competitors does not constitute arguments concerning the other three irreparable harm. Second, the parts of the test governing a motion for [MM Docket No. 93±28, RM±8172, RM±8299] stay. Nevertheless, we take this Commission stated in the First Report FM Broadcasting Services; Whitley opportunity to clarify certain aspects of and Order that requesting carriers must City, KY, Colonial Heights, Morristown compensate the incumbent LEC for the § 51.405(c) of our rules that RTC and Tazewell, TN costs of services, interconnection, or challenges in its petition for stay. unbundled elements that the incumbent Section 51.405(c) states: AGENCY: Federal Communications provides upon request, and RTC has not In order to justify continued exemption Commission. shown why, in light of such under section 251(f)(1) of the Act once a bona ACTION: Final rule. compensation, it would suffer fide request has been made, an incumbent irreparable harm from complying with LEC must offer evidence that the application SUMMARY: The Chief, Policy and Rules the requirements of section 251(c). Nor of the requirements of section 251(c) of the Division granted the petition for has RTC demonstrated that any harm a Act would be likely to cause undue economic reconsideration, filed by Murray rural LEC arguably might suffer would burden beyond the economic burden that is Communications, of the Report and typically associated with efficient be substantial. competitive entry. Order in this proceeding, 59 FR 60077, 13. RTC also asserts that, because the published November 22, 1994, by Commission has placed the burden of RTC erroneously contends that the rejecting the rule making proposal (RM– proof on rural carriers that seek to retain Commission’s rules implementing 8172) granted by the Report and Order, exemptions from section 251(c), they § 251(f)(1) improperly ignore two of the and, instead, granting the will incur costs that they would not three statutory criteria that a state counterpropopsal (RM–8299), otherwise bear. For example, RTC commission must consider in substituting Channel 240C2 for 290A at contends that rural LECs will need to determining whether to remove a rural Colonial Heights, Tennessee, Channel bear costs of hiring attorneys, cost incumbent LEC’s exemption from the 290A for Channel 231A at Tazewell, consultants, and economists. If the requirements of § 251(c) of the Act. Tennessee, Channel 231A for Channel Commission’s rule is overturned by the RTC’s argument is not based on any 240A at Morristown, Tennessee, and court, RTC argues, rural LECs will have affirmative statement in our rules that Channel 252A for Channel 290A at suffered irreparable harm by incurring state commissions may disregard Whitley City, Kentucky. The Report and these costs. NCTA and MCI contend that evidence of technical infeasibility or Order denied Murray’s counterproposal, RTC has provided no evidence that, harm to universal service in deciding RM–8299, to upgrade Channel 290A at absent our rules, it would not bear whether to remove an exemption. Colonial Heights, Tennessee by similar or identical costs to respond to Rather, RTC incorrectly infers from the substituting Channel 240C2, but granted bona fide requests for interconnection, fact that our rules address only one of its initial proposal, RM–8172, to effect services or network elements. We find the statutory criteria for evaluating such an upgrade to Channel 240C3. With this no basis for concluding that rural issues that we intended for state action, the proceeding is terminated. carriers will bear costs as a result of our commissions to ignore the other two EFFECTIVE DATE: February 3, 1997. rules that they would not otherwise criteria. In § 51.405(c) of our rules, we bear. Moreover, courts have held that interpreted the meaning of the statutory FOR FURTHER INFORMATION CONTACT: J. ‘‘[m]ere litigation expense, even term ‘‘unduly’’ as it modifies Bertron Withers, Jr., Mass Media substantial and unrecoupable cost, does ‘‘economically burdensome,’’ because Bureau, (202) 418–2180. not constitute irreparable injury.’’ we found that this phrase is susceptible SUPPLEMENTARY INFORMATION: The 14. RTC further argues that the rule to differing interpretations. We did not following channels can be allotted in requiring the filing of interconnection find it necessary to adopt rules that compliance with the Commission’s agreements that predate the 1996 Act addressed the meaning of ‘‘technical minimum distance separation will irreparably harm rural LECs and feasibility’’ or ‘‘universal service.’’ That requirements: their customers by ‘‘threaten[ing] higher decision, however, does not in any way Channel 240C2 to Colonial Heights at rates, more toll calls, or both, for the affect a state’s responsibility to consider Station WLJQ(FM)’s existing transmitter affected rural customers.’’ This all three of the factors set forth in site, restricted to 16.7 kilometers (10.4 argument is speculative, because it § 251(f)(1)(A). We similarly interpreted miles) northwest of the community at assumes without substantiation that the phrase ‘‘unduly economically coordinates 36–35–35 North Latitude existing agreements will have to be burdensome’’ in adopting 47 CFR and West Longitude 82–37–16, and, to renegotiated, and that the resulting 51.405(d), and did not thereby intend to accommodate that allotment, Station terms will be significantly less favorable limit LECs’ rights to seek suspensions or WAEY(FM), Channel 240A, Princeton, to affected rural LECs. As the District of modifications by other means provided West Virginia, can be relocated to a new Columbia Circuit has noted, in in § 251(f)(2). transmitter site at coordinates North evaluating a petitioner’s allegations of Latitude 37–25–00 and West Longitude irreparable harm, ‘‘[b]are allegations of V. Ordering Clause 81–02–00 in compliance with the what is likely to occur are of no value’’ 16. Accordingly, It is ordered that the minimum distance separation because the critical issue is ‘‘whether motion for stay filed by the Rural requirements; Channel 290A to the harm will in fact occur.’’ RTC Telephone Coalition is dismissed to the Tazewell at Station WCTU(FM)’s provides no evidence to support its extent that it seeks a stay of 47 CFR existing site at coordinates 36–27–32 allegation that higher rates for 51.809, and otherwise is Denied. and West Longitude 83–35–07; Channel Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 665

231A to Morristown at Station DEPARTMENT OF THE INTERIOR springs and stream headwaters, have WMXK(FM)’s existing site at permanently or seasonally saturated coordinates North Latitude 36–13–40 Fish and Wildlife Service highly organic soils, and have a low and West Longitude 83–19–58; and probability of flooding or scouring 50 CFR Part 17 Channel 252A to Whitley City at Station (Hendrickson and Minckley 1984). WHAY(FM)’s existing site at North RIN 1018±AD11 Cienegas support diverse assemblages of Latitude 36–44–39 and West Longitude animals and plants, including many 84–28–37. Endangered and Threatened Wildlife species of limited distribution, such as and Plants; Determination of the three taxa addressed in this final This is a summary of the Endangered Status for Three Wetland rule (Hendrickson and Minckley 1984, Commission’s Memorandum Opinion Species Found in Southern Arizona Lowe 1985, Ohmart and Anderson 1982, and Order, MM Docket No. 93–28, and Northern Sonora, Mexico Minckley and Brown 1982). Although adopted December 13, 1996 and Spiranthes delitescens (Spiranthes), released December 20, 1996. The full AGENCY: Fish and Wildlife Service, Lilaeopsis schaffneriana spp. recurva text of this Commission decision is Interior. (Lilaeopsis), and the Sonora tiger available for inspection and copying ACTION: Final rule. salamander typically occupy different during normal business hours in microhabitats, they all occur or once SUMMARY: The Fish and Wildlife Service Commission’s Reference Center (Room occurred in cienegas. Lilaeopsis is also (Service) determines endangered status 239), 1919 M Street, NW., Washington, found along streams and rivers and for the Canelo Hills ladies-tresses occurs at mid-elevations, from 1,148– DC 20554. The complete text of this (Spiranthes delitescens), the Huachuca decision may also be purchased from 2,133 meters (m) (3,500–6,500 feet (ft)). water umbel (Lilaeopsis schaffneriana The Sonora tiger salamander occurs the Commission’s copy contractor, ssp. recurva), and the Sonora tiger International Transcription Services, mostly in cattle tanks and impounded salamander (Ambystoma tigrinum cienegas, but presumably was associated 2100 M Street, NW., Suite 140, stebbinsi) pursuant to the Endangered Washington, DC 20037, (202) 857–3800. primarily with natural cienegas and Species Act (Act) of 1973, as amended other wetlands prior to human List of Subjects in 47 CFR Part 73 (16 U.S.C. 1531 et seq.). These species settlement. occur in a limited number of wetland Cienegas, perennial streams, and Radio broadcasting. habitats in southern Arizona and rivers in the desert southwest are northern Sonora, Mexico. They are extremely rare. The Arizona Game and 47 CFR PART 73Ð[AMENDED] threatened by one or more of the Fish Department (AGFD)(1993) recently following—collecting, disease, estimated that riparian vegetation 1. The authority citation for Part 73 predation, competition with nonnative associated with perennial streams reads as follows: species, and degradation and comprises about 0.4 percent of the total Authority: Secs. 303, 48 Stat., as amended, destruction of habitat resulting from land area of Arizona, with present 1082; 47 U.S.C. 154, as amended. livestock overgrazing, water diversions, riparian areas being remnants of what dredging, and groundwater pumping. once existed. The State of Arizona § 73.202 [Amended] All three taxa also are threatened with (1990) estimated that up to 90 percent extirpations or extinction from naturally 2. Section 73.202(b), the Table of FM of the riparian habitat along Arizona’s occurring climatic and other Allotments, under Tennessee, is major desert watercourses has been lost, environmental events, such as degraded, or altered. Spiranthes, amended by removing Channel 290C3 at catastrophic floods and drought, a threat Lilaeopsis, and the Sonora tiger Colonial Heights and adding Channel that is exacerbated by habitat alteration salamander occupy small portions of 240C2; by removing Channel 231A at and small numbers of populations or these rare habitats. Tazewell and adding Channel 290A; individuals. This rule implements Spiranthes is a slender, erect, and by removing Channel 240A at Federal protection provided by the Act terrestrial orchid that, when in flower, Morristown and adding Channel 231A. for these three taxa. reaches approximately 50 centimeters 3. Section 73.202(b), the Table of FM EFFECTIVE DATE: February 5, 1997. (cm) (20 inches (in.)) tall. Five to 10, Allotments, under Kentucky, is ADDRESSES: The complete file for this linear-lanceolate, grass-like leaves, 18 amended by removing Channel 290A at rule is available for public inspection, cm (7.1 in.) long and 1.5 cm (0.6 in.) Whitley City and adding Channel 252A. by appointment, during normal business wide, grow basally on the stem. The fleshy, swollen roots are approximately Federal Communications Commission. hours at the U.S. Fish and Wildlife Service, 2321 West Royal Palm Road, 5 mm (0.2 in.) in diameter. The top of Douglas W. Webbink, Suite 103, Phoenix, Arizona 85021, the flower stalk contains up to 40 small Chief, Policy and Rules Division, Mass Media telephone (602/640–2720), or facsimile white flowers arranged in a spiral. This Bureau. (602/640–2730). species is presumed to be perennial, but [FR Doc. 97–171 Filed 1–3–97; 8:45 am] mature plants rarely flower in FOR FURTHER INFORMATION CONTACT: Jim BILLING CODE 6712±01±P consecutive years and, in some years, Rorabaugh or Angie Brooks (see have no visible above ground structures ADDRESSES section). (McClaran and Sundt 1992, Newman SUPPLEMENTARY INFORMATION: 1991). Martin first collected Spiranthes Background delitescens in 1968 at a site in Santa Cienegas in southern Arizona and Cruz County, Arizona (Sheviak 1990). northern Sonora, Mexico, are typically This specimen was initially identified mid-elevation wetland communities as Spiranthes graminea, a related often surrounded by relatively arid Mexican species. Sheviak (1990) found environments. These communities are that the Spiranthes specimens in usually associated with perennial Arizona, previously thought to be S. 666 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations graminea, displayed a distinct set of find in the dense herbaceous vegetation, Nine Lilaeopsis populations occur in morphological and cytological and yearly counts underestimate the the San Pedro River watershed in characteristics and named them S. population because dormant plants are Arizona and Sonora, on sites owned or delitescens. not counted. McClaran and Sundt managed by private landowners, Fort This species is known from five sites (1992) twice monitored marked Huachuca Military Reservation, the at about 1,525 m (5,000 ft.) elevation in individuals in a Spiranthes population Coronado National Forest, and the the San Pedro River watershed in Santa during 2–3 year periods. They Bureau of Land Management’s (BLM) Cruz and Cochise Counties, southern concluded that both monitored sites Tucson District. Two extirpated Arizona (Newman 1991). The total were stable between 1987 and 1989, populations in the upper San Pedro amount of occupied habitat is less than although Newman (1991) later reported watershed occurred at Zinn Pond in St. 81 hectares (ha) (200 acres (ac)). Four of that one monitored site was reduced to David and the San Pedro River near St. the populations are on private land less one nonflowering plant in 1991. Due to David. Cienega-like habitats were than 37 kilometers (km) (23 miles (mi)) the propensity of Spiranthes to enter probably common along the San Pedro north of the U.S./Mexico border; one and remain in a vegetation state and the River prior to 1900 (Hendrickson and additional small site containing four lack of new flowering plants at one Minckley 1984, Jackson et al. 1987), but individuals was discovered on public monitoring site, overall population these habitats are now largely gone. land in 1996 (Mima Falk, Coronado numbers are believed to be declining. Surveys conducted for wildlife habitat National Forest, pers. comm. 1996). This McClaran and Sundt (1992) also assessment have found several site is located near a previously known speculated that population numbers discontinuous clumps of Lilaeopsis population. Potential habitat in Sonora, may be declining. within the upper San Pedro River where Mexico, has been surveyed but no S. Lilaeopsis schaffneriana spp. recurva habitat was present in 1996 prior to delitescens populations have been is an herbaceous, semiaquatic perennial recent flooding (Mark Fredlake, Bureau found (Sheviak 1995, Newman 1991). plant with slender, erect leaves that of Land Management, pers. comm. The dominant vegetation associated grow from creeping rhizomes. The 1996). with Spiranthes includes grasses, sedges leaves are cylindrical, hollow with no The four Lilaeopsis populations in the (Carex spp.), rushes (Juncus spp.), spike pith, and have septa (thin partitions) at Santa Cruz watershed probably rush (Eleocharis spp.), cattails (Typha regular intervals. The yellow-green or represent very small remnants of larger spp.), and horsetails (Equisetum spp.) bright green leaves are generally 1–3 populations, which may have occurred (Cross 1991, Warren et al. 1991). millimeters (mm) (0.04–0.12 in.) in in the extensive riparian and aquatic Associated grass species include diameter and often 3–5 centimeters (cm) habitat formerly along the river. Before bluegrass (Poa pratensis), Johnson grass tall (1–2 in.), but can reach up to 20 cm 1890, the spatially intermittent, (sorghum halepense), Muhlenbergia (8 in.) tall under favorable conditions. perennial flows on the middle Santa asperifolia, and Muhlenbergia utilis Three to 10 very small flowers are borne Cruz River most likely provided a (Fishbein and Gori 1994). The on an umbel that is always shorter than considerable amount of habitat for surrounding vegetation is semidesert the leaves. The fruits are globose, 1.5– Lilaeopsis and other aquatic plants. The grassland or oak savannah. 2 mm (0.06–0.08 in.) in diameter, and middle section of the Santa Cruz River All Spiranthes populations occur usually slightly longer than wide mainstem is about a 130 km (80 mi) where scouring floods are very unlikely (Affolter 1985). The species reproduces reach that flowed perennially from the (Newman 1991). Soils supporting the sexually through flowering and Tubac area south to the U.S./Mexico populations are finely grained, highly asexually from rhizomes, the latter border and intermittently from Tubac organic, and seasonally or perennially probably being the primary reproductive north to the Tucson area (Davis 1986). saturated. Springs are the primary water mode. An additional dispersal Davis (1982) quotes from the July 1855, source, but a creek near one locality opportunity occurs as a result of the descriptive journal entry of Julius contributes near-surface groundwater dislodging of clumps of plants, which Froebel while camped on the Santa Cruz (McClaran and Sundt 1992). As with then may reroot in a different site along River near Tucson: ‘‘* * * rapid brook, most terrestrial orchids, successful aquatic systems. clear as crystal, and full of aquatic seedling establishment probably Lilaeopsis schaffneriana spp. recurva plants, fish, and tortoises of various depends on the successful formation of was first described by A.W. Hill based kinds, flowed through a small meadow endomycorrhizae (a symbiotic on the type specimen collected near covered with shrubs. * * *’’ This association between plant root tissue Tucson in 1881 (Hill 1926). Hill applied habitat and species assemblage no and fungi) (McClaran and Sundt 1992). the name Lilaeopsis recurva to the longer occurs in the Tucson area. In the The time needed for subterranean specimen, and the name prevailed until upper watershed of the middle Santa structures to produce above ground Affolter (1985) revised the genus. Cruz River, the species is now growth is unknown. Plants may remain Affolter applied the name L. represented only by a single population in a dormant, subterranean state or schaffneriana ssp. recurva to plants in two short reaches of Sonoita Creek. remain vegetative (nonflowering) for found east of the continental divide. A population at Monkey Spring in the more than one consecutive year. Plants Lilaeopsis has been documented from upper watershed of the middle Santa that flower one year can become 22 sites in Santa Cruz, Cochise, and Cruz River has been extirpated, dormant, vegetative, or reproductive the Pima counties, Arizona, and in adjacent although suitable habitat exists (Warren next year (McClaran and Sundt 1992, Sonora, Mexico, west of the continental et al. 1991). Newman 1991). The saprophytic/ divide (Saucedo 1990, Warren et al. Two Lilaeopsis populations occur in autotrophic state of orchid plants may 1989, Warren et al. 1991, Warren and the Rio Yaqui watershed. The species be determined by climatic fluctuations Reichenbacher 1991). The plant has was recently discovered at Presa and edaphic factors, such as pH, been extirpated from 6 of the 22 sites. Cuquiarichi, in the Sierra de los Ajos, temperature, and soil moisture (Sheviak The 16 extant sites occur in 4 major several miles east of Cananea, Sonora 1990). watersheds—San Pedro River, Santa (Tom Deecken, Coronado National Estimating Spiranthes population size Cruz River, Rio Yaqui, and Rio Sonora. Forest, pers. comm. 1994). The species and stability is difficult because All sites are between 1,148–2,133 m remains in small areas (generally less nonflowering plants are very hard to (3,500–6,500 ft) elevation. than 1 m 2 (10.8 ft 2) in Black Draw, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 667

Cochise County, Arizona. Transplants Density of Lilaeopsis plants and size winter as larvae (Collins and Jones 1987; from Black Draw have been successfully of populations fluctuate in response to James Collins, Arizona State University, established in nearby wetlands and both flood cycles and site pers. comm. 1993). ponds. Recent renovation of House characteristics. Some sites, such as The Sonora tiger salamander was Pond on private land near Black Draw Black Draw, have a few sparsely discovered in 1949 at the J.F. Jones extirpated the Lilaeopsis population. A distributed clones, possibly due to the Ranch stock tank in Parker Canyon, San population in the Rio San Bernardino in dense shade of the even-aged overstory Rafael Valley, Arizona (Reed 1951). Sonora was also recently extirpated of trees and deeply entrenched channel. Based on color patterns of (Gori et al. 1990). One Lilaeopsis The Sonoita Creek population occupies metamorphosed animals, Lowe (1954) population occurs in the Rio Sonora 14.5 percent of a 500.5 m 2 (5,385 ft 2) described the Sonora tiger salamander watershed at Ojo de Agua, a cienega in patch of habitat (Gori et al. 1990). Some from southern Santa Cruz County, Sonora at the headwaters of the river populations are as small as 1–2 m 2 (11– Arizona, as the subspecies stebbinsi of (Saucedo 1990). 22 ft 2). The Scotia Canyon population, the broad-ranging tiger salamander Lilaeopsis has an opportunistic by contrast, has dense mats of leaves. (Ambystoma tigrinum). However, again strategy that ensures its survival in Scotia Canyon contains one of the larger based on color patterns, Gelhbach (1965, healthy riverine systems, cienegas, and Lilaeopsis populations, occupying about 1967) synonomized Ambystoma springs. In upper watersheds that 57 percent of the 1,450 m (4,756 ft) tigrinum stebbinsi and Ambystoma generally do not experience scouring perennial reach (Gori et al. 1990; Jim tigrinum tahense (from the Rocky floods, Lilaeopsis occurs in microsites Abbott, Coronado National Forest, in Mountains region) with Ambystoma where interspecific plant competition is litt. 1994). tigrinum nebulosum (from northern low. At these sites, Lilaeopsis occurs on While the extent of occupied habitat Arizona and New Mexico). wetted soils interspersed with other can be estimated, the number of Nevertheless, Ambystoma tigrinum plants at low density, along the individuals in each population is stebbinsi continued to be recognized in periphery of the wetted channel, or in impossible to determine because of the the scientific literature (Jones et al. small openings in the understory. The intermeshing nature of the creeping 1988). Jones et al. (1988) found that Lowe’s upper Santa Cruz River and associated rhizomes and the predominantly description of color patterns in springs in the San Rafael Valley, where asexual mode of reproduction. A Ambystoma tigrinum stebbinsi was only a population of Lilaeopsis occurs, is an population of Lilaeopsis may be accurate for recently metamorphosed example of a site that meets these composed of one or many individuals. Introduction of Lilaeopsis into ponds individuals. About 40 percent of conditions. The types of microsites on the San Bernardino National Wildlife metamorphosed adults exhibit a unique required by Lilaeopsis were generally Refuge (Refuge) appears to be successful reticulate pattern, while 60 percent are lost from the main stems of the San (Warren 1991). In 1991, Lilaeopsis was marked with light colored blotches, Pedro and Santa Cruz Rivers when transplanted from Black Draw into new spots, or bars on a dark background that channel entrenchment occurred in the ponds and other Refuge wetlands. is indistinguishable from Ambystoma late 1800’s. Habitat on the upper San Transplants placed in areas with low tigrinum mavortium, found in the Pedro River is recovering, and plant density expanded rapidly (Warren central United States and adjacent Lilaeopsis has recently recolonized 1991). In 1992, Lilaeopsis naturally portions of Mexico (Jones et al. 1995). small reaches of the main channel. colonized a pond created in 1991. Starch gel electrophoresis of 21 In stream and river habitats, However, as plant competition presumptive gene loci of Ambystoma Lilaeopsis can occur in backwaters, side increased around the perimeter of the tigrinum stebbinsi were compared with channels, and nearby springs. After a pond, the Lilaeopsis population gene loci of Ambystoma rosaceum (from flood, Lilaeopsis can rapidly expand its decreased. This response seems to Sonora), Ambystoma tigrinum population and occupy disturbed confirm observations (Kevin Cobble, mavortium, and Ambystoma tigrinum habitat until interspecific competition San Bernardino National Wildlife nebulosum (Jones et al. 1988). Based on exceeds its tolerance. This response was Refuge, pers. comm. 1994; and Peter this analysis, distinctive reticulate color recorded at Sonoita Creek in August Warren, Arizona Nature Conservancy, patterns, low heterozygosity, and 1988, when a scouring flood removed pers. comm. 1993) that other species apparent geographic isolation, about 95 percent of the Lilaeopsis such as Typha sp. will outcompete subspecific designation of Ambystoma population (Gori et al. 1990). One year Lilaeopsis. tigrinum stebbinsi was considered later, Lilaeopsis had recolonized the The Sonora tiger salamander is a large warranted by Collins and Jones (1987) stream and was again co-dominant with salamander with a dark venter and light and Jones et al. (1988). Further analysis watercress (Rorippa nasturtium- colored blotches, bars, or reticulation on of mitochondrial DNA reaffirmed aquaticum) (Warren et al. 1991). The a dark background. Snout/vent lengths subspecific designation (Collins et al. expansion and contraction of Lilaeopsis of metamorphosed individuals vary 1988). Color pattern and allozyme data populations appears to depend on the from approximately 6.7 to 12.5 cm (2.6– suggests that Ambystoma tigrinum presence of ‘‘refugia’’ where the species 4.9 in.) (Jones et al. 1988, Lowe 1954). stebbinsi is closely related to can escape the effects of scouring floods, Larval salamanders are aquatic with Ambystoma tigrinum mavortium; a watershed that has an unaltered plume-like gills and well-developed tail however, the Ambystoma tigrinum hydrograph, and a healthy riparian fins (Behler and King 1980). Larvae stebbinsi haplotype is derived from community that stabilizes the channel. hatched in the spring are large enough Ambystoma tigrinum nebulosum. The Two patches of Lilaeopsis on the San to metamorphose into terrestrial most likely explanation for these Pedro River were lost during a winter salamanders from late July to early observations is that Ambystoma flood in 1994 and had still not September, but only an estimated 17 to tigrinum stebbinsi arose from a recolonized that area as of May of 1995, 40 percent metamorphose annually. hybridization between Ambystoma demonstrating the dynamic and often Remaining larvae mature into tigrinum mavortium and Ambystoma precarious nature of occurrences within branchiates (aquatic and larval-like, but tigrinum nebulosum (Jones et al. 1995). a riparian system (Al Anderson, Grey sexually mature salamanders that The grassland community of the San Hawk Ranch, in litt. 1995). remain in the breeding pond) or over- Rafael Valley and adjacent montane 668 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations slopes, where all extant populations of salamander probably inhabited springs, but terrestrial salamanders may be Ambystoma tigrinum stebbinsi occur, cienegas, and possibly backwater pools present in the area. Of the 36 sites may represent a relict grassland and where permanent or nearly permanent where aquatic Sonora tiger salamanders therefore a refugium for grassland water allowed survival of mature were recorded since the mid or early species. Tiger salamanders in this area branchiates. 1980’s and no salamanders have been became isolated and, over time, A total of 79 aquatic sites in the San found at 4 tanks during the last 3 visits genetically distinct from ancestral Rafael Valley and adjacent slopes of the from 1993 to 1996. Salamanders were Ambystoma tigrinum mavortium and Huachuca and Patagonia mountains probably extirpated from these sites. Ambystoma tigrinum nebulosum (Jones have been surveyed for salamanders Salamanders also were found to be et al. 1995). (Collins and Jones 1987, Collins 1996, extirpated from the J.F. Jones Ranch Based on color patterns and James Collins, pers. comm. 1996). These Tank, the type locality (Collins and electrophoretic analysis, Ambystoma include most potential aquatic habitats Jones 1987). Salamanders have not been collected in Mexico at one site in on public lands. However, private lands found during the last three visits from Sonora and 17 sites in Chihuahua were in the center of the San Rafael Valley 1993 through 1996 at five other tanks. all Ambystoma rosaceum, not have not been surveyed intensively. Salamanders may be extirpated from Ambystoma tigrinum stebbinsi (Jones et Thirty sites in northeastern Sonora these sites. Another three sites where al. 1988). Reanalysis of reported and 26 sites in northwestern Chihuahua, salamanders were found from 1980 to Ambystoma tigrinum stebbinsi collected Mexico, were surveyed by Collins and 1983 have not been surveyed since that in Sonora (Hansen and Tremper 1979) Jones (1987). No Sonora tiger time. The status of populations at these and at Yepomera, Chihuahua (Van salamanders were found at these sites. tanks is unknown. At the remaining 23 Devender 1973) revealed that these Ambystoma rosaceum and Ambystoma tanks, salamanders have been found specimens were actually Ambystoma tigrinum velasci occur at localities in during 1 or more of the last 3 visits from tigrinum rosaceum (Jones et al. 1988). Sonora and Chihuahua to the south and 1993 through 1996. These populations Collins et al. (1988) list 18 sites for the east of the extant range of the Sonora are probably extant. Sonora tiger salamander. Additional tiger salamander (Collins 1979, Collins Populations of aquatic salamanders extensive survey work from 1993 and Jones 1987, Van Devender and include as many as several hundred through 1996 revealed another 18 sites, Lowe 1977). Ambystoma tigrinum individuals. However, 10 or more for a total of 36 (Collins 1996; James mavortium occurs at scattered localities salamanders in any 1 visit were found Collins, Arizona State University, pers. to the east in the San Pedro, Sulphur at only 16 of 32 occupied sites comm. 1996). Salamanders tentatively Springs, and San Simon valleys of examined by Collins from 1993 through identified as Sonora tiger salamanders Arizona (Collins and Jones 1987), but at 1996 (James Collins, pers. comm. 1996). also have been found at Portrero del least some of these populations were Large, reproducing populations of Alamo at the Los Fresnos cienega in the introduced by anglers and bait Sonora tiger salamanders were more headwaters of the San Pedro River, San collectors (Collins 1981, Lowe 1954, concentrated in the southeastern portion Rafael Valley, Sonora, Mexico (Sally Nickerson and Mays 1969). of the San Rafael Valley in the 1990’s as Stefferud, U.S. Fish and Wildlife Populations are dynamic. In compared to the 1980’s. Sampling Service, pers. comm. 1993) and at the particular, drought and disease during 1993–1996 revealed few lower Peterson Ranch Tank in Scotia periodically extirpate or greatly reduce populations and low numbers of Canyon, Cochise County, Arizona. No populations. Several tanks supporting salamanders in the northern portion of salamanders have been observed in aquatic populations went dry during the valley (Collins 1996). recent visits to Scotia Canyon (Service drought in 1994 and again in 1996. As A variety of factors threaten the files, Phoenix, AZ; James Collins, pers. tanks dry out, some larval and Sonora tiger salamander. Disease and comm. 1996); thus, this population may branchiate salamanders metamorphose predation by introduced nonnative be extirpated. A single terrestrial Sonora and leave the tanks; others desiccate fishes and bullfrogs (Rana catesbeiana) tiger salamander was found near Oak and die. Disease killed all aquatic are probably the most serious and Spring in Copper Canyon of the salamanders at least three sites in 1985 immediate threats, both of which have Huachuca Mountains (Jeff Howland, (Collins et al. 1988), and also was been implicated in the elimination of Arizona Game and Fish Department evident in aquatic populations at seven aquatic populations (Collins and Jones pers. comm. 1993). This individual tanks in 1995–1996 (James Collins, pers. 1987, Collins 1996). Tiger salamanders likely moved to this site from a comm. 1996). Tanks in which also are widely used in Arizona as population at the ‘‘Game and Fish salamanders have been eliminated may fishing bait, and this use poses Tank’’ located approximately 1 km (0.6 be recolonized through reproduction by additional threats. Other subspecies of mi) to the southwest. terrestrial metamorphs. Drying of tanks tiger salamander introduced into All sites where Sonora tiger also may eliminate nonnative predators habitats of the Sonora tiger salamander salamanders have been found are and create sites suitable for salamander for bait propagation or by anglers could, located in the Santa Cruz and San Pedro colonization. through interbreeding, genetically river drainages, including sites in the Because populations are dynamic, the swamp distinct Ambystoma tigrinum San Rafael Valley and adjacent portions number and location of extant aquatic stebbinsi populations (Collins and Jones of the Patagonia and Huachuca populations change over time, as 1987, Collins 1996). Collecting Sonora mountains in Santa Cruz and Cochise exhibited by the differences between tiger salamanders for bait could counties, Arizona. All confirmed survey results in 1985 and 1993–1996 extirpate or greatly reduce populations. historical and extant aquatic (Collins and Jones 1987; Collins 1996; Furthermore, moving of salamanders populations are found in cattle tanks or James Collins, pers. comm. 1996). among tanks by anglers or bait collectors impounded cienegas within 31 km (19 Determining whether a population is also could transmit disease. Additional mi) of Lochiel, Arizona. If the Los extant is problematic. If numbers are threats include habitat destruction, Fresnos population is the subspecies, low, salamanders may not be detected reduced fitness resulting from low stebbinsi, it is the only population during sampling. Also, aquatic genetic heterozygosity, and increased known to occur in a cienega. salamanders may have been recently probability of chance extirpation Historically, the Sonora tiger eliminated due to drought or disease, characteristic of small populations. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 669

Previous Federal Actions 1997, published on December 5, 1996 contacted regarding the hearings. Federal government action on (61 FR 64475). The guidance clarifies Approximately 790 people attended the Spiranthes delitescens, Lilaeopsis the order in which the Service will hearings, including approximately 90 schaffneriana ssp. recurva, and Sonora process rulemakings following two people at a July 13, 1995, hearing in tiger salamander began with their related events, the lifting on April 26, Patagonia, Arizona; and 700 at a inclusion in various Service notices of 1996, of the moratorium on final listings September 27, 1995, hearing in Sierra review for listing as endangered or imposed on April 10, 1995 (Public Law Vista, Arizona. Transcripts of these threatened species. The Sonora tiger 104–6), and the restoration of significant hearings are available for inspection (see salamander was included as a category funding for listing through passage of ADDRESSES). A total of 229 written comment letters 2 candidate in the first notice of review the omnibus budget reconciliation law on April 26, 1996, following severe were received—40 supported the of vertebrate wildlife (December 30, funding constraints imposed by a proposed listing, 164 opposed listing, 1982; 47 FR 58454), and in subsequent number of continuing resolutions and 25 others commented on notices published September 18, 1985 between November 1995 and April information in the proposed rule but (50 FR 37958) and January 6, 1989 (54 1996. The guidance calls for giving expressed neither support nor FR 554). Category 2 candidates were highest priority to handling emergency opposition, provided additional those species for which the Service had situations (Tier 1) and second highest information only, or were some evidence of vulnerability, but for priority (Tier 2) to resolving the listing nonsubstantive or irrelevant to the which there was insufficient scientific status of the outstanding proposed proposed listing. Oral comments were and commercial information to support listings. This final rule falls under Tier received from 51 parties at the a proposed rule to list them as 2. hearings—11 supported listing, 20 threatened or endangered. In notices of opposed listing, and 20 expressed review published November 21, 1991 Summary of Comments and neither support nor opposition, (56 FR 58804) and November 15, 1994 Recommendations provided additional information only, (59 FR 58982), the Sonora tiger In the April 3, 1995, proposed rule (60 or were nonsubstantive or irrelevant to salamander was included as a category FR 16836) and associated notifications, the listing. In total, oral or written 1 candidate. Category 1 includes those all interested parties were requested to comments were received from 4 Federal taxa for which the Service has sufficient submit factual reports or information and State agencies and officials, 14 local information to support proposed rules that might contribute to development of officials, and 262 private organizations, to list them as threatened or a final rule. The original comment companies, and individuals. All endangered. period closed June 2, 1995, then was comments, both oral and written, Lilaeopsis schaffneriana ssp. recurva, reopened from June 24, 1995, to July 24, received during the comment period are then under the name L. recurva, was 1995 (60 FR 32483), and again from addressed in the following summary. included as a category 2 candidate in September 11, 1995, to October 27, 1995 Comments of a similar nature are the November 28, 1983 (45 FR 82480) (60 FR 47340). Appropriate State grouped into a number of general issues. and September 27, 1985 (50 FR 39526) agencies and representatives, County The Service’s response to each comment plant notices. It was included as a and City governments, Federal agencies is discussed below. category 1 candidate in the February 21, and representatives, scientific Issue 1: Other processes, especially 1990 (55 FR 6184) and September 30, organizations, and other interested conservation agreements in lieu of 1993 (58 FR 51144) notices. Spiranthes parties were contacted and requested to listing, could be more effective at delitescens was included as a category comment. Newspaper/media notices protecting these species, and would 1 candidate in the September 30, 1993, inviting public comment were impose fewer regulations and plant notice. published in the following restrictions on land use as compared to On June 3, 1993, the Department of newspapers—Arizona Daily Star, Federal listing. Also, additional steps or the Interior, Washington, D.C., received Arizona Republic, Bisbee Daily Review, processes, particularly closer working three petitions, dated May 31, 1993, Eastern Arizona Courier, Environmental relationships among the Service, local from a coalition of conservation Network News, Green Valley News/Sun, governments, and landowners, should organizations (Suckling et al. 1993). The Nogales International, Sierra Vista be incorporated into the listing process. petitioners requested the listing of Herald-Dispatch, The Phoenix Gazette, Comment: Several commenters Spiranthes, Lilaeopsis, and the Sonora The Weekly Bulletin, Tombstone suggested preparing a conservation tiger salamander as endangered species Tumbleweed, and Tucson Citizen. The agreement among the Service, other pursuant to the Act. On December 14, inclusive dates of publications were Federal agencies, State agencies, local 1993, the Service published a notice of April 20 and 21, 1995, for the initial governments, and private landowners, three 90-day findings that the petitions comment period; and June 28 to July 4, in lieu of listing one or more of the three presented substantial information 1995, and September 15, 1995, to species. Environmental education is indicating that listing these three September 20, 1995, for the first and needed to raise local awareness of the species may be warranted, and second public hearings and reopening of plight of these species. A cooperative requested public comments and the comment period, respectively. research and conservation program biological data on the status of the In response to requests from the should be developed. Possible species (58 FR 65325). On April 3, 1995, public, the Service held two public components of the cooperative effort the Service published a proposal (60 FR hearings. Notices of hearing dates and could include conservation easements, 16836) to list Spiranthes, Lilaeopsis, locations were published in the Federal or landowners could apply for and the Sonora tiger salamander as Register on June 22, 1995 (60 FR 32483) membership in Oregon Stronghold, a endangered species, and again requested and September 12, 1995 (60 FR 47340). corporation dedicated to conservation public comments and biological data on Appropriate State agencies and practices on private land. their status. representatives, County and City Service Response: The Service The processing of this final listing governments, Federal agencies and considered conservation agreements in rule conforms with the Service’s Final representatives, scientific organizations, lieu of listing for all three species. Listing Priority Guidance for Fiscal Year and other interested parties were Discussions with the Coronado National 670 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Forest, Fort Huachuca, and AGFD on halt all ranching, farming, mining, decide if species should be listed. development of a conservation logging, surface water diversion, Listing should be decided by a vote of agreement for the Sonora tiger groundwater pumping, and urban the residents of Cochise County. salamander began in September 1995. development, without the due process Service Response: Section 4(a) of the Meetings were held November 28, 1995 of listing the species. This commenter Act clearly assigns the responsibility of and January 24, 1996, among believed this was an attempt by the making listing decisions to the landowners, Fort Huachuca, the Service to gain greater control over Secretaries of the Interior and Coronado National Forest, experts on activities on private lands. This Commerce, not to local governments or the salamander, and the Service to commenter also stated that the purpose a voting body. However, in making discuss development of the agreement. for the inclusion of the Sonora tiger those decisions, the Secretaries are The participants in the meetings and salamander in the cienega species required to take into account discussions, including the Service, listing package was to provide a means conservation actions (section 4(b)(1)(A)), generally agreed that a properly crafted for regulatory action on private lands for notify and invite comment from states, and promptly-implemented the two plants. counties, and others on the proposed conservation agreement could provide Service Response: Conservation rules (section 4(b)(5)), hold one public for the long-term viability of the species. agreements are voluntary plans for the hearing on the proposed rule, if In May 1996, the Service wrote all 13 conservation and recovery of species. requested (section 4(b)(5)(E)), and take private landowners within the range of They can preclude the need to list other steps to ensure that the concerns the salamander to solicit their species by removing threats. However, of local governments, citizens, and participation. Only two landowners any actions developed and implemented others are considered in the listing have agreed to participate, and only one are a result of discussion and decision. The Service appreciates the is known to have salamander concurrence of all parties to the concern of local governments and populations on their property. These agreement. If decisions were made to citizens of southeastern Arizona in populations are on lands proposed for halt or limit ranching, groundwater regard to this and other listings. The exchange to the Coronado National pumping, or other activities, these Service will work closely with residents Forest. The Service estimates that commitments would be made by the and officials in the management and approximately 31 percent of the range of property owners and managers where recovery of these species. the salamander are owned by these activities occur. If such Comment: One commenter stated that individuals not currently interested in commitments were unacceptable to one beaver reintroduction on the upper San participating in a conservation or more parties, they would have the Pedro River, proposed by AGFD and the agreement. Because a limited option not to sign the agreement and not BLM, would create pond and marsh conservation agreement would not implement such activities. The Service habitat for Lilaeopsis and make listing protect the species throughout its range, characterizes conservation agreements unnecessary. and because no conservation actions as positive opportunities for landowners Service Response: The potential have actually been developed or and managers to voluntarily take actions effects of beaver reintroduction on the implemented, these efforts are to conserve species being considered for upper San Pedro River have not been inadequate to preclude listing. However, listing and alleviate the need for listing fully analyzed as yet; however, it is the Service will continue to work with and any resulting regulatory possible that a successful reintroduction and encourages the participation of any requirements. could create pond and marsh habitats. interested parties in the conservation of The Service and other possible While a successful reintroduction may this species. agencies in conservation agreements provide increased habitat for Lilaeopsis, No interest in the development of a administer programs to fund and assist this action alone does not remove the conservation agreement for Spiranthes landowners in the implementation of complex threats necessitating listing was expressed by the owners of the conservation actions. The salamander is Lilaeopsis as endangered. Water issues species’ habitat. Some interest in the not known to occur with Lilaeopsis or on the San Pedro River are discussed development of a conservation Spiranthes, with the possible exceptions later in this rule. Additionally, agreement for Lilaeopsis was expressed; of Scotia Canyon and Los Fresnos. Lilaeopsis has not shown an ability to however, only a few sites would have However, the salamanders at these sites successfully compete with many aquatic been protected leaving the majority of have not been identified to subspecies. plant species. Lilaeopsis may be able to the populations unprotected. Because the salamander generally does opportunistically colonize such habitats Additionally, the complex nature of the not occur with the plants, regulatory early in their development; however, water issues involving Lilaeopsis made protection afforded the salamander other plant species may dominate the it difficult for the Service to assure the would have no effect on the plants. habitat at later stages in the absence of few interested parties that listing would Comment: Several commenters some mild disturbance holding the necessarily be precluded through a recommended that the Service comply system in an early seral stage. conservation plan. This lack of with a resolution adopted by the Comment: One commenter suggested assurance was unacceptable to one of National Association of Counties and planning efforts for the San Rafael the Federal agencies. Currently, Fort the Arizona County Supervisors Valley could be used to conserve these Huachuca is the only Federal entity Association in regard to implementation species. working on a conservation plan for of the Act. The ‘‘Resolution on Service Response: The Coronado Lilaeopsis. This plan would be part of Amending the Endangered Species Act’’ National Forest has produced a draft a larger land use plan. recommends increased participation of Lone Mountain Ecosystem Plan and Comment: One commenter stated that counties in species conservation, discussions are underway to develop the Service was trying to coerce private prelisting activities, listing and recovery ecosystem plans for other portions of landowners into compliance with the decisions; analysis of economic, social the San Rafael Valley. The Service has Act through the use of conservation and cultural impacts of listing; participated in these planning efforts agreements. This commenter also stated consultation with and compensation to and believes that they have a potential that the Service was, through the use of affected landowners; and other to contribute to recovery of the Sonora conservation agreements, attempting to provisions. Local governments should tiger salamander, Lilaeopsis, and Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 671 perhaps Spiranthes. However, these overstory in a riparian system is likely potential threat to Spiranthes from plans have yet to be finalized and to benefit Lilaeopsis. Therefore, the continued livestock grazing of cienega potential benefits of these planning removal of this system component could habitats. efforts have not yet been realized. Thus, result in the loss of Lilaeopsis from the Service Response: The Service does these efforts have not yet affected the riparian area once the soil fertility and not believe this potential benefit of status of the species. The Service will moisture levels drop and temperature critical habitat designation outweighs continue to work with landowners and extremes occur. In addition, riparian the threat of collection given the managers in the San Rafael Valley on ecosystems are extremely important to extreme rarity of this orchid. Due to this conservation actions. These actions are numerous other species. Removal of species’ cryptic nature, potential threats expected to contribute to recovery. large numbers of trees would damage or impacts to its habitat would be Comment: One commenter stated that other species’ habitat and would not be addressed within the consultation Spiranthes is and can be propagated in a viable conservation measure. process. As this is a plant species botanical gardens. Growing the species Comment: One commenter asked why provided with a different, and lesser in gardens should be pursued, rather the Service placed plants on the protection than an animal, pursuant to than Federal listing. It might be more Endangered Species list if the Act does section 9 of the Act, the Service would cost-effective to propagate the species not apply to plants on private lands. not address continued use of a cienega and introduce them into a beneficial Service Response: Under the Act as part of a livestock operation, except environment. Another commenter stated private landowners have essentially no through the consultation process, that Lilaeopsis could not be an responsibilities regarding conservation regardless of whether critical habitat endangered species since it could be or management of endangered plants were designated or not. Additionally, successfully transplanted. located on their property; however, the preliminary indications are that Service Response: The Service places Act provides for consultation by Federal Spiranthes may benefit from a priority on conservation of species in entities under section 7 of the Act if responsible land management plan the wild rather than pursuing their actions may affect a listed plant, involving light disturbance from horticultural programs for species. The regardless of whether that plant occurs grazing. cultivation of plants with subsequent on private or Federal lands. Therefore, Comment: Several commenters stated outplanting may be done for while a private landowner may not have that habitat and species protection and reintroduction purposes; however, that responsibility to protect, conserve, or recovery afforded through consultation type of activity alone does not provide manage for a listed plant, a Federal in accordance with section 7 of the Act for conservation or recovery of a action agency is responsible if an action would be inadequate without critical species, nor does it address the habitat it authorizes, funds, or carries out may habitat designation. modification or destruction threats to a affect a listed species or its critical Service Response: Section 7(a)(2) of species. The listing of a species is not habitat. the Act requires Federal agencies, in evaluated on cost-effectiveness, but on Issue 2: Critical habitat should be consultation with the Secretaries of the the best available scientific and proposed and designated for one or Interior and Commerce, to ensure that commercial data available. The ability more of the three species. The Service any action they authorize, fund, or carry to transplant a species has no bearing as did not comply with its own regulations out is not likely to jeopardize the to whether or not that species warrants when proposal of critical habitat was continued existence of any listed listing. found to be not determinable for the species or result in the destruction or Comment: One commenter stated that Sonora tiger salamander and Lilaeopsis. adverse modification of critical habitat. Arizona Department of Water Resources Critical habitat designation is necessary It is the opinion of the Service that the (1991) found that 50 percent of the to protect the habitat of these species. designation of critical habitat for these water available in the San Pedro basin Comment: Several commenters stated three species would not be beneficial is used by riparian vegetation. The that the Service failed to follow its own and therefore, not prudent. commenter stated that if the BLM would regulations by not proposing critical Issue 3: Economic, social, and cultural remove 60 percent of the trees in the habitat for all three species in the impacts of listing need to be evaluated basin, there would be ample water to proposed rule. Another commenter and considered in the listing process. supply the needs of these three species requested we reissue the proposed rule Comment: Several commenters and many others. with critical habitat proposed for all requested that the Service study the Service Response: Clearing of riparian three species, all areas known to be indirect and direct economic, social, vegetation would be counter to the occupied by the species, all historical and/or cultural effects of listing these purposes of the San Pedro River habitat, and all areas that could be three species. Concern was expressed Riparian National Conservation Area. In restored and reoccupied by the species. that listing of the species would affect the legislation establishing the Service Response: The Service’s use and value of private property, result Conservation Area, the BLM was position on critical habitat for these in increased taxes and reduced charged with conservation, protection, species is detailed in the ‘‘Critical investment in the local community, and and enhancement of the riparian area. Habitat’’ section of this final rule. adversely affect grazing permittees on To clear the riparian vegetation for Comment: One commenter stated that state and Federal lands. Some water salvage would counter a collecting is a relatively minor threat commenters stated that the results of Congressional mandate. As noted in compared to other factors that threaten this analysis should be weighed with Stromberg et al. (1996), Bock and Bock the survival and recovery of Spiranthes; threats, status, and other listing factors (1986), McQueen and Miller (1972), thus the benefits of critical habitat in determining whether these species Yavitt and Smith (1983), and Dawson outweigh the costs and critical habitat should be listed. (1993), trees in a riparian system should be proposed. Another Service Response: 50 CFR 424.11(b) provide for increased soil fertility and commenter was concerned that requires the Secretaries of the Interior increased soil moisture as a result of protection of Spiranthes and its habitat and Commerce to make decisions on hydraulic lift and serve to temper would be impossible without critical listing based on ‘‘the best available environmental extremes such as habitat designation. This commenter scientific and commercial information temperature. This function of the was concerned that there would be a regarding a species’ status, without 672 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations reference to possible economic or other salamander, this take could be loans, will be required to comply with impacts of such determination.’’ The permitted through the incidental take section 7 of the Act to ensure their Service has determined that the statement in a section 7 consultation for activities do not jeopardize the designation of critical habitat for these Federal actions, or through a section continued existence of these species. three species is not prudent. 10(a)(1)(B) permit for private actions. Consultations with Federal agencies, Comment: One commenter stated that The listing would not affect mining such as the Coronado National Forest, the listing and establishment of critical activities in Mexico. The Service is Fort Huachuca, and others, may result habitat would give the Federal unaware of any current or proposed in changes to proposed actions that are government control over water use copper mines or other mineral mines in at the discretion of the action agency. where the species occur. This the quartz/monzonite/porphyry/copper For instance, in accordance with section commenter also stated that the species deposit belt in Arizona or New Mexico 7, the Coronado National Forest has and their critical habitat would be given that may affect any of the three species. conferenced with the Service on a higher priority than humans in a These listings would not eliminate proposed reissuance of several grazing drought situation. mineral exploration and exploitation of permits within the range of the Sonora Service Response: Federal actions, the quartz/monzonite/porphyry/copper tiger salamander. The Service has such as groundwater use by Fort deposit belt. recommended that the Forest develop Huachuca or actions by the BLM that Comment: One commenter stated that and implement stock tank management may alter San Pedro River flows or the impact of this listing would plans for tanks supporting salamanders. hydrology, would be subject to the decimate the Babacomari Ranch’s These plans would include timing section 7 consultation process, which historical livestock operation along the maintenance activities to reduce effects may result in changes to proposed Babacomari River and would eliminate to salamanders, minimizing removal or actions to avoid jeopardizing the this viable agricultural enterprise. damage to bankline cover, adding brush continued existence of a listed species. Service Response: Involvement with and logs for cover, restricting access by (For further discussion, see the the Service regarding operation of this cattle to selected tanks or portions of ‘‘Available Conservation Measures’’ ranch would only occur within the tanks, public information, and section of this final rule.) Private actions context of the consultation process if a monitoring and periodic removal of would generally be exempt from the Federal action agency were to fund, nonnative predators. Similar outcomes regulatory provisions of the Act, unless authorize, or carry out an activity are expected from future formal section Federal funds or authorization are related to the operation of the ranch, or 7 consultations for all three species. needed, or if the action would result in if the ranch owners wished to work with Further discussion of water issues are the taking of a Sonora tiger salamander. the Service on voluntary conservation addressed in the following comments. In the latter case, a private party could actions. While the Service does not Comment: One commenter stated that seek a section 10(a)(1)(B) incidental take analyze economic effects of a listing a moratorium on the pumping of permit to legally take salamanders action, it is not anticipated that the groundwater would be financially incidental to otherwise lawful activities. listing of Spiranthes will have an devastating to families. The Service is not proposing or adverse effect on the ranching Service Response: As discussed designating critical habitat in this rule. operations. elsewhere, pumping of groundwater or Designation of critical habitat for these Comment: Commenters stated that the other actions by private individuals on three species was determined to be not Service intends to close Fort Huachuca private lands would not be affected by prudent (see ‘‘Critical Habitat’’ section). and undermine the local economy and this listing, with the possible exception Comment: One commenter stated that well-being of citizens with these of groundwater pumping that would the listing of these species would listings. The listings will result in a drain a stock tank occupied by Sonora eliminate mineral exploration and cessation of Federal highway funds and tiger salamanders and result in taking, exploitation in the unique and rare home mortgages in Sierra Vista. Another or other activities that might result in Cananea geologic trend. commenter stated that the proposed the taking of salamanders. The Service Service Response: The Service listing of these three species was an is unaware of any planned or ongoing assumes the commenter refers to attempt to halt growth, grazing, and groundwater pumping anywhere within mineralization, particularly copper multiple use of public and private the range of the Sonora tiger salamander deposits, in the quartz/monzonite/ lands. One commenter reported hearsay that would result in taking. If such an porphyry/copper deposit belt in that it was the intent of the Service to action were proposed, the proponent southeastern Arizona, southwestern control the water and lives of the people could seek authorization from the New Mexico, and adjacent portions of with this listing, which is an Service for an incidental take permit. If Mexico, including the copper deposits inappropriate purpose of the listing groundwater pumping involves a near Cananea, Sonora. As discussed process. Federal authorization, funding, or other elsewhere herein, if mining activities Service Response: The purpose of discretionary Federal action, that involved a discretionary Federal action, these listings is to extend the protection pumping would be subject to section 7 that action would be subject to section of the Act to the Sonora tiger consultation if the action may affect a 7 consultation. For instance, salamander, Lilaeopsis, and Spiranthes. listed species. consultation could result in This protection does not authorize the Comment: One commenter noted that modifications to mining plans of Service to close Fort Huachuca or assert the listing of these species will operation. Prospecting and mining of jurisdiction over water rights, and the complicate the issues surrounding the hardrock minerals, such as copper, on Service does not anticipate significant general adjudication. In particular, this Federal lands is governed by the Mining impacts to local economies or to the commenter believed it would add Act of 1872 (16 U.S.C. 21 et seq.). Under well-being of citizens. As described in another obstacle to reaching a this law, Federal agencies have limited ‘‘Available Conservation Measures’’ negotiated settlement of some water discretion over mining activities. Thus, herein, with the promulgation of this rights with Federal agencies. many activities would not be subject to rule, Federal agencies, including Fort Service Response: A general section 7 consultation. If mining might Huachuca and those that administer adjudication of water rights in the Gila result in the taking of a Sonora tiger Federal highway funds and Federal River system and its source is Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 673 underway, pursuant to Arizona Revised because an unknown percentage of perhaps 60 percent of lands within the Statutes 45–251 to 45–260. This plants are dormant and nonflowering range of the salamander have been adjudication includes the San Pedro plants are difficult to find. thoroughly surveyed. If we consider the River watershed. Major water rights Service Response: While the Service 23 sites where salamanders have been holders, particularly in the Sierra Vista believes that additional long-term found during one or more of the last subwatershed (in the river’s watershed studies are needed to more accurately three visits from 1993 through 1996 as from Fairbank to the international determine the stability of Spiranthes extant populations, and if breeding border), are attempting to negotiate a populations, data as a result of populations occur on unsurveyed lands settlement agreement. Listing of these monitoring suggest that the populations in a density similar to surveyed lands, three species would not directly affect may be declining based on the tendency then conceivably as many as 35 to 40 water rights. Uses of water may be of plants to remain in a nonflowering ‘‘extant’’ breeding populations could subject to section 7 consultation if such state, the low numbers of new flowering exist in Arizona. Regardless, a limited use involves a discretionary Federal plants, and the reduction to a single geographic range, very limited breeding action. Subsequent enforcement actions nonflowering individual at one site in habitat, and threats to the species in regard to take of Sonora tiger 1991 (McClaren and Sundt 1992, described herein warrant protection as salamanders could potentially also Newman 1991). The definitive answers an endangered species. result in the modification or cessation of on population biology that the The Service agrees that the taxonomy water use at specific sites, but the commenters believe necessary would of the tiger salamander population at salamander occurs almost exclusively involve destructive methodology in Los Fresnos in Sonora should be outside of the subwatershed. Although order to determine the exact number of clarified; however, presence of Sonora water rights are not directly affected by plants and percentages of absent tiger salamanders at this site is not these listings, the Service agrees that individuals. Such a destructive unexpected (the salamander locality at listing could be a factor in the issues methodology would be devastating to an Los Fresnos is within 1.3 mi (2.2 km) of surrounding the settlement negotiations. extremely rare species such as this one the international boundary and 2.2 mi The Service is involved in the and could result in the extirpation of (3.6 km) of three extant localities in negotiations and is likely to be a party some populations. Mark Fishbein Arizona). The recently discovered to any settlement agreement. (University of Arizona, in litt. 1996), a population at Fort Huachuca also is not Compliance with the Act in regard to researcher who has studied Spiranthes unexpected. It is approximately 1.4 mi water use may be addressed in the extensively, notes that the life history of (2.2 km) west of a salamander locality agreement, and thus could provide a this species provides difficulties in (presumed to be the Sonora tiger framework for addressing endangered censusing; however, years of salamander) in Scotia Canyon. Neither species issues to which all parties to the observation have enabled him to of these new populations constitute agreement would have input. Of the estimate the total number of individuals significant range extensions, or lead the three species listed, only Lilaeopsis is at somewhere below 5,000, and perhaps Service to believe that the range of the well-represented in the subwatershed. less than 2,000. salamander is much greater than Comment: One commenter stated that, Comment: Several commenters stated indicated in the proposed rule. Other as a result of this listing, the section 7 that surveys for the Sonora tiger potential habitats have been surveyed consultation process will add time and salamander have not been extensive outside of the known range in Arizona expense to any urbanization project. enough to adequately determine its and Sonora, but no Sonora tiger Service Response: If a Federal agency status. Many potential habitat sites on salamanders have been found (Collins is involved in urbanization, it would private lands have not been surveyed and Jones 1987). need to evaluate its actions and possible and the taxonomy of salamanders found The Service disagrees with the general effects on listed species. The Service is in adjacent portions of Sonora needs to statement that the salamander is required to deliver a biological opinion, be clarified. The recent discovery of a thriving in stock tanks. Many tanks which concludes consultation, to the population at Fort Huachuca suggests within the range of the salamander are action agency within 135 days of receipt the range of the species may be greater occupied by nonnative predatory fish of a request for consultation (50 CFR than originally thought. The salamander that eliminate salamander populations 402.14(e)). If the action agency is thriving in stock tanks. and prevent colonization by incorporates consultation into their Service Response: Additional survey salamanders. Bullfrogs, which also prey planning process and consultation is work conducted since the proposed rule on salamanders, are well-established in initiated early, project delays are was published further clarifies the the San Rafael Valley and have become unlikely. Some additional costs may status of the Sonora tiger salamander more widely distributed since 1985 accrue resulting from meetings with the (Collins 1996) and is summarized in (Collins 1996). Virtually no recruitment Service, preparation of documents, and ‘‘Background’’ and ‘‘Summary of Factors of salamanders was noted by Collins implementation of any reasonable and Affecting the Species.’’ As of late 1995, (1996) during his surveys in 1993–1994. prudent alternatives or measures in the Dr. James Collins (Arizona State Furthermore, disease killed all aquatic biological opinion. Private actions that University) and Tom Jones (Grand salamanders at 3 tanks in the 1980’s and do not require Federal funds, actions, or Canyon University) (pers. comm. 1995) recently killed salamanders at 7 tanks, authorization, such as a private estimated that roughly 75 percent of and less than 10 salamanders were individual building a house with private public lands within the range of the found during any 1 visit at 16 of 32 sites funds, are not subject to section 7. salamander had been surveyed. surveyed from 1993 through 1996 Issue 4: Information presented in the Additional extensive surveys occurred (James Collins, pers. comm. 1996). proposed rule was insufficient to in 1996. Surveys of private lands, most Comment: Commenters stated that support listing or was in error. of which are in the center of the San data are inadequate to determine the Comment: Several commenters stated Rafael Valley on the historic San Rafael status of any of the three species. The that the status and population trends of de la Zanja land grant and comprise information upon which the proposed Spiranthes cannot be determined about 31 percent of the range of the listing is based is subjective and because population size is unknown salamander, have been sporadic and premised by qualifiers such as ‘‘might and cannot be accurately determined incomplete. The Service estimates that be,’’ ‘‘may,’’ etc. One commenter stated 674 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations that presumptions rather than science Surveys for Spiranthes species in Comment: AGFD herpetologist Jeff were the basis for listing. The same Mexico have not located populations of Howland is cited in the proposed rule information could be interpreted that Spiranthes delitescens. While Sheviak as the source for the Sonora tiger the species are not endangered. (1990) noted that P.M. Catling had not salamander localities in Scotia and Service Response: All three species found Spiranthes delitescens in his Copper canyons. Mr. Howland has not are of very limited distribution and work in Mexico, Sheviak still believed identified the salamanders at these occupy very limited and sensitive that the species likely occurred in locales to subspecies; thus, these aquatic habitats. The reasons for their Mexico at that time. Recently, Charles localities are in question. limited distributions are not fully Sheviak (University of New York at Service Response: The Copper Canyon understood; however, the Service has Albany, in litt. 1995) stated that the locality is the same as ‘‘Game and Fish attempted to describe all known and species appears ‘‘ * * * to be very Tank,’’ which Collins (1996) identifies potential threats to the species in the restricted and critically rare.’’ Jones, et as a Sonora tiger salamander locality. proposed and final rules. Potential al. (1995), in a discussion on the Salamanders from Scotia Canyon have threats are described as possibly phylogenetic origins and taxonomy of not yet been identified to subspecies. affecting the species and are treated as the Sonora tiger salamander, also note This has been noted and corrected in uncertainties, with qualifiers such as the unique occurrences of Spiranthes this final rule. ‘‘may’’ and ‘‘might be.’’ Despite these and the Huachuca springsnail Comment: One commenter noted that uncertainties, sufficient surveys have (Pyrgulopsis thompsoni) within the San loss of Lilaeopsis habitat was the result been conducted to adequately assess the Rafael Valley. Sheviak (in litt. 1995) of natural rather than human-caused current status of the species and noted in reference to this publication processes. This commenter further whether they warrant listing. The that it ‘‘* * * suggests that this stated that the San Pedro River and Service makes listing determinations on restricted distribution is real and the cienega habitats have been altered by the basis of the best scientific and result of biogeographic processes that natural climatic change, the 1887 commercial data available as required have produced a suite of similarly earthquake, and cattle. The commenter under section 4(b)(1)(A) of the Act. restricted organisms.’’ stated that these changes were primarily the result of the geologic cycle and did Comment: One commenter stated that Comment: One commenter stated that not warrant listing Lilaeopsis as an the status of the species cannot be Lilaeopsis populations are increasing, endangered species. The commenter determined without further study and thus endangered status is not warranted. further stated that Lilaeopsis habitats survey in Mexico. Service Response: The size of were stable, but would now be subject Lilaeopsis populations fluctuate Service Response: Collins and Jones to lawsuits by radical environmentalists (1987) surveyed 30 sites in northeastern depending on flood cycles, refugia, and unknown decisions by judges. Sonora and 26 sites along the eastern habitat availability, and interspecific Service Response: The Service is slope of the Sierra Madre Occidental in competition. Since publication of the unaware of evidence supporting the northwestern Chihuahua without proposed rule, some populations of comment that natural geologic cycles locating Sonora tiger salamanders. Other Lilaeopsis have been found to be more are the cause behind the modification researchers have conducted casual extensive in their aquatic systems, i.e. and loss of cienega and riparian habitats surveys for salamanders in northern scattered throughout a canyon system or containing Lilaeopsis. The 1887 Sonora as well, without finding Sonora in upstream tributaries; however, only earthquake affected the distribution of tiger salamanders, with the exception of one new population has been found. cienega habitats and spring flow along the tiger salamander population of The other populations to which the the upper San Pedro River (Hendrickson unknown subspecies at Los Fresnos. commenter is referring are actually new and Minckley 1984), but whether The Service believes that if the areas of clumps of plants within a Lilaeopsis habitats increased or salamander occurs in Sonora, it larger, connected system already known decreased as a result of the earthquake probably has a limited distribution and to contain Lilaeopsis. Probably the most is unknown. Documented loss of occurs at very few sites. The species is extensive expansion of Lilaeopsis in a Lilaeopsis habitat has resulted from most likely to occur in tanks or cienegas system has been within the upper San habitat modification and destruction near the international boundary in the Pedro River. At the time of the proposed resulting from human-related activities; Sonoran portion of the San Rafael rule, the Service only knew of two however, there has been a synergistic Valley. springs along the San Pedro River effect of overuse of habitats coupled Three populations of Lilaeopsis are containing Lilaeopsis. Mark Fredlake with drought. The Service is unaware of known from Sonora (Warren, et al. (BLM, pers. comm. 1996) documented long-term research indicating that 1991); however, recent efforts have 43 scattered patches of plants in the Lilaeopsis habitats are stable. The failed to locate additional populations upper San Pedro River prior to the 1996 Service is unable to predict the extent of this subspecies. Mark Fishbein monsoon floods. Regardless of this (if any) that Lilaeopsis habitats will now (University of Arizona, in litt. 1995) has information, the Service has not seen a be subject to legal actions; however, we conducted extensive floristic surveys of reduction in threats to Lilaeopsis. Past believe that cooperative partnerships to the Sierra de los Ajos (site of one and present habitat modification and help conserve and restore riparian recently-discovered Lilaeopsis destruction are significant issues in the habitats will provide a positive basis for population reported herein) and Service decision to list Lilaeopsis as community interaction in the recovery believes the potential for additional new endangered. of Lilaeopsis. populations in that region to be low, Comment: Spiranthes is not Comment: One commenter requested although not all potential habitat for the endangered. It has existed for years on that the Service provide the species has been surveyed. Fishbein mostly Federal grazing lands that have mathematical equation used in also notes that threats to wetland been well-managed by permittees. determining whether or not a species is habitats in Mexico are similar to those Service Response: With the exception endangered. in Arizona and, therefore, Lilaeopsis is of four individual plants recently found Service Response: No equation, probably as rare and threatened there as on public lands, all of the known sites mathematical or otherwise, is used to it is in Arizona. for Spiranthes occur on private land. determine a species’ status. An Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 675 endangered species is one that is in basis for these decisions. These data sedimentation, water temperatures, and danger of extinction throughout all or a included published and unpublished channel characteristics; water significant portion of its range (50 CFR reports by qualified and reputable withdrawals; channelization; and 424.02(e)). Determination of whether a biologists, personal communications construction of levees and other flood or taxon meets the definition of an with researchers and biologists, and bankline structures. endangered species is based on the best comments from the public. For instance, In contrast, the riparian habitats of the scientific and commercial data available much of the status information on the San Pedro River are surprisingly after conducting a review of the species’ Sonora tiger salamander is based on unaltered, and provide conditions that status. Species are found to be papers by, and communications with, do not occur, or are very rare, on other threatened or endangered based on an Drs. James Collins and Thomas Jones. desert watercourses. Thus there is great analysis of the five listing factors Dr. Collins is chair of the Zoology biodiversity on this river and many rare evaluated in the section ‘‘Summary of Department at Arizona State University. species, such as Lilaeopsis, occur there. Factors Affecting the Species,’’ herein. Dr. Jones is a professor at Grand Canyon Comment: One commenter stated that Comment: One commenter found that University. there were no significant current threats the Service failed to prove these species The published and unpublished data to any of these species in the San Rafael are declining and also failed to establish supporting listing of Lilaeopsis and Valley with the exception of potential that they perform vital biological Spiranthes were the result of the work unmonitored and increased recreation services for their ecosystem, are of a number of experienced biologists that could cause habitat degradation. necessary to maintain a balance of recognized in their fields. Much of the Service Response: As discussed in the nature, or that they contribute to literature cited in the proposed and final ‘‘Summary of Factors Affecting the biological diversity needed for rule was published in peer reviewed Species’’ section, threats to the species legitimate scientific purposes. scientific journals. Peer reviewed in the San Rafael Valley are many. The Service Response: As described in the scientific journals provide a level of Service acknowledges that recreational previous response, the Act and its scrutiny that ensures publication of the activities, such as off-road vehicle use, implementing regulations require status best information available. fishing that would involve illegal use or review and analyses to determine if Issue 5: Threats to the three species transportation of bait fish or species meet the definition of a were not adequately described or salamanders, fire caused by threatened or endangered species. supported by the best available recreationists and subsequent watershed Documented declines are one line of information. In some cases, the erosion and degradation, wood cutting, evidence that may contribute to a discussions of threats or other and other activities are threats to the decision to list a species; other factors information presented in the proposed Sonora tiger salamander, Lilaeopsis, may be important. Documented declines rule were confusing, unclear, and and/or Spiranthes, in and near the San are not a requirement for listing. Neither contradictory to available information. Rafael Valley. However, these species do endangered species need not perform Comment: One commenter questioned face many other threats in the San vital biological functions for their the reference to a loss of 90 percent of Rafael Valley, as well. As discussed ecosystems or contribute to biological the riparian habitat in southern Arizona. herein, all three species are vulnerable diversity (section 4(a) and 4(b) of the This commenter stated that the loss to chance extinction owing to limited Act). figure was extrapolated from a study of numbers of populations and Comment: One commenter questioned cottonwood-willow habitat along the individuals, and climatic and other the historical reference to habitat Colorado River in the Yuma area and environmental variability. The Sonora qualities of the Santa Cruz River and does not represent an actual inventory tiger salamander is threatened by stated that the river is still a ‘‘rapid of historical riparian areas in the introduction of nonnative predators, brook, clear and crystal’’ now, following Arizona. Another commenter also stated disease, habitat degradation due to heavy rains. that this figure was inaccurate. heavy use by livestock at some tanks, Service Response: The Service Service Response: The proposed rule and a variety of other factors, all of searched historical references to provide stated ‘‘The State of Arizona (1990) which operate in the San Rafael Valley. answers to the specific questions and estimates that up to 90 percent of the Subdivision of ranches into ranchettes has fully incorporated that information riparian habitat along Arizona’s major or housing tracts is an additional threat into the rule; however, the Service is desert watercourses has been lost, to all three species within the San unaware of any instances where the degraded, or altered in historic times.’’ Rafael Valley. Subdivision could result reach of the Santa Cruz River near The Service believes this is an accurate in fragmentation of cienega habitats and Tucson presently meets the historical statement. The exact percentage of increased groundwater pumping. habitat description. riparian habitat lost, degraded, or Comment: One commenter stated that Comment: One commenter stated that altered cannot be determined, because discussions of threats to the Sonora tiger information provided in the notice was knowledge of predevelopment salamander described by the Service at not the result of scientific research nor conditions is often anecdotal or the Patagonia public hearing and in the did any of the persons referenced in the incomplete. However, numerous factors proposed rule differed. In particular, the notice have scientific training or have cumulatively resulted in habitat proposed rule indicated the salamander expertise. Another commenter stated loss and degradation throughout most of faced many more serious threats than that the Service either misrepresented the major desert watercourses in were indicated at the public hearing. the best scientific and commercial data Arizona, particularly the Colorado, Gila, Service Response: The Service’s available or ignored these data Salt, Santa Cruz, and Verde rivers. presentation at Patagonia on the altogether. These include—introduction of proposed listing was abbreviated to allot Service Response: The Service nonnative plants, such as salt cedar as much time as possible to hear public considered all known sources of (Tamarix spp.); carrizo (Phragmites comment. Rather than discuss all information in its decisions to list these australis), and watercress (Rorippa known or potential threats in detail, the species. As required in 50 CFR nasturtium-aquaticum); construction Service presented an overview of the 424.11(b), the best scientific and and operation of dams, which have status of the taxa based on information commercial data available formed the altered flow and flooding regimes, in the proposed rule. 676 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Comment: One commenter stated that and the Fort is in the planning stages. has been revised to include efforts by two of the three species are abundant Thus, the Service still considers erosion the City of Sierra Vista and Fort and not in peril in Mexico, and caused by development in the Huachuca to maintain flows in the San therefore listing is not warranted. watershed a threat to the habitat of Pedro River. The proposed rule did not Service Response: Neither Spiranthes Lilaeopsis in the San Pedro River. specifically mention groundwater nor the Sonora tiger salamander have Comment: One commenter stated that, pumping by the Town of Patagonia as a been confirmed from Mexico, although contrary to statements in the proposed threat to any of the three species. a population of tiger salamanders rule, stock tank maintenance is However, the Service acknowledges and suspected to be of the subspecies beneficial to the Sonora tiger appreciates efforts by the Town of stebbinsi was observed at Los Fresnos, salamander because it removes Patagonia to avoid possible adverse Sonora. Lilaeopsis schaffneriana ssp. nonnative fish. Concern also was effects to listed species and to maintain recurva is known from three sites in expressed that listing would result in flows in Sonoita Creek. Sonora; all of these sites face similar removal of grazing and cessation of Comment: One commenter stated that threats to those north of the stock tank maintenance. Another testimony by Dr. Thomas Maddox, international border, in the United commenter stated that habitat Department of Hydrology and Water States. conditions for these species, especially Resources, University of Arizona, Comment: One commenter stated that the salamander, have improved in the refutes information presented in the Lilaeopsis occurs in some areas without past 30 years because landowners have proposed rule in regard to the effects of perennial flows and with a regulated directly benefitted and increased the groundwater pumping on the San Pedro hydrograph, contrary to information extent of habitat through stock tank River. Another commenter noted that presented in the proposed rule. construction. Maddock and Vionnet (1991) found that Service Response: The Service is Service Response: Maintenance of the ‘‘the mean depletion rate of the regional unaware of any sites containing tanks is necessary not only to preserve aquifer in the Sierra Vista area from Lilaeopsis that do not have perennial their value for livestock but also to pumping is very small and that flows. benefit salamander populations. Tanks pumping from the regional aquifer is not Comment: One commenter believed would silt in and aquatic habitats would the major factor imperilling stream statements in the proposed rule be lost without periodic maintenance. flow.’’ This commenter also stated that suggesting development in the upper The Service acknowledges that the conservation measures for recharge San Pedro River Valley will result in maintenance also may help remove and reuse of sewage effluent increased erosion and other detrimental nonnative fish species that prey upon recommended in this study will not be hydrologic effects are inaccurate and the Sonora tiger salamander. Silt is implemented if the listing process is unsupported. typically removed from tanks when they Service Response: Development can are dry or nearly dry. Remaining fish finalized. One commenter stated that result in elevated runoff rates, such as might be dredged out of the tanks or groundwater pumping does not pose an from parking lots and roadways, and killed during silt removal. As described immediate threat to populations of increased erodibility of soils due to soil in the proposed rule, salamanders Lilaeopsis at Lewis Spring and south of disturbance, removal of vegetation, and present in the tanks would probably Boquillas Road. disturbance of natural drainageways. also be killed. The Service believes that Service Response: The point of the Increased runoff rates and erosion in the certain mitigating precautions are Service’s discussion in the proposed Sierra Vista subwatershed can lead to possible to reduce adverse effects to and final rules in regard to groundwater more frequent ‘‘flash’’ floods and salamander populations resulting from pumping in the Sierra Vista deposition and movement of sediment removal of silt or other maintenance subwatershed is that withdrawal of in the San Pedro River. This increased activities. These mitigation measures water from the aquifer in excess of hydrologic instability would be will be addressed through the section 7 recharge threatens the baseflow of the detrimental to Lilaeopsis, which does consultation process and in recovery upper San Pedro River and, in turn, not tolerate high levels of disturbance or planning. As discussed elsewhere in threatens Lilaeopsis habitat. Nothing in channel instability. Additionally, flash this final rule, the Service believes well- Dr. Maddox’s testimony nor in Maddock floods could scour existing Lilaeopsis managed livestock grazing is compatible and Vionnet (1991) refute this claim. On out of the system and could occur with with viable salamander populations. page 46 of Dr. Maddock’s testimony he frequency or intensity that would not Thus, listing will not result in removal states that if pumping continues ‘‘the allow for refugia sites for Lilaeopsis and of grazing or the need for well- cone of depression continues to expand. subsequent recolonization. maintained water sources, such as stock It actually turns the stream (the San The city of Sierra Vista has adopted tanks. Pedro River), which is in some cases a Surface Water Plan to address regional Comment: Several commenters stated perennial in the reaches, to management of surface runoff. The plan that the analysis of threats in the intermittent.’’ On pages 65 and 66 of the includes construction of flood proposed rule did not take into account testimony he states that if pumping detention/retention basins at 30 efforts by the City of Sierra Vista and the continues the San Pedro River may locations (ASL Hydrologic & town of Patagonia to maintain flows in become like reaches of the Santa Cruz Engineering Services (ASL) 1995). New the San Pedro River and Sonoita Creek, River that are now dry and devoid of construction also includes provisions respectively. Groundwater pumping by riparian vegetation due to groundwater for stormwater retention and increased Patagonia does not affect Sonoita Creek. pumping. He goes on to say on page 84 infiltration. Fort Huachuca also is One commenter stated that the Service of the testimony that during the period investigating stormwater recharge as a had been contemptuous and arrogant by of his study, groundwater pumping in part of their Mountain Front Recharge not documenting in the proposed rule the Palominas area had reversed the Project (Fort Huachuca 1995). However, the City of Sierra Vista’s efforts to flow of groundwater so that the development is occurring outside of the protect the riparian habitat of the San groundwater was flowing to the cone of Sierra Vista/Fort Huachuca areas Pedro River. depression there, rather than into the without these same controls, the city’s Service Response: The ‘‘Summary of San Pedro River, which directly reduced plan has not been fully implemented, Factors Affecting the Species section’’ river flows. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 677

Much of the pumping in the substantially reduce or preclude flow that would otherwise be Palominas area has been halted in recovery options. discharged to the floodplain aquifer recent years, and this condition may The Service does not believe that (ASL 1994). As of 1990, pumping in the have changed. However, it illustrates listing these three species will result in Palominas-Hereford area exceeded the potential that groundwater pumping the City of Sierra Vista, Fort Huachuca slightly that in the Sierra Vista-Fort has to affect flows in the San Pedro or others in the Sierra Vista Huachuca area (ASL 1994, Arizona River. The problem is not trivial. ASL subwatershed abandoning efforts to Department of Water Resources 1991). (1995) calculated that the cone of reduce water use and increase recharge. Pumping at Palominas-Hereford has depression in the Sierra Vista/Fort These efforts are probably driven by probably declined since then, while Huachuca area in 1995 was in excess of projected increased pumping costs as pumping at Sierra Vista-Fort Huachuca 36.6 m (120 ft) deep with drawdown groundwater elevations decline, the Gila has likely increased, but the former levels of more than 6.1 m (20 ft) River water rights adjudication, and would still be the major impact on the extending from north of Huachuca City other considerations. To the contrary, floodplain aquifer because it extracts and the Babacomari River to well south efforts by the City of Sierra Vista, Fort water primarily from that aquifer, of Highway 90, a distance of Huachuca, and other water users to whereas water pumped in the Sierra approximately 18 km (11 mi). Water and conserve water, develop effluent Vista-Fort Huachuca area comes from Environmental Systems Technology, recharge, enhance mountain front deeper aquifers. Inc. (1994) estimated that even if all recharge, etc., complement actions to Comment: One commenter stated that pumping stopped in the Sierra Vista/ recover Lilaeopsis and Spiranthes. the drying of stock tanks inhabited by Fort Huachuca area, the cone of Comment: Several commenters stated Sonora tiger salamanders is not a depression would continue to spread that, contrary to information presented serious threat because the larval toward the river as it flattened out and in the proposed rule, livestock grazing salamanders metamorphose and return river flows would continue to decline is not detrimental to Spiranthes. to breed when the tanks refill. through the year 2088. Populations in grazed areas are larger Service Response: If tanks dry out Groundwater modeling indicates that and healthier than at a site where slowly, some salamanders will effects to upper San Pedro River grazing has been excluded since 1969. metamorphose into terrestrial adults baseflows may not occur for 25 years or Grazing may have replaced fire as a and leave the tank. Young larval more (ASL 1995), thus the Service form of disturbance in cienegas. salamanders, perhaps less than 6 concurs that groundwater pumping in Removing or restricting grazing would months of age, and some branchiate the Sierra Vista/Fort Huachuca area be detrimental to Spiranthes. salamanders (mature aquatic forms), does not pose an immediate threat to Service Response: Discussions of particularly older branchiates, are Lilaeopsis. However, adverse effects are well-managed livestock grazing and incapable of metamorphosing into a likely to occur in the foreseeable future Spiranthes presented in the proposed terrestrial form and would be lost. The unless mitigating actions are rule did not indicate a detrimental percentage of aquatic salamanders lost implemented very soon. These measures effect. The Service stated that our when a tank dries out would depend on could include water conservation, preliminary conclusion is that well- the age structure of the population and effluent recharge, watershed managed livestock grazing does not the dryness of the season. If a tank dried improvements, stormwater recharge, harm Spiranthes populations. during May or June, which is the dry and others, many of which are in the Additionally, the Service acknowledges season in the San Rafael Valley, most or planning stages or are being that Spiranthes may favor some form of all salamanders hatched that spring implemented to some degree in the mild disturbance and would not would not be able to metamorphose. subwatershed. Modeling suggests that if recommend the removal of grazing as a Survival of salamanders during effluent recharge and other measures are component of responsible stewardship. metamorphosis or after they leave the implemented, flows may actually However, negative effects of overgrazing tank is unknown, but predation of increase in some reaches over the next remain a concern. The Service has tried larvae may be high as water levels 100 years (ASL 1995, Water and to differentiate responsible, well- decline (Webb and Roueche 1971). If Environmental Systems Technology, managed, livestock grazing from poor aquatic habitat in a tank is lost rapidly Inc. 1994). However, in the long term, livestock management and overgrazing. due to sedimentation after a storm or unless water withdrawals are brought Comment: One commenter stated that breaching of the impoundment, into balance with recharge, growing the following statement in the proposed salamanders would not be capable of cones of depression will eventually rule is incorrect; groundwater pumping metamorphosing into terrestrial forms capture effluent recharge and river in the Hereford-Palominas area has the and all aquatic salamanders would be flows, and Lilaeopsis habitat in the San largest impact on the aquifer of any lost. Terrestrial adults in the area may Pedro River will be lost. groundwater pumping in the upper San return to the tank when it refills, breed, Groundwater elevation has already Pedro River basin. and repopulate the tank with larvae and declined under portions of the Service Response: Wells in the branchiates. This has apparently Babocomari River (ASL 1995), thus Hereford-Palominas area are or were occurred at several sites, including Spiranthes occurring on that river may located in the floodplain of the San Campini Mesa North Tank, Huachuca also be threatened in the long-term, The Pedro River and draw water directly Tank, Parker Canyon Tank #1, and Inez Service is unaware of studies or from the shallow aquifer and, in some Tank; (Collins 1996, Collins et al. 1988). modeling that specifically addresses cases, from deeper regional aquifers. However, as noted in the ‘‘Summary of areas where the species occurs. Loss of Wells farther from the river, such as Factors Affecting the Species’’ section, if Lilaeopsis on the San Pedro River and those at Fort Huachuca, draw water a tank were dry for several years and Spiranthes on the Babocomari River from deep aquifers, and not directly isolated from other salamander would not, alone, likely result in the from the floodplain aquifer. Wells that populations, insufficient terrestrial extinction of these species. However, draw water from the floodplain aquifer salamanders may remain and loss of these populations and habitats are more likely to directly affect river immigration from other populations would significantly increase the flow, but wells elsewhere in the may be inadequate to recolonize a tank. likelihood of extinction and watershed may intercept groundwater In any case, drying of a tank and loss of 678 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations any salamanders may reduce the predation by a variety of birds and ecologists with recognition in their number of breeding individuals and mammals likely contributes to mortality fields, the Service sees no reason to further reduce genetic heterogeneity, of Sonora tiger salamanders. However, question their expertise because data on which is very low in this subspecies. population declines and extirpations of the effects of fire is inconclusive at this Further reduction of genetic diversity this subspecies have not been attributed time. increases the chance of local to bird and mammal predation; the most Comment: One commenter stated that extirpations, as described in ‘‘Summary apparent and direct causes are predation consumptive water use by sand and of Factors Affecting the Species’’ by nonnative fish and mortality due to gravel operations was inadequately section. The Service acknowledges, and disease (Collins and Jones 1987, Collins evaluated. The commenter stated that discussions herein have been modified, 1996). the Service has no substantive evidence to recognize that drying of tanks can Comment: The species are not that sand and gravel mining and control some nonnative predators, adversely affected by threats because processing could cause Spiranthes or particularly fish. they are capable of moving to other Lilaeopsis habitat or population losses Comment: One commenter locations. either upstream or downstream of a recommended not listing Spiranthes Service Response: All three species mining operation. The commenter because endangered status will increase have limited distributions and are found further added that the Service failed to the demand for specimens and result in only in rare wetland habitats with very provide information on how sand and increased collecting pressure. specific characteristics. For instance, gravel mining at the Babacomari Ranch Service Response: The Service aquatic populations of the Sonora tiger could affect at least one Spiranthes acknowledges that listing could salamander only occur in stock tanks population. potentially increase demand for and impounded cienegas in the San Service Response: Mining of sand and specimens; however, the Service Rafael Valley and adjacent areas where gravel within riparian systems can believes that the benefits of listing nonnative predators are rare or absent destabilize stream banks and channels, Spiranthes outweigh any additional and other subspecies of salamander are resulting in loss of riparian vegetation potential collecting pressures that absent. The salamander possesses and increased stream sediment loads. listing may create. limited mobility and may not be able to The Service has described herein the Comment: One commenter stated that move outside of its current range due to pumping of groundwater to process the three species have coexisted with competition and/or interbreeding with mined materials near the Babacomari cattle grazing for over 300 years, and other subspecies or for other reasons. River as a potential threat to one historical grazing intensity was much Spiranthes has an extremely limited Spiranthes site. This groundwater greater than it is today. As a result, distribution that may be the result of a pumping, combined with an expanding cattle grazing cannot be a threat. unique evolutionary history in the San cone of depression in the aquifer at Another commenter stated that studies Rafael Valley as discussed previously in Sierra Vista and Fort Huachuca, could have shown salamander populations this rule. There are few sites remaining dewater portions of the Babacomari decline when grazing is halted. that may be capable of supporting a River, and the Spiranthes population Service Response: The Service population, were the species able to located near the river could be lost with acknowledges that these species have colonize them. the elimination of surface water. coexisted with cattle grazing for up to The ability of Lilaeopsis to colonize Comment: One commenter stated that 300 years. At times in the past and in new areas within an aquatic system is the San Pedro River would not be certain areas, stocking levels were much dependent on the availability of habitat suitable habitat for the species because greater than today (Hadley and Sheridan and the existence of refugia within that it is a dynamic system, and thus would 1995). However, we disagree that this system. This has been discussed not provide habitat for successful long coexistence is evidence that cattle previously in this final rule. None of reestablishment. grazing has no adverse effects and does these three species are able to move to Service Response: The San Pedro not threaten these species. As discussed other locations when threats occur. The River is outside of the range of the in the ‘‘Summary of Factors Affecting species cannot move elsewhere because Sonora tiger salamander and Spiranthes. the Species,’’ the effects of improper there are few, if any, suitable habitats to The Service does not consider the San cattle grazing practices on these species which they can move with limited Pedro River as recovery habitat for are many, and depending on the species mobility. either of these species. While the San and the circumstances, may have Comment: One commenter stated that Pedro River is a dynamic system, varying impacts on the three species. it made no sense to reestablish Lilaeopsis has been able to remain The Service is unaware of any studies Lilaeopsis in the San Pedro River as that established within the system because that found salamander populations habitat is subject to scouring and of refugia sites that have not yet declined when grazing was halted. With flooding and would not be an undergone massive scouring or loss of the exception of the population at Fort appropriate habitat. perennial waters. An opportunistic Huachuca, the entire range of the Service Response: Various microsites species Lilaeopsis, has been able to salamander has been grazed by cattle for providing refugia for Lilaeopsis along recolonize some of the disturbed many years. the San Pedro River have enabled this habitats resulting from the dynamic Comment: One commenter suggested plant to reestablish itself within the nature of the system. The San Pedro that declining salamander populations main channel in areas providing River is an important recovery habitat may be attributable to predation by appropriate habitat. for Lilaeopsis. various birds and mammals rather than The experts referenced in the Issue 6: The three species should be factors indicated in the proposed rule. proposed rule are reputable biologists listed as threatened rather than Service Response: Predation by with an extensive knowledge of endangered. coyotes, bobcats (Webb and Roueche Spiranthes. The extent of their Comment: One commenter stated that 1971), badgers (Long 1964), raccoons, qualifications as fire ecologists is the three species should be listed as gulls, and wading birds (Degenhardt et unknown to the Service; however, as threatened rather than endangered al. 1996) has been documented for other these experts (McClaren, Sundt, Gori, because threats are localized and some subspecies of tiger salamander, and and Fishbein) are taxonomists and populations are secure. Another Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 679 commenter stated that the proposed rule including a 60-day period from April 3 should be held in all areas potentially should be withdrawn because there is to June 2, 1995; 30 days from June 24 affected. Hearing times and locations no biological evidence that the species to July 24, 1995; and 45 days from were inconvenient and not conducive to meet the statutory definition of September 11 to October 27, 1995; a public participation. endangered species. The best available total of 135 days. Service Response: In regard to public scientific information does not support The Service is required to hold at notification of public hearings, 50 CFR the contention that they are endangered least one public hearing if any person so 424(c)(3) and provisions of the APA throughout a significant portion of their requests within 45 days of publication require the Service to publish a notice range. of a proposed rule (50 CFR 424.16(c)(3)). in the Federal Register not less than 15 Service Response: An endangered The Service received two requests for a days before the hearing is held. Notices species is one that is in danger of public hearing within the 45 day request announcing a public hearing were extinction throughout all or a significant period. In response, a public hearing published in the Federal Register 21 portion its range (50 CFR 424.02(e)). A was held in Patagonia, the closest town days before the July 13, 1995, hearing in threatened species is likely to become with facilities for a hearing to the Patagonia (June 22, 1995) and 15 days an endangered species within the residents requesting the hearing and before the September 27, 1995, public foreseeable future throughout all or a only 36 highway miles from Sierra hearing in Sierra Vista (September 12, significant portion of its range (50 CFR Vista. Additional requests for a public 1995). The Service’s Listing Handbook, 424.02(m)). The three species listed here hearing in Sierra Vista were received which is internal agency guidance, are endangered because of widespread more than 45 days after publication of requires that notifications of public and serious threats that are thoroughly the proposed rule. The Service granted hearings be published in major and discussed in the ‘‘ Summary of Factors those requests and held a second public local newspapers within 20 days of the Affecting the Species’’ section of this hearing in Sierra Vista. hearing. This requirement was met; rule. In response to requests from the publication dates and newspapers Issue 7: The Service failed to follow public, and in accordance with the Act where notices were published are listed Federal or other regulations in regard to and its implementing regulations, the in ‘‘Summary of Comments and the listing of these species. Freedom of Information Act, and the Recommendations’’ section. Hearings Comment: The proposed rule is void APA, the Service provided copies of were held in the evenings during the because this final rule was not documents to several members of the week, when most people are not published within 12 months of receipt public and loaned the administrative working and can attend. The hearing of the listing petitions. record to the City of Sierra Vista for locations were in Patagonia and Sierra Service Response: The Service copying. Some requests for information Vista, which are major population published a proposed rule to list these were not promptly addressed because centers near the center of the species on April 3, 1995. In accordance they were contained within comment distribution of these species, and near with 50 CFR 424.17, the Service is letters on the proposed rule. In the homes of citizens requesting required to publish a final accordance with Service guidance on hearings. determination, withdrawal, or extension implementation of Public Law 104–06 Comment: Commenters stated that the within 1 year of the date of the proposed that halted work on final rules, Service, in violation of its own rule. In this case, the final rule was comment letters were filed and not read; regulations, failed to give notice to and published well over a year after the thus granting of some information consult with local authorities in the proposed rule; however, this was due in requests were delayed. However, the Republic of Mexico, on development of part to legislation preventing the Service Service did not deny any information the proposed rule and failed to notify from issuing final rules from April 10, requests, with the exception of Mexico of publication of the proposed 1995, to October 1, 1995; a near information withheld in accordance rule. cessation of listing actions from October with exemptions to disclosure under the Service Response: A letter notifying 1, 1995, to April 26, 1996, due to budget Freedom of Information Act. the Director General, Direccion General limitations. The Service disagrees that Comment: One commenter stated that de Vida Silvestre, Mexico City, Mexico this invalidates this final rule. people without proper biological of this final determination, along with a Comment: One commenter stated that training influenced the listing process, copy of the proposed rule (60 FR 16836) the Service did not provide adequate and thus the process is flawed. was sent to for review and comment. As time for the public to comment on the Service Response: The Service is of December 9, 1996, no comments were proposed rule. The Service violated the required to consider all comments and received from the Mexican government. Act and the Administrative Procedure information received regardless of the Comment: Listing of the three species Act (APA) by not providing the public extent of any biological training of the would constitute a violation of the with sufficient opportunity to comment. people submitting them. The Service National Environmental Policy Act of The Service also violated both Acts by recognizes that non-biologists may have 1969 (NEPA), because the Service did denying public access to materials upon valid comments or information that may not analyze the economic impacts of the which the proposed rule was based. One contribute to a final determination. action. Because the Service did not commenter stated that the first public However, the Service’s decision to list provide adequate notice and hearing was held in a small town these species were based only on the opportunity to the public to comment located in a different county, and far best scientific and commercial on the proposed rule, the Service must away from the major population area information available, in accordance complete an NEPA analysis to guard impacted by the proposed listing—a with 50 CFR 424.11(b). against an arbitrary and capricious transparent attempt to prevent public Comment: Several commenters stated decision. An environmental assessment awareness in the City of Sierra Vista. that the Service failed to comply with or impact statement should be Service Response: The Service is its own regulations governing public completed prior to listing. required to allow 60 days for public notification of hearings on the proposed Service Response: As discussed in the comment on proposed rules (50 CFR rule. Other commenters believed more ‘‘National Environmental Policy Act’’ 424.16(c)(2)). Three comment periods public hearings were necessary and that section in this rule, the Service has were provided on the proposed rule, public meetings on the proposed rule determined that neither environmental 680 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations assessments nor environmental impact Comment: One commenter believed date from at least 31,000 years ago statements need to be prepared for the Service violated Section 4(b)(1)(A) (Jones et al. 1995). Additional proposed or final listing actions. of the Act. This commenter stated that Ambystoma tigrinum fossils dating from Comment: The Act is expired and we misrepresented the known the late Pliocene, more than 2 million thus these species should not be listed. requirements of the salamander, years ago, have been found in the San Service Response: No laws or therefore, violating the Act. This Pedro River Valley, east of the regulations limit the duration of the commenter said our discussion of the Huachuca Mountains (Brattstrom 1955). Act’s provisions. Section 15(a) of the threats of rural and urban development, Hybridization is an important Act authorizes appropriations for road building, chaining, agriculture, evolutionary process from which new implementation only through fiscal year mining, and other watershed degrading taxa can arise (Harlan 1983, review in 1992, but Congress has appropriated activities to Lilaeopsis was speculation Jones et al. 1995). The Sonora tiger funds in each fiscal year since 1992 to and a violation of the Act. salamander likely resulted from a fund activities such as this final rule. Service Response: Habitat and other hybridization between the subspecies Comment: De facto division of species requirements of the Sonora tiger mavortium and nebulosum. The latter into separate populations at the salamander presented here and in the no longer occurs in southeastern international border is unsupported by proposed rule were based on the best Arizona; its range has shifted to the either biology or the Act, and runs scientific and commercial information north, an event that likely occurred counter to the 1984 Agreement of available. during climatic and vegetational shifts Cooperation of Wildlife between Mexico Comment: One commenter questioned during the Pleistocene (Jones et al. and the Service. whether persons conducting studies on 1995). The absence of this ancestral these species had landowner permission Service Response: The Service has not subspecies in southeastern Arizona is to access sites. This commenter also attempted to split species into separate further evidence that the Sonora tiger questioned whether landowners had populations with the international salamander originated long before been given information on what work boundary as a dividing line. Each historical times. Because stock tanks are was being done and the reasons behind species or subspecies is being listed a recent phenomenon, Sonora tiger the research. throughout its range. The term salamanders must have occupied other Service Response: Surveys and ‘‘population’’ is used in this rule only as habitats at one time. Throughout its studies on these species were conducted a term of convenience when referring to range, Ambystoma tigrinum breeds in by many individuals over many years. a particular part of a taxon’s range. various types of wetlands, including The Service used the results from those ponds, lakes, slow streams, and Comment: One commenter stated that studies, but the Service has no control the notice was irretrievably flawed on a backwaters (Bishop 1943). Habitats such over the conduct of independent as these were present in the San Rafael legal and technical basis by its use of an researchers, and thus we cannot answer obsolete address to which comments Valley during presettlement times in the this question definitively. Nearly all form of cienegas and streams. Although and requests for public hearings on the survey work for these species conducted proposed rule were to be sent. no Sonora tiger salamanders have been by Service personnel has focused on collected from cienegas or streams (with Additionally, this commenter stated that Federal lands. The few surveys comments and materials received were the possible exception of the specimen conducted by the Service on private from Los Fresnos, Sonora), these not available for public inspection at the lands were with the permission of the old address; therefore, the Service must, wetlands are the most likely landowner. presettlement breeding habitats of the by law, withdraw the proposed rule. Comment: One commenter stated that salamander. Service Response: Between the time the listing of these three species would the proposed rule was prepared and its violate State water law. There is no evidence that supports the publication, the Service moved its office Service Response: The listing of these commenter’s claim that Lilaeopsis and location within Phoenix, Arizona. The species does not restrict groundwater Spiranthes are recent introductions by proposed rule listed the old address and pumping or water diversions, or usurp humans into the San Rafael Valley. facsimile number and the correct water rights, or violate State water law. Lilaeopsis has been noted from sites telephone number. The Service received Issue 8: The Sonora tiger salamander within the Santa Cruz, San Pedro, Rio some comment letters mailed to the old is a hybrid organism and all three Yaqui, and Rio Sonora watersheds. address, indicating that the Post Office species are recent introductions to the Lilaeopsis was first described based on was forwarding the mail. A recorded San Rafael Valley, and as such should a specimen collected near Tucson in phone message at the old phone number not be considered for listing. 1881 (Hill 1926). There is no indication also informed callers of the new number Comment: The species are not native that this inconspicuous plant was in the event the old office was but were introduced within the last 300 introduced by humans. Spiranthes was contacted. The Service is unaware of years. One commenter stated the not discovered until 1968; however, any comment letters, requests for salamander was introduced into the San evidence suggests this species has a hearings, or requests to inspect records Rafael Valley earlier in this century and unique evolutionary history associated that were returned to the sender, or that there is no verifiable evidence that with the San Rafael Valley and may telephone callers that were not informed it ever occurred in any significance in have arose through hybridization of our new number. In Federal Register cienegas. Stock tanks are the natural between Spiranthes vernalis (a species notices announcing subsequent habitat of the salamander. One of the southern Great Plains) and either comment periods, from June 24 to July commenter stated that the Sonora tiger Spiranthes porrifolia (a California- 25, 1995, and September 12 to October salamander was introduced for use as Northern Cordilleran species) or 27, 1995, the correct address and phone fish bait. Spiranthes romanzoffiana (a species of numbers were published. The Service Service Response: All evidence high elevations in northern Arizona, the thus believes the public was provided suggests the species have occurred southern Rockies, and Pleistocene relict adequate opportunity to provide within their present ranges for much habitats in the Pinalenos (Sheviak 1990, comment on the proposed rule and longer than 300 years. Fossil Jones et al. 1995; Charles Sheviak, in inspect supporting information. Ambystoma found in the Canelo Hills litt. 1995)). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 681

Issue 9: Experts on Lilaeopsis and the salamander; and is not expected to of the effects of groundwater pumping Sonora tiger salamander believe these affect any habitat critical to the survival on San Pedro River flows depends on species do not warrant listing. of the umbel for several decades; (2) development and implementation of the Comment: Several commenters stated Sierra Vista has determined that effluent recharge program as outlined in that experts on the Sonora tiger recharging the City’s sewage effluent ASL (1995) for at least 100 years. ASL salamander (Dr. James Collins) and can protect the San Pedro River from (1995) notes that questions remain Lilaeopsis (Dr. Peter Warren) do not adverse effects caused by groundwater before the feasibility of long-term believe these species should be listed. pumping to support expected growth of recharge can be assessed. Also, we are Mexico also disagrees with the proposed the City and Fort Huachuca for at least unaware of any long-term funding endangered status. This expert 100 years, and probably much longer; commitments to operate such a testimony should convince the Service (3) Sierra Vista is actively pursuing program. Finally, the cone of depression not to list these species, or the Service projects to recharge its sewage effluent under Sierra Vista/Fort Huachuca should publish a notice in the Federal and increase floodwater recharge. Fort continues to grow in all scenarios. The Register extending the listing process to Huachuca also is actively working to Service is concerned that as it grows, resolve differences among experts in recharge effluent and increase the cone will in time (perhaps more regard to the status of these species. floodwater recharge. Both the City and than 100 years) capture the effluent Service Response: The Service Fort Huachuca are making real efforts to recharge and then the river itself, unless discussed the listing of the salamander protect the San Pedro River riparian water recharge is balanced with use. with Dr. Collins in October, 1996, and habitat and the species that live there; With regard to item 4, and as discussed asked him to clarify his position. Dr. and (4) the growth and development of in the ‘‘Summary of Factors Affecting Collins has found that the status of the Sierra Vista, including Fort Huachuca, the Species’’ section growth and salamander has been stable from the does not pose any immediate threat to development at Sierra Vista and Fort mid 1980’s to the present, based on any critical habitat or endangered Huachuca, particularly groundwater numbers of occupied breeding sites. species currently under consideration, pumping, but other activities as well, However, he believed that continued and it is anticipated that action will be potentially threaten Lilaeopsis. In spread of nonnative predators, presence taken by both entities to eliminate any addition, activities at Fort Huachuca of a reoccurring, lethal disease, and such threat before it occurs.’’ could potentially affect Sonora tiger other factors warrant concern and that Service Response: Information in the salamander and Lilaeopsis populations some conservation measures are needed. ‘‘Summary of Factors Affecting the on the Fort. As of this writing, the The Service has discussed the Species Section’’ has been revised based Service is in informal conferencing with statements attributed to Dr. Warren with on new information in regard to the Fort Huachuca with regard to him. Dr. Warren has worked towards effects of groundwater pumping in and implementation of their Master Plan and developing and implementing near Sierra Vista, and efforts by Sierra possible effects to Lilaeopsis and the conservation measures in order to Vista and Fort Huachuca to conserve salamander. The Service’s opinion on provide for the recovery of Lilaeopsis or water, recharge effluent, and implement the Master Plan will be based on the possibly preclude its listing. As a staff other measures to reduce the potential effects of current and planned activities member of The Nature Conservancy effects of their activities on the San at Fort Huachuca on Lilaeopsis, the (TNC), neither Dr. Warren nor TNC has Pedro River and habitat of Lilaeopsis. salamander, and other listed species. taken an official stand in support or The Service has determined that opposition to the listing of Lilaeopsis designation of critical habitat for these Summary of Factors Affecting the (Peter Warren, Arizona Nature three species is not prudent. For Species Conservancy, pers. comm. 1996). discussion relating to critical habitat After a thorough review and The Mexican government has not (Item 1), see the ‘‘Critical Habitat’’ consideration of all information taken or expressed an official position section of this rule. The Service concurs available, the Service has determined regarding listings of these three species. with item 3, but cannot concur with that Spiranthes delitescens, Lilaeopsis As stated previously, the Service has not portions of items 2 and 4. In regard to schaffneriana spp. recurva, and the received comments from Mexico. item 2, ASL (1995) found that if effluent Sonora tiger salamander should be Mexico considers the tiger salamander, is recharged adjacent to the San Pedro classified as endangered species. Ambystoma tigrinum, a species of River or at the Sierra Vista wastewater Procedures found at section 4(a)(1) of special protection. treatment plan, flows would be the Act and regulations implementing Issue 10: Current actions of the City maintained or increased on the San the listing provisions of the Act (50 CFR of Sierra Vista and Fort Huachuca do Pedro River from Lewis Springs to Part 424) were followed. A species may not affect the species, and planned Charleston Bridge (downslope and be determined to be an endangered or actions are not expected to affect the downstream of the recharge areas, threatened species due to one or more salamander or Spiranthes. Habitat of respectively) for at least 100 years. of the five factors described in section Lilaeopsis would not be affected for However, in all scenarios modeled by 4(a)(1). These factors and their several decades. ASL, river flow declined between application to Spiranthes delitescens Comment: The Director of Public Palominas and Lewis Spring. Sheviak (Canelo Hills ladies’-tresses), Works for the City of Sierra Vista Furthermore, the model assumed that Lilaeopsis schaffneriana spp. recurva requested that the following information water demands outside of Sierra Vista (A.W. Hill) Affolter (Huachuca water be included in the Federal Register to are held at 1995 levels, which is highly umbel), and the Sonora tiger salamander correct the proposed rule—‘‘(1) unlikely. With increasing water (Ambystoma tigrinum stebbinsi) are as Groundwater use by Sierra Vista and demands throughout the subwatershed, follows: Fort Huachuca currently is not river flows between Palominas and endangering any habitat critical to the Lewis Spring will decline more than A. The Present or Threatened survival of the umbel, lily, salamander, indicated by ASL’s results, and flows Destruction, Modification, or or any other listed or proposed species; between Lewis Spring and Charleston Curtailment of its Habitat or Range is not expected to ever affect any habitat Bridge also may decline under any Human activities have affected critical to the survival of the lily or the recharge scenario. Effective mitigation southwestern riparian systems over a 682 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations period of several thousand years. From became highly localized (Hadley and 1995, Water and Environmental Systems prehistoric times, settlements in Sheridan 1995). Although these events Technology, Inc. 1994). southern Arizona centered on oasis-like took place nearly a century ago, the Such measures are being developed cienegas, streams, and rivers. Prior to ecosystem has not yet fully recovered and implemented, including the early 1800’s, indigenous peoples and, in some areas, may never recover. development of a Surface Water Plan and missionaries used southern Arizona Wetland degradation and loss and Effluent Recharge Plan, and cienegas and riparian areas mostly for continues today. Human activities such adoption of water conservation subsistence purposes, including wood- as groundwater overdrafts, surface water measures by the City of Sierra Vista; and cutting, agriculture (including livestock diversions, impoundments, implementation of water conservation grazing), and food and fiber harvesting. channelization, improper livestock measures, enhancement of mountain In the early 1800’s, fur trappers nearly grazing, agriculture, mining, road front recharge, effluent recharge, and eliminated beaver from southern building, nonnative species other actions by Fort Huachuca (ASL Arizona streams and rivers (Davis 1986), introductions, urbanization, wood 1995, Fort Huachuca 1995). However, significantly changing stream cutting, and recreation all contribute to these measures may not be adequate to morphology. In addition, human-caused riparian and cienega habitat loss and balance use with recharge, halt the fire and trails may have significantly degradation in southern Arizona. The eventual interception of the river by altered riparian systems (Bahre 1991, local and regional effects of these cones of depression, and ultimately, Dobyns 1981). Hadley and Sheridan activities are expected to increase with maintain baseflow throughout the upper (1995) suggest that use of fire by native the increasing human population. Each San Pedro River (Water and Americans may have helped maintain threat is discussed in more detail below. Environmental Systems Technology, grassland communities in the San Rafael The largest area currently available for Inc. 1994, ASL 1995). If baseflow in the Valley, a practice which undoubtedly recovery of Lilaeopsis is the San Pedro river decreases, a desertification of the affected riparian and cienega habitats, as River along the perennial reach from riparian flora will occur (Stromberg et well. Hereford to about 4 miles north of al. 1996). If the groundwater drops below the elevation of the channel bed, European settlement of southern Charleston. Whether or not the species Arizona and northern Sonora probably the wetland plant (herb) association can recover there depends largely on did not begin to significantly affect where Lilaeopsis is found will be the future perennial surface flows in the natural communities until the late first plant association to be lost (Arizona river and a natural, unregulated 1600’s or early 1700’s when cattle were Department of Water Resources 1994, hydrograph. Perennial flow in the upper introduced (Hadley and Sheridan 1995). Stromberg et al. 1996). San Pedro River is derived from However, resistance by Apaches and Fort Huachuca also relies on a well precipitation runoff and interflow other tribes discouraged settlement until and springs in Garden Canyon (Arizona through the unsaturated soil horizon, the early to mid-1800’s, after which Department of Water Resources 1991). and baseflow in the form of human populations and associated These diversions and pumping could groundwater flow from deep regional livestock production and agriculture dewater the stream and damage or increased significantly. By the late aquifers and a shallower floodplain destroy the Lilaeopsis population in the 1800’s, many southern Arizona aquifer (Arizona Department of Water canyon, particularly during below- watersheds were in poor condition due Resources 1991, Arizona Department of average rainfall periods. The City of to uncontrolled livestock grazing, Water Resources 1994, ASL 1994, Sierra Vista is exploring means for mining, hay harvesting, timber Jackson et al. 1987, Vionnet and implementing conservation and habitat harvesting, and other management Maddock 1992). restoration actions for Lilaeopsis and practices, such as fire suppression Groundwater pumping has increased other rare plants. (Martin 1975, Bahre 1991, Humphrey dramatically since the early 1960’s (ASL Perennial flows in certain reaches of 1958, Hadley and Sheridan 1995). 1994). Annual water use exceeds the Santa Cruz River remained Watershed degradation caused by supplies by approximately 11,200 acre- perennial until groundwater pumping these management practices led to feet and has resulted in cones of caused the water table to drop below the widespread erosion and channel depression in the aquifer at areas with streambed. In 1908, the water table near entrenchment when above-average significant groundwater pumping. These Tucson was above the streambed, but precipitation and flooding occurred in areas include Sierra Vista and Fort from 1940–1969, the water table was the late 1800’s (Bahre 1991, Bryan 1925, Huachuca, Huachuca City, and the 6.0–21.0 m (20–70 feet) below the Dobyns 1981, Hastings and Turner 1980, Hereford-Palominas areas (Water and streambed (De la Torre 1970). Recovery Hendrickson and Minckley 1984, Martin Environmental Systems Technology, of perennial flow in the Santa Cruz 1975, Sheridan 1986, Webb and Inc. 1994). Although the relationships River and of Lilaeopsis near Tucson is Betancourt 1992). These events between groundwater pumping and unlikely, given the importance of contributed to long-term or permanent river flow are complicated, continued groundwater for the metropolitan area. degradation and loss of cienega and unmitigated groundwater withdrawal Groundwater pumping in Mexico riparian habitat throughout southern threatens to reduce or eliminate threatens populations of Lilaeopsis on Arizona and northern Mexico. Physical baseflows in the San Pedro River both sides of the border. South of the evidence of losses and changes in (Arizona Department of Water San Bernardino National Wildlife cienegas and other riparian areas can be Resources 1991, ASL 1995, Water and Refuge, groundwater is being pumped to found in the black organic soils of cut Environmental Systems Technology, irrigate farmlands in Mexico, and this banks in the San Rafael Valley Inc. 1994). A reduction in baseflow as pumping threatens to dry up the springs (Hendrickson and Minckley 1984), San a result of groundwater pumping in the and streams that support several listed Pedro River (Hereford 1992), Black Sierra Vista-Fort Huachuca area could endangered fish and a population of Draw (Sue Rutman, Organ Pipe National occur within 25 years, but such effects Lilaeopsis. The large copper mine at Monument, pers. comm. 1992), and could be reduced by water conservation, Cananea, Sonora, pumps groundwater elsewhere. Between the 1860’s and mid- watershed management, effluent for processing and support services. 1890’s, the lush grasslands and cienegas recharge or other measures to reduce Although little is known about how of San Rafael Valley disappeared or water use or increase recharge (ASL groundwater pumping near Cananea Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 683 may affect the spring at Ojo de Agua de diversity, causing a decline in but these were abandoned when the Cananea, it is likely that overdrafts watershed condition. Poor livestock Service acquired the area as a refuge. would decrease springflow or dewater grazing management is widely believed The fields are returning to natural the spring, extirpating the Lilaeopsis to be one of the most significant factors vegetation. The San Rafael Valley, population. The spring at Ojo de Agua contributing to regional channel which contains portions of the de Cananea is also the main source of entrenchment in the late 1800’s. headwaters of the Santa Cruz and San municipal water for the town of Livestock management in Mexico has Pedro rivers, is well-managed, and Cananea. This water diversion, severely degraded riparian areas along currently undeveloped, with few particularly if increased, may adversely Black Draw and its watershed. The watershed-disturbing activities. affect Lilaeopsis. In the past, large degraded habitat most likely contributed However, there is potential for contaminant spills from the mine have to the severity of a destructive scouring commercial development in the San occurred, resulting in fish kills for many flood on San Bernardino Creek in 1988, Rafael Valley and resulting watershed miles of the San Pedro River in Mexico which extirpated two patches of effects. and the United States. The effects of Lilaeopsis. Overgrazing is occurring Riparian areas and cienegas offer such spills on Lilaeopsis are unknown, immediately adjacent to the San oasis-like living and recreational but could be detrimental. Bernardino National Wildlife Refuge opportunities for residents of southern Reaches of many southern Arizona and has destabilized the channel of Arizona and northern Sonora. Riparian rivers and streams have been Black Draw. A headcut moving areas and cienegas such as Sonoita channelized for flood control purposes, upstream threatens to undermine the Creek, the San Pedro River, Canelo Hills which disrupts natural channel riparian area recovery that has occurred cienega, and the perennial creeks of the dynamics and promotes the loss of since the refuge was acquired. The Huachuca Mountains receive substantial riparian plant communities. refuge is implementing management to recreational visitation, and this is Channelization modifies the natural avoid the destructive effects of expected to increase with an increasing hydrograph above and below the downstream grazing. southern Arizona population. While channelized reach, which may Sand and gravel mining along the San well-managed recreational activity is Pedro, Babacomari, and Santa Cruz adversely affect Lilaeopsis and unlikely to extirpate Spiranthes or rivers in the United States has occurred Spiranthes. Channelization will Lilaeopsis populations, severe impacts and probably will continue, although no continue to contribute to riparian in unmanaged areas can compact soils, mining occurs within the San Pedro habitat decline. Additional destabilize stream banks, and decrease Riparian National Conservation Area. channelization will accelerate the loss riparian plant density, including Sand and gravel operations remove and/or degradation of Spiranthes and densities of Spiranthes and Lilaeopsis. Lilaeopsis habitat. Dredging extirpated riparian vegetation and destabilize the Stream headcutting threatens the Lilaeopsis at House Pond, near the system, which could cause Spiranthes Lilaeopsis and presumed Sonora tiger extant population in Black Draw or Lilaeopsis population and habitat salamander populations at Los Fresnos (Warren et al. 1991). The Lilaeopsis losses upstream or downstream from the population at Zinn Pond in St. David mining. These mines also pump cienega in Sonora. Erosion is occurring near the San Pedro River was probably groundwater for processing purposes, in Arroyo Los Fresnos downstream from lost when the pond was dredged and and could locally affect groundwater the cienega and the headcut is moving deepened. This population was last reserves and perennial stream baseflow. upstream. The causes of this erosion are documented in 1953 (Warren et al. Since 1983, groundwater has been used uncertain, but are presumably livestock 1991). to wash sand and gravel mined near the grazing and roads in this sparsely Livestock grazing potentially affects Babacomari River, 0.8 km (0.5 mi) west populated region. If the causes of this Lilaeopsis at the ecosystem, community, of Highway 90 (Arizona Department of erosion are left unchecked and population, and individual levels. Cattle Water Resources 1991). This activity headcutting continues, it is likely that generally do not eat Lilaeopsis because could affect at least one Spiranthes the cienega habitat will be lost within the leaves are too close to the ground, population. the foreseeable future. The loss of Los but they can trample plants. Lilaeopsis Rural and urban development, road Fresnos cienega may extirpate the is capable of rapidly expanding in building and maintenance, agriculture, Lilaeopsis and tiger salamander disturbed sites and could recover mining, and other land disturbances populations. If the salamanders at the quickly from light trampling by that degrade watersheds can adversely Los Fresnos cienega are Sonora tiger extending undisturbed rhizomes affect Lilaeopsis. These activities are salamanders, this would represent the (Warren et al. 1991). Light trampling common in the middle Santa Cruz basin only known natural cienega habitat also may keep other plant density low, but much less prevalent in the San occupied by an aquatic population of providing favorable Lilaeopsis Pedro basin. For these reasons, this species. microsites. Well-managed livestock conservation and recovery of the middle All confirmed Sonora tiger grazing and Lilaeopsis are compatible. Santa Cruz River is unlikely but still salamander populations have been The fact that Lilaeopsis and its habitat possible in the upper San Pedro found in stock tanks or impounded occur in the upper Santa Cruz and San watershed, given region-wide planning cienegas constructed to collect runoff Pedro river systems in the San Rafael decisions favorable to good watershed for livestock. Many tanks probably date Valley attests to the good land management. Increased development in from the 1920’s and 1930’s when stewardship of past and current the upper San Pedro Valley, including government subsidies were available to landowners. the expansion of existing cities and offset construction costs (Brown 1985); Poor livestock grazing management increased rural building, will likely however, some tanks were constructed can destabilize stream channels and increase erosion and have other as early as the 1820’s and as late as the disturb cienega soils, creating detrimental watershed effects. 1960’s (Hadley and Sheridan 1995). conditions unfavorable to Lilaeopsis, Watershed-level disturbances are few These stock tanks, to some degree, have which requires stable stream channels in the upper Santa Cruz and Black Draw created and replaced permanent or and cienegas. Such management can drainages. Irrigated farm fields were semipermanent Sonora tiger salamander also change riparian structure and present in the Black Draw watershed, water sources. 684 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Although the tanks provide suitable collecting is likely to occur but is not been found during the last three aquatic habitats, current management expected to pose no threat to the visits. The effect of native fishes on and the dynamic nature of these species. salamander populations is unknown artificial impoundments compromise Although no specific cases of illegal (Collins et al. 1988), some native species their ability to support salamander commercial Spiranthes delitescens have a potential to prey on Sonora tiger populations in the long term. The tanks collecting have been documented, salamanders. No native fish are known collect silt from upstream drainages and commercial dealers, hobbyists, and to occur with aquatic populations of must be cleaned out periodically, other collectors are widely known to salamanders. typically with heavy equipment. This significantly threaten natural orchid Bullfrogs occur with Sonora tiger maintenance is done when stock tanks populations. The commercial value of salamanders at 16 of 23 sites at which are dry or nearly dry, at an average an orchid already threatened by illegal salamanders have been found during interval of about 15 years (Laura Dupee, commercial collection may increase one or more of the last three visits from Coronado National Forest, pers. comm. after it is listed as threatened or 1993 through 1996. Adult bullfrogs are 1993). As the tanks dry out, a proportion endangered. To limit the possible known to prey on salamanders; of aquatic salamanders typically adverse effects of illegal collecting, no however, bullfrog tadpoles do not eat metamorphose and migrate from the specific Spiranthes population locations viable salamander eggs or hatchlings pond. However, if water is present are discussed in this rule, nor will (Collins 1996; James Collins, pers. during maintenance, eggs, branchiate, critical habitat be designated. No comm. 1996). Bullfrogs were found to be and larval salamanders may be present recreational or educational uses for more widely distributed in the San and would be lost as a result of the Spiranthes currently are known. The Rafael Valley in the 1990’s as compared excavation of remaining aquatic habitat. small amount of legitimate scientific to 1985 (Collins 1996). The effect of Aquatic salamanders also may occur in collecting that has occurred was predation by bullfrogs on salamander the mud of dry or nearly dry tanks and regulated by the Arizona Native Plant populations is unknown; however, would be affected. Any terrestrial Law (A.R.S. Chapter 7, Article 1). increased mortality attributable to metamorphs at the tank or in areas Collecting of Ambystoma in the San bullfrog predation may reduce disturbed would be lost during Rafael Valley of Arizona is prohibited population viability. maintenance activities. by Arizona Game and Fish Commission Virtually no recruitment was noted in Flooding and drought pose additional Order 41. Collins and Jones (1987) recent surveys, as evidenced by a lack threats to stock tank populations of reported an illegal Ambystoma of surviving larvae in tanks where eggs Sonora tiger salamanders. The tanks are collection from the San Rafael Valley were known to have been deposited simple earthen impoundments without and suspected that bait collectors and (Collins 1996). Lack of recruitment water control structures. Flooding could anglers often move salamanders among appeared to be a result of predation by erode and breach downstream berms or stock tanks. The extent of this activity overwintering branchiate and larval deposit silt, resulting in a loss of aquatic and its threat to populations is salamanders. This predation may occur habitat. Long-term drought could dry up unknown. However, all Sonora tiger due to a lack of structural complexity, stock tanks, as witnessed in 1994 and salamanders populations are relatively such as emergent and shoreline 1996. Fires in watersheds above the small (Collins and Jones 1987, Collins vegetation, logs, and rocks, that would tanks may lead to increased erosion and 1996). Collecting may significantly provide cover and protection from sedimentation following storms and reduce recruitment, the size of predation (Collins 1996). Lack of exacerbate the effects of flooding. branchiate or larval populations, and shoreline and emergent vegetation is at Sonora tiger salamanders have genetic diversity within a tank. This least partially due to trampling and persisted in stock tanks despite periodic may increase the likelihood of foraging by cattle. maintenance, flooding, and drought. If extirpations. A disease characterized by sloughing the tanks refill soon after drought or of skin and hemorrhaging killed all C. Disease or Predation other events that result in loss of aquatic branchiate salamanders at Huachuca habitat, they could presumably be Neither the Lilaeopsis nor Spiranthes Tank, Parker Canyon Tank #1, and Inez recolonized through terrestrial are known to be threatened by disease Tank in 1985 (Collins et al. 1988) and metamorph reproduction. However, if a or predation. has been detected at seven tanks in tank was dry for several years and Sonora tiger salamanders populations 1995–1996 (James Collins, pers. comm. isolated from other salamander are eliminated by nonnative fish 1996). The disease may be caused by a localities, insufficient terrestrial predation, particularly sunfish and combination of a virus and Aeromonas salamanders may remain and catfish (Collins and Jones 1987, Collins (a bacteria) infections (James Collins, immigration from other populations 1996). In laboratory studies, bullhead, pers. comm. 1996). Parker Canyon Tank may be inadequate to recolonize the mosquito fish, and sunfish ate Sonora #1 and Inez Tank were recolonized by stock tank. Potential grazing practice tiger salamander eggs, hatchlings, and 1987, and salamanders were found once changes also threaten aquatic Sonora small larvae (Collins 1996). Introduced again at Huachuca Tank in 1994. These tiger salamander populations. Stock nonnative fish are well-established in tanks were presumably recolonized by tanks could be abandoned or replaced the San Rafael Valley and have been reproducing terrestrial metamorphs that by other watering facilities, such as implicated in apparent Sonora tiger survived the disease or that moved to troughs supplied by windmills or salamander extirpations from five stock these tanks from adjacent populations. pipelines. Troughs do not provide tanks, including the type locality At the seven tanks where the disease habitat for Sonora tiger salamanders. (Collins et al. 1988, Collins 1996). was found in 1995–1996, the effects on Nonnative fish are known to occur at the populations will not be known until B. Overutilization for Commercial, only one of 23 sites where salamanders the disease runs its course. If the disease Recreational, Scientific, or Educational have been found during one or more of recurs with enough frequency, Purposes the last three visits from 1993 through populations could be lost due to lack of No commercial, recreational, or 1996. However, nonnative fish occur at recruitment of juveniles into the adult educational uses of Lilaeopsis are 7 of 10 sites where the salamander is cohort. The disease also has the known. A limited amount of scientific thought to be extirpated or where it has potential to reduce genetic variability, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 685 which is already very low in this taxon Management Act of 1976 (16 U.S.C. require ecosystem-level management (Jones et al. 1995). Low genetic 1600 et seq.) direct the Bureau of Land that in some cases is beyond Forest variability increases the chances of Management and the U.S. Forest Service Service control. population extirpation (Shafer 1990). respectively, to prepare programmatic- In accordance with Army Regulation Bullfrogs, wading birds, waterfowl, and level management plans that will guide 200–3, Fort Huachuca is preparing an other animals that move among tanks long-term resource management Integrated Natural Resources may facilitate spread of the disease. decisions. The goals of the Coronado Management Plan that will require National Forest Plan (Plan) include a preparation of Endangered Species D. The Inadequacy of Existing commitment to maintain viable Management Plans (ESMPs) for all listed Regulatory Mechanisms populations of all native wildlife, fish, and proposed species and critical Federal and state laws and regulations and plant species within the Forest’s habitat (Sheridan Stone, Fort Huachuca, can protect these three species and their jurisdiction through improved habitat pers. comm. 1996). The ESMPs are habitat to some extent. However, management (Coronado National Forest expected to provide management Federal and state agency discretion 1986a). The Plan provides a list of rare recommendations for conservation of allowed under the authority of these plants and animals found on the Forest, Sonora tiger salamander and Lilaeopsis laws still permits adverse effects to but gives only a very general description populations and habitat at Fort listed and rare species. Adding of programmatic-level management Huachuca. An ESMP is being prepared Lilaeopsis, Spiranthes, and the Sonora guidelines and expected effort for the Fort Huachuca Sonora tiger tiger salamander to the endangered (Coronado National Forest 1986a). The salamander population. Although species list will help to reduce adverse Coronado National Forest is committed salamanders are known from only a affects to these species. to multiple use and, where the demands single site at Fort Huachuca, the ESMP Lilaeopsis and Spiranthes are not of various interest groups conflict, the is expected to have recommendations classified as rare, threatened, or Forest must make decisions that that could be extended to other endangered species by the Mexican represent compromises among these populations. government; nor do their habitats interests (Coronado National Forest The National Environmental Policy receive special protection in Mexico. 1986b) which could result in adverse Act of 1969 (NEPA) (42 U.S.C. 4321– However, Ambystoma tigrinum, effects to listed species. 4370a) requires Federal agencies to including the Sonora tiger salamander, The Plan’s endangered species consider the environmental impacts of is a species of special protection. This program includes participation in their actions. NEPA requires Federal designation affords certain protections reaching recovery plan objectives for agencies to describe a proposed action, to the species and its habitat (Secretario listed species, habitat coordination and consider alternatives, identify and de Desarrollo Urbano y Ecologia 1994). surveys for listed species, and habitat disclose potential environmental On July 1, 1975, all species in the improvement (Coronado National Forest impacts of each alternative, and involve Orchid family (including Spiranthes 1986b). After acknowledging budget the public in the decision-making delitescens) were included in Appendix constraints, the Plan states that studies process. It does not require Federal II of the Convention on International of endangered plants will occur at agencies to select the alternative having Trade in Endangered Species of Wild approximately the 1980 funding level. the least significant environmental Fauna and Flora (CITES). CITES is an Three populations of Lilaeopsis and impacts. A Federal action agency may international treaty established to four individual Spiranthes are known to decide to choose an action that will prevent international trade that may be occur on the Coronado National Forest. adversely affect listed or candidate detrimental to the survival of plants and The Forest also manages the habitat of species provided these effects were animals. A CITES export permit must be 17 of the 23 aquatic sites at which known and identified in a NEPA issued by the exporting country before Sonora tiger salamanders have been document. an Appendix II species may be shipped. observed during one or more of the last All three species addressed in this CITES permits may not be issued if the three visits during 1993 through 1996. rule inhabit wetlands that are afforded export will be detrimental to the Twenty-six of the 36 aquatic sites at varying protection under section 404 of survival of the species or if the which salamanders have been found are the Federal Water Pollution Control Act specimens were not legally acquired. on Coronado National Forest land, of 1948 (33 U.S.C. 1251–1376), as However, CITES does not regulate take underscoring the importance of Forest amended; and Federal Executive Orders or domestic trade. CITES provides no Service management. However, these 11988 (Floodplain Management) and protection to Lilaeopsis or the Sonora numbers are somewhat misleading in 11990 (Protection of Wetlands). tiger salamander. that salamander surveys have focused Cumulatively, these Federal regulations The Lacey Act (16 U.S.C 3371 et seq.), on National Forest lands. Other aquatic are not sufficient to halt population as amended in 1982, provides limited sites likely occur on private lands, extirpation and habitat losses for the protection for these three species. Under which to date have not been intensively three species addressed in this rule. the Lacey Act it is prohibited to import, surveyed. Nevertheless, the Coronado The Arizona Native Plant Law (A.R.S. export, sell, receive, acquire, purchase, National Forest is the most important Chapter 7, Article 1) protects Spiranthes or engage in the interstate or foreign land manager of aquatic sites known to delitescens and Lilaeopsis schaffneriana commerce of any species taken, be occupied by Sonora tiger ssp. recurva as highly safeguarded possessed, or sold in violation of any salamanders. The Forest considers the species. A permit from the Arizona law, treaty, or regulation of the United salamander a sensitive species and a Department of Agriculture (ADA) must States, any Tribal law, or any law or management indicator species, which be obtained to legally collect these regulation of any state. Interstate receive special consideration in land species on public or private lands in transport of protected species occurs management decisions (Coronado Arizona. Permits may be issued for despite the Lacey Act because National Forest 1986a). The ability of scientific and educational purposes enforcement is difficult. the Forest Service to manage the three only. It is unlawful to destroy, dig up, The Federal Land Policy and species addressed here is limited mutilate, collect, cut, harvest, or take Management Act of 1976 (FLPMA) (43 because many of the populations do not any living, ‘‘highly safeguarded,’’ native U.S.C. 1701 et seq.) and National Forest occur on Forest Service lands and/or plant from private, State, or Federal 686 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations land without a permit. However, private bullfrogs, which might reduce or of particular concern for Sonora tiger landowners and Federal and State extirpate populations. salamander populations inhabiting agencies may clear land and destroy Transport and introduction of stock tanks that could wash out during habitat after giving the ADA sufficient salamanders poses an additional threat. a storm or dry out during drought. notice to allow plant salvage. Despite Ambystoma tigrinum mavortium is Furthermore, Sonora tiger salamander the protections of the Arizona Native common in stock tanks and ponds to the genetic heterozygosity is among the Plant Law, legal and illegal damage and east of the San Rafael Valley. Bait lowest reported for any salamander destruction of plants and habitat occur. dealers and anglers probably introduced (Jones et al. 1988, Jones et al. 1995). Collecting Ambystoma in the San many of these populations (Collins Low heterozygosity indicates low Rafael Valley is prohibited under 1981, Collins and Jones 1987). If genetic variation, which increases Arizona Game and Fish Commission Ambystoma tigrinum mavortium is demographic variability and the chance Order 41, except under special permit. introduced into Sonora tiger salamander of local extirpations (Shafer 1990). Nevertheless, some illegal collecting localities, populations could be lost due The ability of Sonora tiger occurs (Collins and Jones 1987). The to genetic swamping by interbreeding of salamanders to move between species is considered a species of the two subspecies. populations is unknown, but arid special concern by the State of Arizona Two populations of Lilaeopsis have grassland, savanna, or pine-oak (Arizona Game and Fish Department been lost from unknown causes. Despite woodland separate all populations and 1996); however, this designation affords the presence of apparently suitable movement through these relatively dry the species and its habitat no legal conditions, the species has not been landscapes is probably limited. protection. Transport and stocking of observed at Monkey Spring near Sonoita Movement would be most likely during live bullfrogs and fishing with live bait Creek since 1965. Lilaeopsis was storms or where wet drainages are collected in 1958 in deep water along fish or Ambystoma within the range of available as movement corridors. The the San Pedro River by Highway 80 near this salamander in Arizona is prohibited distance between aquatic populations of St. David, but no longer exists there, nor by Arizona Game and Fish Commission Sonora tiger salamander is frequently is there now suitable habitat (Warren et Order 41 and R12–4–316, respectively. more than 1.6 km (1.0 mi), and much al. 1990). However, bullfrogs and nonnative fish greater distances separate several sites. Aggressive nonnative plants disrupt For instance, Game and Fish Tank is are present at numerous extant and native riparian plant communities. historical Sonora tiger salamander 10.1 km (6.3 mi) from the nearest Nonnative Johnson grass (Sorghum adjacent aquatic population. Thus, even localities (Collins and Jones 1987, halepense) is invading one Spiranthes if these salamanders are capable of Collins 1996), suggesting continued site (Dave Gori, Arizona Nature moving relatively long distances, some illegal introductions. Furthermore, Conservancy, in litt. 1993). This tall populations may be effectively abandonment, modification, or grass forms a dense monoculture, geographically isolated. Small, isolated breaching of stock tanks is allowed on displacing less competitive native populations have an increased private and public lands. Such actions plants. If Johnson grass continues to probability of extirpation (Wilcox and could eliminate Sonora tiger salamander spread, the Spiranthes population may Murphy 1985). Disease, predation by populations. be lost (Dave Gori, in litt. 1993). nonnative predators, and drying of tanks State of Arizona Executive Order Bermuda grass (Cynodon dactylon) also during drought further increase the Number 89–16 (Streams and Riparian displaces native riparian plants, chance of extirpation. Once populations Resources), signed on June 10, 1989, including cottonwoods and willows that are extirpated, natural recolonization of directs state agencies to evaluate their stabilize stream channels. Bermuda these isolated habitats may not occur actions and implement changes, as grass forms a thick sod in which many (Frankel and Soule 1981). appropriate, to allow for riparian native plants are unable to establish. In The Service has carefully assessed the resources restoration. Implementation of certain microsites, Bermuda grass may best scientific and commercial this regulation may ameliorate adverse directly compete with Lilaeopsis or information available regarding the past, effects of some state actions on the Spiranthes. There are no known present, and future threats faced by species addressed in this rule. effective methods for eliminating these taxa in determining to make this E. Other Natural or Manmade Factors Bermuda grass or Johnson grass from rule final. Based on this evaluation, the Affecting Its Continued Existence natural plant communities on a long preferred action is to list Spiranthes term basis. Watercress (Rorippa delitescens, Lilaeopsis schaffneriana Arizona anglers and commercial bait nasturtium-aquaticum) is another spp. recurva, and the Sonora tiger dealers often introduce larval tiger nonnative plant now abundant along salamander as endangered. These salamanders into ponds and tanks for perennial streams in Arizona. It is species are endangered because of future bait collecting (Collins et al. successful in disturbed areas and can widespread and serious threats that may 1988, Lowe 1954). Collins and Jones form dense monocultures that can out- lead to extinction in the foreseeable (1987) reported that tiger salamanders compete Lilaeopsis populations. future. As a result, listing as threatened were illegally collected from the San Limited numbers of populations species would not fully address the Rafael Valley and transported to at least render each of the three taxa addressed extent and nature of threats to these two tanks in the northern Patagonia in this rule vulnerable to extinction as species. The Service believes Mountains. Bait dealers or others a result of naturally occurring chance designation of critical habitat is not moving Sonora tiger salamanders to new events that are often exacerbated by prudent for all three species. The localities could establish new habitat disturbance. For instance, the rationale for these decisions are populations. Collins and Jones (1987) restriction of these three species to a discussed in the following section. suggest that transport and introduction relatively small area in southeastern of salamanders within the San Rafael Arizona and adjacent Sonora increases Critical Habitat Valley may have greatly influenced their the chance that a single environmental Critical habitat is defined in section 3 present distribution. Moving could also catastrophe, such as a severe tropical of the Act as—(I) the specific areas transmit disease and cause storm or drought could eliminate within the geographic area occupied by unintentional introductions of fish or populations or cause extinction. This is a species, at the time it is listed in Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 687 accordance with the Act, on which are more vulnerable and increase on the Coronado National Forest. found those physical or biological enforcement problems. All involved Lilaeopsis and the Sonora tiger features (I) essential to the conservation parties and principal landowners are salamander also occur on Fort of the species and (II) that may require aware of the location and importance of Huachuca, managed by the Department special management considerations or protecting this species’ habitat. Habitat of the Army. In addition, Lilaeopsis protection and; (ii) specific areas protection will be addressed through the occurs on Service lands at San outside the geographic area occupied by recovery process and through the Bernardino National Wildlife Refuge a species at the time it is listed, upon section 7 provisions of the Act. and at the BLM’s San Pedro Riparian a determination that such areas are Therefore, it is not prudent to designate National Conservation Area. essential for the conservation of the critical habitat for Spiranthes Examples of Federal actions that may species. ‘‘Conservation,’’ means the use delitescens. affect the three species addressed in this of all methods and procedures needed Protection of the habitat of these rule include managing recreation, road to bring the species to the point at species will be addressed through the construction, livestock grazing, granting which listing under the Act is no longer recovery process and the section 7 rights-of-ways, stock tank development necessary. consultation process. The Service and maintenance, and military activities Section 4(a)(3) of the Act, as believes that Federal involvement in the on Fort Huachuca. These and other amended, and implementing regulations areas where these species occur can be Federal actions would require formal (50 CFR 242.12) require that, to the identified without the designation of section 7 consultation if the action maximum extent prudent and critical habitat. Therefore, the Service agency determines that the proposed determinable, the Secretary designate finds that designation of critical habitat action may affect listed species. critical habitat at the time a species is for these three species is not prudent. Development on private or State lands determined to be endangered or requiring permits from Federal agencies, Available Conservation Measures threatened. The Service finds that such as 404 permits from the U.S. Army designation of critical habitat is not Conservation measures provided to Corps of Engineers, would also be prudent for Lilaeopsis schaffneriana species listed as endangered or subject to the section 7 consultation ssp. recurva, Spiranthes delitescens, and threatened under the Endangered process. Federal actions not affecting Ambystoma tigrinum stebbinsi. Service Species Act include recognition, the species, as well as Actions that are regulations (50 CFR 424.12(a)(1)) state recovery actions, requirements for not federally funded or permitted, that designation of critical habitat is not Federal protection, and prohibitions would not require section 7 prudent when one or both of the against certain practices. Recognition consultation. following situations exist—(1) the through listing encourages and results Pursuant to 50 CFR 402.10(a), the species is threatened by taking or other in conservation actions by Federal, Coronado National Forest conferred human activity, and identification of State, and private agencies, groups, and with the Service on the effects of critical habitat can be expected to individuals. The Act provides for issuance of grazing permits in the increase the degree of such threat, or (2) possible land acquisition and Duquesne, Campini, and San Rafael such designation would not be cooperation with the states and requires allotments within the range of the beneficial to the species. that recovery actions be carried out for Sonora tiger salamander. The Service Lilaeopsis schaffneriana ssp. recurva all listed species. The protection determined that issuance of the permits and Sonora tiger salamander would not required of Federal agencies and the would not likely jeopardize the benefit from the designation of critical prohibitions against certain activities continued existence of the salamander habitat. The Service determines that any involving listed species are discussed, provided that stock tank maintenance potential benefits beyond those afforded in part, below. and management plans were promptly by listing, when weighed against the Section 7(a) of the Act, as amended, developed and implemented for the negative impacts of disclosing their site- requires Federal agencies to evaluate allotments. These plans would ensure specific location, does not yield an their actions with respect to any species the maintenance of quality aquatic overall benefit and is therefore not that is proposed or listed as endangered habitat for the Sonora tiger salamander. prudent. The overall habitat protection or threatened and with respect to its The Act and its implementing and conservation of these two species critical habitat, if any is being regulations found at 50 CFR 17.61, would be best implemented by the designated. Regulations implementing 17.62, and 17.63 set forth a series of recovery process and section 7 this interagency cooperation provision general trade prohibitions and provisions of the Act (see ‘‘Available of the Act are codified at 50 CFR Part exceptions that apply to all endangered Conservation Measures’’ section). 402. Section 7(a)(4) requires Federal plants. All trade prohibitions of section As discussed under Factor B in the agencies to confer with the Service on 9(a)(2) of the Act, implemented by 50 ‘‘Summary of Factors Affecting the any action that is likely to jeopardize CFR 17.61, apply. These prohibitions, in Species,’’ Spiranthes is threatened by the continued existence of a species part, make it illegal for any person collecting. If it is listed, collecting of proposed for listing or result in subject to the jurisdiction of the United Spiranthes would be prohibited under destruction or adverse modification of States to import or export, transport in the Act in cases of (1) removal and proposed critical habitat. If a species is interstate or foreign commerce in the reduction to possession from lands listed subsequently, section 7(a)(2) course of a commercial activity, sell or under Federal jurisdiction, or malicious requires Federal agencies to ensure that offer for sale listed species in interstate damage or destruction on such lands; activities they authorize, fund, or carry or foreign commerce, or to remove and and (2) removal, cutting, digging up, or out are not likely to jeopardize the reduce to possession listed species from damaging or destroying Spiranthes in continued existence of the species or areas under Federal jurisdiction. In knowing violation of any State law or destroy or adversely modify its critical addition, for plants listed as regulation, including State criminal habitat. If a Federal action may affect a endangered, the Act prohibits the trespass law. Such provisions are listed species or its critical habitat, the malicious damage or destruction on difficult to enforce, and publication of responsible Federal agency must enter areas under Federal jurisdiction and the critical habitat descriptions and maps into formal consultation with the removal, cutting, digging up, or would make Spiranthes delitescens Service. All three taxa in this rule occur damaging or destroying endangered 688 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations plants in knowing violation of any state (1) Otherwise lawful activities on transmit diseases to Sonora tiger law or regulation, including state private lands undertaken by the salamanders; criminal trespass law. Certain landowner since plants are not (6) Discharges or dumping of toxic exceptions apply to agents of the protected from taking by the private chemicals, silt, or other pollutants into Service and state conservation agencies. landowner of the habitat by the Act; or waters supporting the species; and The Act and 50 CFR 17.62 and 17.63 (2) federally-approved projects, such (7) Pesticide applications at or near also provide for the issuance of permits as issuance of livestock grazing permits, occupied aquatic sites in violation of to carry out otherwise prohibited road construction, and dredge and fill label restrictions. activities involving endangered species activities, when such activity is Questions as to whether specific under certain circumstances. Such conducted in accordance with section 7 activities would constitute a violation of permits are available for scientific of the Act. section 9 should be addressed to the purposes and to enhance the Actions that would not result in Service’s Arizona Ecological Services propagation or survival of the species. It violation of section 9 for Sonora tiger Field Office (see ADDRESSES section). is anticipated that few trade permits salamander would include— Requests for copies of the regulations on would ever be sought or issued for (1) Recreational activities in the range listed plants and wildlife and inquiries Lilaeopsis or Spiranthes because these of the Sonora tiger salamander that do about prohibitions and permits may be species are not common in cultivation not result in physical damage to stock addressed to U.S. Fish and Wildlife or in the wild. tanks, vegetation at stock tanks, stock Service, Branch of Endangered Species/ The Act and implementing fences, and riparian habitats between Permits, P.O. Box 1306, Albuquerque, regulations found at 50 CFR 17.21 set occupied stock tanks; and that do not New Mexico 87103 (telephone 505/248– forth a series of general prohibitions and involve relocation of salamanders or 6920; facsimile 505/248–6922). nonnative aquatic vertebrates; exceptions that apply to all endangered National Environmental Policy Act wildlife. The prohibitions, codified at (2) Well-managed livestock grazing of 50 CFR 17.21, in part, make it illegal for uplands, including running of cattle, The Fish and Wildlife Service has any person subject to the jurisdiction of and development, operation and determined that Environmental the United States to take (includes maintenance of range improvements; or Assessments and Environmental Impact harass, harm, pursue, hunt, shoot, (3) Federally-approved projects, such Statements, as defined under the wound, kill, trap, or collect; or to as issuance of livestock grazing permits, authority of the National Environmental attempt any such conduct), import or road construction, and dredge and fill Policy Act of 1969, need not be export, ship in interstate or foreign activities, when such activity is prepared in connection with regulations commerce in the course of commercial conducted in accordance with section 7 adopted pursuant to Section 4(a) of the activity, or sell or offer for sale in or section 10 of the Act. Endangered Species Act of 1973, as interstate or foreign commerce any The Service has determined that the amended. A notice outlining the listed species. It also is illegal to following activities could potentially Service’s reasons for this determination possess, sell, deliver, carry, transport, or result in a section 9 violation. As was published in the Federal Register ship any such wildlife that has been section 9 is somewhat limited in the on October 25, 1983 (48 FR 49244). protection provided to plants, the taken illegally. Certain exceptions apply Required Determinations to agents of the Service and state possible actions that could result in a conservation agencies. section 9 violation for Lilaeopsis or The Service has examined this Spiranthes could include— Permits may be issued to carry out regulation under the Paperwork (1) Malicious destruction or removal otherwise prohibited activities Reduction Act of 1995 and found it to on lands under Federal jurisdiction; contain no information collection involving endangered wildlife species (2) Criminal trespass onto private under certain circumstances. requirements. This rulemaking was not lands and then removal of plants from subject to review by the Office of Regulations governing permits are those lands; or codified at 50 CFR 17.22 and 17.23. Management and Budget under (3) Removal of plants without Executive Order 12866. Such permits are available for scientific appropriate State permits. purposes, to enhance the propagation or Some of the possible actions that References Cited survival of the species, and/or for could result in a section 9 violation for A complete list of all references cited incidental take in connection with Sonora tiger salamander include: herein is available upon request from otherwise lawful activities. (1) Unauthorized handling, collecting, the Field Supervisor, Arizona Ecological It is the policy of the Service (59 FR or harming of Sonora tiger salamanders; Services Field Office (see ADDRESSES 34272) to identify to the maximum (2) Destroying or altering berms or section). extent practicable at the time an animal draining of aquatic sites occupied by the species is listed those activities that salamander and diverting flows Authors would or would not constitute a upstream of breeding sites; The primary authors of this rule are violation of section 9 of the Act. The (3) Livestock grazing or watering at Angie Brooks and Jim Rorabaugh, intent of this policy is to increase public sites occupied by the salamander when Arizona Ecological Services Field Office awareness of the effect of a listing on such activity results in trampling of (see ADDRESSES section). proposed and ongoing activities with a salamanders; species’ range. The Service believes (4) Actions that result in the List of Subjects in 50 CFR Part 17 that, based on the best available destruction or removal of aquatic or Endangered and threatened species, information, the following are examples emergent vegetation, or shoreline Exports, Imports, Reporting and of actions that will not result in a vegetation at aquatic sites occupied by recordkeeping requirements, violation of section 9. the species; Transportation. Actions that would not result in a (5) Stocking of fish, bullfrogs other violation of section 9 for either subspecies of Ambystoma tigrinum, or Regulation Promulgation Lilaeopsis or Spiranthes would other organisms within the range of the Accordingly, part 17, subchapter B of include— Sonora tiger salamander that prey on or chapter I, title 50 of the Code of Federal Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 689

Regulations, is amended as set forth Authority: 16 U.S.C. 1361–1407; 16 U.S.C. of Endangered and Threatened Wildlife below: 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– to read as follows: 625, 100 Stat. 3500; unless otherwise noted. PART 17Ð[AMENDED] § 17.11 Endangered and threatened 2. Section 17.11(h) is amended by wildlife. 1. The authority citation for Part 17 adding the following in alphabetical * * * * * continues to read as follows: order, under ‘‘Amphibians,’’ to the List (h) * * *

SPECIES Vertebrate popu- When Critical Special Common Historic range lation where endan- Status listed habitat rules name Scientific name gered or threatened

******* Amphibians.

******* Salamander, Ambystoma tigrinum stebbinsi ...... U.S.A. (AZ), Entire ...... E ...... 600 NA ...... NA Sonora Mexico. tiger.

*******

3. Section 17.12(h) is amended by and ‘‘Unbelliferae’’ to the List of § 17.12 Endangered and threatened plants. adding the following two species, in Endangered and Threatened Plants: * * * * * alphabetical order under ‘‘Orchidaceae’’ (h) * * *

Species Historic range Status When Critical Special Scientific name Common name listed habitat rules

******* OrchidaceaeÐOrchid Family:

******* Spiranthes delitescens ...... Canelo Hills ladies'- U.S.A. (AZ), E ...... 600 NA ...... NA tresses. Mexico.

******* UmbelliferaeÐParsley Family:

******* Lilaeopsis schaffneriana spp. recurva ...... Huachuca water U.S.A. (AZ), E ...... 600 NA ...... NA umbel. Mexico.

*******

Dated: December 24, 1996. DEPARTMENT OF COMMERCE SUMMARY: NMFS reduces the Jay L. Gerst, commercial trip limit in the hook-and- Acting Director, Fish and Wildlife Service. National Oceanic and Atmospheric line fishery for king mackerel in the Administration [FR Doc. 97–130 Filed 1–3–97; 8:45 am] Florida west coast sub-zone to 50 king mackerel per day in or from the BILLING CODE 4310±55±P 50 CFR Part 622 exclusive economic zone (EEZ). This trip limit reduction is necessary to [Docket No. 950725189±6245±04; I.D. protect the overfished Gulf king 123096B] mackerel resource. Fisheries of the Caribbean, Gulf of EFFECTIVE DATE: The 50–fish commercial Mexico, and South Atlantic; Coastal trip limit is effective 12:01 a.m., local Migratory Pelagic Resources of the time, January 1, 1997, and remains in Gulf of Mexico and South Atlantic; Trip effect through June 30, 1997. Limit Reduction. FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813–570–5305. AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and SUPPLEMENTARY INFORMATION: The Atmospheric Administration (NOAA), fishery for coastal migratory pelagic fish Commerce. (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the ACTION: Trip limit reduction. Gulf of Mexico only, bluefish) is 690 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations managed under the Fishery vessels using run-around gillnets and The Florida west coast subzone Management Plan for the Coastal vessels using hook-and-line gear. extends from 87°31′06′′ W. long. (due Migratory Pelagic Resources of the Gulf In accordance with 50 CFR south of the Alabama/Florida boundary) of Mexico and South Atlantic (FMP). 622.44(a)(2)(ii)(B), from the date that 75 to: (1) 25°20.4′ N. lat. (due east of the The FMP was prepared by the Gulf of percent of the subzone’s hook-and-line Dade/Monroe County, FL, boundary) Mexico and South Atlantic Fishery gear quota has been harvested until the through March 31, 1997; and (2) 25°48′ Management Councils (Councils) and is west coast subzone’s hook-and-line N. lat. (due west of the Monroe/Collier implemented by regulations at 50 CFR fishery is closed, or the fishing year County, FL, boundary) from April 1, part 622 under the authority of the ends, king mackerel in or from the EEZ 1997, through October 31, 1997. may be possessed on board or landed Magnuson-Stevens Fishery Classification Conservation and Management Act. from a permitted vessel in amounts not exceeding 50 per day. This action is taken under 50 CFR Based on the Councils’ recommended NMFS has determined that 75 percent 622.44(a)(2)(iii) and is exempt from total allowable catch and the allocation of the hook-and-line quota for Gulf review under E.O. 12866. ratios in the FMP, NMFS implemented group king mackerel from the Florida Authority: 16 U.S.C. 1801 et seq. a commercial quota for the Gulf west coast subzone was reached on migratory group of king mackerel in the December 30, 1996. Accordingly, a 50– Dated: December 30, 1996. Florida west coast sub-zone of 865,000 fish trip limit applies to vessels in the Gary C. Matlock, lb (392,357 kg). That quota was further commercial hook-and-line fishery for Director, Office of Sustainable Fisheries, divided into two equal quotas of king mackerel in or from the EEZ in the National Marine Fisheries Service. 432,500 lb (196,179 kg) for vessels in Florida west coast subzone effective [FR Doc. 96–33403 Filed 12–31–96; 2:35 pm] each of two groups by gear types— 12:01 a.m., local time, January 1, 1997. BILLING CODE 3510±22±F 691

Proposed Rules Federal Register Vol. 62, No. 3

Monday, January 6, 1997

This section of the FEDERAL REGISTER between 8:30 and 3:30 p.m., e.t., Grade Crossings. The FHWA has had an contains notices to the public of the proposed Monday through Friday except Federal opportunity to review the NCUTCD’s issuance of rules and regulations. The holidays. Those desiring notification of recommendations and a majority of purpose of these notices is to give interested receipt of comments must include a self- those recommendations are included in persons an opportunity to participate in the addressed, stamped postcard. this notice of proposed rulemaking as rule making prior to the adoption of the final rules. FOR FURTHER INFORMATION CONTACT: the first phase of the MUTCD rewrite Program Office: Ms. Linda L. Brown, and reformat effort. In virtually all cases HHS–10, (202) 366–2192. The proposed where the recommendation from the DEPARTMENT OF TRANSPORTATION text for the parts of the MUTCD NCUTCD for a text change or a change discussed in this notice of proposed in the ‘‘shall, should, or may’’ condition Federal Highway Administration rulemaking is available in printed copy was not accepted, the FHWA felt there or CD–ROM format. It is also available was insufficient justification presented 23 CFR Part 655 on the FHWA home page at the for the change. In reviewing the [FHWA Docket No. 96±47] following Internet address: HTTP:// proposed text submitted by the cti1.volpe.dot.gov/fhwa/. Office of the NCUTCD, the FHWA prepared a RIN 2125±AE11 Chief Counsel: Mr. Raymond Cuprill, comparison table which shows the National Standards for Traffic Control HCC–20, (202) 366–0834, Federal differences from the 1988 Edition of the Devices; Revision of the Manual on Highway Administration, 400 Seventh MUTCD and the FHWA’s decisions on Uniform Traffic Control Devices; Street, SW., Washington, DC 20590. whether or not to accept the changes. Markings, Signals, and Traffic Control Office hours are from 7:45 a.m. to 4:15 The comparison table is part of this Systems for Railroad-Highway Grade p.m., e.t., Monday through Friday docket and is available for inspection. Crossings except Federal holidays. MUTCD Parts I, VII and IX will be SUPPLEMENTARY INFORMATION: The 1988 included in Phase 2 of the rewrite effort AGENCY: Federal Highway MUTCD is available for inspection and and the remaining parts will be Administration (FHWA), DOT. copying as prescribed in 49 CFR Part 7, included in Phase 3. The public will ACTION: Notice of proposed amendments appendix D. It may be purchased for have an opportunity to review and to the Manual on Uniform Traffic $44.00 from the Superintendent of comment on both of these remaining Control Devices (MUTCD); request for Documents, U.S. Government Printing phases of the MUTCD rewrite effort. The comments. Office, P.O. Box 371954, Pittsburgh, PA FHWA invites your comments on the 15250–7954, Stock No. 650–001–00001– proposed text for Phase 1 which SUMMARY: The MUTCD is incorporated 0. This notice is being issued to provide includes parts III, IV, and VIII of the by reference in 23 CFR part 655, subpart an opportunity for public comment on MUTCD. A summary of the significant F, approved by the Federal Highway the desirability of proposed changes contained in these sections is Administrator, and recognized as the amendments to the MUTCD. Based on discussed in this notice of proposed national standard for traffic control on the comments submitted and upon its rulemaking. all public roads. The FHWA announced own experience, the FHWA will issue a The proposed new style of the its intent to rewrite and reformat the final rule concerning the proposed MUTCD would be a 3-ring binder with MUTCD on January 10, 1992, at 57 FR 1 changes included in this notice. 8 ⁄2 inch pages. Each part of the MUTCD 1134. This document proposes new text The National Committee on Uniform would be printed separately in a bound for the MUTCD in Part III, markings; in Traffic Control Devices (NCUTCD) has format and then included in the 3-ring part IV, signals; and in part VIII, traffic taken the lead in this effort to rewrite binder. If someone needed to reference control systems for railroad-highway and reformat the MUTCD. The NCUTCD information on a specific part of the grade crossings. The purpose of this is a national organization of individuals MUTCD, it would be easy to remove effort is to include metric dimensions from the American Association of State that individual part from the binder. and values for the design and Highway and Transportation Officials The proposed new text would be in installation of traffic control devices and (AASHTO), the Institute of column format and contain four to improve the organization and Transportation Engineers (ITE), the categories as follows: (1) Standards— discussion of the contents of the National Association of County representing ‘‘shall’’ conditions, (2) MUTCD. The proposed changes to the Engineers (NACE), the American Public Guidance—representing ‘‘should’’ MUTCD are intended to expedite traffic, Works Association (APWA), and other conditions, (3) Options—representing promote uniformity, improve safety, and organizations that have extensive ‘‘may’’ conditions, and (4) Support— incorporate technology advances in experience in the installation and representing descriptive and/or general traffic control device application. maintenance of traffic control devices. information. This new format would DATES: Submit comments on or before Although the MUTCD will be revised make it easier to distinguish standards, August 30, 1997. in its entirety, it will be done in phases guidance and optional conditions for ADDRESSES: Submit written, signed due to the enormous volume of text. The the design, placement, and application comments to FHWA Docket 96–47, NCUTCD has submitted to the FHWA of traffic control devices. For review Federal Highway Administration, Room for review and consideration the purposes during this rewrite effort, 4232, HCC–10, 400 Seventh Street, SW., proposed text for the following MUTCD dimensions will be shown in both Washington, DC 20590. All comments Parts: MUTCD Parts III—Markings, Part metric and English. This will make it received will be available for IV—Signals, and Part VIII—Traffic easier to compare text shown in the examination at the above address Control Systems for Railroad Highway 1988 Edition with the proposed new 692 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules edition. However, the adopted final Center Line Markings situations where through lanes become version of the new MUTCD will be A new STANDARD would be added mandatory turn lanes, lane-use arrows solely in metric units. to Section 3B.1a that requires center line shall be used and shall be accompanied This effort to rewrite and reformat the markings to be placed on paved by standard signs. MUTCD will be an ongoing activity over undivided streets and highways A pavement marking symbol for the next 2–3 years. Some of the other including all rural and urban arterials designated parking spaces for persons issues which will be addressed in future and collectors with specified widths with disabilities would be included as notices of proposed rulemaking are: and average daily travel (ADT), and an OPTION in Section 3B.12. Standards for the placement of including all two-way streets and A lane reduction pavement arrow pavement marking center lines and edge highways with three or more travel would be included in Section 3B.12. lines; minumum retroreflectivity lanes. standards for signs and pavement Channelizing Devices markings; signing for low-volume rural Edge Line Markings roads; traffic control for light-rail grade In Section 3B.3 edge line markings A new STANDARD would be added crossings; and the addition of a new would be required on all freeways and to Section 3F.2 which states that the color ‘‘Fluorescent Yellow Green’’ for expressways and on all rural arterials color of cones and tube markers used use at pedestrian and bicycle locations. with travel widths of 6.1 m (20 ft.) or outside construction and maintenance These proposed changes to the MUTCD more. In addition, edge line markings areas shall be the same as the pavement are intended to expedite traffic, promote are recommended on rural collectors marking for which they supplement or uniformity, improve safety, and with travel widths of 6.1 m (20 ft.) or substitute. incorporate technology advances in more and at locations where the edge of Approach End Treatment traffic control device application. the traveled way is not otherwise delineated and where an engineering A new STANDARD would be Discussion of Proposed Amendments to study indicates a need. included in Section 3G.2 which states Part III—Markings New Standard on Pavement Marking that bars or buttons, when used in The following items are the most Extensions Through Intersections or advance of islands having raised curbs, significant of the many revisions to Part Interchanges shall not be placed in such a manner as III of the 1988 MUTCD: to constitute an unexpected hazard. Section 3B.4 would provide that Characteristics of Islands as Traffic when markings are extended into or Discussion of Proposed Amendments to Control Devices continued through an intersection or Part IV—Signals interchange area, they shall be the same In the 1988 Edition of the MUTCD, The following items are the most ‘‘Islands’’ were covered in Part V. It is color and at least the same width as the line(s) they extend. This section also significant changes of the many proposed to relocate this topic to part revisions to Part IV. III, Section 3G. provides STANDARDS for dotted lines. Raised Pavement Markers Definitions Relating to Highway Traffic Pavement Marking Colors Signals New supporting information would be In Section 3A.4 the color ‘‘blue’’ included in Section 3B.7. It states that Section 4A.2 would be significantly would be included as a new standard ‘‘a raised pavement marker is a device expanded from four definitions to fifty- pavement marking color for with a height of at least 10mm mounted five definitions of technical terms that international symbol of access parking. on or in a road surface, and intended to are being used throughout Part IV. General Principles for Longitudinal be used as positioning guides or to Basis for Installing Highway Traffic Pavement Markings supplement or substitute for pavement markings.’’ Signals In Section 3A.5 a definition for The following new STANDARD ‘‘Dotted Lines’’ would be included. Section 4B.2 would state that ‘‘If would be included in Section 3B.7: The changes in traffic patterns have resulted Widths and Patterns of Longitudinal color of raised pavement markers under in a situation where a highway traffic Line Markings both daylight and nighttime conditions control signal is no longer needed, shall conform to the color of the consideration should be given to The width and pattern for ‘‘dotted marking for which they serve as a lines’’ would be added to Section 3A.6. removing it and replacing it with positioning guide, or for which they appropriate alternative traffic control Warrants for No Passing Zones at supplement, or substitute. devices.’’ The FHWA has always The following new GUIDANCE would Curves acknowledged this but never stated it in be included in Section 3B.7: Raised the MUTCD. The warrants for no-passing zones at pavement markers should not be curves would be moved from previous substituted for right edge lines. Alternatives to Highway Traffic Control Section 3B–5 to Section 3B–1. These Signals warrants for determining minimum Pavement Word and Symbol Markings passing sight distances would be based In situations where through lanes Since vehicle delay and accident on posted or statutory speed limits as become mandatory turn lanes, Section frequency are sometimes greater under shown in Table III–1. Previously, the 3B.12, under GUIDANCE, would be traffic signal control than under STOP mimimum passing sight distances were modified to allow signs or markings to sign control, consideration should be determined based on the greater of the be repeated as necessary to prevent given to providing less restrictive off-peak 85th percentile speed or the entrapment and to help the road user alternatives to traffic signals. Section posted speed limits. In addition, Table select the appropriate lane before 4B–4 would list eleven less restrictive III–1 includes incremental speed limits reaching the queue of waiting vehicles. alternative measures that should be of five miles per hour (kilometers per A new STANDARD would also be considered before a highway traffic hour were rounded). added to this section. It states that in control signal is installed. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 693

Studies and Factors for Justifying Application of Steady Signal Warning Beacon Highway Traffic Control Signal Indications for Left Turns Section 4K.2 would replace the Installation In Section 4D.6b(3), a new Hazard Identification Beacon section Section 4C would list seven warrants STANDARD would be added. It states that was in the 1988 MUTCD. Guidance for justifying a highway traffic control that ‘‘A four-section signal face for design and application of warning signal installation. Warrants are a set of (CIRCULAR RED, CIRCULAR YELLOW, beacons is described. criteria that can be used to define the CIRCULAR GREEN, and left-turn relative need for, and appropriateness of GREEN ARROW) shall be used when Speed Limit Sign Beacon traffic control signals. The number of the CIRCULAR GREEN and left-turn In Section 4K.3, all speed limit sign warrants would be reduced from eleven GREEN ARROW indications begin and beacons would be required to have a warrants to seven warrants. The terminate together.’’ This is known as visible diameter of not less than 200 following is a brief summary of how the ‘‘split phasing’’ and would be discussed millimeters (8 inches). warrants were reduced: for the first time in the MUTCD. Discussion of Proposed Amendments to 1. The interruption of continuous Part VIII—Roadway-Rail Intersections traffic warrant will be combined with Application of Steady Signal the new warrant number 1 entitled, Indications for Right-Turns The following are the most significant ‘‘Eight Hour Vehicle Volume Warrant.’’ Section 4D.7 would describe in more changes of the many revisions to Part 2. The school crossing warrant will be detail the various modes for right-turn VIII: placed in section 7D.4. displays. Title of Part VIII 3. Warrant 8 will be incorporated into warrant 1. Traffic Control Signals for One-Lane, This section of the MUTCD would be 4. The peak hour delay warrant will Two-Way Facilities retitled ‘‘Traffic Control For Roadway- be included in Warrant 3. Section 4G would be greatly Rail Intersections’’ to more properly The FHWA had been receiving a expanded to include the application, reflect the intent of this part to deal with number of complaints concerning the design, and operation of traffic control all instances where there is an number and complexity of the signal signals used on one-lane, two-way intersection between vehicles operating warrants. This modification should facilities. on fixed rail and vehicles operating on address these concerns. roadways. Design of Freeway Entrance Ramp Traffic Control Signal Features Control Signals General In Section 4D.1, the following two In Section 4H.2, the requirement for a The term ‘‘roadway’’ would be cases where STOP signs are allowed to signal face being mounted on both the substituted for the terms ‘‘highway’’ and be used with traffic control signals left and right side of a ramp that has two ‘‘street.’’ The term ‘‘roadway’’ connotes would be added: (1) If the signal lanes would be eliminated. In addition, the terms ‘‘highway’’ or ‘‘street’’ unless indication for an approach is a flashing the requirement for a signal face to have specifically defined in a specific red at all times; and (2) If a minor a minimum nominal diameter of 8 section. The term ‘‘roadway-rail roadway or driveway is located within inches has been eliminated. In this same intersection’’ would be substituted for or adjacent to the controlled area, but section, the recommended height of the the term ‘‘grade-crossing.’’ does not require separate traffic signal signal face (between 41⁄2 and 6 feet) has Roadway Rail Intersection Closures control because an extremely low been changed from a GUIDANCE to an potential for conflict exists. OPTION. Section 8A.4 would be expanded to discuss situations where the railroad is Meaning of Vehicle Signal Indications Design of Movable Bridge Signals and closed and situations where the In Section 4C.4, the phrase ‘‘Unless Gates roadway is closed. otherwise determined by law’’ in the In Section 4I.2, the following Traffic Controls During Construction first paragraph under STANDARDS paragraph would be upgraded to a and Maintenance would be deleted. If this phrase were STANDARD: left in the paragraph, States would have ‘‘Since movable bridge operations Section 8A.5 would be expanded to the right to assign different meanings to cover a variable range of time periods ensure that the standards discussed in signal indications than are allowed by between openings, the signals shall be Part VI of the MUTCD are followed for the MUTCD. of the following types. The first type construction and maintenance shall consist of the standard three color operations at roadway-rail intersections. Application of Steady Signal Indication (red, yellow, and green) traffic signal In addition, this section would require In Section 4D.5f(3) entitled ‘‘A Steady lenses, generally to be used if movable the use of a law enforcement officer or GREEN ARROW Indication,’’ a GREEN bridge operation is quite frequent. The flagger at the intersection if the queuing ARROW would not be required on the second type shall consist of two red of vehicles across the tracks cannot be stem of ‘‘T’’ intersections or for turns signal lenses in vertical array separated avoided during construction or from one-way roadways. In this same by a STOP HERE ON RED sign. (See maintenance activities. This section under ‘‘Options,’’ the Section 2B.37)’’ requirement would apply whether or application of steady RED, YELLOW, not active traffic control devices are in Meaning of Lane-Use Control Signal and GREEN ARROWS is discussed. In use at the roadway-rail intersection. the 1988 MUTCD there was an item (e) Indications that made it optional to use a In Section 4J.2, under STANDARD, Roadway-Rail Crossing (Crossbuck) Sign CIRCULAR GREEN indication for the flashing YELLOW X indication Section 8B–2 would be revised to protected movements. This proposal would be replaced by two new lane-use include standards for the installation of would eliminate item (e) so that the control signal indications: steady 2’’ minimum retroreflective white GREEN ARROW indication would be WHITE TWO–WAY LEFT–TURN material at all grade crossings for mandatory for all protected left or right ARROW and steady WHITE ONE–WAY placement on the back of each blade of turn movements. LEFT–TURN ARROW. the crossbuck sign for the length of the 694 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules blade. At passive grade crossings, a strip Transportation regulatory policies and intergovernmental consultation on of high grade retroreflective white procedures. It is anticipated that the Federal programs and activities apply to material would also be required on the economic impact of this rulemaking this program. full length of the front and back of each would be minimal. The new standards Paperwork Reduction Act ‘‘Crossbuck’’ (R15–1) or ‘‘Number of and other changes proposed in this Track’’ (R15–2) sign support. Figure 8– notice are intended to improve traffic This action does not contain a 1 has been modified to reflect this operations and provide additional collection of information requirement change. guidance, clarification, and optional for purposes of the Paperwork applications for traffic control devices. Reduction Act of 1995, 44 U.S.C. 3501 Roadway-Rail Intersection Signs and The FHWA expects that these proposed et seq. Markings changes will create uniformity and National Environmental Policy Act Some of the sections in 8B would be enhance safety and mobility at little reordered to put all of the discussions additional expense to public agencies or The agency has analyzed this action relating to signs together before the motoring public. Therefore, a full for the purpose of the National pavement markings, etc. A new Section regulatory evaluation is not required. Environmental Policy Act of 1969 (42 8B.10 ‘‘Stop Lines’’ would be added. U.S.C. 4321 et seq.) and has determined Regulatory Flexibility Act This section discusses the placement of that this action would not have any stop lines. This information is presently In compliance with the Regulatory effect on the quality of the environment. contained as a note on Figure 8–2. The Flexibility Act (Pub. L. 96–354, 5 U.S.C. Regulation Identification Number current Section 8B.5 ‘‘Illumination at 601–612), the FHWA has evaluated the Grade Crossings’’ would be moved to effects of this proposed action on small A regulation identification number Section 8C.1. entities, including small governments. (RIN) is assigned to each regulatory This notice of proposed rulemaking action listed in the Unified Agenda of Flashing-Light Signals and Gates adds some new and alternative traffic Federal Regulations. The Regulatory This Section 8C would be control devices and traffic control Information Service Center publishes redesignated as 8D. Section 8D in the device applications. The proposed new the Unified Agenda in April and 1988 MUTCD entitled ‘‘Systems and standards and other changes are October of each year. The RIN contained Devices’’ would be removed and the intended to improve traffic operations, in the heading of this document can be information in that section would be expand guidance and clarify application used to cross reference this action with incorporated into revised sections 8A of traffic control devices. The FHWA the Unified Agenda. and 8D. hereby certifies that these actions would not have a significant economic impact List of Subjects in 23 CFR 655 Train Detection Systems on a substantial number of small Design standards, Grant programs— In Section 8D–5, automatic flashing entities. transportation, Highways and roads, light signals would be required to flash Incorporation by reference, Signs, Executive Order 12612 (Federalism for at least 20 seconds before the arrival Traffic regulations. Assessment) of any train regardless of the train’s (23 U.S.C. 109(d), 114(a), 315, and 402(a); 23 speed. The current requirement applies This action has been analyzed in CFR 1.32, 655.601, 655.602, and 655.603; 49 to trains that operate at speeds of 20 accordance with the principles and CFR 1.48) mph or greater. criteria contained in Executive Order Issued on: December 27, 1996. 12612, and it has been determined that Rodney E. Slater, Rulemaking Analyses and Notices this action would not have sufficient All comments received before the federalism implications to warrant the Federal Highway Administrator. close of business on the comment preparation of a federalism assessment. [FR Doc. 96–33405 Filed 12–31–96; 8:45 am] closing date indicated above will be The MUTCD is incorporated by BILLING CODE 4910±22±P considered and will be available for reference in 23 CFR part 655, subpart F, examination in the docket at the above which requires that changes to the address. Comments received after the national standards issued by the FHWA DEPARTMENT OF THE TREASURY comment closing date will be filed in shall be adopted by the States or other the docket and will be considered to the Federal agencies within two years of Internal Revenue Service extent practicable, but the FHWA may issuance. The proposed amendment is 26 CFR Part 1 issue a final rule at any time after the in keeping with the Secretary of close of the comment period. In Transportation’s authority under 23 [REG±242996±96] addition to late comments, the FHWA U.S.C. 109(d), 315, and 402(a) to RIN 1545±AU45 will also continue to file in the docket promulgate uniform guidelines to relevant information that becomes promote the safe and efficient use of the Inflation-Indexed Debt Instruments available after the comment closing highway. To the extent that this date, and interested persons should amendment would override any existing AGENCY: Internal Revenue Service (IRS), continue to examine the docket for new State requirements regarding traffic Treasury. material. control devices, it does so in the ACTION: Notice of proposed rulemaking interests of national uniformity. Executive Order 12866 (Regulatory by cross-reference to temporary Planning and Review) and DOT Executive Order 12372 regulations and notice of public hearing. Regulatory Policies and Procedures (Intergovernmental Review) SUMMARY: In the Rules and Regulations The FHWA has determined that this Catalog of Federal Domestic section of this issue of the Federal action is not a significant regulatory Assistance Program Number 20.205, Register, the IRS is issuing temporary action within the meaning of Executive Highway Planning and Construction. regulations relating to the federal Order 12866 or significant within the The regulations implementing Executive income tax treatment of inflation- meaning of Department of Order 12372 regarding indexed debt instruments, including Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 695

Treasury Inflation-Indexed Securities. U.S.C. chapter 5) does not apply to these entries in numerical order to read as The text of the temporary regulations regulations and, because the regulations follows: also serves as the text of the proposed do not impose a collection of Authority: 26 U.S.C. 7805 * * * regulations. This document also information on small entities, the provides notice of a public hearing on Regulatory Flexibility Act (5 U.S.C. Section 1.1275–7 also issued under 26 the proposed regulations. chapter 6) does not apply. Pursuant to U.S.C. 1275(d). * ** DATES: Comments must be received by section 7805(f) of the Internal Revenue Section 1.1286–2 also issued under 26 April 7, 1997. Requests to appear and Code, this notice of proposed U.S.C. 1286(f). * ** outlines of topics to be discussed at the rulemaking will be submitted to the Par. 2. Section 1.1275–7 is added to public hearing scheduled for April 30, Chief Counsel for Advocacy of the Small read as follows: 1997, at 10 a.m. must be received by Business Administration for comment § 1.1275±7 Inflation-indexed debt April 9, 1997. on its impact on small business. instruments. ADDRESSES: Send submissions to: Comments and Public Hearing [The text of this proposed section is CC:DOM:CORP:R (REG–242996–96), the same as the text of § 1.1275–7T room 5226, Internal Revenue Service, Before these proposed regulations are adopted as final regulations, published elsewhere in this issue of the POB 7604, Ben Franklin Station, Federal Register.] Washington, DC 20044. Submissions consideration will be given to any comments that are submitted timely (in Par. 3. Section 1.1286–2 is added to may be hand delivered between the read as follows: hours of 8 a.m. and 5 p.m. to: the manner described in the ADDRESSES CC:DOM:CORP:R (REG–242996–96), portion of this preamble) to the IRS. All § 1.1286±2 Inflation-indexed debt Courier’s Desk, Internal Revenue comments will be available for public instruments. Service, 1111 Constitution Avenue NW, inspection and copying. [The text of this proposed section is Washington, DC. Alternatively, A public hearing has been scheduled the same as the text of § 1.1286–2T taxpayers may submit comments for April 30, 1997, at 10 a.m. in the NYU published elsewhere in this issue of the electronically via the internet by Classroom, room 2615, Internal Revenue Federal Register.] Building, 1111 Constitution Avenue selecting the ‘‘Tax Regs’’ option of the Margaret Milner Richardson, NW, Washington, DC. Because of access IRS Home Page or by submitting Commissioner of Internal Revenue. comments directly to the IRS internet restrictions, visitors will not be admitted beyond the building lobby [FR Doc. 96–33397 Filed 12–31–96; 12:57 site at http://www.irs.ustreas.gov/prod/ pm] l more than 15 minutes before the hearing tax regs/comments.html. A public BILLING CODE 4830±01±U hearing will be held in the NYU starts. The rules of 26 CFR 601.601(a)(3) Classroom, room 2615, Internal Revenue apply to the hearing. Building, 1111 Constitution Avenue Persons who wish to present oral ENVIRONMENTAL PROTECTION NW, Washington, DC. comments at the hearing must submit AGENCY FOR FURTHER INFORMATION CONTACT: comments by April 7, 1997, and submit Concerning the regulations, William E. an outline of the topics to be discussed 40 CFR Part 52 Blanchard, (202) 622–3950, or Jeffrey W. and the time to be devoted to each topic [OH69±2±6680b; FRL±5646±3] Maddrey, (202) 622–3940; concerning by April 9, 1997. submissions and the hearing, Mike A period of 10 minutes will be Approval and Promulgation of Slaughter, (202) 622–7190 (not toll-free allotted to each person for making Implementation Plans; Ohio numbers). comments. AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: An agenda showing the scheduling of the speakers will be prepared after the Agency (EPA). Background deadline for receiving outlines has ACTION: Proposed rule. Temporary regulations in the Rules passed. Copies of the agenda will be and Regulations section of this issue of available free of charge at the hearing. SUMMARY: The EPA is taking action to approve, through direct final procedure, the Federal Register amend the Income Drafting Information Tax Regulations (26 CFR part 1) relating changes to the Ohio enhanced to sections 1275 and 1286 of the Internal The principal author of these automobile inspection and maintenance Revenue Code. The temporary regulations is William E. Blanchard, program (known as E-Check) as a regulations provide rules relating to Office of Assistant Chief Counsel revision to the ozone portion of the inflation-indexed debt instruments, (Financial Institutions and Products). Ohio State Implementation Plan (SIP). including Treasury Inflation-Indexed However, other personnel from the IRS The program changes were submitted to Securities. and the Treasury Department satisfy a Federal requirement that any The text of the temporary regulations participated in their development. changes to the program be submitted to the EPA for approval. The Ohio ozone also serves as the text of the proposed List of Subjects in 26 CFR Part 1 regulations. The preamble to the nonattainment areas covered by this temporary regulations explains the Income taxes, Reporting and rulemaking are the Cleveland-Akron- temporary regulations. recordkeeping requirements. Lorain, Dayton-Springfield, and Cincinnati areas. Special Analyses Proposed Amendments to the Regulations In the Final Rules Section of this It has been determined that this notice Federal Register, EPA is approving the of proposed rulemaking is not a Accordingly, 26 CFR part 1 is State’s SIP revision request as a direct significant regulatory action as defined proposed to be amended as follows: final rule without prior proposal in EO 12866. Therefore, a regulatory PART 1ÐINCOME TAXES because EPA views this as assessment is not required. It also has noncontroversial and anticipates no been determined that section 553(b) of Paragraph 1. The authority citation adverse comments. The rationale for the the Administrative Procedure Act (5 for part 1 is amended by adding two approval is set forth in the direct final 696 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules rule. If no adverse or critical comments SUMMARY: In this Further Notice of II. Discussion are received in response to that direct Proposed Rulemaking in WT Docket No. A. Partitioning and Disaggregation for final rule, no further activity is 96–148, the Commission proposes Cellular and GWCS Services contemplated in relation to this modifications to the cellular and proposed rule. If EPA receives General Wireless Communications 3. Cellular. The Commission seeks significant adverse comments, (which Services (GWCS) rules to expand comment as to whether to permit have not been addressed) the direct final geographic partitioning and spectrum cellular disaggregation. Commenters rule will be withdrawn and all public disaggregation provisions. The should address whether there are comments received will be addressed in Commission solicits comment on technical or other constraints, unique to a subsequent final rule based on this certain issues relating to these rules. the cellular service, that would make disaggregation either impractical or proposed rule. EPA will institute a DATES: Comments must be filed on or administratively burdensome. second comment period on this action before February 10, 1997. Reply Commenters should address whether only if warranted by revisions to the comments must be filed on or before regulatory or technological changes rulemaking based on comments February 25, 1997. received. Any parties interested in expected in the near future may provide ADDRESSES: Federal Communications the opportunity for cellular licensees to commenting on this action should do so Commission, 1919 M Street, N.W., at this time. disaggregate portions of their licensed Washington, D.C. 20554. spectrum to other parties. The DATES: Comments on this action must be FOR FURTHER INFORMATION CONTACT: Commission seeks comment as to received by February 5, 1997. Shaun A. Maher, Commercial Wireless whether such regulatory changes may ADDRESSES: Written comments should Division, Wireless Telecommunications create a demand for cellular be mailed to: J. Elmer Bortzer, Chief, Bureau at (202) 418–0620. disaggregation and whether, in Regulation Development Section, Air anticipation of such changes, the Programs Branch (A–18J), U.S. SUPPLEMENTARY INFORMATION: This Further Notice of Proposed Rulemaking Commission should adopt interim Environmental Protection Agency, disaggregation rules for cellular. Region 5, 77 West Jackson Boulevard, in WT Docket No. 96–148 and GN Docket No. 96–113, adopted on 4. GWCS. The Commission seeks Chicago, Illinois 60604. comment as to whether open Copies of the State submittal and December 13, 1996, and released December 20, 1996, is available for partitioning of GWCS licenses should be EPA’s analysis of it are available for permitted similar to the proposal for inspection at: Regulation Development inspection and copying during normal business hours in the FCC Reference open partitioning the Commission has Section, Air Enforcement Branch (A– adopted for broadband Personal 18J), U.S. Environmental Protection Center, Room 234, 1919 M Street, N.W., Washington, D.C. The complete text Communications Service (PCS) Agency, Region 5, 77 West Jackson licensees. In addition, the Commission Boulevard, Chicago, Illinois 60604. may also be purchased from the Commission’s copy contractor, seeks comment as to whether GWCS FOR FURTHER INFORMATION CONTACT: John licensees should be permitted to Paskevicz, Regulation Development International Transcription Service, Inc., 2100 M Street, N.W., Suite 140, disaggregate their spectrum. The Section, Air Programs Branch (A–18J), Commission also seeks comment as to Region 5, 77 West Jackson Boulevard, Washington, D.C. 20037, (202) 857– 3800. whether there are technical or Chicago, Illinois 60604, (312) 886–6084. regulatory constraints unique to the SUPPLEMENTARY INFORMATION: For Synopsis of Further Notice of Proposed GWCS service that would render additional information see the direct Rulemaking disaggregation impractical or final rule published in the Rules Section I. Introduction administratively burdensome. Further, of this Federal Register. the Commission recognizes that there 1. There are Commercial Mobile Authority: 42 U.S.C. 4201–7601q. are special competitive bidding issues, Radio Services (CMRS) in which similar to those raised in the broadband Dated: October 16, 1996. partitioning and disaggregation have William E. Muno, PCS context, that must be resolved if it either not been proposed or have been permits open partitioning and Acting Regional Administrator. adopted on a more limited basis than disaggregation for GWCS. [FR Doc. 97–195 Filed 1–3–97; 8:45 am] the rules adopted for broadband PCS. BILLING CODE 6560±50±P For example, while partitioning is B. Available License Area allowed for cellular licensees, there are 5. Section 22.947(b) of the rules, 47 no rules on disaggregation. Similarly, CFR 22.947(b), provides that a cellular FEDERAL COMMUNICATIONS General Wireless Communications licensee may partition portions of its COMMISSION Service (GWCS) licensees are permitted cellular market to other eligible parties. to partition only to rural telcos and The parties are free to define the license 47 CFR Parts 22 and 26 currently there is no rule for GWCS area or ‘‘CGSA’’ of the new partitioned [WT Docket No. 96±148; GN Docket No. 96± disaggregation. cellular system. Because the cellular 113; FCC 96±474] 2. The Commission believes that it is partitioning rule is sufficiently flexible appropriate at this time to consider to permit parties to freely define the Geographic Partitioning and Spectrum whether to permit full partitioning and partitioned license area, the Disaggregation by Commercial Mobile disaggregation in cellular, GWCS and Commission does not propose to modify Radio Services Licensees; and any other services that are licensed on the cellular rules at this time. Implementation of Section 257 of the a geographic area basis, or in spectrum 6. GWCS service areas are based on Communications Act; Elimination of blocks of sufficient size to make Economic Areas. Similar to the former Market Entry Barriers disaggregation practical. Therefore, the rule for broadband PCS partitioning, AGENCY: Federal Communications Commission seeks comment on whether GWCS licensees must partition along an Commission. these benefits similarly justify extension established geopolitical boundary, such of partitioning and disaggregation to as county lines, the partitioned area ACTION: Proposed rule. other services. must include the wireline service area Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 697 of a rural telephone company (rural E. Construction Requirements 13. As for GWCS disaggregation, the telco) and it must be reasonably related Commission proposes adopting a 9. Cellular. While the Commission to the rural telco’s wireline service area. procedure similar to the one adopted for does not propose to modify the existing The Commission seeks comment on broadband PCS and proposed for cellular build-out procedures, it seeks whether and how its existing cellular. Under such an approach, the comment as to whether the cellular partitioning rule for GWCS, which disaggregating parties would be required partitioning rule is sufficiently flexible to submit a certification, signed by both requires partitioning along established to increase the viability and value of geopolitical boundaries and along an the disaggregator and disaggregatee, as partitioned cellular licenses and to to which of the parties will retain area that is reasonably related to a rural facilitate cellular partitioning while telco’s wireline service area, should be responsibility for meeting the five and preventing circumvention of the cellular ten-year construction requirements for modified, if it chooses to open build-out procedures. The Commission partitioning of GWCS licenses to entities the GWCS market. The parties would be invites comment as to whether the permitted to share responsibility for other than rural telcos. The Commission existing cellular rules might be meeting the construction requirements. tentatively concludes that a more amended to further facilitate cellular The party or parties taking flexible approach, similar to the one it partitioning and what types of responsibility for meeting the adopted for broadband PCS, is alternative partitioning mechanisms construction requirements would be appropriate for GWCS. Partitioning of might be adopted. subject to license forfeiture for failing to GWCS licenses would be permitted 10. In addition, the Commission seeks meet the construction requirements. based on any license area defined by the comment as to whether it should adopt F. License Term parties. The Commission seeks a disaggregation certification procedure comment on whether this proposal is similar to the type adopted for 14. The Commission seeks comment consistent with the licensing of GWCS broadband PCS. The Commission as to whether the cellular and GWCS based on Economic Areas and whether proposes requiring parties seeking rules should be amended to provide that there are any technical or other issues Commission approval of a cellular parties obtaining partitioned cellular or unique to GWCS that might impede the disaggregation agreement to include a GWCS licenses or disaggregated adoption of a flexible approach to certification as to which party will be spectrum hold their license for the defining the partitioned license area. responsible for building out the remainder of the original licensee’s ten- remainder of the market. Should that year license term. In addition, the C. Amount of Spectrum To Disaggregate party fail to build out, the Commission Commission seeks comment as to proposes that the unserved portion of whether GWCS partitionees and 7. The Commission seeks comment as disaggregatees should be afforded the to whether minimum disaggregation the market would be subject to Phase II or unserved area applications. The same renewal expectancy as other standards are necessary for cellular and GWCS licensees. The Commission GWCS. The Commission seeks to Commission seeks comment as to whether such an approach is feasible for tentatively concludes that limiting the determine whether technological and license term of the partitionee or administrative considerations warrant cellular disaggregation given the distinctive nature of the cellular build- disaggregatee is necessary to ensure that the adoption of such standards. Cellular out rules. there is maximum incentive for parties licenses are currently issued for a 25 to pursue available spectrum as quickly 11. GWCS. The Commission seeks MHz block of spectrum and GWCS as practicable. licenses for 5 MHz blocks. GWCS comment as to whether it should amend licensees are also permitted to obtain its existing partitioning rule for GWCS G. GWCS Competitive Bidding Issues multiple 5 MHz blocks and are subject to allow dual construction options for 15. The Commission tentatively to a 15 MHz GWCS spectrum GWCS partitioning and adopt a concludes that GWCS partitionees and certification procedure for GWCS aggregation limit. The Commission finds disaggregatees that would qualify as disaggregation similar to the procedure that any such standard it adopts should designated entities should be permitted it has adopted for broadband PCS. be sufficiently flexible so as to to pay their pro rata share of the encourage disaggregation while 12. For example, under the first remaining government obligation via providing a standard which is construction option for GWCS installment payments. The Commission consistent with the technical rules and partitioning, the partitionee would seeks comment as to the exact by which the Commission will be able certify that it will satisfy the same mechanisms for apportioning the to track disaggregated spectrum and construction requirement as the original remaining government obligation GWCS licensee for its partitioned review disaggregation proposals in an between the parties and whether there license area. Under the second expeditious fashion. are any unique circumstances that construction option, the original GWCS would make devising such a scheme for D. Combined Partitioning and licensee may certify that it has or will the GWCS service more difficult than Disaggregation meet its five-year construction for broadband PCS. Since GWCS service requirement and that it will meet the areas are allotted on a geographic basis, 8. The Commission seeks comment as ten-year construction requirement for similar to broadband PCS, the to whether combined partitioning and the entire license area. Since the Commission proposes using population disaggregation should be permitted for original GWCS licensee retains as the objective measure to calculate the cellular and GWCS services. The responsibility for meeting the relative value of the partitioned area and Commission tentatively concludes that construction requirements, the amount of spectrum disaggregated as the it should permit such combinations to Commission believes that the objective measure for disaggregation. provide parties the flexibility they need partitionee should be permitted to meet 16. The Commission seeks comment to respond to market forces and a less substantial construction on whether to apply unjust enrichment demands for service relevant to their requirement. The Commission seeks rules to designated entity GWCS particular locations and service comment as to what lesser construction licensees that partition or disaggregate offerings. requirement would be appropriate. to non-designated entities. Commenters 698 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules should address whether the unjust Reason for Action 1934, as amended, 47 U.S.C. 154(i), 257, enrichment payments should be This rulemaking proceeding was 303(r), and 309(j). calculated on a proportional basis, using initiated to secure comment on Reporting, Recordkeeping, and Other population of the partitioned area and proposals to modify our cellular and Compliance Requirements amount of spectrum disaggregated as the General Wireless Communications objective measures. The Commission The proposals under consideration in Service (GWCS) rules to permit this FNPRM include the possibility of further seeks comment as to how to partitioning and disaggregation for all enforce unjust enrichment payments for imposing reporting and recordkeeping licensees in those services. The requirements on small businesses designated entity GWCS licensees proposals advanced in the FNPRM are paying via installment payments and seeking licenses through the proposed also designed to implement Congress’ partitioning and disaggregation rules. those that were awarded bidding credits goal of giving small businesses the that partition or disaggregate to non- The information requirements would be opportunity to participate in the used to determine whether the licensee designated entities. The Commission provision of spectrum-based services in tentatively proposes using methods was qualified to obtain a partitioned accordance with Sections 257 and 309(j) license or disaggregated spectrum. This similar to those adopted for broadband of the Communications Act of 1934, as PCS for calculating the amount of the information will be a one-time filing by amended, 47 U.S.C. 257, 309(j) (the an applicant requesting cellular unjust enrichment payments that must Communications Act). be paid in those circumstances. disaggregation or GWCS partitioning or Objectives disaggregation. This information will be H. Licensing Issues submitted on FCC Forms 490 (and 430 The Commission proposes to change and/or 600 filed as one package under 17. Partial assignment procedures are its rules for cellular and GWCS to not used for cellular partitioning. cover of the Form 490) which are facilitate the efficient use of cellular and currently in use and have already Instead, whenever a cellular licensee GWCS spectrum, increase competition, enters into a partitioning agreement, the received OMB clearance. We estimate and expedite the provision of cellular that the average burden on the applicant partitionee must file an application and GWCS services in the near term. (FCC Form 600) for a new cellular is three hours for the information These proposals seek to increase the necessary to complete these forms. We system covering the partitioned market. level of small business participation in Since this procedure provides the estimate that 75 percent of the the provision of cellular and GWCS respondents (which may include small appropriate level of review of the services. The Commission considers partitioning transaction, the businesses) will contract out the burden whether to modify the existing cellular of responding. We estimate that it will Commission proposes no modification rules to provide for more flexible at this time. However, should the take approximately 30 minutes to partitioning and to allow disaggregation coordinate information with those Commission permit cellular of cellular spectrum for the first time. In disaggregation, it seeks comment on the contractors. The remaining 25 percent of addition, the Commission proposes to respondents (which may include small method it should devise for reviewing allow GWCS licensees to partition and cellular disaggregation transactions. businesses) are estimated to employ in- disaggregate to entities that are eligible house staff to provide the information. 18. Since there are existing partial for GWCS licenses. Designated entity assignment rules for both cellular and GWCS licensees will be allowed to Federal Rules Which Overlap, Duplicate GWCS, the Commission proposes partition or disaggregate to non- or Conflict With These Rules utilizing partial assignment procedures, designated entities, subject to unjust None. similar to those adopted for broadband enrichment payments. Entities that PCS, to review cellular disaggregation qualify for installment payments will be Description, Potential Impact, and and GWCS partitioning and permitted to pay their pro rata share of Number of Small Entities Involved disaggregation transactions. Partial the remaining government obligation via The rule changes proposed in this assignment applications would be installment payments. The Commission proceeding will affect all small placed on public notice and subject to proposes to establish license terms that businesses which avail themselves of petitions to deny. The parties would be permit cellular and GWCS partitionees these rule changes, including small required to submit an FCC Form 490, an to hold partitioned licenses and businesses currently holding cellular FCC Form 600 and, if necessary, an FCC disaggregatees to hold disaggregated licenses who choose to partition and/or Form 430, together as one package spectrum for the remaining duration of disaggregate, and small businesses who under cover of the FCC Form 490. The the original ten-year license term. The may acquire licenses through Commission invites comment whether Commission also proposes to establish partitioning and/or disaggregation. The any additional procedures are necessary construction requirements for GWCS Commission is required to estimate in for reviewing these applications. partitioning to ensure expedient access its Final Regulatory Flexibility Analysis the number of small entities to which a III. Procedural Matters and Ordering to GWCS service in partitioned areas, to rule will apply, provide a description of Clauses ensure coverage and to increase spectrum efficiency. Finally, the such entities, and assess the impact of A. Regulatory Flexibility Act Commission proposes to allow the rule on such entities. To assist the Commission in this analysis, Summary combined partitioning and disaggregation for cellular and GWCS commenters are requested to provide As required by Section 603 of the services and to follow the existing information regarding how many total Regulatory Flexibility Act, 5 U.S.C. 603, partial assignment procedures for cellular and GWCS entities, existing and the Commission has prepared an Initial cellular and GWCS. potential, would be affected by the Regulatory Flexibility Analysis (IRFA) proposed rules in the FNPRM. In of the expected impact on small entities Legal Basis particular, we seek estimates of how of the policies and rules proposed in The proposed action is authorized many cellular and GWCS entities, this Further Notice of Proposed under Sections 4(i), 257, 303(r) and existing or potential, will be considered Rulemaking (FNPRM). 309(j) of the Communications Act of small businesses. Small business is Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 699 defined here as a firm that has revenues provision of cellular and GWCS services agency comments are due at the same of less than $40 million in each of the without needing to acquire wholesale an time as other comments on this FNPRM; last three calendar years. This definition existing license (with all of the bundle OMB comments are due March 7, 1997. was adopted for the GWCS service. We of rights currently associated with the Comments should address: (a) Whether seek comment as to whether this existing license). Acquiring ‘‘less’’ than the proposed collection of information definition is appropriate in this context. the current license will presumably be is necessary for the proper performance Additionally, we request each a more flexible and less expensive of the functions of the Commission, commenter to identify whether it is a alternative for entities desiring to enter including whether the information shall small business under this definition. If these services. have practical utility; (b) the accuracy of the commenter is a subsidiary of The rule changes proposed in the the Commission’s burden estimates; (c) another entity, this information should FNPRM by the Commission are ways to enhance the quality, utility, and be provided for both the subsidiary and consistent with the Communications clarity of the information collected; and the parent corporation or entity. Act’s mandate to identify and eliminate (d) ways to minimize the burden of the The Commission anticipates that a market entry barriers for small business collection of information on the total of 8,465 cellular licensees or in the provision and ownership of respondents, including the use of potential licensees could take the telecommunications services, and the automated collection techniques or opportunity to partition or disaggregate mandate under Section 309(j) of the other forms of information technology. a license or obtain a license through Communications Act, 47 U.S.C. 309(j), 19. In addition to filing comments partitioning and/or disaggregation. This to utilize auctions to ensure that small, with the Secretary, a copy of any estimate is based upon the current minority and women-owned businesses comments on the information number of existing cellular licensees and rural telcos have an opportunity to collections contained herein should be (1,693) and our estimate that each participate in the provision of spectrum- submitted to both of the following: license would probably not be based services. The proposals in the Dorothy Conway, Federal partitioned and/or disaggregated to FNPRM, if implemented, will facilitate Communications Commission, Room more than five parties. However, we market entry by parties, including small 234, 1919 M Street, N.W., Washington, estimate that a significant number of the businesses, that may lack the financial DC 20554, or via the Internet to cellular and GWCS licensees and resources for participation in cellular [email protected] and to Timothy Fain, potential licensees who take the and GWCS services. The alternative is to OMB Desk Officer, 10236 NEOB, 725— opportunity to partition and/or continue to allow GWCS partitioning 17th Street, N.W., Washington, DC disaggregate a license or who could only for rural telcos. Limiting GWCS 20503 or via the Internet at obtain a license through partitioning partitioning to rural telcos would not [email protected]. For additional and/or disaggregation will be small permit other small businesses to obtain information regarding the information businesses. partitioned licenses or to partition to collections contained herein, contact SBA has not developed a definition of other parties, and thus would not Dorothy Conway above. small entities specifically applicable to promote the participation of small C. Ex Parte Rules—Non-Restricted cellular. The closest applicable business in the provision of GWCS Proceedings definition under SBA rules is service. radiotelephone (wireless) companies. In the FNPRM, the Commission This is a non-restricted notice and According to SBA’s definition, a small proposes facilitating GWCS partitioning comment rule making proceeding. Ex business radiotelephone company is one by offering a choice between two parte presentations are permitted except employing fewer than 1,500 persons. different build-out options, which could during the Sunshine Agenda period, According to our most recent data, there be negotiated by the parties. The provided they are disclosed as provided are 1,693 existing cellular licensees. We Commission tentatively concludes that in the Commission’s rules, 47 CFR are unable at this time to estimate the these proposed flexible build-out 1.1201, 1203, and 1.1206(a). number of cellular service carriers that requirements, if adopted, will encourage D. Comment Period would qualify as small business partitioning to entities that have a concerns under SBA’s definition. We sincere interest in providing GWCS Pursuant to applicable procedures set estimate that fewer than 1,693 small service and will thereby expedite the forth in §§ 1.415 and 1.419 of the entity cellular service carriers may be provision of service to geographic areas Commission’s rules, 47 CFR 1.415 and affected by the decisions and rules that otherwise may not receive it as 1.419, interested parties may file adopted in this FNPRM. quickly. comments to the Further Notice of This FNPRM solicits comments on a Proposed Rulemaking on or before Significant Alternatives Minimizing the variety of proposals discussed herein. February 10, 1997, and reply comments Impact on Small Entities Consistent Any significant alternatives presented in on or before February 25, 1997. To file With the Stated Objectives the comments will be considered. formally in this proceeding, you must The proposals advanced in the file an original and four copies of all FNPRM are designed to implement B. Paperwork Reduction Act comments, reply comments, and Congress’ goal of giving small The Further Notice of Proposed supporting comments. If you want each businesses, as well as other entities, the Rulemaking (FNPRM) contains either a Commissioner to receive a personal opportunity to participate in the proposed or modified information copy of your comments, you must file provision of spectrum-based services. collection. As part of its continuing an original plus nine copies. You should The impact on small entities in the effort to reduce paperwork burdens, we send comments and reply comments to proposals in the FNPRM is the invite the general public and the Office Office of the Secretary, Federal opportunity to enter the cellular and of Management and Budget to take this Communications Commission, GWCS market through partitioning and opportunity to comment on the Washington, D.C. 20554. Comments and disaggregation. With more open information collections contained in reply comments will be available for partitioning and disaggregation, this FNPRM, as required by the public inspection during regular additional entities, including small Paperwork Reduction Act of 1995, business hours in the FCC Reference businesses, may participate in the Public Law No. 104–13. Public and Center of the Federal Communications 700 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

Commission, Room 239, 1919 M Street, measures; tribal whiting allocation; the office of the Administrator (formerly N.W., Washington, D.C. 20554. announcement of exempted fishing Director), Northwest Region, NMFS permits; request for comments. E. Authority (Regional Administrator), or may be obtained from the Pacific Fishery SUMMARY: NMFS announces the 1997 Authority for issuance of this Further Management Council (Council), by fishery specifications and management Notice of Proposed Rulemaking is writing the Council at 2130 SW Fifth measures for groundfish taken in the contained in Sections 4(i), 257, 303(r), Avenue, Suite 224, Portland, OR 97201. and 309(j) of the Communications Act of U.S. exclusive economic zone (EEZ) and 1934, as amended, 47 U.S.C. 154(i), 257, state waters off the coasts of FOR FURTHER INFORMATION CONTACT: 303(r), and 309(j). Washington, Oregon, and California, as William L. Robinson (Northwest Region, authorized by the Pacific Coast NMFS) 206–526–6140; or Rodney R. F. Ordering Clauses Groundfish Fishery Management Plan McInnis (Southwest Region, NMFS) Accordingly, It is ordered that, (FMP). The specifications include the 310–980–4040. pursuant to the authority of Sections level of the acceptable biological catch 4(i), 257, 303(g), 303(r), and 332(a) of (ABC) and harvest guideline (HG), SUPPLEMENTARY INFORMATION: The FMP the Communications Act of 1934, as including the distribution between requires that fishery specifications for amended, 47 U.S.C. §§ 154(i), 257, domestic and foreign fishing operations. groundfish be evaluated each calendar 303(g), 303(r), and 332(a), a further The HGs are allocated between the year, that HGs or quotas be specified for notice of proposed rulemaking is hereby limited entry and open access fisheries. species or species groups in need of adopted. The management measures for 1997 are additional protection, and that It is further ordered, that comments in designed to keep landings within the management measures designed to HGs, for those species for which there WT Docket No. 96–148 will be due achieve the HGs or quotas be published are HGs, and to achieve the goals and February 10, 1997, and reply comments in the Federal Register and made objectives of the FMP and its will be due February 25, 1997. effective by January 1, the beginning of implementing regulations. The intended the fishing year. This action announces List of Subjects effect of these actions is to establish and makes effective the final 1997 allowable harvest levels of Pacific Coast 47 CFR Part 22 fishery specifications and the groundfish and to implement management measures designed to Communications common carriers, management measures designed to achieve them. These specifications and Reporting and recordkeeping achieve but not exceed those harvest requirements. levels, while extending fishing and measures were considered by the Council at two meetings and were 47 CFR Part 26 processing opportunities as long as possible during the year. This action recommended to NMFS by the Council Communications common carriers; also announces issuance of exempted at its October 1996 meeting in San Reporting and recordkeeping fishing permits (EFPs) in 1996 and Francisco, CA. NMFS received three requirements. applications for exempted fishing public comments regarding the Federal Communications Commission. permits in 1997. allocation of Pacific whiting (whiting) to the Makah Indian tribe prior to the William F. Caton, DATES: Effective 0001 hours (local time) publication of these specifications. Acting Secretary. January 1, 1997, until the 1998 annual These comments are addressed in [FR Doc. 97–99 Filed 1–3–97; 8:45 am] specifications and management measures are effective, unless modified, paragraph V. Regulatory citations have BILLING CODE 6712±01±P superseded, or rescinded. The 1998 been changed throughout this document annual specifications and management to conform with the nationwide measures will be published in the consolidation of Pacific and Western DEPARTMENT OF COMMERCE Federal Register. Comments on the Pacific fisheries regulations at 50 CFR 1997 annual specifications and part 600 and part 660. National Oceanic and Atmospheric management measures will be accepted Administration I. Final Specifications until February 5, 1997. 50 CFR Parts 600 and 660 ADDRESSES: Comments on these The fishery specifications include specifications and management ABCs, the designation of HGs or quotas [Docket No. 961227373±6373±01; I.D. measures, tribal whiting allocation, and for species that need individual 122096B] EFPs should be sent to Mr. William management, the apportionment of the RIN 0648±XX78 Stelle, Jr., Administrator, Northwest HGs or quotas between domestic and Region, National Marine Fisheries foreign fisheries, and allocation between Magnuson Act Provisions; Foreign Service, 7600 Sand Point Way N.E., BIN the open access and limited entry Fishing; Fisheries off West Coast C15700, Bldg. 1, Seattle, WA 98115– segments of the domestic fishery. As in States and in the Western Pacific; 0070; or Ms. Hilda Diaz-Soltero, the past, the specifications include fish Pacific Coast Groundfish Fishery; Administrator, Southwest Region, caught in state ocean waters (0–3 Annual Specifications and National Marine Fisheries Service, 501 nautical miles (nm) offshore) as well as West Ocean Blvd., Suite 4200, Long Management Measures fish caught in the EEZ (3–200 nm Beach, CA 90802–4213. Information offshore). Only changes to the AGENCY: National Marine Fisheries relevant to these specifications and specifications between 1996 and 1997 Service (NMFS), National Oceanic and management measures, including the are discussed herein, otherwise they are Atmospheric Administration (NOAA), stock assessment and fishery evaluation Commerce. (SAFE) report, has been compiled in the same as announced in 1996 (61 FR ACTION: 1997 groundfish fishery aggregate form and is available for 279, January 4, 1996). specifications and management public review during business hours at BILLING CODE 3510±22±P Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 701 702 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 703 704 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 705 706 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 707

BILLION CODE 3910±22±C 708 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

Changes to the ABCs and HGs amount assumed at the beginning of the guideline of 750 mt for POP is the same The ABCs, which are based on the year. Therefore, for greater management as last year. flexibility during the season, HGs for the best available scientific information, Shortspine Thornyheads Sebastes complex and its components in represent the total catch, including The ABC for shortspine thornyheads amounts that are discarded as well as 1997 will include the total catch, and estimates of discards will be added to is the same as in 1996, but the HG is retained. Stock assessment information reduced from 1,500 mt to 1,380 mt to considered in determining the ABCs is the landings during the season. The 1997 changes to the ABCs and more accurately represent the landed available from the Council, and was HGs are summarized below. More catch. made available to the public, before the detailed information appears in the Council’s October 1996 meeting, in the Sebastes Complex Council’s SAFE document (September Council’s SAFE document (see 1996), the ‘‘Groundfish Management The ABCs for the Sebastes complex ADDRESSES). The 1997 ABCs are Team Final Acceptable Biological Catch are the sum of the ABCs of its changed from 1996 for Pacific whiting, and Harvest Guideline components. The HGs (for total catch) the Sebastes complex, bocaccio, canary Recommendations for 1997’’ (GMT are the sum of the HGs for each species rockfish, and yellowtail rockfish. New Report C.4.) from the October 1996 or of the ABCs for those species without ABCs were developed for ‘‘remaining Council meeting, and the Council’s HGs. The 1997 HG for the Sebastes rockfish’’ and for a new category of newsletters for its August and October complex in the Vancouver/Columbia ‘‘other rockfish.’’ Changes that result 1996 meetings. area is reduced from 11,900 mt for only from rounding are not explained. landed catch in 1996 to 7,130 mt for Those species or species groups Whiting total catch in 1997. The 1997 HG for the managed with HGs in 1996 will A new stock assessment for whiting Sebastes complex in the Eureka/ continue to be managed with HGs in indicated that the 1994 year class was Monterey/Conception area is reduced 1997. The 1997 HGs differ from 1996 for larger than previously expected. This, from 13,200 mt for landed catch in 1996 Pacific whiting, shortspine thornyheads, combined with substantive changes in to 9,664 mt for total catch in 1997. The the Sebastes complex, yellowtail the stock assessment model, resulted in large declines are due primarily to large rockfish, bocaccio, and canary rockfish. an ABC of 290,000 mt for the U.S. and reductions in the ABCs and HGs for Stock assessments and inseason catch Canada combined, 25,000 mt higher bocaccio, yellowtail rockfish, and also monitoring are designed to account for than in 1996. Nonetheless, this ABC to new ABC estimates for the all fishing mortality, including that may be somewhat conservative. Another ‘‘remaining rockfish’’ and ‘‘other resulting from fish discarded at sea. year of data is needed to verify whether rockfish’’ categories. Discards of rockfish and sablefish in the the apparent high abundance of the Bocaccio fishery for whiting are well monitored 1994 year class is due to an actual and are accounted for inseason as they increase in fish, rather than a shift in The 1997 ABC for bocaccio in the occur. In the other fisheries, discards their distribution to more northern Eureka/Monterey/Conception area is caused by trip limits have not been waters. Other factors considered in 265 mt, only 15 percent of the 1,700-mt monitored consistently, so discard setting the ABC were promoting ABC in 1996. (Landings were projected estimates have been developed to stability in landings by distributing the at 454 mt for 1996, so the reduction in account for this extra catch. A discard harvest of strong year classes over ABC, while severe, is not as extreme as level of about 16 percent of the total several years and the need to suppress it appears.) The new stock assessment catch, previously measured for widow the bycatch of yellowtail rockfish at a indicates it is unlikely that the current rockfish in a scientific study, is assumed time when that fishery is facing a major stock size is greater than 17–20 percent to be appropriate for the commercial reduction in its ABC. The U.S. HG of the 1970 level but also suggests a high fisheries for widow rockfish, yellowtail (232,000 mt) is set at 80 percent of the degree of uncertainty in current stock rockfish, canary rockfish, and Pacific U.S.-Canadian ABC, as in recent years. size. Recruitment is highly variable for ocean perch (POP). A discard estimate Allocation to the Makah treaty Indian bocaccio. Assuming that future of 8 percent is used for the deepwater tribe in 1997 is discussed in paragraph recruitment will be similar to that in thornyhead fishery, 5 percent for Dover V. 1969–1996, the level of fishing mortality sole, and 20 percent for sablefish. that would produce spawning biomass In some cases (e.g., sablefish, widow Pacific Ocean Perch (POP) at 35 percent of its unfished level rockfish, thornyheads, Dover sole), an Since 1981, POP has been managed (F35%) is 265 mt. The 1997 HG (for estimated amount of discards has been under a schedule intended to rebuild total catch) is 387 mt, 122 mt higher subtracted from the ABC to determine POP to a level that would annually than ABC, and at, but not above, the the HG for the landed catch. In other support removals of 1,000 mt. Landings overfishing threshold for bocaccio. The cases (e.g., whiting, Sebastes complex), were higher than this as recently as Council recommended that the bocaccio a HG representing total catch is more 1993. To achieve an annual harvest of HG be set above ABC in 1997 to allow appropriate. Discards in the whiting about 1,000 mt while maintaining a a 1-year phase-down to mitigate the fishery have been well documented and, biologically sound harvest rate, the economic impacts of a 60 percent therefore, the HG for whiting represents current biomass would have to double. reduction in catch in 1 year (from 664 total catch and discards are accounted This would be a slow process unless mt to 265 mt). The consequences of the for during the season. In 1996, the HG there is a fortuitous sequence of large phase-down are that the ABC and HG in for the Sebastes complex included only recruitments. The harvest guideline for 1998, and possibly subsequent years, landings to be consistent with most of POP is meant to accommodate only most likely will be lower than they the other groundfish HGs. However, small, incidental catches and, therefore, would have been if 1997 catches did not using HGs based only on landed catch is not a target to be achieved exceed ABC. The Council intends that was too rigid because it did not provide deliberately. Trip limits for POP will not the HG be set equal to ABC in 1998. for inseason adjustments, a particular be increased to achieve the harvest Bocaccio also are particularly difficult problem when actual reports of discards guideline, and may be reduced if to manage, because of the multiplicity of during the season differed from the landings are too high. The harvest gear types involved, including trawl, set Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 709 net and recreational fisheries. The 2- caught before they have had an encountered as bycatch in other month cumulative trip limit in the opportunity to contribute to building fisheries. A substantial portion of the limited entry fishery is substantially future biomass. Given this new yellowtail harvest guideline is taken as reduced from 60,000 lb (27,216 kg) in information, it appears that yellowtail bycatch in the whiting and shrimp 1996 to 12,000 lb (5,443 kg) in 1997. rockfish may have been fished for the fisheries. Catch data from the whiting Additional trip limits specific to last several years above the overfishing fishery have been examined, and bocaccio have been placed on the open threshold. regulatory changes to reduce bycatch are access fishery in 1997. Bycatch of The recommended 1997 HG of 2,762 not obvious. The whiting ABC may be rockfish in the shrimp and prawn trawl mt for yellowtail rockfish in the somewhat conservative in 1997, in part fisheries is being addressed by reducing Vancouver/Columbia area represents to suppress the bycatch of yellowtail the groundfish trip limits to 500 lb (227 total catch, whereas the 3,590-mt HG in rockfish. The at-sea processing sector of kg) in 1997, one third of the 1996 1996 was for landed catch (equivalent to the whiting fishery has agreed to shrimp trip limit and one half of the 4,160 mt for total catch). The Council monitor its bycatch more closely, using 1996 prawn trip limit. recommended that the 1997 HG be set daily satellite transmissions to alert at, but not above, the overfishing them to areas of high bycatch of Canary Rockfish threshold. Fishing is allowed at, but not yellowtail rockfish, as was done to The 1997 ABC for canary rockfish in above, the overfishing threshold of monitor salmon bycatch in 1996. the Vancouver/Columbia area is 1,220 2,762 mt in 1997 in order to mitigate the Bycatch of rockfish in the shrimp and mt, slightly higher than the 1,000-mt sudden and severe economic impact to prawn trawl fisheries is being addressed ABC in 1996. A new assessment for the fishing industry that would occur if by reducing the groundfish trip limits to canary rockfish used two models that the HG were reduced from the 1996 500 lb (227 kg) in 1997, one third of the estimate the 1995 spawning biomass is ABC of 6,440 mt to the 1997 ABC of 1996 shrimp trip limit and one half of 18–33 percent of the 1967 value. Both 1,773 mt in a single year. The Council the 1996 prawn trip limit. The target models predict yield and spawning recognized, however, the need to adjust fishery for yellowtail rockfish is biomass levels will decline during catches to the ABC level as soon as addressed by reducing the trip limit, 1997–1999. For both models combined, possible, and consequently, announced from 6,000 lb (2,722 kg) per month the average catch projection for the next its intent that this phase-down in north of Cape Lookout OR (45°20′15′′ N. 3 years is 1,220 mt when average harvest last only a single year and that lat.) and 35,000 lb per month between recruitment is assumed. The HG for it intended to recommend a 1998 HG Cape Lookout and Cape Mendocino CA canary rockfish is increased from 850 mt equivalent to the 1998 ABC. Fishing at (40°30′ N. lat.) to 6,000 lb (2,722 kg) per for landed catch in 1996 to 1,000 mt for the overfishing threshold for 1997 is 2-month period in both areas. total catch in 1997 to account for expected to result in a lower ABC and estimated discards. HG in 1998 than if the 1997 harvest did Remaining Rockfish Yellowtail Rockfish not exceed ABC, but the fishing New assessments were provided for a industry will have had a full year to number of previously unassessed The 1997 ABC for yellowtail rockfish adjust to reduced harvest levels. rockfish species (listed in table 1). in the Vancouver/Columbia/Eureka area The Council carefully considered the ‘‘Remaining rockfish’’ includes canary, is 1,773 mt, 4,667 mt lower than the possible impacts of continuing to POP, and yellowtail rockfish in the 6,440-mt ABC in 1996. (The stock harvest at a level greater than ABC for Eureka/Monterey/Conception area, and assessment determined ABCs for 1 more year in contrast to making the bocaccio in the Vancouver/Columbia different areas. The 1997 ABC is full adjustment to the ABC level in a area—areas not included in the prorated in Table 1 to apply north and single year. The Council concluded, individual HGs for these species. The south of the Columbia-Eureka boundary based on risk analysis conducted by the ABCs were based on either the ABC for consistency with other species in the stock assessment scientists, that the 1- from the assessment or recent catch, Sebastes complex.) The results of the year phase-down will cause only a small whichever is less. new assessment have caused a great further decline in the stock level while deal of concern because they conflict it buffers the economic impact of the Other Rockfish with the impressions of many who fish harvest reductions. Lower stock levels Assessments were not conducted for a for yellowtail rockfish. For the Eureka/ means the likelihood of continued lower number of other rockfish species (‘‘other south Columbia area (south of Cape ABCs and HGs for the next few years rockfish’’). The combined ABC for these Falcon (45°46′ N. lat.)), addition of until the stock recovers sufficiently to species is set at the recent landed catch. 1995–96 stock assessment data resulted allow higher harvests. The Council also Setting HGs Greater Than ABC in substantial reductions in estimates of recommended the phase-down to allow biomass and recruitment of the 1984 sufficient time for further analysis of In most cases, HGs are less than or year class in 1988 (to 20 percent of its some of the components of the stock equal to the ABCs. However, the former level). For the north Columbia assessment in order to refine estimates Council recommended HGs that exceed area (north of Cape Falcon), addition of of the ABC for 1998. Considerable the ABCs for POP and shortspine the 1995–96 data also reduced estimates public testimony pointed to some thornyheads (as in 1996), yellowtail of biomass and recruitment. Major indicators, such as yellowtail bycatch rockfish, and bocaccio. The FMP changes did not occur in the U.S. rates in the whiting and shrimp trawl requires that the Council consider Vancouver area. Available fishery age- fisheries, that were contradictory to the certain factors when setting a HG above composition data indicate that fish older stock assessment results. A work plan an ABC. These factors were analyzed by than 25 years have all but disappeared was developed to examine some of these the Council’s Groundfish Management from the fishery. Additionally, there is indicators and redo the stock Team (GMT) and considered at the no evidence of any strong incoming year assessment during the upcoming year so Council’s October 1996 meeting before classes. Only half the population is that the results could be used to set the the Council recommended the 1997 mature 3 or 4 years after recruiting to 1998 ABC. HGs. These factors also were considered the fishery, so immature fish have a Yellowtail rockfish is particularly when establishing the 20-year relatively high likelihood of being difficult to manage because it is rebuilding schedule for POP in the 1981 710 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

FMP, in the most recent stock domestic annual processing (DAP) and after subtracting any set-asides for assessments for POP (in the September joint venture processing (JVP). The recreational or tribal fishing. For those 1995 SAFE document) and shortspine portion of a HG or quota not species in which the open access share thornyheads (in the October 1994 SAFE apportioned to DAH may be set aside as would have been less than 1 percent, no document), and in the GMT’s the total allowable level of foreign open access allocation is specified recommendations for 1996 (GMT Report fishing (TALFF). In January 1997, no unless significant open access effort is C.1., October 1995) and for 1997 (GMT surplus groundfish are available for expected. Report C.4., October 1996). joint venture or foreign fishing Limited Entry Allocations operations. Consequently, all the HGs in Overfishing 1997 are designated entirely for DAH The limited entry fishery means the The FMP defines ‘‘overfishing’’ as a and DAP (which are the same in this fishery composed of vessels using fishing mortality rate that would, in the case); JVP and TALFF are set at zero. limited entry gear fished pursuant to the long term, reduce the spawning biomass In the unlikely event that fish are HGs, quotas, and other management per recruit below 20 percent of what it reallocated inseason and a foreign or measures governing the limited entry would have been if the stock had never joint venture fishery should occur, the fishery. Limited entry gear means been exploited (unless the species is incidental catch levels would be as longline, pot, or groundfish trawl gear above the level that would produce follows, subject to change during the used under the authority of a valid maximum sustainable yield (MSY)). The year: For a whiting fishery, the same as limited entry permit issued under the rate is defined in terms of the announced at Table 2, footnote 1, of 58 FMP, affixed with an endorsement for percentage of the stock removed per FR 2990 (January 7, 1993); for a jack that gear. (Groundfish trawl gear year. Therefore, high catch rates can mackerel joint venture, initially the excludes shrimp trawls used to harvest cause overfishing at any stock same as those suggested in section pink shrimp, spot prawns, or ridgeback abundance level. Conversely, 12.5.2 of the FMP. prawns, and other trawls used to fish for overfishing does not necessarily occur California halibut or sea cucumbers II. The Limited Entry Program for stocks at low abundance levels if the south of Point Arena, CA.) catch can be kept to a sufficiently small The FMP established a limited entry The limited entry allocation is the fraction of that stock level. The target program that, on January 1, 1994, allowable catch (HG or quota) reduced rate for exploitation of Pacific Coast divided the commercial groundfish by: (1) Set-asides, if any, for treaty groundfish typically is the rate that fishery into two components: The Indian fisheries or recreational fisheries; would reduce spawning biomass per limited entry fishery and the open and (2) the open access allocation. In recruit to 35 percent of its unfished access fishery, each of which has its 1996, a new definition was added for level. This desired rate of fishing will own allocations and management ‘‘commercial harvest guideline’’, (the always be less than the overfishing rate, measures. The limited entry and open commercial harvest guidelines are set so there is a buffer between the access allocations are calculated forth in Table 1). It is the HG minus the management target and the level that according to a formula specified in the amount set aside for tribal or could harm the stock’s long-term FMP, which takes into account the recreational fishing and, therefore, is the potential productivity. If the overfishing relative amounts of a species taken by number that, when multiplied by the threshold is reached, the Guidelines for each component of the fishery during open access allocation percentages, Fishery Management Plans at 50 CFR the 1984–88 limited entry window provides the open access and limited part 600 require the Council to identify period. At its October 1996 meeting, the entry allocations. Estimates of actions to be undertaken to alleviate Council recommended the species and recreational harvest are subtracted for overfishing. As discussed above, efforts areas subject to open access and limited two species in 1997, 55 mt for bocaccio have been taken to avoid exceeding the entry allocations in 1997, and the (which also is reflected in the overfishing thresholds for bocaccio and Regional Administrator calculated the allocations for the Sebastes complex in yellowtail rockfish in 1997 by reducing amounts of the allocations that are the Eureka, Monterey, and Conception their HGs to the F20% level and by presented in Table 1. Unless otherwise subareas), and 900 mt for lingcod. instituting more restrictive trip limit specified, the limited entry and open Allocations for Washington coastal management in 1997, that will make it access allocations are treated as HGs in tribal fisheries are discussed in less likely that HGs will be reached 1997. paragraph V. before the end of the year. In addition, the Council has expressed its intent to Open Access Allocations III. 1997 Management Measures reduce the HGs to the F35% level in The open access fishery is composed Projections of landings in 1996 are 1998. of vessels that operated under the HGs, based on the information available to quotas, and other management measures the Council at its October 1996 meeting Foreign and Joint Venture Fisheries governing the open access fishery, using (GMT Supplemental Report C.4., For those species needing individual (1) exempt gear, or (2) longline or pot October 1996). management that will not be fully (trap) gear fished from vessels that do utilized by domestic processors or not have permits endorsed for use of A. Limited Entry Fishery harvesters, and that can be caught that gear. Exempt gear means all types The following management measures without severely affecting species that of legal groundfish fishing gear except apply to vessels operating in the limited are fully utilized by domestic processors groundfish trawl, longline, and pots. entry fishery starting January 1, 1997, or harvesters, foreign or joint venture (Exempt gear includes trawls used to and are designed to keep landings operations may occur. A joint venture harvest pink shrimp or spot or ridgeback within the HGs or limited entry occurs when U.S. vessels deliver their prawns (shrimp trawls), and, south of allocations. Cumulative trip limits catch to foreign processing vessels in Point Arena, CA (38°57′30′′ N. lat.), continue to be used for most of the the EEZ. A portion of the HGs or quotas California halibut or sea cucumbers.) limited entry fishery, which allows for these species may be apportioned to The open access allocation is derived fishers to accumulate fish over a period domestic annual harvest (DAH), which by applying the open access allocation of time without limit on the number of in turn may be apportioned between percentage to the annual HG or quota landings. Two-month cumulative limits Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 711 will continue to be used for most of the decides the benefit does not outweigh In January 1997, the 2-month limited entry fishery in 1997. As in the administrative burden. cumulative trip limits for the Sebastes 1996, no more than 60 percent of a 2- Widow Rockfish complex are 30,000 lb (13,608 kg) north month limit may be taken in either of Cape Mendocino and 150,000 lb calendar month, resulting in a variable In 1996, the 2-month cumulative limit (68,039 kg) south of Cape Mendocino. monthly trip limit within the 2-month of 70,000 lb (31,752 kg) was in effect Within these limits, no more than limit. This enables the limited entry until September, at which time it was 14,000 lb (6,350 kg) may be canary fleet to maintain its current monthly reduced to 50,000 lb (27,680 kg). In rockfish; 6,000 lb (2,722 kg) may be November, a monthly cumulative limit fishing pattern, target on 50 percent of yellowtail rockfish north of Cape of 25,000 lb (11,340 kg) was applied the 2-month cumulative limit in a Mendocino; and 12,000 lb (5,443 kg) month, and have the protection of a until the end of the year. Landings were projected to be 6,275 mt in 1996, within may be bocaccio south of Cape buffer equivalent to 10 percent of the 2- Mendocino. The yellowtail and month cumulative limit to account for 1 percent of the HG. In 1997, the year bocaccio cumulative trip limits are inaccuracies in weighing fish at sea or will start with the same cumulative substantially reduced because of severe for small amounts caught above the limits as in 1996: 70,000 lb (31,752 kg) target level. Unless otherwise per 2-month period. reductions in their HGs. As discussed above, both yellowtail and bocaccio will announced later in the year, the 2- The Sebastes Complex (Including month periods are: January–February, be fished at their overfishing threshold Yellowtail Rockfish, Canary Rockfish, in 1997, as a 1-year step down to fishing March–April, May–June, July–August, and Bocaccio) September–October, and November– at F35%. Both species are particularly December. One-month periods may be Beginning in January 1996, the 2- difficult to manage because of the used later in the year. month cumulative trip limits for the multiplicity of gear types involved. A Sebastes complex were: 70,000 lb substantial portion of the yellowtail HG Platooning (31,752 kg) north of Cape Lookout is taken as bycatch in the whiting and ° ′ ′′ An optional platooning system is (45 20 15 N. lat.), 100,000 lb (45,359 shrimp fisheries. Catch data from the added for 1997, that enables the limited kg) between Cape Lookout and Cape whiting fishery have been examined, ° ′ entry trawl fleet to provide a more Mendocino (40 30 N. lat.), and 200,000 and regulatory changes to reduce consistent supply of fish to processors. lb (90,719 kg) south of Cape Mendocino. bycatch are not obvious. The whiting Whereas the cumulative limits normally Two-month cumulative limits also ABC may be somewhat conservative in applied to yellowtail rockfish, canary apply by calendar month (this would be 1997, in part to suppress the bycatch of rockfish and bocaccio, which counted considered the ‘‘A’’ platoon), a vessel in yellowtail rockfish. The at-sea the ‘‘B’’ platoon would choose to toward the limits for the Sebastes complex. Beginning in January 1996, processing sector of the whiting fishery operate under limits out of phase by 2 has agreed to monitor its bycatch more weeks, from the 16th to the 15th of the these limits were: Yellowtail rockfish— closely, using daily satellite month. All limited entry trawl vessels 32,000 lb (14,515 kg) north of Cape transmissions to alert them to areas of will automatically be in the ‘‘A’’ Lookout or 70,000 lb (31,752 kg) high bycatch, as was done to monitor platoon, unless the permit owner between Cape Lookout and Cape indicated in the annual permit renewal Mendocino; canary rockfish—18,000 lb salmon bycatch in 1996. Bycatch of that the permitted vessel will participate (8,165 kg); bocaccio south of Cape rockfish in the shrimp and prawn trawl in the ‘‘B’’ platoon. Vessels operating in Mendocino—60,000 lb (27,216 kg). fisheries is being addressed by reducing the ‘‘B’’ platoon will not be able to land These limits remained in effect until the groundfish trip limits from 1,500 lb any species of groundfish from January September 1996, at which time the 2- (680 kg) and 1,000 lb (454 kg), 1–15, 1997. The effective date of any month cumulative limit for yellowtail respectively, to 500 lb (227 kg) of inseason changes to the cumulative trip was reduced to 20,000 lb (9,072 kg) groundfish in 1997. Management of limits also will be delayed for 2 weeks north of Cape Lookout. In November, all bocaccio is further complicated by a for the ‘‘B’’ platoon so that a vessel’s the trip limits for the Sebastes complex significant recreational harvest; bag ‘‘B’’ limit will not be changed during its north of Cape Mendocino were limit reductions may be necessary in the cumulative trip limit period. Special converted to 1-month cumulative limits future. provisions will be made to to provide more management flexibility. The declaration procedures, instituted accommodate ‘‘B’’ vessels at the end of The 1-month limits were set at half the by the States of Oregon and Washington the year so that the amount of fish made poundage of the 2-month cumulative for vessels operating on both sides of available to both ‘‘A’’ and ‘‘B’’ vessels is limits, except for yellowtail rockfish Cape Lookout, are no longer in effect the same. A vessel in the ‘‘B’’ platoon north of Cape Lookout, which was because the cumulative limits no longer will have the same cumulative trip limit reduced to 6,000 lb (2,722 kg). differ north and south of Cape Lookout. for the final period as vessels in the ‘‘A’’ By the end of 1996, landings are platoon, but the final period may be 2 projected to be as follows: Sebastes POP weeks shorter, so that both the ‘‘A’’ and complex in the Vancouver/Columbia ‘‘B’’ fishing periods end on December area—8,583 mt (19 percent below the In 1996, the 2-month cumulative trip 31, 1997. For example, if the last period HG); yellowtail rockfish north of Cape limit for POP of 10,000 lb (4,536 kg) is a 2-month cumulative trip limit for Lookout—3,144 mt (5 percent over the continued until July 1, when it was November–December, the vessel would HG), but this projection was made reduced to 8,000 lb (3,629 kg). Landings be able to take it in 6 weeks (November before the cumulative limit was reduced were projected to be 771 mt in 1996, 4 16–December 31) without a 60-percent in November 1996; yellowtail rockfish percent above the HG. With the 1997 monthly limit. The choice of platoon south of Cape Lookout—1,621 mt (33 HG the same as in 1996, the 2-month applies to the permit for the entire percent below the HG); canary cumulative limit will be set again at calendar year, even if the permit is sold, rockfish—868 mt (2 percent below the 8,000 lb (3,629 kg) beginning in January leased, or otherwise transferred. The HG); and bocaccio—654 mt, including 1997. POP is managed to achieve a platoon system is experimental and may estimated recreational catch (56 percent rebuilding schedule, so trip limits will not be continued in 1998 if the Council below the HG). not be increased to achieve the HG. 712 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

Sablefish no HG and landings had been below the recreational catch, 8 percent below the The sablefish HG is subdivided 425-mt ABC in 1996, the daily trip limit HG. was set at 350 lb (159 kg) to among several fisheries. The tribal Black Rockfish accommodate most landings without fishery allocation is set aside prior to Black rockfish off the State of dividing the balance of the HG between encouraging excessive effort shifts into that area. The trip limit for sablefish Washington continue to be managed the commercial limited entry and open under the regulations at 50 CFR access fisheries. These three fisheries smaller than 22 inches (56 cm) of 1,500 lb (680 kg) or 3 percent of all legal 660.323(a)(1) for non-tribal fisheries. are managed differently. The limited The State of Oregon implements trip entry allocation is further subdivided sablefish on board, whichever is greater, remained in effect during the regular limits for black rockfish off the Oregon into trawl (58 percent) and nontrawl (42 coast. percent) allocations. Trawl-caught and mop-up seasons. sablefish are managed together with In 1996, as in 1995, the regular B. Open Access Fishery Dover sole and thornyheads as the DTS (derby) season was preceded by a 72- The trip limits for the open access complex because they often are caught hour closure for all limited entry and fishery are designed to keep landings together. A projection for landings of open access fixed gear used to take and within the open access allocation, while nontrawl sablefish is not yet available retain groundfish, with one exception. allowing the fisheries to operate for as because data from the October mop-up Pot gear could be set 24 hours before the long as possible during the year. The fishery have not been confirmed. regular season because this gear takes overall open access limits for rockfish, longer to deploy. sablefish, and ‘‘all groundfish’’ in 1997 DTS Complex (Dover Sole, In 1997, the same daily trip limits for Thornyheads, and Trawl-Caught are the same as in 1996 with several the limited entry fishery will apply exceptions: (1) The thornyhead open Sablefish) outside the regular and mop-up seasons access allocation of only 3 mt is In 1996, the 2-month cumulative trip and any closure. The ‘‘per trip’’ limit for expected to be taken entirely as limits for the DTS complex remained in nontrawl sablefish smaller than 22 incidental catch in open access fisheries effect throughout the year, as follows: inches (56 cm) will remain in effect for other species. Consequently, north of 70,000 lb (31,752 kg) north of Cape during the regular and mop-up fisheries. Pt. Conception thornyheads may not be Mendocino and 100,000 lb (45,359 kg) The Council recommended a number of taken and retained, possessed, or south of Cape Mendocino. Within the management changes for 1997 that have landed, as has been the case since May cumulative limits for the DTS complex not yet been approved by NMFS. These 1996; (2) the monthly cumulative trip there were limits for Dover sole, recommendations are summarized in limit for rockfish is applied coastwide thornyheads, and trawl-caught sablefish. paragraph IV.E.(3)(c). The Council also in 1997, whereas in 1996, it differed The cumulative limits for thornyheads is considering different management north and south of Cape Lookout; (3) (20,000 lb (9,072 kg), of which no more strategies for 1998 and beyond, but has additional limits are established for than 4,000 lb (1,814 kg) could be not yet submitted a recommendation to bocaccio: For setnets or trammel nets, shortspine thornyheads) and for trawl- NMFS. no more than 4,000 lb (1,814 kg) of caught sablefish (12,000 lb (5,443 kg)) Whiting bocaccio cumulative per month south of remained in effect the entire year, as did Cape Mendocino; and, for hook-and-line the 500-lb (227-kg) ‘‘per trip’’ limit on Approximately 212,900 mt of whiting or pot gear, no more than 2,000 lb (907 sablefish smaller than 22 inches (56 cm) was harvested in 1996, 85,125 mt by the kg) of bocaccio cumulative per month total length. Initially, the limit on Dover shore-based fleet, 112,776 mt by the at- south of Cape Mendocino, of which no sole was the amount of the DTS sea processing sector (which includes more than 300 lb (136 kg) may be taken cumulative limit remaining after deliveries to motherships), and about per trip; (4) language is changed to subtracting sablefish and thornyheads. 15,000 mt by the Makah tribal fishery. clarify that open access nontrawl gear In July, this was changed north of Cape The 10,000-lb (4,536-kg) trip limit for may not exceed limits that apply to Mendocino to a specific trip limit of whiting taken before and after the limited entry nontrawl gear; (5) daily 38,000 lb (17,236 kg) to protect Dover regular whiting season and inside the trip limits for sablefish will apply to all sole in the Columbia area. Landings of 100-fathom (183-m) contour in the open access gear in 1997, not only to sablefish (trawl-caught), Dover sole Eureka subarea (40°30′–43°00′ N. lat.) nontrawl gear as was the case in 1996; (coastwide and in the Columbia area), continues in effect in 1997. Additional and (6) trip limits for groundfish are and shortspine thornyheads are regulations, including the allocation of reduced from 1,500 lb (680 kg) in the expected to be within 10 percent of their whiting among non-tribal sectors, are shrimp trawl fishery and 1,000 lb (454 respective HGs in 1996. Landings of found at 50 CFR 660.323(a)(4). The kg) in the prawn trawl fishery to 500 lb longspine thornyheads are projected to Council has recommended a number of (227 kg), including the 300-lb (136-kg) be 33 percent below the HG in 1996. In changes that are summarized in daily trip limit for sablefish. The 1997, the trip limits will continue at the paragraph IV.F. These changes have not reduction in the groundfish limit is same levels that have been in effect yet been approved by NMFS. primarily to discourage bycatch of since July 1996. Lingcod yellowtail and other rockfish. Nontrawl Sablefish The 2-month cumulative trip limit for C. Operating in Both Limited Entry and Small daily trip limits were applied to lingcod is the same in 1997 as Open Access Fisheries the nontrawl fishery again in 1996 throughout 1996, 40,000 lb (18,144 kg) Vessels using open access gear are before and after the September 1–5, per 2-month period. As in 1996, lingcod subject to the management measures for 1996 ‘‘regular’’ and October 1–14, 1996 smaller than 22 inches (56 cm) may not the open access fishery, regardless of ‘‘mop-up’’ seasons. A 300-lb (136-kg) be landed in the commercial or whether the vessel has a valid limited daily trip limit was applied only north recreational fisheries except for 100-lb entry permit endorsed for any other of the Conception subarea (36°00′ N. (45-kg) per trip for trawl-caught lingcod. gear. In addition, a vessel operating in lat.), the same area covered by the HG. Landings of lingcod are projected at the open access fishery must not exceed In the Conception area, where there is 2,708 mt in 1996, including estimated any trip limit, frequency limit, and/or Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 713 size limit (for the same area) in the deadline, NMFS does not expect to July–August, September–October, and limited entry fishery. issue Designated Species B permits in November–December. Different A vessel that operates in both the 1997. cumulative periods may be announced open access and limited entry fisheries later in the year. is not entitled to two separate trip limits G. Recreational Fishing (ii) Open access fishery. Unless for the same species. Fish caught with Bag limits in the 1997 recreational otherwise specified, cumulative trip open access gear will also be counted fishery remain the same as in 1996 with limits apply to 1-month periods in the toward the limited entry trip limit. For one exception. The bag limit for rockfish open access fishery. Within these limits, example: In January, a trawl vessel in Washington State is reduced to 10 in any calendar month, no more than 50 catches 7,000 lb (3,175 kg) of sablefish fish throughout the State to be percent of the applicable 2-month in the limited entry fishery, and in the consistent with State laws protecting cumulative limit for the limited entry same month catches 1,000 lb (454 kg) of black rockfish. fishery may be taken and retained, sablefish with shrimp trawl (open possessed, or landed from a vessel in IV. NMFS Actions access) gear, for a total of 8,000 lb (3,629 the open access fishery; this is called kg) of sablefish. Because the open access For the reasons stated above, the the ‘‘50-percent monthly limit.’’ landings are counted toward the limited Assistant Administrator for Fisheries, (iii) Platooning—limited entry trawl entry limit, the vessel would have NOAA (Assistant Administrator), vessels. Limited entry trawl vessels are exceeded its limited entry, cumulative concurs with the Council’s automatically in the ‘‘A’’ platoon, which limit of 7,200 lb (3,266 kg) (60 percent recommendations and announces the means a vessel’s cumulative trip limit of the 12,000-lb (5,443-kg) 2-month following management actions for 1997, periods begin and end on the beginning cumulative limit for the limited entry including those that are the same as in and end of a calendar month as in the fishery). 1996. past. If a limited entry trawl permit is authorized for the ‘‘B’’ platoon (which, A. General Definitions and Provisions D. Operating in Areas With Different in 1997, will require a separate letter Trip Limits The following definitions and from NMFS to be attached to the limited Trip limits may differ for a species or provisions apply to the 1997 entry permit), then cumulative trip limit species complex at different locations management measures, unless otherwise periods will begin 2 weeks later than for on the coast. Unless otherwise stated (as specified in a subsequent notice: the ‘‘A’’ platoon. for black rockfish or for species with (1) Trip limits. Trip limits are used in (A) For a vessel in the ‘‘B’’ platoon, daily trip limits), the cross-over the commercial fishery to specify the cumulative trip limit periods begin on provisions at paragraph IV.A.(12) apply. amount of fish that may legally be taken the 16th of the month and end on the In general, a vessel fishing for and retained, possessed, or landed, per 15th of the month. Therefore, the groundfish in a more restricive area is vessel, per fishing trip, or cumulatively management measures announced subject to the more restrictive limit for per unit of time, or the number of herein that are effective on January 1, the duration of that trip limit period. In landings that may be made from a vessel 1997, for the ‘‘A’’ platoon will be 1997, these provisions are relaxed to in a given period of time, as explained effective on January 16, 1997, for the apply only to vessels taking and below. ‘‘B’’ platoon. The effective date of any retaining groundfish rather than any (a) A trip limit is the total allowable inseason changes to the cumulative trip species. Since trip limits for the amount of a groundfish species or limits also will be delayed for 2 weeks Sebastes complex and yellowtail species complex, by weight, or by for the ‘‘B’’ platoon. rockfish will be the same in Washington percentage of weight of legal fish on (B) A vessel authorized to operate in and Oregon in 1997, Washington and board, that may be taken and retained, the ‘‘B’’ platoon may take and retain, but Oregon State declaration procedures possessed, or landed per vessel from a may not land, groundfish from January that enabled a vessel to operate on both single fishing trip. 1, 1997, through January 15, 1997. sides of the line and harvest the larger (b) A daily trip limit is the maximum (C) Special provisions will be made limit no longer are in effect. amount that may be taken and retained, for ‘‘B’’ platoon vessels later in the year possessed, or landed per vessel in 24 so that the amount of fish made E. Changes to Trip Limits; Closures consecutive hours, starting at 0001 available in 1997 to both ‘‘A’’ and ‘‘B’’ Unless otherwise stated, a vessel must hours local time. Only one landing of vessels is the same. For example, a have initiated offloading its catch before groundfish may be made in that 24-hour vessel in the ‘‘B’’ platoon will have the the fishery is closed or before a more period. Daily trip limits may not be same cumulative trip limit for the final restrictive trip limit becomes effective. accumulated during multiple day trips. period as a vessel in the ‘‘A’’ platoon, As in the past, all fish on board the (c) A cumulative trip limit is the but the final period may be 2 weeks vessel when offloading begins are maximum amount that may be taken shorter so that both fishing periods end counted toward the landing limits (See and retained, possessed, or landed per on the same date. 50 CFR 660.302, formerly 50 CFR 663.2, vessel in a specified period of time, (2) Unless the fishery is closed, a for the definition of ‘‘landing’’). without a limit on the number of vessel that has landed its cumulative or landings or trips. daily limit may continue to fish on the F. Designated Species B Permits (i) Limited entry fishery. Unless limit for the next legal period, so long Designated species B permits may be otherwise specified, cumulative trip as no fish (including, but not limited to, issued if the limited entry fleet will not limits in the limited entry fishery apply groundfish with no trip limits, shrimp, fully utilize the HG for Pacific whiting, to 2-month periods. No more than 60 prawns, or other nongroundfish species shortbelly rockfish, or jack mackerel percent of the applicable 2-month or shellfish) are landed (offloaded) until north of 39° North latitude. The limited cumulative limit may be taken and the next legal period. As stated in the entry fleet has requested the full use of retained, possessed or landed in either regulations at 50 CFR 660.302 (formerly shortbelly rockfish and Pacific whiting, month of a 2-month period; this is 50 CFR 663.2, the definition of but less than half of the HG for jack called the ‘‘60-percent monthly limit.’’ ‘‘landing’’), once offloading of any mackerel in 1997. Since no applications The 2-month periods are: January– species begins, all fish aboard the vessel were received before the November 1 February, March–April, May–June, are counted as part of the landing. 714 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

(3) All weights are round weights or are presumed to have been taken and limit applies, before fishing in an area round-weight equivalents. retained from the EEZ, unless otherwise where a more liberal trip limit (or no (4) Percentages are based on round demonstrated by the person in trip limit) applies, then that vessel is weights, and, unless otherwise possession of those fish. subject to the more restrictive trip limit specified, apply only to legal fish on (9) Inseason changes to trip limits are for the entire period to which that trip board. announced in the Federal Register. limit applies, no matter where the fish (5) ‘‘Legal fish’’ means fish legally Most trip and bag limits in the are taken and retained, possessed, or taken and retained, possessed, or landed groundfish fishery have been designated landed. in accordance with the provisions of 50 ‘‘routine,’’ which means they may be (b) Going From A More Liberal To A CFR part 660 (previously 50 CFR part changed rapidly after a single Council More Restrictive Area: If a vessel takes 663), the Magnuson-Stevens Fishery meeting. Information concerning and retains a species (or species Conservation and Management Act changes to trip limits is available from complex) in an area where a higher trip (Magnuson-Stevens Act), any notice the NMFS Northwest and Southwest limit (or no trip limit) applies, and issued under part 660 (previously Regional Offices (see ADDRESSES). possesses or lands that species (or subpart B of 50 CFR part 663), and any Changes to trip limits are effective at the species complex) in an area where a other regulation promulgated or permit times stated in the Federal Register. more restrictive trip limit applies, then issued under the Magnuson-Stevens Once a change is effective, it is illegal that vessel is subject to the more Act. to take and retain, possess, or land more restrictive trip limit for that trip limit (6) Size limits and length fish than allowed under the new trip period. measurement. Unless otherwise limit. This means, unless otherwise (13) Sorting. Regulations at 50 CFR specified, size limits in the commercial announced in the Federal Register, 660.306(h) (formerly 50 CFR 663.7(l)) and recreational groundfish fisheries offloading must begin before the time a make it unlawful for any person to ‘‘fail apply to the longest measurement of the fishery closes or a more restrictive trip to sort, prior to the first weighing after fish without mutilation of the fish or the limit takes effect. off loading, those groundfish species or (10) It is unlawful for any person to use of force to extend the length of the species groups for which there is a trip take and retain, possess, or land fish. No fish with a size limit may be limit, if the weight of the total delivery groundfish in excess of the landing limit retained if it is in such condition that its exceeds 3,000 lb (1,361 kg) (round for the open access fishery without length has been extended or cannot be weight or round weight equivalent).’’ having a valid limited entry permit for determined by these methods. This provision applies to both the the vessel affixed with a gear (a) For a whole fish, total length will limited entry and open access fisheries. endorsement for the gear used to catch be measured from the tip of the snout (Note: The Council has recommended that (mouth closed) to the tip of the tail in the fish (50 CFR 660.306(p), formerly 50 CFR 663.7(t)). this regulation be changed to require all a natural, relaxed position. (11) Operating in both limited entry species or species groups with a trip limit, (b) For a fish with the head removed and open access fisheries. The open HG, or quota to be sorted. There would be no (‘‘headed’’), the length will be measured access trip limit applies to any fishing exception for landings under 3,000 lb (1,361 kg). The States of Washington and Oregon from the origin of the first dorsal fin conducted with open access gear, even (where the front dorsal fin meets the already have the same or similar if the vessel has a valid limited entry requirements. If approved, the regulation is dorsal surface of the body closest to the permit with an endorsement for another head) to the tip of the upper lobe of the expected to be implemented in 1997, after type of gear. A vessel that operates in publication in the Federal Register.) tail; the dorsal fin and tail must be left both the open access and limited entry intact. fisheries is not entitled to two separate (14) Exempted fisheries. U.S. vessels (7) ‘‘Closure,’’ when referring to trip limits for the same species. Fish operating under an exempted (formerly closure of a fishery, means that taking caught with open access gear will also experimental) fishing permit issued and retaining, possessing, or landing the be counted toward the limited entry trip under 50 CFR part 600 (formerly 50 CFR particular species or species group is limit. 663.10) also are subject to these prohibited. (See the regulations at 50 (12) Operating in areas with different restrictions, unless otherwise provided CFR 660.302 (previously 50 CFR 663.2).) trip limits. Trip limits for a species or in the permit. Unless otherwise announced in the species complex may differ in different (15) Paragraphs IV.B. through IV.I. Federal Register, offloading must begin geographic areas along the coast. The pertain to the commercial groundfish before the time the fishery closes. following ‘‘crossover’’ provisions apply fishery, but not to Washington coastal (Note: The Council recommended to vessels operating in different tribal fisheries which are described in requiring fixed gear to be out of the water at geographical areas that have different paragraph V. The provisions in the end of the regular season for sablefish cumulative or ‘‘per trip’’ trip limits for paragraphs IV.B. through IV.I. that are rather than requiring offloading to have the same species or species complex. not covered under the headings ‘‘limited begun. This recommendation has not yet They do not apply to species that are entry’’ or ‘‘open access’’ apply to all been approved.) only subject to daily trip limits, or to the vessels in the commercial fishery that (8) The fishery management area for trip limits for black rockfish off the State take and retain groundfish, unless these species is the EEZ off the coasts of Washington (see 50 CFR otherwise stated. Paragraph IV.J. of Washington, Oregon, and California 660.323(a)(1), previously 50 CFR pertains to the recreational fishery. between 3 and 200 nm offshore, 663.23(b)). In 1997, the trip limit period (16) Commonly used geographical bounded on the north by the Provisional for cumulative trip limits is 2 months coordinates. International Boundary between the for the limited entry fishery and 1 (a) Cape Falcon, OR—45°46′ N. lat. United States and Canada, and bounded month for the open access fishery, (b) Cape Lookout, OR—45°20′15′′ N. on the south by the International unless otherwise specified. lat. Boundary between the United States (a) Going From A More Restrictive To (c) Cape Mendocino, CA—40°30′ N. and Mexico. All groundfish possessed A More Liberal Area: If a vessel takes lat. between 0–200 nm offshore, or landed and retains any species of groundfish in (d) Point Conception, CA—34°27′ N. in, Washington, Oregon, or California an area where a more restrictive trip lat. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 715

(e) International North Pacific and 90,000 lb (40,823 kg) south of Cape hardheads, include two species: Fisheries Commission (INPFC) subareas Mendocino; for yellowtail rockfish, Shortspine thornyheads (S. alascanus) (for more precise coordinates for the 3,600 lb (1,633 kg) north of Cape and longspine thornyheads (S. altivelis). Canadian and Mexican boundaries, see Mendocino; for bocaccio south of Cape These provisions apply to Dover sole 50 CFR 660.304 (formerly 663.5): Mendocino, 7,200 lb (3,266 kg); and for and thornyheads caught with any (i) Vancouver—U.S.-Canada border to canary rockfish coastwide, 8,400 lb limited entry gear and to sablefish 47°30′ N. lat. (3,810 kg). caught with limited entry trawl gear. (ii) Columbia—47°30′ to 43°00′ N. lat. (b) For operating in areas with (i) North of Cape Mendocino. The (iii) Eureka—43°00′ to 40°30′ N. lat. different trip limits for the same species, cumulative trip limit for the DTS (iv) Monterey—40°30′ to 36°00′ N. lat. see paragraph IV.A.(12) above. complex taken and retained north of ° ′ (v) Conception—36 00 N. lat. to the (3) Open access fishery. If smaller Cape Mendocino is 70,000 lb (31,752 kg) U.S.-Mexico border. than the limits at paragraph IV.I., the per vessel per 2-month period. Within B. Widow Rockfish (Commonly Called following cumulative monthly trip this cumulative trip limit, no more than Brownies) limits apply (within the limits at 12,000 lb (5,443 kg) may be sablefish, no paragraph IV.I.): For the Sebastes more than 38,000 lb (17,236 kg) may be (1) Limited entry fishery. The complex, 15,000 lb (6,804 kg) north of Dover sole, and no more than 20,000 lb cumulative trip limit for widow rockfish Cape Mendocino, and 75,000 lb (34,019 (9,072 kg) may be thornyheads. No more is 70,000 lb (31,752 kg) per vessel per kg) south of Cape Mendocino; for than 4,000 lb (1,814 kg) of the 2-month period. The 60-percent yellowtail rockfish, 3,000 lb (1,361 kg) thornyheads may be shortspine monthly limit is 42,000 lb (19,051 kg). north of Cape Mendocino; for bocaccio, thornyheads. (2) Open access fishery. Within the 6,000 lb (2,722 kg) south of Cape (ii) South of Cape Mendocino. The limits at paragraph IV.I. for the open Mendocino; and, for canary rockfish, cumulative trip limit for the DTS access fishery, the 50-percent monthly 7,000 lb (3,175 kg) coastwide. complex taken and retained south of limit for widow rockfish is 35,000 lb Cape Mendocino is 100,000 lb (45,359 (15,876 kg). D. POP kg) per vessel per 2-month period. C. Sebastes Complex (including (1) Limited entry fishery. The Within this cumulative trip limit, no Bocaccio, Yellowtail, and Canary cumulative trip limit for POP is 8,000 lb more than 12,000 lb (5,443 kg) may be Rockfish) (3,629 kg) per vessel per 2-month sablefish, and no more than 20,000 lb period. The 60-percent monthly limit is (9,072 kg) may be thornyheads. No more (1) General. Sebastes complex means 4,800 lb (2,177 kg). than 4,000 lb (1,814 kg) of the all rockfish managed by the FMP except (2) Open access fishery. Within the thornyheads may be shortspine Pacific ocean perch (Sebastes alutus), limits at paragraph IV.I. below, the 50- thornyheads. widow rockfish (S. entomelas), percent monthly limit for POP is 4,000 (iii) The 60-percent monthly limits shortbelly rockfish (S. jordani), and lb (1,814 kg). are: For the DTS complex, 42,000 lb Sebastolobus spp. (also called (19,051 kg) north of Cape Mendocino, thornyheads, idiots, or channel E. Sablefish and the DTS Complex and 60,000 lb (27,216 kg) south of Cape rockfish). Yellowtail rockfish (S. (Dover Sole, Thornyheads, and Trawl- Mendocino; for trawl-caught sablefish, flavidus) are commonly called greenies. Caught Sablefish 7,200 lb (3,266 kg); for Dover sole north Bocaccio (S. paucispinis) are commonly (1) 1997 Management goal. The of Cape Mendocino, 22,800 lb (10,342 called rock salmon. Canary rockfish (S. sablefish fishery will be managed to kg); for both species of thornyheads pinniger) are commonly called orange achieve the 7,800-mt HG in 1997. combined, 12,000 lb (5,443 kg); and for rockfish. (2) Limited entry fishery. (a) Gear shortspine thornyheads, 2,400 lb (1,089 (2) Limited entry fishery. (a) allocations. After subtracting the tribal- kg). Cumulative trip limits. (i) North of Cape imposed catch limit and the open access (iv) In any trip, no more than 500 lb Mendocino. The cumulative trip limit allocation from the HG for sablefish, the (227 kg) may be trawl-caught sablefish for the Sebastes complex taken and remainder is allocated 58 percent to the smaller than 22 inches (56 cm) total retained north of Cape Mendocino is trawl fishery and 42 percent to the length. (See paragraph IV.A.(6) 30,000 lb (13,608 kg) per vessel per 2- nontrawl fishery. regarding length measurement.) month period. Within this cumulative (v) For operating in areas with (Note: The 1997 HG for sablefish north of trip limit for the Sebastes complex, no ° different trip limits for the same species, more than 6,000 lb (2,722 kg) may be 36 N. lat. is 7,800 mt. The 780-mt tribal see paragraph IV.A.(12) above. allocation is subtracted, and the limited entry (c) Nontrawl trip and size limits. (i) yellowtail rockfish taken and retained and open access allocations are based on the north of Cape Mendocino, and no more remaining 7,020 mt. The limited entry Daily trip limit. The daily trip limit for than 14,000 lb (6,350 kg) may be canary allocation of 6,557 mt for 1996 is allocated sablefish taken and retained with rockfish. 3,803 mt (58 percent) to the trawl fishery and nontrawl gear north of 36° N. lat. is 300 (ii) South of Cape Mendocino. The 2,754 mt (42 percent) to the nontrawl fishery. lb (136 kg) and south of 36° N. lat. is 350 cumulative trip limit for the Sebastes The trawl and nontrawl gear allocations are lb (159 kg). The daily trip limit, which complex taken and retained south of HGs in 1997, which means the fishery will applies to sablefish of any size, is in Cape Mendocino is 150,000 lb (68,039 be managed not to exceed the HGs, but will effect until the closed periods before or kg) per vessel per 2-month period. not necessarily be closed if the HGs are after the regular season (as specified at Within this cumulative trip limit for the reached.) 50 CFR 660.323(a)(2)(i) (formerly 50 Sebastes complex, no more than 12,000 (b) Limited entry trip and size limits CFR 663.23(b)(2)), between the end of lb (5,443 kg) may be bocaccio taken and for the DTS complex. ‘‘DTS complex’’ the regular season and the beginning of retained south of Cape Mendocino, and means Dover sole (Microstomus the mop-up season, and after the mop- no more than 14,000 lb (6,350 kg) may pacificus), thornyheads (Sebastolobus up season. be canary rockfish. spp.), and trawl-caught sablefish (ii) Limit on small fish. During the (iii) The 60-percent monthly limits (Anoplopoma fimbria). Sablefish are ‘‘regular’’ or ‘‘mop-up’’ seasons, the only are: For the Sebastes complex, 18,000 lb also called blackcod. Thornyheads, also trip limit in effect applies to sablefish (8,165 kg) north of Cape Mendocino, called idiots, channel rockfish, or smaller than 22 inches (56 cm) total 716 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules length, which may comprise no more sablefish and for thornyheads south of fish is or will be landed will be used to than 1,500 lb (680 kg) or 3 percent of all Pt. Conception are announced at convert the processed weight to round legal sablefish 22 inches (56 cm) (total paragraph IV.I. weight for purposes of applying the trip length) or larger, whichever is greater. F. Whiting limit. (The states’ conversion factors (See paragraph IV.A.(6) regarding length may differ and fishers should contact measurement.) (1) Limited entry fishery. Additional fishery enforcement officials in the state (d) For headed and gutted sablefish: regulations that apply to the whiting where the fish will be landed to (i) The minimum size limit for headed fishery are found at 50 CFR 660.306 determine that state’s official conversion sablefish, which corresponds to 22 (formerly 50 CFR 663.7) and 50 CFR factor.) If a state does not have a 660.323(a)(3) and (4)(formerly 50 CFR inches (56 cm) total length for whole conversion factor for lingcod that is fish, is 15.5 inches (39 cm). 663.23(b)(3) and (4)). headed and gutted, or only gutted, the (ii) The conversion factor established (a) No more than 10,000 lb (4,536 kg) following conversion factors will be by the state where the fish is or will be of whiting may be taken and retained, landed will be used to convert the possessed, or landed, per vessel per used. To determine the round weight, processed weight to round weight for fishing trip before and after the regular multiply the processed weight times the purposes of applying the trip limit. (The season for whiting, as specified at 50 conversion factor. conversion factor currently is 1.6 in CFR 660.323(a)(3) and (4) (formerly 50 (i) Headed and gutted. The Washington, Oregon, and California. CFR 663.23(b)(3) and (4)). This trip limit conversion factor for headed and gutted However, the state conversion factors includes any whiting caught shoreward lingcod is 1.5. (The State of Washington may differ; fishermen should contact of 100 fathoms (183 m) in the Eureka currently uses a conversion factor of fishery enforcement officials in the state subarea (see paragraph IV.F.(1)(b)). 1.5.) (b) No more than 10,000 lb (4,536 kg) where the fish will be landed to (ii) Gutted, with the head on. The determine that state’s official conversion of whiting may be taken and retained, conversion factor for lingcod that has factor.) possessed, or landed by a vessel that, at only been eviscerated is 1.1. (Note: The Council has recommended a any time during a fishing trip, fished in number of changes to the regulations for the the fishery management area shoreward H. Black Rockfish fixed gear sablefish fishery in 1997. Before of the 100-fathom (183-m) contour (as these changes can be made effective, they shown on NOAA Charts 18580, 18600, The regulations at 50 CFR must be approved by NMFS and then and 18620) in the Eureka subarea. 660.323(a)(1) (formerly 50 CFR implemented by a regulation published in (Note: The Council recommended a 663.23(b)(1)(iii)) state: ‘‘The trip limit the Federal Register. The recommended number of changes to the Pacific whiting for black rockfish (Sebastes melanops) changes are summarized below: fishery that are not yet in effect, particularly for commercial fishing vessels using (1) A vessel must have an endorsement on separate allocations for catcher/processor, its limited entry permit in order to hook-and-line gear between the U.S.- mothership, and shore-based sectors. The participate in the regular or mop-up season Canada border and Cape Alava Council also recommended separate opening north of 36° N. lat.; (2) the regular and mop- (48°09′30′′ N. lat.), and between dates for catcher/processors and mothership up seasons would apply only north of 36° N. Destruction Island (47°40′00′′ N. lat.) operations (but both sectors prefer the lat., whereas in 1996, they applied coastwide; ° ′ ′′ current opening date of May 15 in 1997), and and Leadbetter Point (46 38 10 N. lat.), (3) for 48 hours prior to the regular season, for vessels delivering shoreside (June 15 is 100 lb (45 kg) or 30 percent, by weight all fixed gear used to take and retain north of 42° N. lat. and April 15 south of 42° of all fish on board, whichever is groundfish would be removed from the N. lat.). The dates at 50 CFR 660.323(a)(3) water—no advance setting of pot gear would greater, per vessel per fishing trip.’’ The remain in effect until otherwise announced be allowed; (4) a 48-hour closed period provisions at paragraphs IV.A.(12) do in the Federal Register.) would be added at the end of the regular not apply. season, and all fixed gear used to take and (2) Open access fishery. See paragraph retain groundfish, including open access IV.I. below. I. Trip Limits in the Open Access gear, would be removed from the water Fishery during this period; (5) a framework season G. Lingcod Open access gear is gear used to take would be established (from August 1– (1) Limited entry fishery. The September 30), with the date being selected and retain groundfish from a vessel that cumulative trip limit for lingcod is each year according to certain criteria. The does not have a valid limited entry starting date, which has not yet been 40,000 lb (18,144 kg) per vessel per 2- month period. The 60-percent monthly permit for the Pacific coast groundfish recommended for 1997, remains at noon fishery with an endorsement for the gear September 1 until the new regulation limit is 24,000 lb (10,886 kg). No becomes effective.) lingcod may be smaller than 22 inches used to harvest the groundfish. This (3) Open access fishery. Within the (56 cm) total length, except for a 100-lb includes longline, trap, pot, hook-and- limits in paragraph IV.I. below, a vessel (45-kg) trip limit for trawl-caught line (fixed or mobile), set net (south of ° in the open access fishery is subject to lingcod smaller than 22 inches (56 cm). 38 N. lat. only), and trawls used to the 50-percent monthly limits, which Length measurement is explained at target non-groundfish species (pink are as follows: For the DTS complex, paragraph IV.A.(6). shrimp or prawns, and, south of Pt. 35,000 lb (15,876 kg) north of Cape (2) Open access fishery. Within the Arena, CA (38°57′30′′ N. lat.), California Mendocino, and 50,000 lb (22,680 kg) limits in paragraph IV.I. below, the 50- halibut or sea cucumbers). A vessel south of Cape Mendocino; for Dover percent monthly limit for lingcod is operating in the open access fishery sole north of Cape Mendocino, 19,000 lb 20,000 lb (9,072 kg). must not exceed any trip limit, (8,618 kg); south of Pt. Conception, for (3) Conversions. (a) Size conversion. frequency limit, and/or size limit for the both species of thornyheads combined, For lingcod with the head removed, the open access fishery; or for the same area 10,000 lb (4,536 kg) of which no more minimum size limit, which corresponds in the limited entry fishery; or, in any than 2,000 lb (907 kg) may be shortspine to 22 inches (56 cm) total length for calendar month, 50 percent of any 2- thornyheads. (The open access fishery whole fish, is 18 inches (46 cm). month cumulative trip limit for the for thornyheads is closed north of Pt. (b) Weight conversion. The conversion same area in the limited entry fishery, Conception.) Daily trip limits for factor established by the state where the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 717 called the ‘‘50-percent monthly limit.’’ (a) Pink shrimp. The trip limit for a 8396, which requires a permit issued by For purposes of this paragraph, vessel engaged in fishing for pink the State of California. exempted trawl gear (that is used to shrimp is 500 lb (227 kg) of groundfish, J. Recreational Fishery harvest shrimp, prawns, California multiplied by the number of days of the halibut or sea cucumbers as provided in fishing trip, and includes the daily trip (1) California. The bag limits for each this paragraph I.) may not exceed any limits for sablefish and thornyheads, person engaged in recreational fishing limit for the limited entry trawl fishery, which may not be multiplied by the seaward of the State of California are: 5 or 50 percent of any 2-month number of days of the fishing trip. lingcod per day, which may be no cumulative limit that applies to limited (b) Spot and ridgeback prawns. The smaller than 22 inches (56 cm) total entry trawl gear. The cross-over trip limit for a vessel engaged in fishing length; and 15 rockfish per day. Multi- provisions at paragraph IV.A.(12) that for spot or ridgeback prawns is 500 lb day limits are authorized by a valid apply to the limited entry fishery apply (227 kg) of groundfish species per permit issued by the State of California to the open access fishery as well. fishing trip, and includes the daily trip and must not exceed the daily limit (1) Rockfish. Rockfish means all limits for sablefish and thornyheads. multiplied by the number of days in the rockfish as defined at 50 CFR 660.302 (c) This rule is not intended to fishing trip. (formerly 50 CFR 663.2), which includes supersede any more restrictive state law (2) Oregon. The bag limits for each the Sebastes complex (including relating to the retention of groundfish person engaged in recreational fishing yellowtail rockfish, bocaccio, and taken in shrimp or prawn pots or traps. seaward of the State of Oregon are: 3 canary rockfish), shortbelly rockfish, (4) Groundfish taken by California lingcod per day, which may be no smaller than 22 inches (56 cm) total widow rockfish, POP, and thornyheads. halibut or sea cucumber trawl. The trip length; and 15 rockfish per day, of (a) All open access gear. (i) North of limit for a vessel participating in the which no more than 10 may be black Pt. Conception, thornyheads (shortspine California halibut fishery or in the sea rockfish (Sebastes melanops). or longspine) may not be taken and cucumber fishery south of Point Arena, CA (38°57′30′′ N. lat.) is 500 lb (227 kg) (3) Washington. The bag limits for retained, possessed, or landed. each person engaged in recreational (ii) South of Pt. Conception, the daily of groundfish per vessel per fishing trip, which includes a daily trip limit for fishing seaward of the State of trip limit for thornyheads is 50 lb (23 Washington are: Three lingcod per day kg). sablefish of 300 lb (136 kg), and a daily trip limit for thornyheads south of Pt. no smaller than 22 inches (56 cm) total (b) All open access gear except length, and 10 rockfish per day. shrimp, prawn, or sea cucumber trawl. Conception of 50 lb (23 kg). The cumulative monthly trip limit for (a) A trawl vessel will be considered V. Washington Coastal Tribal Fisheries participating in the California halibut rockfish is 40,000 lb (18,144 kg) per From 1991 through 1994, the vessel per month, and includes the daily fishery if: (i) It is not fishing under a valid Washington coastal treaty tribes trip limit for thornyheads. The limited entry permit issued under 50 conducted a tribal sablefish fishery of following trip limits also apply, which CFR part 660.333 (formerly 50 CFR part 300 mt that was accommodated in the count toward the cumulative monthly 663) for trawl gear; annual management measures. In late limit: (ii) All fishing on the trip takes place 1994, the U.S. government formally (i) Hook-and-line or pot gear: 10,000 south of Point Arena; and recognized the treaty right to fish for lb (4,536 kg) of rockfish per vessel per (iii) The landing includes California groundfish of the four Washington fishing trip, of which no more than 300 halibut of a size required by California Coastal Treaty tribes (the Makah, Hoh, lb (136 kg) per trip, not to exceed 2,000 Fish and Game Code section 8392(a), Quileute, and Quinault), and concluded lb (907 kg) cumulative per month, may which states: ‘‘No California halibut that in general terms the quantification be bocaccio taken and retained south of may be taken, possessed or sold which of the right is 50 percent of the Cape Mendocino. measures less than 22 inches in total harvestable surplus of groundfish (ii) Setnet or trammel net gear (which available in the tribes’ usual and ° length, unless it weighs four pounds or are legal only south of 38 N. lat.): 4,000 more in the round, three and one-half accustomed fishing areas (defined at 50 lb (1,814 kg) cumulative of bocaccio pounds or more dressed with the head CFR 660.304). taken and retained south of Cape on, or three pounds or more dressed A tribal allocation is subtracted from Mendocino. with the head off. Total length means the species HG before limited entry and (c) For operating in areas with the shortest distance between the tip of open access allocations are derived. The different trip limits for the same species, the jaw or snout, whichever extends treaty Indian fisheries for sablefish, see paragraph IV.A.(12) above. farthest while the mouth is closed, and black rockfish, and whiting allocations ° ′ (2) Sablefish. (a) North of 36 00 N. the tip of the longest lobe of the tail, are separate fisheries, not governed by lat. The cumulative trip limit for measured while the halibut is lying flat the limited entry or open access sablefish taken and retained north of in natural repose, without resort to any regulations or allocations. The tribes ° ′ 36 00 N. lat. is 1,500 lb (680 kg) per force other than the swinging or fanning regulate their fisheries so as not to month. The daily trip limit for sablefish of the tail.’’ exceed their allocations. Tribal fishing ° ′ taken and retained north of 36 00 N. (b) A trawl vessel will be considered for rockfish with fixed gear will operate lat., which counts toward the participating in the sea cucumber under the same rules as the open access cumulative limit, is 300 lb (136 kg). fishery if: fishery. The tribal trawl fishery for (b) South of 36°00′ N. lat.. The daily (i) It is not fishing under a valid rockfish will operate under the limited trip limit for sablefish taken and limited entry permit issued under 50 entry rules (50 CFR 660.324(j)). Makah retained south of 36°00′ N. lat. is 350 lb CFR part 660.333 (formerly 50 CFR 663) tribal members may use midwater trawl (159 kg). for trawl gear; gear to take and retain groundfish for (3) Groundfish taken by shrimp or (ii) All fishing on the trip takes place which there is no tribal allocation and prawn trawl. The daily trip limits are: south of Point Arena; and will be subject to the trip landing and Sablefish, 300 lb (136 kg) coastwide; (iii) The landing includes sea frequency and size limits applicable to and thornyheads south of Pt. cucumbers taken in accordance with the limited entry fishery (50 CFR Conception, 50 lb (23 kg). California Fish and Game Code section 660.324(k)). 718 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

The tribal allocations for sablefish and HG of: 20,000 lb (9,072 kg) north of tribal allocation for another 3 weeks. black rockfish are the same as in 1996 Cape Alava (48°09′30′′ N. lat.) and The Council’s October newsletter and for the same reasons. The tribal 10,000 lb (4,536 kg) between announced the tribal request for 25,000 allocation for whiting in 1997 differs Destruction Island (47°40′00′′ N. lat.) mt, the Council’s proposed tribal from the 1-year allocation agreement and Leadbetter Point (46°38′10′′ N. lat.). whiting allocation of zero, and that with the Makah for 1996, as discussed Whiting: 25,000 mt in 1997, 10.8 NMFS would ‘‘accept comments on the below. percent of the HG. Council’s recommendations until The Council recommended that no Response to Public Comments November 15, 1996 with special whiting be allocated to the Makah Tribe attention to yellowtail rockfish and the in 1997. The Council’s recommendation NMFS received two written tribal whiting allocation decisions.’’ of no allocation is not acceptable comments from the nontreaty whiting This process conforms to the because Federal district court Judge industry and one from the Makah Tribe requirements of the tribal groundfish Rafeedie held that tribes have a right to on the proposed tribal whiting rule and provides the widest all fish in their usual and accustomed allocation. One commenter argued the opportunity for the interested public to fishing areas, with no species limitation. Secretary of Commerce does not have participate and provide comments, Some fishermen have argued that this the authority to make this allocation since it uses the same timeframe and ruling should not apply to whiting. A because such an allocation requires an public participation process as is used subproceeding is pending in U.S. v. amendment of the FMP. This is not so for the rest of the annual groundfish Washington that addresses the issue of much a comment on the allocation for management decisions. a treaty right to whiting. In that whiting 1997, as on the rule implementing the One commenter asserted the subproceeding, on November 4, 1996, framework for treaty tribe harvest of allocation violates many national the court ruled that ‘‘Judge Rafeedie’s Pacific groundfish (tribal groundfish standards of the Magnuson-Stevens Act, ruling in Subproceeding 89–3 should rule) that was adopted on May 31, 1996; found at 16 U.S.C. 1851(a). Most of the remain the binding law of the case until the response to this comment is found arguments had been made last year and the Ninth Circuit decides the appeal of in the preamble to the final tribal were responded to in the preamble to the decision now pending before it.’’ groundfish rule published at 61 FR the tribal rule under the heading of NMFS acknowledges that many 28786 (June 6, 1996), specifically on ‘‘Magnuson Act.’’ The commenter difficult questions have been raised and pages 28789 and 28790 under the argued the allocation is not fair and that there is much uncertainty regarding heading ‘‘Magnuson Act’’. equitable, does not promote what is a complex and difficult The two commenters also objected to conservation, and allows a particular technical and legal issue. The Tribe’s the process used this year to make the entity to acquire an excessive share of proposed allocation methodology would allocation because it does not provide a fishing privileges in violation of result in an allocation of 25 percent of ‘‘formal public comment period.’’ NMFS national standard 4, 16 U.S.C. the U.S. HG; NMFS’s proposed followed its regulation by considering 1851(a)(4). This allocation is different allocation methodology would result in the tribal request, the Council from other discretionary allocations that an allocation of 6.5 percent of the U.S. recommendation, and public comments, the Council and NMFS might make. It HG. The tribal compromise falls before announcing the allocation with is required by the treaties with the between these two positions. NMFS the final groundfish specifications. As Northwest tribes as explained above, finds the tribal proposal of 25,000 mt explained in the preamble to the tribal which are other applicable law with (10.8 percent) in 1997 to be an groundfish rule (specifically on page which management measures must be acceptable compromise given all of the 28787), NMFS is using the Council’s consistent. It promotes conservation as uncertainties. This compromise gives annual groundfish management process, much as any allocation does in that the NMFS time to work with the tribes, the as much as possible, for developing and allocation is within the total allowable States, and other Federal agencies to implementing the tribal allocation catch authorized for 1997. It does not develop an agreed-upon allocation. This request. This is the best way to provide provide an excessive share of fish to the is a short-term compromise and is not information to all of the interested tribe; it is implementing a treaty right, intended to set a precedent regarding parties, since they are involved in the that is the supreme law of the land. The either quantification of the Makah treaty annual process, either through attending commenter alleged the allocation does right or future allocations. If an the meetings or through receiving the not promote efficiency, in violation of appropriate methodology or allocation Council newsletters which are sent to national standard 5, 16 U.S.C. cannot be developed through all persons who request to be on the 1851(a)(5); and does not minimize costs negotiations, the allocation will Council mailing list. The tribal whiting or avoid unnecessary duplication in ultimately be resolved in the pending request for 1997 was announced at the violation of national standard 7, 16 subproceeding in U.S. v. Washington. In August 1996 Council meeting when the U.S.C. 1851(a)(7). National standard 5 the absence of a resolution of the initial proposals for the 1997 (as revised by Public Law 104–297) appropriate allocation in 1998, NMFS management measures and requires that efficiency be ‘‘considered’’; may again provide the tribes 10.8 specifications were discussed and national standard 7 requires that percent of the U.S. HG. NMFS expects adopted by the Council. The Council measures shall, where practicable, the quantification issue to be resolved adopted a preliminary range for a 1997 minimize costs and avoid unnecessary before the 1999 season. NMFS Actions whiting set-aside of zero to 35,000 mt. duplication. The commenter has For the reasons stated above, the This was announced in the Council’s provided no specifics on why these Assistant Administrator announces the August newsletter, along with the other standards have been violated or following tribal allocations for 1997, 1997 management recommendations. At suggestions on how the treaty right can including those that are the same as in the October Council meeting, the tribe be accommodated in a way that would 1996: modified its 1997 whiting proposal to be be more efficient, minimize costs, or Sablefish: 780 mt, 10 percent of the 25,000 mt. The Council recommended avoid unnecessary duplication. HG. an allocation of zero for 1997. The The two commenters argued that Rockfish: For the commercial harvest NMFS representative announced NMFS there should be a zero allocation to the of black rockfish off Washington State a would take additional comments on the tribe in 1997 because there is no Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 719 adjudicated treaty right to whiting, and for 1997 is still within the scope of what monitor trip-limit-induced discards and they refer to their comments on the was analyzed in previous biological the bycatch of salmon and non-target tribal groundfish rule and the 1996 opinions, and thus reinitiation of species in the groundfish trawl fishery. allocations. NMFS addressed their consultation is not required. The other All participating vessels were required arguments in the preamble to the tribal commenter argued that the tribal salmon to land salmon caught incidentally in groundfish rule under the heading of bycatch appeared to exceed the level of groundfish trawl gear and to keep ‘‘Treaty Entitlement.’’ NMFS had concern in the fishery, which requires a enhanced logbooks required by the determined there is a treaty right to new biological opinion. The current States. Some vessels were required to whiting, in part, because in a biological opinion considers salmon carry at-sea observers to monitor trip- subproceeding of U.S. v. Washington bycatch in the fishery as a whole, but limit induced discards, and some regarding tribal rights to shellfish, does require consultation if the number vessels could have been required to Federal district court Judge Rafeedie of chinook salmon per metric ton of bring virtually their entire catch to shore held that tribes have a right to all fish whiting exceeds 0.05 in either the for additional monitoring although this in their usual and accustomed fishing shoreside, catcher/processor or the did not occur in 1996. areas, with no species limitation. This mothership components of the fishery (3) The third EFP application was to ruling is currently on appeal in front of (Biological Opinion, May 14, 1996). For collect reproductive samples for the Ninth Circuit Court of Appeals. The purposes of the biological opinion, the sablefish to test assumptions in the commenters argued this ruling should tribal whiting fishery was considered as stock assessment for that species. An not apply to whiting. A subproceeding part of the mothership fleet. Therefore, EFP was needed because the vessel is pending in U.S. v. Washington that salmon bycatch in the tribal fishery, by would be authorized to land 500 lb (227 addresses the issue of a treaty right to itself, does not necessarily trigger a kg) in excess of the cumulative trip limit whiting. In that whiting subproceeding, requirement for reinitiation unless it for trawl-caught sablefish (for a total of on November 4, 1996, the court ruled results in the salmon bycatch for the 5 mt in 1996), and could sell the that ‘‘Judge Rafeedie’s ruling in mothership sector to exceed the scientific samples. A state or Federal Subproceeding 89–3 should remain the reinitiation criteria. All three sectors scientist would be aboard every trip to binding law of the case until the Ninth were within the 0.05 rate in 1996. gather the biological data. Although this Circuit decides the appeal of the permit was approved and issued, it had VI. Issuance of EFPs in 1996 decision now pending before it.’’ not been used at the time this notice One commenter asserted the Makah In 1995, applications were received was prepared in late 1996; sampling tribe already has achieved a moderate and approved for three different types of normally occurs late in the year. living and, therefore, the treaty right has EFPs (formerly called ‘‘experimental VII. Renewal of EFPs in 1997 been satisfied without providing fishing permits’’) for the 1996 fishing whiting to the Makah. The commenter year: (1) The first was from the State of Renewal of all three EFPs was provided no new information to support Oregon (representing Washington and requested for 1997, some with slight this assertion. This assertion was California as well) for the purpose of modifications. First, the whiting EFPs answered in the preamble to the tribal renewing the 1995 EFP to monitor the described in paragraph VI.(1) would be groundfish rule under the heading bycatch of salmon in the shore-based continued, pending development and ‘‘Moderate Living’’. whiting fishery. Under this permit, 40 implementation of an FMP amendment One commenter asserted that since vessels were issued EFPs that required that would authorize salmon to be the harvest in the Vancouver statistical all salmon caught incidentally in the retained and landed. Fishers also are area (an area larger than, but including, whiting fishery to be landed shoreside. concerned that their practice of the usual and accustomed fishing area) A variation of the whiting EFP also was dumping codends directly in the hold was 9.9 percent of the total harvest from requested by the State of California so would make monitoring of trip limits 1981 to 1995, if the tribes were entitled that a small number of fishers could be difficult, if not impossible, and would to a 50 percent share of the whiting, allowed to fish for whiting inside of the like the EFP continued because overages they should at most be allocated 4.95 100-fathom (183-m) contour in the are forfeited but no penalty results. The percent of the amount available to the Eureka Management Area, which scope of the experiment and level of U.S. He further asserted that since the currently is prohibited. The purpose participation would be the same as in whiting spend a small portion of the was to see if the bycatch rate of salmon 1996. year in the Makah area and do not could be kept at acceptable levels by Second, continuation of the enhanced spawn there, the allocation should be this small, shore-based sector of the fleet data collection program described in even smaller than 4.95 percent. These delivering to Eureka and Crescent City, paragraph VI.(2) also was requested, comments were responded to in the CA. At-sea observers would be aboard with some modifications. The major preamble to the tribal groundfish rule. all whiting trips. Even though this change would enable data to be One commenter alleges the allocation variation to the whiting EFP was obtained on a vessel throughout its violates the ESA because it has not been approved, the industry declined to fishing activities in a month, even if not subject to a formal consultation under participate. fishing for groundfish. This would the ESA. However, a biological opinion (2) The second EFP was for a new, provide information on groundfish issued on May 14, 1996, found that enhanced data collection program that bycatch in other fisheries (particularly ‘‘(t)he timing, method, and location of applied to the other groundfish shrimp fisheries) and on a fisher’s the tribal fishery are comparable with fisheries. The application was submitted choice to pursue alternative fisheries or how the whiting fishery has operated in by the State of Oregon, but could fishing strategies. The program also recent years. As a result, there is no include involvement by the States of could be expanded to include whiting reason to expect that the bycatch of Washington and California as well. This fisheries when the whiting EFP no salmon or the effect of the fishery to is a multi-year cooperative data longer is in effect. other listed species including marine collection program with the industry The third is renewal of the EFP to mammals will be different from what and state and Federal governments. gather biological information on has be(en) reported for the existing Twenty vessels participated in 1996. sablefish, as described in paragraph fishery.’’ The tribal fishery authorized The purpose of the experiment was to VI.(3) to confirm or improve data used 720 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules in the stock assessment. This Scientific and Statistical Committee, Dated: December 30, 1996. experiment would allow one vessel to and Council meetings in August and Gary C. Matlock, retain 25 fish in excess of the trawl trip October 1996 where these Acting Assistant Administrator for Fisheries, limit for sablefish and is not expected to recommendations were formulated. National Marine Fisheries Service. exceed 10 mt per year. It differs from the Additional public comments on the [FR Doc. 96–33402 Filed 12–31–96; 2:35 pm] 1996 permit in that a state or Federal specifications and management BILLING CODE 3510±22±W scientist would not need to be aboard measures will be accepted for 30 days every trip, but would be required to be after publication of this document in the present when the vessel offloads to Federal Register. The Assistant 50 CFR Part 622 gather the scientific samples. Also, the Administrator (AA) will consider all scientific samples would not necessarily [Docket No. 961226370±6370±01; I.D. comments made during the public be sold; they also could be distributed 111896A] to a food bank or otherwise disposed of comment period and may make consistent with state and Federal law. modifications as appropriate. RIN 0648±AI15 Requests for these renewals were An Environmental Assessment (EA) Fisheries of the Caribbean, Gulf of presented at the Council’s October 1996 was prepared for the tribal groundfish Mexico, and South Atlantic; Shrimp meeting. The Council recommended rule that supported the AA’s Fishery Off the Southern Atlantic renewal of all three in 1997. Comments determination that the proposed 1996 States; Amendment 2 on the three EFP programs for 1997 Makah allocation would have no were invited at the October 1996 significant impact on the human AGENCY: National Marine Fisheries Council meeting. If approved, the environment. NMFS has updated the Service (NMFS), National Oceanic and whiting EFPs could be issued as early as 1996 EA and has concluded that the Atmospheric Administration (NOAA), March 1 for vessels delivering in the 1997 Makah allocation will have no Commerce. State of California, and mid-April for significant impact on the human ACTION: Proposed rule; request for vessels delivering in Washington and environment. comments. Oregon; and the EFP for sablefish could be issued early in 1997. The decision on The Administrative Procedure Act SUMMARY: NMFS issues this proposed whether to issue EFPs and requires that publication of an action be rule to implement Amendment 2 to the determinations on appropriate permit made not less than 30 days before its Fishery Management Plan for the conditions will be based on a number of effective date unless the AA finds, and Shrimp Fishery of the South Atlantic considerations, including the Council’s publishes with the rule, good cause for Region (FMP). Amendment 2 would add recommendations and comments an earlier effective date (5 U.S.C. brown and pink shrimp to the FMP’s received from the public. 553(d)(3)). These specifications fishery management unit, define Classification announce the harvest goals and the overfishing for brown and pink shrimp, management measures designed to define optimum yield (OY) for brown The final specifications and achieve those harvest goals in 1997. A and pink shrimp, require the use of management measures for 1997 are delay in implementation could certified bycatch reduction devices issued under the authority of, and are in (BRDs) in all penaeid shrimp trawls in accordance with, the Magnuson-Stevens compromise the management strategies that are based on the projected landings the exclusive economic zone (EEZ) in Act and 50 CFR parts 600 and 660 the South Atlantic, and establish a subpart G (the regulations implementing from these trip limits. Therefore, a delay in effectiveness is contrary to the public framework procedure for adding to the the FMP). list of certified BRDs or modifying their Much of the data necessary for these interest and these actions are effective specifications. The intended effects are specifications and management on January 1, 1997. to minimize the bycatch of finfish in measures came from the current fishing The tribal whiting allocation is year. Because of the timing of the shrimp trawling operations in the South developed following, as much as Atlantic and to implement consistent, receipt, development, review, and possible, the annual process for analysis of the fishery information and therefore more enforceable, Federal developing fishery specifications and and state management measures necessary for setting the initial management measures. This is because specifications and management requiring the use of BRDs for reducing the information developed in this measures, and the need to have these finfish bycatch in the penaeid shrimp process (such as the ABC and HG for specifications and management fishery. whiting) is important in the allocation measures in effect at the beginning of DATES: Written comments must be the 1997 fishing year, there is good process. In addition, the annual received on or before February 20, 1997. groundfish process provides the best cause under 5 U.S.C. 553(b)(B) to waive ADDRESSES: Comments on the proposed prior notice and opportunity for public opportunity to the interested public to rule must be sent to the Southeast comment for the specifications and receive notification of the proposed Regional Office, NMFS, 9721 Executive management measures. Amendment 4 to allocation and to provide comments. As Center Drive N., St. Petersburg, FL the FMP, implemented on January 1, described above in the response to 33702. 1991, recognized these timeliness public comments, the public received Requests for copies of Amendment 2, considerations and set up a system by notice through the August and October which includes a regulatory impact which the interested public is notified, Council meetings and Council review (RIR), a social impact analysis, through Federal Register publication newsletters. It is important to announce and a supplemental final environmental and Council mailings, of meetings and the tribal allocation with the other impact statement (SFEIS), should be of the development of these measures specifications and management sent to the South Atlantic Fishery and is provided the opportunity to measures so the affected industry will Management Council, One Southpark comment during the Council process. know the amount of whiting available to Circle, Suite 306, Charleston, SC 29407– The public participated in GMT, the various sectors and will be able to 4699; Phone: 803–571–4366; Fax: 803– Groundfish Advisory Subpanel, plan accordingly. 769–4520. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 721

FOR FURTHER INFORMATION CONTACT: maintenance of habitat essential for the eligible for NMFS certification must be Peter J. Eldridge, 813–570–5305. long term stability of the weakfish shown to reduce the bycatch component SUPPLEMENTARY INFORMATION: The FMP resource. Amendment 3 directs the of fishing mortality for Spanish was prepared by the South Atlantic states to require BRDs in all penaeid mackerel and weakfish by 50 percent, or Fishery Management Council (Council) shrimp trawls nets above a certain size demonstrate a 40-percent reduction in and is implemented through regulations and requires that all BRDs be certified number of these fish. The Regional at 50 CFR part 622 under the authority as demonstrating a 40 percent reduction Administrator, Southeast Region, NMFS of the Magnuson-Stevens Fishery by number or 50 percent reduction of (Regional Administrator), would be Conservation and Management Act bycatch mortality of weakfish when responsible for review and certification (Magnuson-Stevens Act). compared to catch rates in a net without of BRDs for use in the South Atlantic a BRD. As members of the ASMFC, the EEZ. There would be two certification Background southern Atlantic states have pledged to procedures. Under the first procedure, a The shrimp fishery is the largest and accomplish the BRD-related objectives new or modified BRD that is reviewed most valuable commercial fishery in the of Amendment 3 in state waters during and recommended by a state South Atlantic, with approximately the 1996 shrimp season, which began in management agency, and that meets the 1,400 large vessels and 1,000 small June 1996. bycatch reduction criteria under the boats harvesting 30 million lb (13,608 The Council has developed testing protocol specified by the mt) with an ex-vessel value of $60 Amendment 2 to reduce bycatch of Council, would be certified by the million annually. Shrimp trawls have a weakfish in Federal waters consistent Regional Administrator. Under the significant bycatch of nontarget finfish with the objectives of Amendment 3 to second procedure, an individual would and invertebrates, most of which are the ISFMP, to enhance enforcement by submit the results of BRD certification discarded dead. Scientific survey results requiring comparable BRDs in both state trials directly to NMFS. Such indicate that the ratio of the weight of and Federal waters, and to initiate a submissions would be evaluated by finfish bycatch to that of shrimp caught process for certifying improved BRDs as NMFS with the Regional Administrator is about 2.3 to 1. they become available. making the final decision on BRD Bycatch may reduce the diversity of certification pursuant to the certification species within a marine ecosystem, BRD Requirements criteria, testing protocol, and terms of adversely impact other fauna, and This rule would require the use of a the FMP. Under either the first or significantly reduce the yield in other certified BRD in most penaeid shrimp second procedure, certification of a new fisheries that are directed at adults of trawl nets in the South Atlantic EEZ. or modified BRD would be announced the discarded species. Important fish Specifically, on board a penaeid shrimp by the Regional Administrator through species in the shrimp fishery bycatch trawler, each trawl net that is rigged for publication of a notice in the Federal include juveniles of mackerel, weakfish, fishing and has a mesh size less than Register. spot, and croaker. If left to mature and 2.50 inches (6.35 cm) stretched mesh The proposed BRD testing protocol for grow, these juvenile fish possibly could (center of knot to center of opposite certification does not include a shrimp be harvested later and produce a knot), and each try net that is rigged for loss criterion (i.e., estimated loss of significantly higher yield in weight as fishing and has a headrope length shrimp when a BRD is used). However, well as enhancing the reproductive greater than 16.0 ft (4.9 m), must have any application for BRD certification capacity of their stocks. a certified BRD installed. BRD designs would be required to provide data and The Atlantic States Marine Fisheries that have passed the operational testing analyses on the quantity of shrimp that Commission (ASMFC) has determined phase of the NMFS cooperative bycatch could be lost when using the BRD. Also, that weakfish are seriously overfished research program (i.e., extended funnel, an applicant would be required to and on the verge of recruitment failure. expanded mesh, and fisheye BRDs) are identify: The sponsor of the BRD The ASMFC adopted an Interstate certified for use in state waters and are certification tests (e.g., Sea Grant Fishery Management Plan for Atlantic certified for use in the EEZ where BRDs program, university, or private firm); Weakfish (ISFMP) in 1985, primarily to are required. when and where the tests were address the lack of biological and Most shrimp trawling in the South conducted; the vessel or vessels fisheries data necessary for effective Atlantic occurs in state waters. Because involved; any special conditions or management of the weakfish resource. most shrimp fishermen in the South requirements of the tests; the statistical ISFMP Amendments 1 and 2 were Atlantic fish in both state and Federal design and analyses that were adopted by the ASMFC to achieve waters on the same trip, the requirement performed, including length of tow, significant reductions in fishing to use BRDs in Federal waters should number of tows, and the measurements mortality of weakfish and to halt stock pose little, if any, additional burden on of shrimp and fishes; the names and declines. ISFMP Amendment 2 directed fishermen. affiliations of the observers; a complete the South Atlantic states to implement description of the BRD, including measures to achieve a 50 percent Amendment 2 Management Measures detailed descriptions of how the BRD is reduction in weakfish bycatch in the Not Reflected in the Proposed Rule installed in the nets; and the types of shrimp trawl fisheries for the 1996 TEDs used. It should be noted that all Framework Procedure for Certifying fishing year. In order to accelerate certification tests would be required to BRDs and for Modification of BRD weakfish conservation efforts, the be conducted with a state-approved or Certification Criteria and Testing ASMFC adopted Amendment 3 to its NMFS-approved observer aboard. It Protocol ISFMP in May 1996. The major goals of would be the responsibility of the Amendment 3 are: Restoring the In addition to the management applicant, or his/her agent, conducting Atlantic coast weakfish resource over a measures reflected in the proposed rule, the certification tests to ensure that a 5-year period to a healthy level that will Amendment 2 would establish a qualified observer is aboard during the maintain commercial and recreational framework procedure for certifying new tests. harvests consistent with a self- or modified BRDs and for establishing Additional details concerning the sustaining spawning stock; and and modifying BRD certification criteria Council’s recommendations regarding providing for restoration and and testing protocol. Any BRD that is the certification of BRDs, certification 722 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules criteria, and the BRD testing protocol 1957–1993. Thus, annual landings for 3 Classification are provided in Amendment 2 (see consecutive years would have to be ADDRESSES) under the discussion below 2,946,157 lb (1,336 mt) (heads on) At this time, NMFS has not made its regarding proposed Action 5 (pages 73– for brown shrimp and 286,293 lb (130 final determination that Amendment 2 83 of Amendment 2). Action 5 also mt) (heads on) for pink shrimp in order is consistent with the national provides: The Regional Administrator for these resources to be considered standards, other provisions of the Magnuson-Stevens Act, and other will advise an applicant if a BRD is not overfished. Reduced landings could applicable laws. In making that final certified; an applicant may resubmit a result from reduced fishing pressure determination, NMFS will take into rejected request for certification; and the rather than overfishing. Accordingly, Regional Administrator may decertify a account the data, views, and comments under Amendment 2, if annual landings received during the comment period. BRD should it be determined that such are more than two standard deviations BRD does not meet the bycatch below mean landings for the 1957–1993 This proposed rule has been reduction criteria (page 76 of period for 2 consecutive years, the determined to be not significant for Amendment 2). Council would convene its Shrimp purposes of E.O. 12866. Brown and Pink Shrimp Measures Stock Assessment Panel, Shrimp The Assistant General Counsel for Amendment 2 would add brown and Advisory Panel, and Shrimp Committee Legislation and Regulation of the pink shrimp to the FMP’s fishery to review the causes of such declines in Department of Commerce has certified management unit and define overfishing landings and recommend, if to the Chief Counsel for Advocacy of the and OY for these species. appropriate, actions necessary to Small Business Administration that Annual landings of brown and pink address the identified problems. In the Amendment 2 and its implementing shrimp off the southern Atlantic states event that declining landings are rule would not have a significant impact over time appear to fit a normal actually due to overfishing rather than on a substantial number of small entities distribution (a common statistical reduced fishing effort or some other as follows: distribution) and have been relatively factor, this should ensure that the The proposed rule would require the use stable since the mid-1950s without any Council takes timely action to address of certified bycatch reduction devices (BRDs) discernible upward or downward trend. the overfishing problem. The NMFS in most shrimp trawls used in the fisheries Average annual landings for brown Southeast Science Center has certified for penaeid shrimp in the exclusive economic zone (EEZ) of the South Atlantic shrimp for the 1957–93 period have that the Council’s proposed overfishing been 8,346,397 lb (3,786 mt); whereas and specifies the 3 types of BRDs that are definition is based on the best scientific initially deemed ‘‘certified.’’ average annual landings for pink shrimp information available. for the same period have been 1,713,067 For the 1994 fishing season, about 1,100 large shrimp vessels were licensed in Florida, lb (777 mt). It appears that annual Both pink and brown shrimp are short lived and produce annual crops. Thus, Georgia, and South Carolina, and about 300 abundance of these shrimp is primarily large vessels in North Carolina. In addition, as long as sufficient spawners survive influenced by environmental factors there were probably 1,000 or more small that determine the survival rate of each year, the Council believes that vessels and boats which have a significant juvenile shrimp. Fishing pressure, at there is no benefit from leaving an dependence on shrimp trawling in the South least in the past, does not appear to have excess of the present year’s crop for the Atlantic area; these vessels fish mostly in been a major factor controlling brown next season. Based on the biological North Carolina waters. All entities involved and pink shrimp abundance. characteristics of brown and pink in the shrimp fisheries in the southeast Since brown and pink shrimp are shrimp, there is a minimal chance of Atlantic EEZ are considered small entities for harvested in shrimp trawls for which overfishing these species. For these purposes of the RFA. Requiring the use of BRDs for all shrimp BRDs will be required under reasons, the Council is proposing that Amendment 2, the Council concluded trawls in the South Atlantic EEZ would have OY for these species be defined as the little or no economic impact since virtually that it is necessary and appropriate that amount of harvest that can be taken by all shrimp fishermen in this area fish these shrimp species be added to the U.S. fishermen without annual landings primarily in state waters where BRDs are FMP management unit. The Council falling more than two standard already required. Most, if not all, shrimp believes that the addition of these two deviations below mean landings for the fishermen have already equipped their trawls shrimp species to the management unit 1957–1993 period for 3 consecutive with BRDs in conformity with state would provide the necessary regulatory years (i.e., below 2,946,157 lb (1,336 mt) regulations that should meet the BRD- framework for establishing and (heads on) for brown shrimp and certification requirements of this rule. enforcing compatible state and Federal Accordingly, there should be little or no 286,293 lb (130 mt) (heads on) for pink additional costs to fishermen in complying regulations. Adding these species to the shrimp). The Council selected this management unit would result in the with the BRD requirements of this rule when definition of OY based, in part, on the they fish in the EEZ. following revised description of the absence of evidence that present or past Regarding the impacts of this rule, the FMP management unit: The levels of fishing effort have caused Council’s regulatory impact review (RIR) management unit includes the either growth or recruitment concluded: Any economic impact would populations of white, brown, pink, and overfishing. result in much less than a 5 percent rock shrimp along the U.S. Atlantic reduction in annual gross revenues to small coast from the east coast of Florida, Availability of Amendment 2 entities; any increase in compliance costs including the Atlantic side of the Keys, would be less than a 5 percent increase in to the North Carolina/Virginia border. Additional background and rationale total costs of production; all entities involved Amendment 2 would define for the measures discussed above are are small entities; capital costs of compliance overfishing for brown and pink shrimp contained in Amendment 2, the represent a very small portion of capital availability of which was announced in available to small entities; and no entities are as follows: Overfishing for brown or expected to be forced to cease business pink shrimp is occurring if annual the Federal Register on November 25, operations. For these reasons, the RIR landings for 3 consecutive years are 1996 (61 FR 59856). Public comment on concluded that this proposed rule would not more than two standard deviations Amendment 2 is invited through have a significant economic impact on a below mean landings for the period January 24, 1997. substantial number of small entities. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 723

List of Subjects in 50 CFR Part 622 certified BRD installed. A trawl net, or opposite side of the funnel extends an try net, is rigged for fishing if it is in the additional 22 to 24 inches (55.9 to 61.0 cm). Fisheries, Fishing, Puerto Rico, The circumference of the leading edge of the Reporting and recordkeeping water, or if it is shackled, tied, or otherwise connected to a sled, door, or funnel is attached to the forward small-mesh requirements, Virgin Islands. section three meshes forward of the large- other device that spreads the net, or to Dated: December 30, 1996. mesh escape section and is evenly sewn, a tow rope, cable, pole, or extension, mesh for mesh, to the small-mesh section. Gary C. Matlock, either on board or attached to a shrimp The after edge of the funnel is attached to the Acting Assistant Administrator for Fisheries, trawler. after small-mesh section at its top and bottom National Marine Fisheries Service. (2) Certified BRDs. The following eight meshes back from the large-mesh For the reasons set out in the BRDs are certified for use by penaeid escape panel. Seven meshes of the top and preamble, 50 CFR part 622 is proposed shrimp trawlers in the South Atlantic seven meshes of the bottom of the funnel are to be amended as follows: EEZ. Specifications of these certified attached to eight meshes at the top and bottom of the small-mesh section, such eight BRDs are contained in Appendix D of PART 622ÐFISHERIES OF THE meshes being located immediately adjacent this part. to the top and bottom centers of the small- CARIBBEAN, GULF, AND SOUTH (i) Extended funnel. mesh section on the side of the funnel’s ATLANTIC (ii) Expanded mesh. extended side. The extended side of the (iii) Fisheye. 1. The authority citation for part 622 funnel is sewn at its top and bottom to the 4. In § 622.48, paragraph (h) is added top and bottom of the small-mesh section, continues to read as follows: to read as follows: extending at an angle toward the top and Authority: 16 U.S.C. 1801 et seq. bottom centers of the small-mesh section. § 622.48 Adjustment of management (d) Semi-Rigid Hoop. A 30-inch (76.2-cm) 2. In § 622.2, definitions for ‘‘BRD’’, measures. diameter hoop constructed of plastic-coated ‘‘Headrope length’’, ‘‘Penaeid shrimp 3 * * * * * trawl cable, swaged together with a ⁄8-inch trawler’’, and ‘‘Try net’’ are added in (h) South Atlantic shrimp. Certified (9.53-mm) micropress sleeve, is installed 5 alphabetical order to read as follows: BRDs and their specifications. meshes behind the trailing edge of the large- 5. Appendix D is added to part 622 to mesh escape section. The extension webbing § 622.2 Definitions and acronyms. must be laced to the ring around the entire read as follows: * * * * * circumference and must be equally BRD means bycatch reduction device. Appendix D to Part 622—Specifications distributed on the hoop, that is, 30 meshes * * * * * for Certified BRDs in the South Atlantic must be evenly attached to each quadrant. Headrope length means the distance, Shrimp Fishery (e) Installation. The extended funnel BRD is attached 8 inches (20.3 cm) behind the measured along the forwardmost A. Extended Funnel. posterior edge of the TED. If it is attached webbing of a trawl net, between the 1. Description. The extended funnel BRD behind a soft TED, a second semi-rigid hoop, points at which the upper lip (top edge) consists of an extension with large-mesh as prescribed in paragraph A.2.(d), must be of the mouth of the net are attached to webbing in the center (the large-mesh escape installed in the front section of the BRD sleds, doors, or other devices that section) and small-mesh webbing on each extension webbing at the leading edge of the spread the net. end held open by a semi-rigid hoop. A funnel funnel. The codend of the trawl net is * * * * * of small-mesh webbing is placed inside the attached to the trailing edge of the BRD. extension to form a passage for shrimp to the 3. Minimum Construction and Installation Penaeid shrimp trawler means any codend. It also creates an area of reduced Requirements for Inshore Size. vessel that is equipped with one or more water flow to allow for fish escapement (a) Extension Material. The small-mesh trawl nets whose on-board or landed through the large mesh. One side of the sections used on both sides of the large-mesh catch of brown, pink, or white shrimp funnel is extended vertically to form a lead escape section are constructed of 13⁄8 inch (penaeid shrimp) is more than 1 panel and area of reduced water flow. There (3.5 cm), No. 18 stretched mesh, nylon percent, by weight, of all fish are two sizes of extended funnel BRDs, a webbing. The front section is 120 meshes comprising its on-board or landed catch. standard size and an inshore size for small around by 61⁄2 meshes deep. The back section trawls. is 120 meshes around by 23 meshes deep. * * * * * 2. Minimum Construction and Installation (b) Large-Mesh Escape Section. The large- Try net, also called test net, means a Requirements for Standard Size. mesh escape section is constructed of 8 to 10 net pulled for brief periods by a shrimp (a) Extension Material. The small-mesh inch (20.3 to 25.4 cm), stretched mesh, trawler to test for shrimp concentrations sections used on both sides of the large-mesh webbing. This section is cut on the bar to or determine fishing conditions (for escape section are constructed of 15⁄8 inch form a section that is 15 inches (38.1 cm) by example, presence or absence of bottom (4.13 cm), No. 30 stretched mesh, nylon 75 inches (190.5 cm) in circumference. The debris, jellyfish, bycatch, seagrasses, webbing. The front section is 120 meshes leading edge is attached to the 61⁄2-mesh etc.). around by 61⁄2 meshes deep. The back section extension section and the rear edge is is 120 meshes around by 23 meshes deep. attached to the 23-mesh extension section. * * * * * (b) Large-Mesh Escape Section. The large- (c) Funnel. The funnel is constructed of 3. In § 622.41, paragraph (g) is added mesh escape section is constructed of 8 to 10 13⁄8 inch (3.5 cm), stretched mesh, No. 18 to read as follows: inch (20.3 to 25.4 cm), stretched mesh, depth-stretched and heat-set polyethylene webbing. This section is cut on the bar to webbing. The circumference of the leading § 622.41 Species specific limitations. form a section that is 15 inches (38.1 cm) in edge is 120 meshes and the back edge is 78 * * * * * length by 95 inches (241.3 cm) in meshes. The short side of the funnel is 30 to (g) Shrimp in the South Atlantic—(1) circumference. The leading edge is attached 32 inches (76.2 to 81.3 cm) long and the BRD requirement. On a penaeid shrimp to the 61⁄2-mesh extension section and the opposite side of the funnel extends an trawler in the South Atlantic EEZ, each rear edge is attached to the 23-mesh additional 20 to 22 inches (50.8 to 55.9 cm). trawl net that is rigged for fishing and extension section. The circumference of the leading edge of the has a mesh size less than 2.50 inches (c) Funnel. The funnel is constructed of funnel is attached to the forward small-mesh 11⁄2 inch (3.81 cm), stretched mesh, No. 30 section three meshes forward of the large- (6.35 cm), as measured between the depth-stretched and heat-set polyethylene mesh escape section and is evenly sewn, centers of opposite knots when pulled webbing. The circumference of the leading mesh for mesh, to the small-mesh section. taut, and each try net that is rigged for edge is 120 meshes and the back edge is 78 The after edge of the funnel is attached to the fishing and has a headrope length longer meshes. The short side of the funnel is 34 to after small-mesh section at its top and bottom than 16.0 ft (4.9 m), must have a 36 inches (86.4 to 91.4 cm) long and the eight meshes back from the large-mesh 724 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules escape panel. Seven meshes of the top and SUMMARY: NMFS announces that the 50 CFR Part 679 seven meshes of the bottom of the funnel are Highly Migratory Species Division has attached to eight meshes at the top and submitted Amendment 1 to the Fishery [Docket No. 96122063±6363±01; I.D. 120296B] bottom of the small-mesh section, such eight Management Plan for the Sharks of the meshes being located immediately adjacent to the top and bottom centers of the small- Atlantic Ocean (FMP) for review, RIN 0648±AI65 mesh section on the side of the funnel’s approval, and implementation by extended side. The extended side of the NMFS. Written comments are requested Fisheries of the Exclusive Economic funnel is sewn at its top and bottom to the from the public. Amendment 1 would Zone off Alaska; Maximum Retainable top and bottom of the small-mesh section, implement limited access measures for Bycatch Percentages extending at an angle toward the top and the Atlantic shark fisheries. bottom centers of the small-mesh section. AGENCY: National Marine Fisheries (d) Semi-Rigid Hoop. A 24-inch (61.0-cm) DATES: Written comments must be Service (NMFS), National Oceanic and diameter hoop constructed of plastic-coated received on or before February 28, 1997. Atmospheric Administration (NOAA), trawl cable, swaged together with a 3⁄8-inch Commerce. ADDRESSES: Send comments to William (9.53-mm) micropress sleeve, is installed 5 ACTION: Proposed rule; request for Hogarth, Acting Chief, Highly Migratory meshes behind the trailing edge of the large comments. mesh section. The extension webbing must Species Division (F/SF1), National be laced to the ring around the entire Marine Fisheries Service, 1315 East- SUMMARY: NMFS proposes a regulatory circumference and must be equally West Highway, Silver Spring, MD amendment to reduce maximum distributed on the hoop, that is, 30 meshes 20910. Requests for copies of retainable bycatch percentages for must be evenly attached to each quadrant. Amendment 1, which includes an (e) Installation. The extended funnel BRD sablefish in the Gulf of Alaska (GOA) is attached 8 inches (20.3 cm) behind the environmental assessment and a groundfish trawl fisheries and to allow posterior edge of the TED. If it is attached regulatory impact review, should be the use of GOA arrowtooth flounder as behind a soft TED, a second semi-rigid hoop, sent to Margo Schulze, Fishery a basis species for the retention of as prescribed in paragraph A.3.(d), must be Biologist, Highly Migratory Species bycatch amounts of pollock and Pacific installed in the front section of the BRD Division (F/SF1), National Marine cod when either of these two species is extension webbing at the leading edge of the Fisheries Service, 1315 East-West closed to directed fishing. This action is funnel. The codend of the trawl net is Highway, Silver Spring, MD 20910. necessary to slow the harvest rate of attached to the trailing edge of the BRD. B. Expanded Mesh. The expanded mesh FOR FURTHER INFORMATION CONTACT: GOA sablefish and to provide for fuller BRD is constructed and installed exactly the Margo Schulze or John Kelly, 301–713– utilization of pollock and Pacific cod same as the standard size extended funnel 2347; fax: 301–713–1917. incidentally taken in the arrowtooth BRD, except that one side of the funnel is not flounder fishery. This action is intended extended to form a lead panel. SUPPLEMENTARY INFORMATION: The to further the objectives of the Fishery C. Fisheye. fishery for Atlantic sharks is managed Management Plan for Groundfish of the 1. Description. The fisheye BRD is a cone- under the FMP prepared by NMFS Gulf of Alaska (FMP). shaped rigid frame constructed from under authority of section 304(g) of the 1 DATES: Comments must be received at aluminum or steel rod of at least ⁄4 inch Magnuson-Stevens Fishery diameter, which is inserted into the codend the following address by February 5, to form an escape opening. Fisheyes of Conservation and Management Act 1997. (Magnuson Act), as amended, and was several different shapes and sizes have been ADDRESSES: Comments may be sent to tested in different positions in the codend. implemented on April 26, 1993, through Ronald J. Berg, Chief, Fisheries 2. Minimum Construction and Installation regulations found at 50 CFR part 678. Management Division, Alaska Region, Requirements. The fisheye has a minimum If approved, Amendment 1 would NMFS, P.O. Box 21668, Juneau, AK opening dimension of 5 inches (12.7 cm) and redefine permits as directed or a minimum total opening area of 36 square 99802, Attn: Lori Gravel or delivered to inches (91.4 square cm). The fisheye must be incidental, develop eligibility criteria the Federal Building, 709 West 9th installed in the codend of the trawl to create for these permits based on historical Street, Juneau, AK. Copies of the an opening in the trawl facing in the participation, and specify rules for environmental assessment/regulatory direction of the mouth of the trawl no further transferability of permits. NMFS has impact review prepared for this action forward than 11 ft (3.4 m) from the codend determined that the Atlantic shark may be obtained from the same address. tie-off rings. fishery is overcapitalized, with an FOR FURTHER INFORMATION CONTACT: [FR Doc. 97–187 Filed 1–3–97; 8:45 am] excessive number of permitted vessels Susan J. Salveson, 907–586–7228. BILLING CODE 3510±22±P relative to current harvest levels. The SUPPLEMENTARY INFORMATION: Fishing objective of this amendment is to take for groundfish by U.S. vessels in the a first and significant step towards exclusive economic zone of the GOA is 50 CFR Part 678 reducing fleet capacity to levels more managed by NMFS according to the closely aligned with resource [I.D. 120696A] FMP. The FMP was prepared by the production by implementing limited North Pacific Fishery Management RIN 0648±AH77 access, substantially reducing latent Council (Council) under authority of the harvesting capacity, and implementing Magnuson-Stevens Fishery Atlantic Shark Fisheries; Notice of measures to prevent further Conservation and Management Act Availability of Amendment 1 overcapitalization. (Magnuson-Stevens Act). Fishing by AGENCY: National Marine Fisheries Authority: 16 U.S.C. 1801 et seq. U.S. vessels is governed by regulations implementing the FMP at subpart H of Service (NMFS), National Oceanic and Dated: December 30, 1996. 50 CFR part 600 and 50 CFR part 679. Atmospheric Administration (NOAA), Gary C. Matlock, Commerce. Regulations at § 679.20(e) establish Director, Office of Sustainable Fisheries, maximum retainable bycatch (MRB) ACTION: Notice of availability of an National Marine Fisheries Service. percentages for groundfish species or amendment to a fishery management [FR Doc. 96–33394 Filed 12–30–96; 4:57 pm] species groups. These MRB percentages plan; request for comments. BILLING CODE 3510±22±F establish the amount of a species that is Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 725 closed to directed fishing that may be and Pacific cod. Industry anticipated harvest rates, TACs for retained on board a vessel, relative to representatives and NMFS in-season sablefish and POP were exceeded, these amounts of other retained species open managers also recommended that a species were put on prohibited species to directed fishing. MRB percentages reduction of the GOA sablefish MRB status within 2 weeks of the July 1 serve as a management tool to slow percentage be considered to respond to opening of the trawl rockfish fishery, down the rate of harvest of a bycatch fishery management issues that became and these species were mandatorily species and to reduce the incentive for evident as a result of topping off discarded for the remainder of the year. fishing vessel operators to target on the activities in the 1996 trawl fisheries. At NMFS proposes that the MRB species. Nonetheless, vessel operators its September 1996 meeting, the Council percentage for GOA sablefish relative to may top off their retained catch of these adopted its preferred alternative to all rockfish species or species groups species up to the MRB amount. MRB reduce the MRB percentages for GOA and deep water flatfish be reduced from percentages do not necessarily reflect a sablefish relative to deep water species 15 percent to 7 percent. This change natural incidental catch rate but rather from 15 percent to 7 percent and to would reduce the harvest rate of GOA reflect a balance between the recognized allow the use of GOA arrowtooth sablefish as well as that for POP and need to slow harvest rates, minimize the flounder as a basis species for the potentially other rockfish species during potential for undesirable discard, and, retention of pollock and Pacific cod. An topping-off activity. The Council in some cases, provide an increased MRB of 5 percent of each these species concurred in this recommendation at its opportunity to harvest available total relative to arrowtooth flounder is September 1996 meeting. allowable catch (TAC) through limited proposed. The Council requested staff to The proposed reduction in the topping off activity. explore other changes to MRB sablefish MRBs reflects NMFS catch Topping off is a recognized and percentages for GOA rockfish species data for the bycatch of sablefish in the generally accepted activity associated that may be considered at a future date. deep water flatfish and rockfish with bycatch species. The incentive for Specific rationale for each of the fisheries since 1994. The bycatch of fishermen to engage in this activity is proposed changes follows. sablefish in the flathead sole and rex directly related to the value of, and sole fisheries ranged between 1–4 available market for, the bycatch species Allow the Use of GOA Arrowtooth Flounder as a Basis Species percent since 1994, lower than the relative to the associated operational proposed 7 percent MRB. The proposed costs of fishing first for and retaining At the Council’s December 1995 reduction in the sablefish MRB is not one species and subsequently topping meeting, testimony was presented that anticipated to result in additional off that retained catch with a bycatch markets now exist for arrowtooth discard of trawl-caught sablefish. species up to, and including, the flounder and that this species should be However, it would slow down the allowable MRB percentage. allowed as a basis species for purposes harvest rates of sablefish. It would also Current regulations prohibit the use of of retaining pollock and Pacific cod slow the harvest rate of groundfish that arrowtooth flounder as a basis species when these two species are closed to are open to directed fishing and that for the retention of other groundfish directed fishing. An MRB percentage of serve as a basis for the retention of species closed to directed fishing. This 5 percent was proposed for pollock and sablefish. A reduced harvest rate would prohibition was implemented by NMFS Pacific cod relative to arrowtooth facilitate NMFS’s ability to monitor the in 1994 to respond to industry and flounder. fishery and initiate fishery closures NMFS catch data show that bycatch of Council concern that directed fishing for before TAC amounts are reached, thus these two species in the arrowtooth arrowtooth flounder for the purpose of delaying the attainment of TAC and the topping off with other, higher-valued flounder fishery since 1994 ranged required discard of fish under species could result in unacceptably between 6 and 15 percent, higher than prohibited species status. high halibut bycatch rates. Little or no the proposed MRB percentage. As a market existed for arrowtooth flounder, result, some discard of GOA pollock and Classification which subsequently was discarded or Pacific cod may still occur. Nonetheless, The Assistant General Counsel for rendered into meal, but the halibut opportunity for unacceptably high Legislation and Regulation of the bycatch amounts associated with the levels of topping off activity would be Department of Commerce certified to arrowtooth flounder fishery were limited to address halibut bycatch the Chief Counsel for Advocacy of the credited against the overall halibut concerns. Small Business Administration that this bycatch limits available to other Reduce the MRB Percentage for GOA proposed rule, if adopted, would not fisheries. Directed fishing for arrowtooth Sablefish have a significant economic impact on flounder could increase the rates at a substantial number of small entities as The current MRB percentage for GOA which halibut bycatch limits or follows: allowances are reached, thus further sablefish is 15 percent relative to deep limiting the ability of the groundfish water flatfish, flathead sole, rex sole, The proposed regulatory amendment fleet to harvest available TAC amounts and rockfish and 1 percent relative to all would reduce the maximum retainable other species. Sablefish typically is a bycatch (MRB) percentages for sablefish in before halibut bycatch restrictions close the Gulf of Alaska (GOA) groundfish trawl the fisheries. bycatch species for the GOA trawl fisheries and allow the use of GOA At the Council’s December 1995 fisheries and trawl vessels maximize arrowtooth flounder as a basis species for the meeting, industry representatives and allowable retention of sablefish through retention of bycatch amounts of pollock and individual members of the Council topping off activity. In 1996, in-season Pacific cod when either of these two species requested that NMFS initiate several monitoring and management of trawl is closed to directed fishing. This action is changes to existing MRB percentages. fisheries was frustrated by necessary to slow the harvest rates of GOA This request was in response to specific unanticipated high harvest rates of sablefish and to provide for fuller utilization concerns about topping off activity and Pacific ocean perch (POP) for purposes of pollock and Pacific cod incidentally taken in the arrowtooth flounder fishery. to testimony that a limited fishery for of topping off with sablefish, as well as The proposed action primarily would GOA arrowtooth flounder exists and unprecedented high harvest rates of affect GOA trawl operations. In 1995, a total that this species should be allowed as a sablefish through topping off activity. of 185 catcher vessels using trawl gear basis species for the retention of pollock As a result of these higher than harvested GOA groundfish. NMFS considers 726 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules catcher vessels to be small entities for This action also would provide enhanced List of Subjects in 50 CFR Part 679 purposes of analyses required under the opportunity for revenues to the extent that Regulatory Flexibility Act. The proposed participants in the arrowtooth flounder Fisheries, Reporting and change to the GOA sablefish MRB would fishery retain bycatch amounts of pollock recordkeeping requirements. affect only trawl operations because the and Pacific cod up to the proposed MRB retention of sablefish by nontrawl vessels is percentage of 5 percent. In 1995, 39 trawl Dated: December 27, 1996. governed by regulations implementing the catcher vessels retained GOA arrowtooth Nancy Foster, sablefish individual fishing quota program. flounder. The additional revenue to these Deputy Assistant Administrator for Fisheries, In 1995, four of the eight catcher vessels vessels that could result from the proposed National Marine Fisheries Service. participating in the GOA rockfish fisheries action likely would not reflect a 5 percent retained sablefish as bycatch. The proposed increase in overall annual revenue. Landings For the reasons set out in the reduction of the sablefish MRB percentages of arrowtooth flounder in 1995 totaled only preamble, 50 CFR part 679 is proposed likely would not result in decreased annual about 1 percent of the total amount of to be amended as follows: revenues to these catcher vessels that exceed groundfish landed by catcher vessels. If 5 percent because vessels still would have catcher vessel operators chose to retain any PART 679ÐFISHERIES OF THE the opportunity to harvest available sablefish bycatch of pollock and Pacific cod up to the EXCLUSIVE ECONOMIC ZONE OFF TACs through ‘‘topping off’’ activity, albeit at proposed MRB percentage, the associated ALASKA a reduced rate or over a longer period of time. landings would be 5 percent or less of the Topping off is the term applied to catching arrowtooth landings, or about 0.1 percent of 1. The authority citation for part 679 and retaining non-target species in order to the total groundfish catch. increase the base used for computing the continues to read as follows: percentage of bycatch of sablefish (or other As a result, a regulatory flexibility Authority: 16 U.S.C. 773 et seq., 1801 et valuable species) that can be retained. analysis was not prepared. seq. Operational costs of doing so could increase This proposed rule has been as a result, but likely not to the extent of determined to be not significant for 2. In part 679, Table 10 is revised to posing a significant economic impact. purposes of E.O. 12866. read as follows:

TABLE 10 TO PART 679.ÐCURRENT GULF OF ALASKA RETAINABLE PERCENTAGES

Bycatch Species 1 Ag- Pa- Deep Flat- Shal- Sa- gre- Atka Other Pol- cific flat- Rex head low Arrow- ble- gated DSR mack- spe- lock sole flat- tooth SEEO 4 cod fish sole fish fish rock- erel cies fish 2

Basis Species: Pollock ...... 3 na 20 20 20 20 20 35 1 5 10 20 20 Pacific cod ...... 20 3 na 20 20 20 20 35 1 5 10 20 20 Deep flatfish ...... 20 20 3 na 20 20 20 35 7 15 1 20 20 Rex sole ...... 20 20 20 3 na 20 20 35 7 15 1 20 20 Flathead sole ...... 20 20 20 20 3 na 20 35 7 15 1 20 20 Shallow flatfish ...... 20 20 20 20 20 3 na 35 1 5 10 20 20 Arrowtooth ...... 5 5 0 0 0 0 3 na 0 0 0 0 0 Sablefish ...... 20 20 20 20 20 20 35 3 na 15 1 20 20 Pacific Ocean perch ...... 20 20 20 20 20 20 35 7 15 1 20 20 Shortraker/rougheye ...... 20 20 20 20 20 20 35 7 15 1 20 20 Other rockfish ...... 20 20 20 20 20 20 35 7 15 1 20 20 Northern rockfish ...... 20 20 20 20 20 20 35 7 15 1 20 20 Pelagic rockfish 20 20 20 20 20 20 35 7 15 1 20 20 DSR±SEEO ...... 20 20 20 20 20 20 35 7 15 3 na 20 20 Thornyhead ...... 20 20 20 20 20 20 35 7 15 1 20 20 Atka mackerel ...... 20 20 20 20 20 20 35 1 5 10 3 na 20 Other species ...... 20 20 20 20 20 20 35 1 5 10 20 3 na Aggregated amount non-groundfish species ...... 20 20 20 20 20 20 35 1 5 10 20 20 1 For definition of species, see Table 1 of the Gulf of Alaska groundfish specifications 2 Aggregated rockfish means rockfish of the genera Sebastes and Sebastolobus except in the southeast Outside District where demersal shelf rockfish (DSR) is a separate category. 3 na=not applicable. 4 SEEO=Southeast Outside District.

[FR Doc. 97–7 Filed 1–3–97; 8:45 am] BILLING CODE 3510±22±W 727

Notices Federal Register Vol. 62, No. 3

Monday, January 6, 1997

This section of the FEDERAL REGISTER Robert S. LaRussa, Acting Assistant SUPPLEMENTARY INFORMATION: contains documents other than rules or Secretary for Import Administration, Description of Information Collection proposed rules that are applicable to the Department of Commerce, has public. Notices of hearings and investigations, determined that subsidies provided by The following describes the committee meetings, agency decisions and the Government of Canada on Swiss information collection to be extended: rulings, delegations of authority, filing of Title: Hells Canyon Private Land Use cheese exported to the United States petitions and applications and agency Regulations: 36 CFR 292, Subpart E. statements of organization and functions are averaged $0.26 per pound during the OMB Number: 0596–0135. examples of documents appearing in this investigations period. In the case of Expiration Date of Approval: March section. Germany, the Department of Commerce 31, 1997. determined that the average export Type of Request: Extension of a restitution payment provided by the previously approved information DEPARTMENT OF AGRICULTURE European Union during the collection. Office of the Secretary investigation period was $0.45 per Abstract: This collected information pound on Swiss cheese exported to the is used to evaluate whether an estimated Price Undercutting of Domestic Swiss United States. 235 landowners within the Hells Cheese by Imported Swiss Cheese Done at Washington, D.C., this 27th day of Canyon National Recreation Area use From Canada and Germany December, 1996. and develop their land in compliance with the existing regulations known as AGENCY: Department of Agriculture Dan Glickman, Hells Canyon Private Land Use (USDA). Secretary of Agriculture. Regulations located at 36 CFR 292, ACTION: Notice. [FR Doc. 97–115 Filed 1–3–97; 8:45 am] Subpart E. Once a year, landowners BILLING CODE 3410±10±M provide written information to the The U.S. Department of Agriculture Ranger that must include the following: received a complaint alleging price (1) the current land category to which undercutting of domestic Swiss cheese Forest Service the land is assigned as defined at 36 in the United States by imported CFR 292, Subpart E; (2) the use or subsidized Swiss cheese subject to an Extension of Currently Approved development that exists or that is in-quota rate of duty produced in Information Collection for Hells proposed for the property; (3) a Canada and Germany. Under section Canyon Private Land Use Regulations statement as to whether a change in the 702 of the Trade Agreements Act of land category assignment will be 1979, as amended (19 U.S.C. 1202 note), AGENCY: Forest Service, USDA. necessary to accommodate the proposed the Secretary of Agriculture must use or development; (4) a timeframe for conduct an investigation and make a ACTION: Notice of intent; request for comments. implementing the proposed use or determination as to the validity of the development, and (5) a statement as to allegations within 30 days. how the proposed use or development SUMMARY: In accordance with the Based on the investigation of the satisfies the standards of § 292.23. Using Paperwork Reduction Act of 1995, the Director of the Dairy, Livestock and the information collected from each Forest Service announces its intent to Poultry Division, Foreign Agricultural landowner, the Ranger makes a request an extension of a currently Service, conducted pursuant to the determination whether private regulations at 7 C.F.R. 6.40–.44, I have approved information collection. Private landowners existing or proposed use or determined that although available landowners, whose land is located development of the land within the information suggests price undercutting within the parameters of the Hells Hells Canyon National Recreation Area of U.S. Swiss cheese by Swiss cheese Canyon National Recreation Area, are complies with the standards of the subject to an in-quota rate of duty asked to provide information that will regulations. imported from Canada and Germany, enable the agency to determine if the Data gathered in this information this information is insufficient for the use and development of the land is collection is not available from other purposes of section 702 upon which to compatible with existing regulations at sources. make a positive determination at this 36 CFR 292, Subpart E. Estimate of Burden: 4 hours. time that price undercutting has Type of Respondents: Private land DATES: Comments must be received in occurred. I am, however, directing the owners located within the Hells Canyon writing on or before March 7, 1997. Department to monitor U.S. cheese National Recreation Area. markets for price undercutting by ADDRESSES: All comments should be Estimated Number of Respondents: cheese imported subject to an in-quota addressed to: Director, Recreation, 235. rate of duty. I am also directing the Heritage, and Wilderness Resources Estimated Number of Responses per Department, in coordination with the (MAIL STOP 1125), Forest Service, Respondent: 1. Office of the United States Trade USDA, P.O. Box 96090, Washington, Estimated Total Annual Burden on Representative, to analyze the Canadian D.C. 20090–6090. Respondents: 940 hours. dairy price pooling system, including The agency invites comments on the any implications this system would FOR FURTHER INFORMATION CONTACT: Jeff following: (a) Whether the proposed have for Canada’s North American Free Bailey, Recreation, Heritage, and collection of information is necessary Trade Agreement and World Trade Wilderness Resources Staff, at (202) for the proper performance of the Organization export subsidy obligations. 205–1407. functions of the agency, including 728 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices whether the information will have terminate a suspended investigation if suspended investigations by the last day practical utility; (b) the accuracy of the the Secretary of Commerce concludes of January 1997. Any submission to the agency’s estimate of the burden of the that it is no longer of interest to Department must contain the name and proposed collection of information, interested parties. Accordingly, as case number of the proceeding and a including the validity of the required by § 353.25(d)(4) of the statement that explains how the methodology and assumptions used; (c) Department’s regulations, we are objecting party qualifies as a domestic ways to enhance the quality, utility, and notifying the public of our intent to interested party under § 353.2(k) (3), (4), clarity of the information to be revoke the following antidumping duty (5), and (6) of the Department’s collected; and (d) ways to minimize the orders and findings and to terminate the regulations. burden of the collection of information suspended investigations for which the Seven copies of such objections on respondents, including the use of Department has not received a request should be submitted to the Assistant automated, electronic, mechanical, or to conduct an administrative review for Secretary for Import Administration, other technological collection the most recent four consecutive annual International Trade Administration, techniques or other forms of information anniversary months: Room B–099, U.S. Department of technology. Commerce, Washington, D.C. 20230. Antidumping Proceeding You must also include the pertinent Use of Comments Brazil, Brass Sheet & Strip, A–351–603, certification(s) in accordance with All comments received in response to 52 FR 1214, January 12, 1987, § 353.31(g) and § 353.31(i) of the this notice will be summarized and Contact: Tom Killiam at (202) 482– Department’s regulations. In addition, included in the request for OMB 2704. the Department requests that a copy of approval. All comments will also Canada, Color Picture Tubes, A–122– the objection be sent to Michael F. become a matter of public record. 605, 53 FR 429, January 7, 1988, Panfeld in Room 4203. This notice is in Dated: December 24, 1996. Contact: Valerie Owenby at (202) 482– accordance with 19 CFR 353.25(d)(4)(i). 0145. David G. Unger, Singapore, Color Picture Tubes, A–559– Dated: December 27, 1996. Acting Chief. 601, 53 FR 432, January 7, 1988, Barbara R. Stafford, [FR Doc. 97–164 Filed 1–3–97; 8:45 am] Contact: Michael Heaney at (202) Deputy Assistant Secretary for AD/CVD BILLING CODE 3410±11±M 482–4475. Enforcement. South Africa, Brazing Copper Wire & [FR Doc. 97–123 Filed 1–3–97; 8:45 am] Rod, A–791–502, 51 FR 3640, January BILLING CODE 3510±DS±P DEPARTMENT OF COMMERCE 29, 1986, Contact: Valerie Owenby at (202) 482–0145. C±549±802 International Trade Administration South Korea, Brass Sheet & Strip, A– 580–603, 52 FR 1215, January 12, Intent to Revoke Antidumping Duty Ball Bearings and Parts Thereof From 1987, Contact: Tom Killiam at (202) Thailand: Final Results of Orders and Findings and to Terminate 482–2704. Suspended Investigations Countervailing Duty Administrative South Korea, Color Picture Tubes, A– Review AGENCY: Import Administration, 580–605, 53 FR 431, January 7, 1988, AGENCY: International Trade Administration, Contact: Tamara Underwood at (202) Import Administration, Department of Commerce. 482–0197. International Trade Administration, Taiwan, Stainless Steel Cooking Ware, Department of Commerce. ACTION: Notice of intent to revoke A–583–603, 52 FR 2139, January 20, ACTION: Notice of Final Results of antidumping duty orders and findings 1987, Contact: Valerie Owenby at and to terminate suspended Countervailing Duty Administrative (202) 482–0145. Review. investigations. Canada, Potassium Chloride, A–122– SUMMARY: On July 3, 1996, the SUMMARY: The Department of Commerce 701, 53 FR 1393, January 19, 1988, (the Department) is notifying the public Contact: Jean Kemp at (202) 482– Department of Commerce (‘‘the of its intent to revoke the antidumping 4037. Department’’) published in the Federal duty orders and findings and to If no interested party requests an Register its preliminary results of terminate the suspended investigations administrative review in accordance administrative review of the listed below. Domestic interested parties with the Department’s notice of countervailing duty order on ball who object to these revocations and opportunity to request administrative bearings and parts thereof from terminations must submit their review, and no domestic interested Thailand for the period 1994 (61 FR comments in writing no later than the party objects to the Department’s intent 34794, July 3, 1996). The Department last day of January 1997. to revoke or terminate pursuant to this has now completed this administrative review in accordance with section EFFECTIVE DATE: January 6, 1997. notice, we shall conclude that the antidumping duty orders, findings, and 751(a) of the Tariff Act of 1930, as FOR FURTHER INFORMATION CONTACT: suspended investigations are no longer amended. For information on the net Michael Panfeld or the analyst listed of interest to interested parties and shall subsidy, please see the Final Results of under Antidumping Proceeding at: proceed with the revocation or Review section of this notice. We will Import Administration, International termination. instruct the U.S. Customs Service to Trade Administration, U.S. Department assess countervailing duties as detailed of Commerce, 14th Street & Constitution Opportunity to Object in the Final Results of Review section of Avenue, N.W., Washington, D.C. 20230. Domestic interested parties, as this notice. The countervailing duty SUPPLEMENTARY INFORMATION: defined in § 353.2(k) (3), (4), (5), and (6) order on ball bearings and parts thereof of the Department’s regulations, may from Thailand was revoked effective Background object to the Department’s intent to January 1, 1995, as a result of a changed The Department may revoke an revoke these antidumping duty orders circumstances review (see 61 FR 20799). antidumping duty order or finding or and findings or to terminate the Because this order has been revoked, the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 729

Department will not issue further FR 34794), the following events have Analysis of Programs instructions with respect to cash occurred. We invited interested parties Based upon the responses to our deposits of estimated countervailing to comment on the preliminary results. questionnaire, the results of verification, duties. On August 2, 1996, a case brief was and written comments from the EFFECTIVE DATE: January 6, 1997. submitted by the Royal Thai interested parties we determine the FOR FURTHER INFORMATION CONTACT: Government (‘‘RTG’’) and the Minebea following: Robert Copyak or Megan Waters, Office Group of Companies, which exported of CVD/AD Enforcement VI, Import ball bearings and parts thereof to the I. Programs Conferring Subsidies Administration, International Trade United States during the review period. A. Programs Previously Determined to Administration, U.S. Department of On November 2, 1995, we extended Confer Subsidies Commerce, 14th Street and Constitution the period for completion of the Avenue, N.W., Washington, D.C. 20230; preliminary and final results pursuant Investment Promotion Act of 1977— telephone: (202) 482–2786. to section 751(a)(3) of the Act (see Sections 28, 31, 36(1), and 36(4) Extension of the Time Limit for Certain In the preliminary results, we found SUPPLEMENTARY INFORMATION: Countervailing Duty Administrative that these programs conferred Background Reviews, 60 FR 55699). As explained in countervailable subsidies on the subject Pursuant to section 355.22(a) of the the memoranda from the Assistant merchandise. Our review of the record Department’s Interim Regulations, this Secretary for Import Administration and our analysis of the comments review covers only those producers or dated November 22, 1995, and January submitted by the interested parties, exporters of the subject merchandise for 11, 1996 (on file in the public file of the summarized below, has not led us to which a review was specifically Central Records Unit, Room B–099 of change our findings from the requested. See Antidumping and the Department of Commerce), all preliminary results. Accordingly, our Countervailing Duties: Interim deadlines were further extended to take calculation of the net subsidies for this regulations; request for comments, 60 into account the partial shutdowns of program remains unchanged from the FR 25130, 25139 (May 11, 1995) the Federal Government from November preliminary results and is as follows: (‘‘Interim Regulations’’). Accordingly, 15 through November 21, 1995, and this review covers the Minebea Group of December 15, 1995, through January 6, Manufacturer/Exporter Rate Companies in Thailand, NMB Thai, 1996. As a result of these extensions, the Minebea Group of Companies ...... 5.25%. Pelmec Thai, and NMB Hi-Tech, which deadline for these final results is no manufacture and export the subject later than December 30, 1996—180 days II. Programs Found to be Not Used merchandise. During this review, the from July 3, 1996, the date on which the Department learned of another Minebea preliminary results were published in In the preliminary results, we found company, NMB Precision Ball, Ltd., the Federal Register. that the producers and/or exporters of which manufactures balls. The company Applicable Statute and Regulations the subject merchandise did not apply does not export directly to the United for or receive benefits under the States but it does sell balls to the other Unless otherwise indicated, all following programs: three companies which in turn export citations to the statute are references to A. Tax Certificates for Exporters finished ball bearings to the United the provisions of the Tariff Act of 1930, B. Electricity Discounts for Exporters States and elsewhere. This company, as amended by the Uruguay Round C. Export Packing Credits like the other three Minebea producers Agreements Act (‘‘URAA’’) effective D. Rediscount of Industrial Bills in Thailand, is a wholly-owned January 1, 1995 (‘‘the Act’’). E. IPA Section 33 subsidiary of Minebea Japan, and Scope of the Review F. Export Processing Zones because NMB Precision Ball, Ltd. G. Reduced Business Taxes for received export subsidies during the Imports covered by this review are Producers of Intermediate Goods for period of review (see ‘‘Programs ball bearings and parts thereof. Such Export Industries Conferring Subsidies’’ section below) for merchandise is described in detail in H. International Trade Promotion Fund its sales of balls to the related Thai ball the Appendix to this notice. The Our analysis of the comments bearing producers, we determine that it Harmonized Tariff Schedule (HTS) item submitted by the interested parties, is appropriate to include the export numbers listed in the Appendix are summarized below, has not led us to subsidies to NMB Precision Ball, Ltd. in provided for convenience and Customs change our findings from the our calculations of the net subsidy. purposes. The written description preliminary results. All of these companies are wholly remains dispositive. Analysis of Comments owned by one parent company. As a Verification result of this affiliation, we continue to Comment 1: Respondents argue that find, as we did in the investigation and We verified information provided by the Department must liquidate entries in previous reviews (see for example, the RTG and by the Minebea Group of during 1994 without regard to Ball Bearings and Parts Thereof from Companies, producers/exporters of the countervailing duties because the URAA Thailand: Final Results of subject merchandise (as provided in does not provide an injury test for 1994 Countervailing Duty Administrative section 782(i) of the Act) . We followed entries as required under the Agreement Review, 60 FR 52374, October 6, 1995), standard verification procedures, on Subsidies and Countervailing that the Minebea Group of Companies including meeting with government and Measures (Subsidies Agreement). Citing should be collapsed and treated as one company officials and examining Article 32.3 of the Subsidies Agreement, corporate entity in our calculations. relevant accounting and original source respondents argue that the Subsidies This review covers the period January 1 documents. Our verification results are Agreement is applicable to all reviews, through December 31, 1994, and nine outlined in the public versions of the including the instant review, initiated programs. verification reports, which are on file in pursuant to requests made after January Since the publication of the the Central Records Unit (Room B–099 1, 1995. Respondents argue that the preliminary results on July 3, 1996 (61 of the Main Commerce Building). requirements of the Agreement include 730 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices the application of an injury test to received by NMB Precision Ball, Ltd. in countervailing duty law. Accordingly, entries covered by such a review. the benefit calculation is not contrary to the export subsidies here on balls and According to respondents, however, the the upstream provision of the statute. In ball bearings are countervailable. URAA did not provide a mechanism to fact, it is necessary to include these Further, the fact that NMB Precision implement this obligation; rather, the subsidies in order to accurately Ball, Ltd. is separately incorporated is URAA only provides an injury test for determine the total net subsidy irrelevant because these are export merchandise entered on or after January attributable to subject merchandise. subsidies which are provided to balls 1, 1995. Therefore, respondents assert NMB Precision Ball, Ltd. does not contingent on their subsequent that assessment of countervailing duties produce bearings; nor does it make exportation, and the balls are covered by on 1994 entries would violate U.S. commercial shipments of bearings to the the order. It does not matter whether the obligations under the Subsidies United States. However, it does produce balls are exported directly or whether Agreement. balls which it then supplies to other the balls are sold to another company, Department’s Position: Respondents Minebea companies, including Minebea incorporated into ball bearings, and have misinterpreted both U.S. law and companies in Thailand. When the then exported; all of the balls receive the Subsidies Agreement. There is no Department issued its questionnaire for the export subsidy. Thus, the subject legal basis under U.S. law for this review, it requested information for merchandise exported to the United respondents’ claim. Because Thailand all companies in Thailand which States by the other Minebea companies became a Subsidies Agreement country produced and/or exported subject during the period of review benefitted on January 1, 1995, only entries made merchandise that was exported to the not only from the export subsidies on on or after January 1, 1995 are entitled United States. At verification, the balls produced by NMB Precision Ball, to the injury test. See section 753 of the Department learned that NMB Precision Ltd. but also from the export subsidies Act; 19 U.S.C. § 1675b. Section 753 (a) Ball, Ltd. produced balls that were provided on finished ball bearings. (4) makes this clear by providing for the exported to the United States as parts of Comment 3: Respondents claim that suspension of liquidation of entries of finished ball bearings during the review several of the essential materials for subject merchandise made ‘‘on or after period. Only then, upon request, did the which BOI grants duty exemptions meet .. . the date on which the country . .. Department gather information to the ‘‘consumed in production’’ becomes a Subsidies Agreement country determine whether NMB Precision Ball, standard, and, therefore, duty . . . .’’ See also Ceramica Ltd. should be included in the subsidy exemptions on these materials should Regiomontana, S.A. v. United States, 64 calculations. be found not countervailable. They F.3d 1579 (Fed. Cir. 1995) (the right to At verification, we found that the argue that the Department improperly an injury test is conferred at the time of balls produced by NMB Precision Ball, countervailed certain duty exemptions importation (entry) in the United Ltd. were exported either directly or as on inputs used in the production States). Therefore, countervailing duties parts of bearings assembled by other process because it has interpreted the may be assessed on Thai imports Minebea companies in Thailand. Both meaning of the footnote 61 of Annex II entered before January 1, 1995, without the balls and bearings are merchandise of the Subsidies Agreement regarding regard to an injury test. subject to this review. As explained in ‘‘inputs consumed in the production Moreover, Article 32.3 of the the preliminary results of this review process’’ too narrowly. Subsidies Agreement does not require (61 FR 34794, July 3, 1996), the Department’s Position: We disagree an injury determination for merchandise subsidies received by NMB Precision with respondents. Prior to the Uruguay entered prior to January 1, 1995. (See Ball, Ltd. on its sales of these balls are Round Agreement, only duty also Footwear from Brazil GATT Panel export subsidies. NMB Precision Ball, exemptions on inputs that were Decision confirming that liability for Ltd. receives these export subsidies not physically incorporated into the product countervailing duties attaches at the only for the balls that are exported being exported (e.g., raw material time of importation, not assessment.) directly but also for the balls that are inputs) were considered non- Liability for countervailing duties sold to other Minebea companies for countervailable. Under the Subsidies attaches at the time of entry and, incorporation into ball bearings which Agreement, this has been broadened to because the subject merchandise are then exported. Therefore, the include duty exemptions on products entered in 1994, there is no obligation Department properly included in the that are ‘‘consumed in production.’’ under the Subsidies Agreement to subsidy calculation the benefits Annex II of the Agreement contains a supply an injury test to these 1994 attributable to balls produced by NMB footnote (n. 61) which defines inputs entries. Precision Ball, Ltd. but exported by consumed in the production process as: Comment 2: Respondents argue that, other Minebea companies in Thailand ‘‘inputs physically incorporated, energy, due to the ‘‘upstream subsidies’’ as parts of finished ball bearings. fuels and oils used in the production provision, the Department’s inclusion of Because these are export subsidies, process and catalysts which are benefits received by NMB Precision the upstream subsidy provision is not consumed in the course of their use to Ball, Ltd. in the subsidy calculation is applicable (see section 771A(a) of the obtain the exported product.’’ Upon contrary to law. They claim that, Act). Specifically, the upstream subsidy examination of the breakouts of duty because NMB Precision Ball, Ltd. is provision, by its terms, expressly exemptions that respondents claimed, separately incorporated, any benefits it excludes export subsidies from its we discovered that, with the exception receives on inputs must be analyzed coverage (based on the presumption that of fixed assets, the RTG treated almost under the upstream provision. They also an export subsidy paid on a nonsubject anything used in the production process contend that the Department lacks input product benefits the exportation as duty exempt. We found that a authority to countervail any subsidies of that product, not the downstream number of duty-exempt materials fall provided on the input balls supplied by product). The upstream subsidy outside the definition in footnote 61 and NMB Precision Ball, Ltd. because provision is not intended to cover the have therefore countervailed the petitioners have not made an ‘‘upstream situation in this case. Further, separate exemptions provided on items which subsidies’’ allegation. and apart from this provision, such fall outside that definition. Department’s Position: We disagree export subsidies on subject merchandise Respondents argue that the term with respondents. Including the benefits are plainly covered by the U.S. ‘‘consumed in production’’ should Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 731 include all items that are worn out the cash deposit rate previously units which employ balls as the rolling during the production process and that ordered. Accordingly, we will instruct element are subject to the review. physically touch the product (e.g., Customs to liquidate at the cash deposit Finished but unground or semiground grinding wheels and drill bits) as well rate in effect at the time of entry all balls are not included in the scope of as items such as packing materials. entries of subject merchandise from this review. However, it is the Department’s position non-reviewed companies. Imports of these products are that the definition in Annex II is Pursuant to petitioner’s statement of currently classifiable under the unambiguous, and therefore, the only no further interest in the CVD order on following HTS item numbers: duty exemptions that we find not ball bearings and parts thereof from 8482.10.10, 8482.10.50, 8482.80.00, countervailable are those on materials Thailand for entries after December 31, 8482.91.00, 8482.99.10, 8482.99.70, which are physically incorporated into 1994, the Department conducted a 8483.20.40, 8483.20.80, 8483.30.40, the exported product and on oils used changed circumstances review and, 8483.30.80, 8483.90.20, 8483.90.30, in the production process. The effective January 1, 1995, revoked this 8483.90.70, 8708.50.50, 8708.60.50, and remaining duty exemptions received by countervailing duty order pursuant to 8708.99.50. This review covers all of the the respondent companies on items section 782(h)(2) of the Act. Ball subject bearings and parts thereof such as drill bits and grinding wheels Bearings and Parts Thereof from outlined above with certain limitations. do not fit the definition in Annex II. Thailand: Final Results of Changed With regard to finished parts (inner They are not physically incorporated; Circumstances Countervailing Duty race, outer race, cage, rollers, balls, nor are they energy, fuels, oils, or Review and Revocation of seals, shields, etc.), all such parts are catalysts consumed in the course of Countervailing Duty Order, 61 FR 20799 included in the scope of this review. For their use. Accordingly, we continue to (May 8, 1996). Accordingly, suspension unfinished parts (inner race, outer race, find those exemptions countervailable. of liquidation was terminated effective rollers, balls, etc.), such parts are Final Results of Review January 1, 1995, and the Department included if (1) they have been heat will not issue further instructions with treated, or (2) heat treatment is not In accordance with section respect to cash deposits of estimated required to be performed on the part. 355.22(c)(4)(ii) of the Department’s countervailing duties. Thus, the only unfinished parts that are Interim Regulations, we calculated an This notice serves as a reminder to not covered by this review are those individual subsidy rate for each parties subject to administrative parts which will be subject to heat producer/exporter subject to this protective order (APO) of their treatment after importation. administrative review. As discussed responsibility concerning the [FR Doc. 97–184 Filed 1–3–97; 8:45 am] above in the Background section, the disposition of proprietary information BILLING CODE 3510±DS±P Department considers the Minebea disclosed under APO in accordance Group of Companies as one corporate with 19 CFR § 355.34(d). Timely written entity. Therefore, we have calculated notification of return/destruction of [C±475±819] one subsidy rate for the Minebea Group APO materials or conversion to judicial Notice of Rescission of Expedited of Companies in Thailand. For the protective order is hereby requested. period January 1 through December 1, Countervailing Duty Administrative Failure to comply with the regulations Review: Certain Pasta from Italy 1994, we determine the net subsidy to and the terms of an APO is a be as follows: sanctionable violation. AGENCY: Import Administration, This administrative review and notice International Trade Administration, Net are in accordance with section 751(a)(1) Department of Commerce. Net subsidiesÐproducer/exporter subsidy of the Act (19 U.S.C. 1675(a)(1)). ACTION: Notice of rescission of expedited rate Dated: December 30, 1996. countervailing duty administrative review. Minebea Group of Companies (NMB Robert S. LaRussa, Thai, Pelmec Thai, NMB Hi-Tech, Acting Assistant Secretary for Import SUMMARY: The Department of Commerce NMB Precision Ball, Ltd.) ...... 5.25%. Administration. (‘‘the Department’’) rescinds its expedited countervailing duty We will instruct the U.S. Customs Appendix administrative review of the order Service (‘‘Customs’’) to assess Scope of Review covering certain pasta from Italy countervailing duties as indicated initiated on October 10, 1996 (61 FR above. Ball Bearings, Mounted or Unmounted, Because the URAA replaced the and Parts Thereof 53198). general rule in favor of a country-wide The products covered by this review, EFFECTIVE DATE: January 6, 1997. rate with a general rule in favor of ball bearings, mounted or unmounted, FOR FURTHER INFORMATION CONTACT: individual rates for investigated and and parts thereof, include all Kristin Mowry, Import Administration, reviewed companies, the procedures for antifriction bearings which employ balls International Trade Administration, establishing countervailing duty rates, as the rolling element. During the U.S. Department of Commerce, 14th including those for non-reviewed review period, imports of these products Street and Constitution Avenue, NW., companies, are now essentially the same were classifiable under the following Washington, D.C. 20230, telephone: as those in antidumping cases, except as categories: antifriction balls; ball (202) 482–3798. provided for in section 777A(e)(2)(B) of bearings with integral shafts; ball SUPPLEMENTARY INFORMATION: the Act. The requested review will bearings (including radial ball bearings) normally cover only those companies and parts thereof; ball bearing type Background specifically named. See section pillow blocks and parts thereof; ball On October 10, 1996, at the request of 355.22(a) of the Interim Regulations. bearing type flange, take-up, cartridge, two exporters of pasta, Pastificio Pursuant to 19 CFR § 355.22(g), for all and hanger units, and parts thereof; and Oleificio Mangimificio Bianconi S.p.A companies for which a review was not other bearings (except tapered roller (‘‘Bianconi’’) and Pastificio Nuova requested, duties must be assessed at bearings) and parts thereof. Wheel hub Bettini S.p.A. (‘‘Bettini’’), we published 732 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices in the Federal Register a notice of Request for Public Comments Islands, and the Trust Territory of the initiation of an expedited administrative Interested parties may submit written Pacific Islands). review of the countervailing duty order comments relevant to the determination Export Trade Activities and Methods of published in the Federal Register on whether a Certificate should be issued, Operation July 24, 1996 (61 FR 38544) covering and are encouraged to provide a 1. US RICE will administer a system imports of certain pasta from Italy (61 nonconfidential version of their for managing the U.S. share of the FR 53198). On November 12 and 15, comments. An original and five (5) European Union (‘‘EU’’) tariff-rate 1996, we received withdrawals of the copies, plus two (2) copies of any quotas (‘‘TRQs’’) for milled, brown, and requests for review from Bianconi and nonconfidential version, should be broken rice (roughly 38,000 tons of Bettini, respectively. These withdrawals submitted not later than 20 days after milled rice, 8,000 tons of brown rice and are consistent with 19 CFR 351.214(f)(1) the date of this notice to: Office of 7,000 tons of broken rice annually) and (k)(3), found in Antidumping Export Trading Company Affairs, agreed to as compensation to the United Duties; Countervailing Duties; Notice of International Trade Administration, States for the enlargement of the EU to Proposed Rulemaking and Request for Department of Commerce, Room 1800H, include Austria, Finland, and Sweden, Public Comments, published in the Washington, D.C. 20230. Information as follows: Federal Register on February 27, 1996 submitted by any person is exempt from (61 FR 7308, 7367–68). Accordingly, the disclosure under the Freedom of a. US RICE will allocate the TRQs Department is rescinding the expedited Information Act (5 U.S.C. 552). exclusively through an open quota review. Comments should refer to this tender to the highest bidder(s). Any This rescission and this notice are application as ‘‘Export Trade Certificate person incorporated or domiciled in the pursuant to section 751 of the Tariff Act of Review, application number 96– United States is eligible to bid. Bidders of 1930, as amended. 00008.’’ A summary of the application need not be members of US RICE and Dated: December 19, 1996. follows. need not be included in the Certificate. Robert S. LaRussa, b. The quota tender system will be Summary of the Application administered by an independent third Acting Assistant Secretary for Import Administration. Applicant: U.S. Rice Industry party (‘‘the TRQ Administrator’’), who will be retained by US RICE. The TRQ [FR Doc. 97–183 Filed 1–3–97; 8:45 am] Coalition for Exports, Inc. (‘‘US RICE’’), Administrator may be an individual, BILLING CODE 3510±DS±P 1615 L Street, N.W., 7th Floor, Washington, D.C. 20036. Contact: M. partnership, corporation (for profit or Jean Anderson, counsel, non-profit), or any representative Export Trade Certificate of Review Telephone:(202) 682–7217. thereof that is not engaged in the Application No: 96–00008. production, milling, distribution, or sale ACTION: Notice of application. Date Deemed Submitted: December of milled, brown, or broken rice. 20, 1996. c. Normally at least 45 days before the SUMMARY: The Office of Export Trading opening of each TRQ tranche, as defined Company Affairs (‘‘OETCA’’), Members (in addition to applicant): Continental Grain Company, New York, by the EU, US RICE will publish notice International Trade Administration, of the bidding process for that tranche, Department of Commerce, has received New York; Newfield Partners Ltd., Miami, Florida. specifying a bid date approximately 30 an application for an Export Trade days before the opening of the tranche. Certificate of Review. This notice US RICE seeks a Certificate to cover the following specific Export Trade, Bidders will submit bids to the TRQ summarizes the conduct for which Administrator on the bid date, together certification is sought and requests Export Markets and Export Trade Activities and Methods of Operation. with a bid deposit, initially set at $25 comments relevant to whether the per metric ton. The TRQ Administrator Certificate should be issued. Export Trade Products will retain the full bid deposit for FOR FURTHER INFORMATION CONTACT: W. Semi-milled and wholly milled rice, tonnage on which bids are successful, Dawn Busby, Director, Office of Export whether or not polished or glazed and $5 per metric ton of the deposit for Trading Company Affairs, International (Harmonized Tariff Schedule 1006.30) unsuccessful bids, to cover costs of Trade Administration, (202) 482–5131. (‘‘milled rice’’), husked (brown) rice administering the TRQ system. The This is not a toll-free number. (Harmonized Tariff Schedule 1006.20), remainder will be refunded to SUPPLEMENTARY INFORMATION: Title III of broken rice (Harmonized Tariff unsuccessful bidders. the Export Trading Company Act of Schedule 1006.40), and paddy or rough d. Following the close of the bidding, 1982 (15 U.S.C. 4001–21) authorizes the rice (Harmonized Tariff Schedule the TRQ Administrator will disclose the Secretary of Commerce to issue Export 1006.10). bids received to all bidders, and after Trade Certificates of Review. A further review of bids for conformity Certificate of Review protects the holder Export Markets with bidding procedures, will notify the and the members identified in the For purposes of allocating through an high bidders. High bidders will then Certificate from state and federal open bidding procedure the European have 48 hours to post a five percent government antitrust actions and from Union’s tariff rate quota: The countries performance bond. When all bonds have private, treble damage antitrust actions of the European Union. been posted, the TRQ Administrator for the export conduct specified in the For purposes of Export Trade will issue a list of winning bidders to all Certificate and carried out in Activities and Methods of Operation participants. Upon receipt of the full compliance with its terms and paragraphs 2.–4. below: All parts of the amounts bid, the TRQ Administrator conditions. Section 302(b)(1) of the Act world except the United States (the fifty will promptly issue Export Certificates and 15 CFR 325.6(a) require the states of the United States, the District of Quota (‘‘ECQs’’) to the winning Secretary to publish a notice in the of Columbia, the Commonwealth of bidders. ECQs will be freely tradable. Federal Register identifying the Puerto Rico, the Virgin Islands, Each performance bond will be applicant and summarizing its proposed American Samoa, Guam, the discharged on submission of export export conduct. Commonwealth of the Northern Mariana documentation demonstrating that the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 733

ECQ was used to export U.S. rice to the modifications to improve the system’s Operation 4(a), in engaging in Export EU. workability; Trade Activities and Methods of 2. The bid proceeds will be c. exchange and discuss information Operation, neither US RICE nor any distributed and otherwise used as concerning U.S. and foreign agreements, Member shall intentionally disclose, follows: legislation, and regulations affecting the directly or indirectly, to any other a. All bid proceeds will be deposited US RICE TRQ management system; Member (including parent companies, in a trust fund. Each year, the TRQ d. discuss and modify association subsidiaries, or other entities related to Administrator will distribute funds from dues, bid deposit fees, and performance any Member not named as a Member) the preceding year’s tenders to bonds; any information regarding its or any qualifying members of US RICE in e. discuss, decide on, and implement other Member’s costs, production, proportion to each such member’s export promotion activities to be inventories, domestic prices, domestic percentage share by volume of total undertaken with post-distribution funds sales, capacity to produce products for exports of U.S. rice to all destinations in in the trust fund; the year preceding the tender (and for f. otherwise exchange and discuss domestic sales, domestic orders, terms 1996 TRQs, 1995). No US RICE member information as necessary to implement of domestic marketing or sale, or U.S. may receive a distribution in excess of the foregoing activities and take the business plans, strategies, or methods, that amount. necessary action to implement the US unless (1) such information is already b. Any person incorporated or RICE TRQ management system, relating generally available to the trade or domiciled in the United States that has to the U.S.-EU Enlargement Agreement public; or (2) the information disclosed exported U.S. rice in the current or and any successor or related is a necessary term or condition (e.g., preceding calendar year or is actively agreements, and related EU regulations; price, time required to fill an order, etc.) engaged in rice milling in the United g. provide nonconfidential of an actual or potential bona fide States may join US RICE by executing information to, and consult as export sale and the disclosure is limited the US RICE Operating Agreement and appropriate with, officials of the U.S. to the prospective purchaser. paying the dues of $5,000 per quota Government and the European 2. US RICE and its Members will year. A member of US RICE will qualify Commission concerning the operation of comply with requests made by the for a particular distribution by (i) the US RICE TRQ management system; Secretary of Commerce on behalf of the joining US RICE by January 31 of the and quota year (e.g., for the distribution of h. meet to engage in the activities Secretary or the Attorney General for proceeds from 1998 TRQs, by January described above. information or documents relevant to 31, 1998), and in the case of conduct under the Certificate. The distributions of proceeds from the 1996 Abbreviated Amendment Procedure Secretary of Commerce will request and 1997 TRQs, by February 28, 1997; New US RICE members may be such information or documents when and (ii) documenting its share of U.S. included in the Certificate through an either the Attorney General or the rice exports for the relevant year to the abbreviated amendment procedure. Secretary of Commerce believes that the TRQ Administrator. Under the procedure, US RICE will information or documents are required c. Funds remaining in the trust fund notify the Secretary of Commerce and to determine that the Export Trade, after a distribution will be used as the Attorney General, in writing, of Export Trade Activities and Methods of necessary to cover operating expenses, those members of US RICE that wish to Operation of a person protected by this and thereafter for promotion of U.S. rice be included in the Certificate. If the Certificate of Review continue to exports worldwide through activities Department so requests, the notification comply with the standards of section generally comparable to those funded by will include a certification from each 303 (a) of the Act. the USDA’s market access program. such member of its domestic and export 3. The TRQ Administrator may sales of rice in its preceding fiscal year. Definitions receive confidential information and Notice of the members so identified documentation of rice exports from shall be published in the Federal ‘‘Member’’ means a member of US members and prospective members of Register. If 30 days or more following RICE who has been certified as a US RICE in connection with publication in the Federal Register, the ‘‘Member’’ within the meaning of membership applications and Secretary of Commerce, with the Section 325.2(l) of the regulations. A US distributions. The TRQ Administrator concurrence of the Attorney General, RICE member that is not a Member may will maintain the confidentiality of such determines that the incorporation in the join the US RICE export trade certificate information and will not disclose it to Certificate of these members through the of review by requesting that US RICE any other member or any other person abbreviated amendment procedure is file for an amended certificate. A except to another neutral third party as consistent with the standards of the Act, Member may withdraw from coverage necessary to process membership the Secretary of Commerce shall amend under this certificate at any time by applications and distributions of bid the Certificate to incorporate such giving written notice to US RICE, a copy proceeds. members, effective as of the date on of which US RICE will promptly 4. US RICE and/or its Members may which the application for amendment transmit to the Secretary of Commerce also: was deemed submitted. If the Secretary and the Attorney General. a. exchange and discuss information of Commerce does not so amend the Dated: December 30, 1996. regarding the structure and operation of Certificate within 60 days of publication the US RICE TRQ management system, in the Federal Register, such W. Dawn Busby, including the types of information amendment must be sought through the Director, Office of Export Trading Company regarding past transactions and exports normal amendment procedure. Affairs. that are necessary for implementing the [FR Doc. 97–128 Filed 1–3–97; 8:45 am] Terms and Conditions of Certificate system; BILLING CODE 3510±DR±P b. assess the operation of the system 1. Except as expressly authorized in and consider and implement Export Trade Activity and Method of 734 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

National Oceanic and Atmospheric Subsection 101(a)(5)(D) of the MMPA September 25, 1996 (61 FR 50276) and Administration established an expedited process by a 30-day public comment period was which U.S. citizens can apply for an provided on the application and [I.D. 091396A] authorization to incidentally take small proposed authorization. numbers of marine mammals by Small Takes of Marine Mammals Comments and Responses Incidental to Specified Activities; harassment for a period of up to 1 year. During the 30-day comment period, Taurus Space Launch Vehicles at The MMPA defines ‘‘harassment’’ as: one letter was received. The comments Vandenberg Air Force Base, CA ** *any act of pursuit, torment, or annoyance which (a) has the potential to contained in this letter are addressed AGENCY: National Marine Fisheries injure a marine mammal or marine mammal below. Other than information Service (NMFS), National Oceanic and stock in the wild; or (b) has the potential to necessary to respond to the comments, Atmospheric Administration (NOAA), disturb a marine mammal or marine mammal additional background information on Commerce. stock in the wild by causing disruption of the activity and request can be found in behavioral patterns, including, but not the proposed authorization notice and ACTION: Notice of issuance of an limited to, migration, breathing, nursing, incidental harassment authorization. needs not be repeated here. breeding, feeding, or sheltering. Comment 1: The Marine Mammal SUMMARY: Commission (MMC) requested In accordance with provisions Summary of Request of the Marine Mammal Protection Act confirmation that the Air Force would (MMPA) as amended, notification is On August 14, 1996, NMFS received be applying for a programmatic 5-year hereby given that an Incidental a revised application from the U.S. Air authorization under section 101(a)(5)(A) Harassment Authorization (IHA) to take Force, Vandenberg, requesting an of the MMPA. The MMC believes that, small numbers of seals and sea lions by authorization for the harassment of because of the possible cumulative harassment incidental to launches of small numbers of harbor seals and effects of launches at Vandenberg, a 5- Taurus space launch vehicles (Taurus possibly California sea lions and year authorization is appropriate. SLV) at Launch Support Complex 576E northern elephant seals, incidental to Response: NMFS anticipates that this (LSC- 576E), Vandenberg Air Force launches of Taurus SLVs at LSC–576E, 1-year authorization for Taurus SLV Base, CA (Vandenberg) has been issued Vandenberg. These launches would launches, along with others issued to the U.S. Air Force for a period of 1 place commercial payloads into earth previously for Lockheed launch vehicles year. orbit. Because LSC–576E is located (61 FR 38437, July 24, 1996), McDonnell north of most other launch complexes at Douglas Delta II launch vehicles (61 FR EFFECTIVE DATE: This authorization is Vandenberg and because there are oil 59218, November 21, 1996), and Titan II effective from January 1, 1997, through production platforms located off the and IV (61 FR 64337, December 4, 1996) December 31, 1997. coast to the south of LSC–576E, will be replaced by a new set of ADDRESSES: The application and missions flown from LSC–576E do not regulations, under section 101(a)(5)(A) authorization are available for review in fly directly on their final southward of the MMPA, governing incidental the following offices: Marine Mammal course. The normal trajectory for a LSC– takes of marine mammals by launches of Division, Office of Protected Resources, 576E launch is in a general west-south- all rocket types from Vandenberg. An NMFS, 1315 East-West Highway, Silver west direction away from the coastline. application for a small take Spring, MD 20910 and the Southwest The flight paths for each 1997 launch authorization under section 101(a)(5)(A) Region, NMFS, 501 West Ocean Blvd. will proceed on an initial azimuth of of the MMPA is under development by Long Beach, CA 90802. 205° until approximately 24 kilometers the Air Force. FOR FURTHER INFORMATION CONTACT: (km )(15 miles (mi)) west of the Comment 2: The MMC recommends Kenneth Hollingshead, Marine Mammal shoreline. The Taurus SLV will then that, before issuing the requested Division, Office of Protected Resources perform a dogleg maneuver left to a final authorization, NMFS review the results at 301–713–2055, or Irma Lagomarsino, mission-specific azimuth of between of monitoring done to date to determine Southwest Regional Office at 301–980– 180° and 197°. No Taurus SLV launch (1) if there may have been cumulative 4016. from LSC–576E will proceed southeast, effects on the haul-out patterns, SUPPLEMENTARY INFORMATION: overflying San Miguel or Santa Rosa abundance, or productivity of harbor islands. Orbital Sciences Corporation seals that reside in the Vandenberg area, Background (OSC 1996) anticipates launching two and (2) whether the current monitoring Section 101(a)(5)(A) of the MMPA (16 Taurus SLVs during the 1-year period of program is sufficient to detect such U.S.C. 1361 et seq.) directs NMFS to validity for this proposed authorization. effects. allow, upon request, the incidental, but As a result of the noise associated Response: By limiting incidental not intentional, taking of marine with the launch itself and the resultant harassment authorizations to a single mammals by U.S. citizens who engage sonic boom, there is the potential to year as opposed to multi-year in a specified activity (other than cause a startle response to those harbor authorizations for Letters of commercial fishing) within a specified seals that haul out on the coastline Authorization (LOAs) issued under geographical region if certain findings south and southwest of Vandenberg and section 101(a)(5)(A) of the MMPA, are made and regulations are issued. may be detectable to marine mammals NMFS does not believe that Congress Permission may be granted if NMFS in waters off Vandenberg and to the intended NMFS to make negligible finds that the taking will have a west of the Channel Islands. Launch impact assessments on activities for negligible impact on the species or noise would be expected to occur over periods greater than the period of the stock(s), will not have an unmitigable the coastal habitats in the vicinity of authorization, nor to require holders of adverse impact on the availability of the LSC–576E while a low-level sonic boom IHAs to monitor for periods greater than species or stock(s) for subsistence uses, may be heard west of the Channel the authorization. As a result, and the permissible methods of taking Islands. monitoring for most activities holding and requirements pertaining to the A notice of receipt of the Taurus SLV IHAs are designed to be event specific, monitoring and reporting of such taking application and the proposed that is, for a period of time prior to the are set forth. authorization was published on event, during the event, and after Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 735 completion of the activity. Although suspended without notice and comment DEPARTMENT OF DEFENSE this precludes the applicability of if emergency conditions exist that pose monitoring under a single IHA for a significant risk to the well-being of the Office of the Secretary determining long-term cumulative marine mammal stock, or if holder of an Proposed Collection; Comment effects, in those cases where holders of IHA is not in compliance with the Request IHAs request continuing authorizations, conditions of the IHA. However, prior to monitoring, over time and in revocation of an IHA, NMFS must AGENCY: Defense Finance and conjunction with other measurements of satisfy the statutory notice and comment Accounting Service, Finance Deputate. population trends and abundances, requirement. Therefore, section ACTION: Notice. provides information sufficient to make 101(a)(5)(B) allows NMFS to withdraw the necessary negligible impact (revoke) or ‘‘suspend for a time certain’’ In compliance with the Paperwork determinations under section an LOA, subsequent to notice and Reduction Act of 1995, 44 U.S.C. 101(a)(5)(D) of the MMPA. This is what 3506(c)(2)(A), the Defense Finance and comment, while section 101(a)(5)(C) was done for the negligible impact Accounting Service announces the allows a waiver of the notice and determination for this authorization. proposed public information collection comment requirement for emergency Recognizing that short-term and seeks public comment on the monitoring leaves unanswered the effect suspensions, but not for revocations. provisions concerning the proposed from cumulative impacts, the U.S. Air Conditions for suspension or Personal Check Cashing Agreement Force is designing research to withdrawal of an LOA or IHA are Form. Comments are invited on: (a) investigate this concern. This research described in 50 CFR 216.106 and whether the proposed collection of will use launches of Titan IVs (the 216.107. information is necessary for the proper rocket presumed to be having the Conclusion performance of the functions of the greatest impact since it is the largest agency, including whether the rocket launched from Vandenberg) to Based upon the information provided information shall have practical utility; provide information vital for assessing in the proposed authorization, NMFS (b) the accuracy of the estimate of the long-term impacts on the physiology, has determined that the short-term burden of the proposed information behavior and survival of pinnipeds from impact of the launching of Taurus SLV collection; (c) ways to enhance the launch noise and sonic booms. This quality, utility, and clarity of the research, which will be conducted rockets is expected to result at worst, in a minor, temporary reduction in information to be collected; and (d) under an MMPA section 104 research ways to minimize the burden of permit, is expected to begin within a utilization of the haulout as seals or sea lions leave the beach for the safety of information collection on respondents, year. including through the use of automated Therefore, while no long-term studies the water. These launchings are not collection techniques or other forms of are currently underway on the effects on expected to result in any reduction in information technology. pinnipeds from launch noises or sonic the number of pinnipeds and they are booms, monitoring at Vandenberg for expected to continue to occupy the DATES: Consideration will be given to all Titan IV and other rocket launches in same area. In addition, there will not be comments received on or before March the past has provided the baseline any impact on the habitat itself. Based 7, 1997. information on long-term and upon studies conducted for previous ADDRESSES: Written comments and cumulative impacts. This information space vehicle launches at Vandenberg, recommendations on the proposed and the fact that the haul-outs along the significant long-term impacts on information collection should be sent to the Defense Finance and Accounting Vandenberg coast remain active indicate pinnipeds at Vandenberg and the Service, Finance Deputate, ATTN: Ms. that there are no immediately evident northern Channel Islands are unlikely. long-term, cumulative impacts. Launch Patricia Cristiano, 1931 Jefferson Davis noises are infrequent enough and Therefore, since NMFS is assured that Highway, Arlington, VA 22240–5291. divided between North and South the taking will not result in more than FOR FURTHER INFORMATION CONTACT: Vandenberg so that these impacts are the harassment (as defined by the To request more information on this presumed to be less significant, MMPA Amendments of 1994) of a small proposed information collection or to cumulatively, than human, wildlife and number of harbor seals, California sea obtain a copy of the proposal and pet disturbances including motorized lions, and northern elephant seals; associated collection instruments, vessels. would have only a negligible impact on please write to the above address, or call Comment 3: The MMC states that it the species, and would result in the Ms. Patricia J. Cristiano, at (703) 607– should be made clear that the least practicable impact on the stock, 5039. authorization is automatically rescinded NMFS determined that the requirements Title, Associated Form, and OMB if a marine mammal is killed as a result of section 101(a)(5)(D) had been met and Number: Personal Check Cashing of the authorized activity. the incidental harassment authorization Agreement Form. Response: No marine mammals are was issued. Needs and Uses: The collection of anticipated to be killed or seriously information is necessary to meet the injured as a result of launchings of Dated: December 27, 1996. Department of Defense’s (DoD) Taurus SLV rockets. However, while Ann D. Terbush, requirement for cashing personal checks section 101(a)(5)(D)(iv) of the MMPA Acting Director, Office of Protected Resources, overseas and afloat by DoD disbursing provides NMFS authority to modify, National Marine Fisheries Service. activities, as provided in 31 U.S.C. 3342. suspend, or revoke an authorization if it [FR Doc. 97–180 Filed 1–3–97; 8:45 am] The DoD Financial Management is found that the provisions of the BILLING CODE 3510±22±F Regulation, Volume 5, provides section are not being met, for IHA guidance to DoD Disbursing Officers in suspensions, NMFS follows procedures the performance of this information established for suspension of LOAs collection. This allows the DoD under section 101(a)(5)(A) of the disbursing officer or authorized agent MMPA. In that regard, an IHA may be the authority to offset the pay, without 736 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices prior notification, in cases where this Needs and Uses: This collection of Commission (NRC) are announcing for form has been signed subject to information is necessary to meet the public comment the availability of a conditions specified within the requirements of the National Defense draft document, entitled the ‘‘Multi- approved procedure. Authorization Act of 1997. Section 826 Agency Radiation Survey and Site Affected Public: Individuals or thereof required the Secretary of Investigation Manual ‘‘ (MARSSIM). households. Defense to report to Congress the results MARSSIM provides information on Annual Burden Hours: 225,000. of a study of the effectiveness of defense planning, conducting, evaluating, and Number of Respondents: 450,000. mergers and acquisitions in eliminating documenting environmental Responses Per Respondent: 1. excess capacity, and their effect on radiological surveys for demonstrating Average Burden Per Response: 30 contractor dependence on defense- compliance with dose-based minutes. related contracts, defense employment, regulations. The MARSSIM, when Frequency: On occasion. and competition for defense contracts. finalized, will be a multi-agency SUPPLEMENTARY INFORMATION: The information collected hereby, will consensus document. The agencies are provide the necessary data to conduct seeking public comment in order to Summary of Information Collection the study and compile the report to receive feedback from the widest range The Personal Check Cashing Congress. of interested parties and to ensure that Agreement Form is designed exclusively Affected Public: Business or other for- all information relevant to developing to help the DoD disbursing offices profit. the document is received. The agencies expedite the collection process of Frequency: One time. will review public comments received dishonored checks. The front of the Respondent’s Obligation: Voluntary. on the draft MARSSIM as well as form will be completed and signed by DOD Action Officer: Mr. William M. comments from a concurrent, the authorized individual requesting Pegram. independent, scientific peer review. check cashing privileges. By signing the Written comments and Suggested changes will be incorporated, form, the individual is freely and recommendations on the proposed where appropriate, in response to those voluntarily consenting to the immediate information collection should be sent to comments. collection from their current pay, Mr. Pegram, at DUSD(IA&I)/FEA, Room DATES: Comments received by July 7, without prior notice, for the face value 2A318, The Pentagon, Washington, DC 1997 will be considered. Comments of any check cashed, plus any charges 20301–3330, or via facsimile at (703) received after that date will be assessed against the government by a 693–7038. considered if it is practical to do so, but financial institution, in the event the DOD Clearance Officer: Mr. William no assurance can be given for check is dishonored. In the event the Pearce. consideration of late comments. Written requests for copies of the check is dishonored, the disbursing ADDRESSES: Members of the public are office will complete and certify the information collection proposal should invited to submit written comments to reverse side of the form and forward the be sent to Mr. Pearce, WHS/DIOR, 1215 EITHER the U.S. Environmental form to the applicable payroll office for Jefferson Davis Highway, Suite 1204, Protection Agency, ATTN: Air and collection from the individual’s current Arlington, VA 22202–4302 or via Radiation Docket, Mail Stop 6102, Air pay. facsimile at (703) 604–6270. Docket No. A–96–44, Room M1500, Dated: December 30, 1996. Dated: December 30, 1996. First Floor Waterside Mall, 401 M L.M. Bynum, L.M. Bynum, Street, S.W., Washington D.C. 20460 or Alternate OSD Federal Register Liaison Alternate OSD Federal Register Liaison the Chief, Rules Review and Directives Officer, Department of Defense. Officer, Department of Defense. Branch, Division of Freedom of [FR Doc. 97–00102 Filed 1–3–97; 8:45 am] [FR Doc. 97–162 Filed 1–3–97; 8:45 am] Information and Publications Services, BILLING CODE 5000±04±M BILLING CODE 5000±04±M U.S. Nuclear Regulatory Commission, Washington DC 20555–0001. Copies of all comments received by one agency Submission for OMB review; comment DEPARTMENT OF ENERGY will be periodically copied and sent to request the others. Copies of the draft ENVIRONMENTAL PROTECTION MARSSIM and all comments received ACTION: Notice. AGENCY may be examined or copied for a fee at The Department of Defense has the EPA Docket Room M1500, Docket submitted to OMB for clearance, the NUCLEAR REGULATORY No. A–96–44, First Floor Waterside following proposal for collection of COMMISSION Mall, 401 M Street, S.W., Washington D.C. 20460; and the NRC Public information under the provisions of the [Docket No. A±96±44] Paperwork Reduction Act (44 U.S.C. Document Room, 2120 L Street, NW, Chapter 35). Draft Multi-Agency Radiation Survey Washington DC 20555–0001. The EPA Title and OMB Control Number: and Site Investigation Manual docket may be inspected from 8:00 am Effectiveness of Defense Mergers. to 4:00 pm, Monday through Friday, Type of Request: New collection; AGENCY: U.S. Department of Defense, excluding Federal holidays in Room Emergency Processing requested with a U.S. Department of Energy, U.S. M1500 at the address above. A free shortened public comment period Environmental Protection Agency, and single copy of the draft MARSSIM may ending January 21, 1997. An approval the U.S. Nuclear Regulatory be requested by writing to: the date of February 4, 1997 is requested. Commission. Distribution and Mail Services Section, Number of Respondents: 50. ACTION: Notice of availability with U.S. Nuclear Regulatory Commission, Responses Per Respondent: 1. request for public comment. Washington DC 20555–0001 or by fax to Annual Responses: 50. SUMMARY: The Department of Defense (301) 415–2260. The document is also Average Burden Per Response: 4 (DOD), Department of Energy (DOE), available through the Internet at http:// hours. U.S. Environmental Protection Agency www.epa.gov/radiation/cleanup and Annual Burden Hours: 200. (EPA), and the U.S. Nuclear Regulatory through the National Technical Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 737

Information Service (NTIS). The NTIS participating agency at this time. An numbers). The figure number should be document number is PB97–117659, and earlier draft of the document has been included in the text of the comment. the NTIS Sales Desk can be reached reviewed within the Federal agencies. Comments on the entire manual should between 8:30 a.m. and 5:00 p.m., Comments were received and comments be referenced to the title page. Eastern time, Monday through Friday at from the review that reflected a Title: Draft Multi-Agency Radiation (703) 487–4650; TDD (hearing impaired technical error or flaw in logic or Survey and Site Investigation Manual. only): (703) 487–4639. information flow were addressed. The For the Department of Defense, dated this FOR FURTHER INFORMATION CONTACT: Any other comments from the Federal 20th day of December 1996. of the following points of contact for agencies will be addressed along with Gary D. Vest, the public comments. The public review each agency for technical information Principal Assistant Deputy Under Secretary (see ‘‘Addresses’’ section above for is a necessary step in the development of Defense for Environmental Security. directions on obtaining a copy of the of a final multi-agency consensus Title: Draft Multi-Agency Radiation draft MARSSIM): DOE: Kenneth Duvall, document. The document will also Survey and Site Investigation Manual. Phone: (202) 586–0242, U.S. Department receive formal technical peer review. of Energy (EH–412), 1000 Independence The draft has not been approved by the For the U. S. Department of Energy, dated Avenue, SW, Washington, DC 20585; participating agencies for use in part or this 5th day of December 1996. EPA: Mark Doehnert; Phone: (202) 233– in whole and should not be used, cited, Raymond P. Berube, 9386, U.S. Environmental Protection or quoted except for the purposes of Deputy Assistant Secretary for Environment. Agency, Mail Stop 6603J, 401 M. Street, providing comments as requested. Reviewers are requested to focus on Title: Draft Multi-Agency Radiation SW, Washington DC 20460; NRC: Robert Survey and Site Investigation Manual. A. Meck, Phone: (301) 415–6205, U.S. technical accuracy, and For the U. S. Environmental Protection Nuclear Regulatory Commission, MS T– understandability. Reviewers are also requested to address five questions Agency, dated this 9th day of December 9C24, Washington DC 20555. Questions 1996. concerning the multi-agency document while reviewing the MARSSIM: (1) Does the MARSSIM provide a E. Ramona Trovato, development project should be practical and implementable approach Director, Office of Radiation and Indoor Air. addressed to CDR Colleen Petullo, U.S. to performing radiation surveys and site Environmental Protection Agency/U.S. Title: Draft Multi-Agency Radiation investigations? Are there any major Public Health Service, RIENL, PO Box Survey and Site Investigation Manual. drawbacks to the proposed methods? 98517, Las Vegas, NV 89193–8517, (702) (2) Is the MARSSIM technically For the U. S. Nuclear Regulatory 798–2476. accurate? Commission, dated this 2nd day of December SUPPLEMENTARY INFORMATION: The (3) Does the MARSSIM provide 1996. MARSSIM provides information on benefits that are not available using David Morrison, planning, conducting, evaluating, and current methods? What is the value of Director, Office of Nuclear Regulatory documenting environmental the MARSSIM in comparison with other Research. radiological surveys for demonstrating currently available alternatives? [FR Doc. 97–170 Filed 1–3–97; 8:45 am] compliance with dose-based (4) What are the costs associated with BILLING CODE 7590±01±P regulations. The MARSSIM, when the MARSSIM in comparison with other finalized, will be a multi-agency currently available alternatives? consensus document. (5) Is the information in the Department of the Army MARSSIM was developed MARSSIM understandable and Corps of Engineers collaboratively over the past three years presented in a logical sequence? How by the technical staffs of the four can the presentation of material be Availability of Surplus Land and Federal agencies having authority for modified to improve the Buildings Located at Sierra Army control of radioactive materials: DOD, understandability of the manual? Depot (SIAD), Herlong, CA DOE, EPA, and NRC (60 FR 12555). Comments may be submitted as Contractors to the DOE, EPA, and NRC, proposed modified text, or as a AGENCY: U.S. Army Corps of Engineers, and members of the public have been discussion. Comments should be DOD. present during the open meetings of the accompanied by supporting bases, ACTION: Notice of availability. MARSSIM work group. rationale, or data. To ensure efficient MARSSIM’s objective is to describe and complete comment resolution, SUMMARY: This notice identifies the standardized and consistent approaches commenters are requested to reference surplus real property located at Sierra for surveys, which provide a high the page number and the line number of Army Depot (SIAD), Herlong, CA. SIAD degree of assurance that established the MARSSIM to which the comment is located approximately 55 miles north dose-based release criteria, limits, applies (enter only the beginning page northwest of Reno, NV just north of U.S. guidelines, and conditions of the and line number, even if your comment Highway 395. SIAD is a base regulatory agencies are satisfied at all applies to a number of pages or lines to realignment facility and major portions stages of the process, while at the same follow). of the installation are being retained for time encouraging an effective use of Comments corresponding to an entire active missions. resources. The techniques, chapter, an entire section, or an entire FOR FURTHER INFORMATION CONTACT: methodologies, and philosophies that table should be referenced to the line For more information regarding a form the bases of this manual were number for the title of the chapter particular building or parcel (i.e., developed to be consistent with current (always line number 1), section, or table. acreage, floor plans, existing utilities, Federal limits, guidelines, and Comments on footnotes should be exact street address), contact Mr. Jimmy procedures. referenced to the line in the main text Spain, Base Transition Coordinator at Although Federal agency personnel where the footnote is indicated. (916) 827–4488; Mr. Larry Weed, Base are involved in the preparation of this Comments on figures should be Transition Officer at (916) 827–4391; or document, the manual does not referenced to the page on which the Ms. Jackie Cumpton, Realty Specialist at represent the official position of any figure appears (figures do not have line (916) 557–6845. 738 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

SUPPLEMENTARY INFORMATION: This Plaza, New York, NY 10278–0090, (212) 5. This Notice of Availability is being surplus property is available under the 264–1275. sent to organizations and individuals provisions of the Federal Property and known to have an interest in the project. SUPPLEMENTARY INFORMATION: Administrative Services Act of 1949 and Please bring this notice to the attention the Base Closure Community Background of any other individuals with an interest Redevelopment and Homeless 1. The Green Brook Sub-Basin is a in this matter. Copies of the DSEIS and Assistance Act of 1994. component of the Raritan River drainage General Reevaluation Report are The surplus real property consists of basin in north central New Jersey. The available upon request for review at the approximately 1,504 acres which Green Brook Sub-Basin has a 65 square following locations: includes approximately 960 acres along mile watershed. The Sub-Basin is Berkley Heights Public Library, 290 the east shore of Honey Lake and located between the Watchung Plainfield Avenue, Berkley Heights, approximately 544 acres of land known Mountains and the Raritan River in New Jersey. as the cantonment area or Herlong Middlesex, Somerset, and Union Bound Brook Public Library, 402 Ease parcel located at the southwest corner of Counties. High Street, Bound Brook, New the installation. The Herlong parcel 2. In response to resolutions of the Jersey. consists of 6 office buildings, 1 storage United States Senate Public Works Bridgewater Public Library, Box 6700, building, and 4 other buildings. The Committee adopted 15 September 1955 Bridgewater, New Jersey. current range of uses include industrial, and 10 July 1972 to adopt Dunellen Public Library, New Market storage, commercial, educational, and recommendations for flood control, the Road, Dunellen, New Jersey. housing facilities. Fanwood Public Library, North Avenue Notices of interest must be submitted U.S. Army Corps of Engineers, New York District prepared a feasibility and Tillotson Road, Fanwood, New within 90 days from December 10, 1996. Jersey. Notices of interest should be forwarded report and a final environmental impact statement in August 1980. A project Middlesex Public Library, 1300 to Sierra Local Redevelopment Mountain Avenue, Middlesex, New Authority, Attention: Mr. Pat Landon, similar to ‘‘Plan A’’ as described in the 1980 feasibility study was authorized Jersey. 1121–A Honey Way, P.O. Box 117, North Plainfield Public Library, 6 Herlong, CA 96113; (916) 827–3480. for construction under the Water Resources Development Act of 1986. Rockview Avenue, North Plainfield, Juanita H. Maberry, 3. The flood problems of the Green New Jersey. Alternate, Army Federal Register Liaison Brook Sub-Basin result from a Piscataway Public Library, 500 Hoes Officer. combination of natural hydrologic and Lane, Piscataway, New Jersey. [FR Doc. 97–122 Filed 1–3–97; 8:45 am] hydraulic features coupled with dense Plainfield Public Library, 8th and Park BILLING CODE 3710±EZ±M development within the floodplains. Avenue, Plainfield, New Jersey. The Green Brook flows southwest from Scotch Plains Public Library, 1927 the slopes of the Watchung Mountains. Bartle Avenue, Scotch Plains, New Corps of Engineers The path of the streams within the sub- Jersey. basin flow from relatively undeveloped South Plainfield Public Library, 2840 Notice of Availability for the Draft mountains through a broad flat Plainfield Avenue, South Plainfield, Supplemental Environmental Impact floodplain which is largely suburban New Jersey. Statement and General Reevaluation and industrialized. Streams included in Summit Public Library, 75 Maple Street, Report of the Green Brook Flood the study are: Ambrose Brook, Bound Summit, New Jersey. Control Project in the Green Brook Brook, Bonygutt Brook, Municipal Watchung Public Library, 12 Stirling Sub-Basin of the Raritan River Basin, Brook, Stony Brook, Blue Brook, Cedar Road, Watchung, New Jersey. Middlesex, Somerset, and Union Brook, and Middle Brook. Flood 6. Requests for copies of the DSEIS Counties in the State of New Jersey damages in the tri-county basin are may be mailed to the following address: AGENCY: U.S. Army Corps of Engineers, quite severe due to the level of Bill Richardson, ATTN: CENAN–PL–ES, DOD. development within the sub-basin. U.S. Army Corps of Engineers, New York District, 26 Federal Plaza, New ACTION: Notice of availability. Notable storms which have caused flood conditions in the sub-basin occurred in York, New York 10278–0090. SUMMARY: The Army Corps of Engineers, May 1968, August 1971, August 1973, Juanita H. Maberry, New York District, in coordination with July 1975, September 1979, July 1984, the project sponsor, the New Jersey Alternate, Army Federal Register Liaison and October 1996. Officer. Department of Environmental 4. The Draft Supplemental [FR Doc. 97–121 Filed 1–3–97; 8:45 am] Protection, has conducted a General Environmental Impact Statement Reevaluation Study of an authorized (DSEIS) describes the impacts of the BILLING CODE 3710±06±M flood protection project in the Green proposed project on environmental and Brook Sub-Basin of the Raritan River in cultural resources in the study area. The New Jersey. A supplement to the 1980 DSEIS also applies guidelines issued by DEPARTMENT OF EDUCATION Final Environmental Impact Statement the Environmental Protection Agency, Notice of proposed information has been prepared in association with under the authority of the Clean Water collection requests the Reevaluation Study. Public Act of 1977 (Public Law 96–217). An Information meetings are scheduled for evaluation for the proposed actions on AGENCY: Department of Education. January 1997. the waters of the United States was ACTION: Notice of Proposed Information FOR FURTHER INFORMATION CONTACT: performed pursuant to the guidelines of Collection Requests. Questions about the proposed actions, the Administrator, U.S. Environmental Feasibility Study, and DSEIS can be Protection Agency, under authority of SUMMARY: The Acting Chief Information addressed to Mr. Bill Richardson, New Section 404 of the Clean Water Act. The Officer, Office of the Chief Information York District Army Corps of Engineers, results of the evaluation are presented Officer, invites comments on the ATTN: CENAN–PL–ES, 26 Federal in the DSEIS. proposed information collection Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 739 requests as required by the Paperwork notice containing proposed information Notice of proposed information Reduction Act of 1995. collection requests at the beginning of collection requests DATES: An emergency review has been the Departmental review of the AGENCY: requested in accordance with the Act information collection. Each proposed Department of Education. (44 U.S.C. Chapter 3507 (j)), since information collection, grouped by ACTION: Notice of Proposed Information public harm is reasonably likely to office, contains the following: (1) Type Collection Requests. result if normal clearance procedures of review requested, e.g., new, revision, SUMMARY: The Acting Chief Information are followed. Approval by the Office of extension, existing or reinstatement; (2) Officer, Office of the Chief Information Management and Budget (OMB) has Title; (3) Summary of the collection; (4) Officer, invites comments on the been requested by April 1, 1997. A Description of the need for, and proposed information collection regular clearance process is also proposed use of, the information; (5) requests as required by the Paperwork beginning. Interested persons are Respondents and frequency of Reduction Act of 1995. invited to submit comments on or before collection; and (6) Reporting and/or March 7, 1997. Recordkeeping burden. ED invites DATES: An emergency review has been requested in accordance with the Act ADDRESSES: Written comments public comment at the address specified regarding the emergency review should above. Copies of the requests are (44 U.S.C. Chapter 3507 (j)), since be addressed to the Office of available from Patrick J. Sherrill at the public harm is reasonably likely to Information and Regulatory Affairs, address specified above. result if normal clearance procedures Attention: Wendy Taylor, Desk Officer: The Department of Education is are followed. Approval by the Office of Department of Education, Office of especially interested in public comment Management and Budget (OMB) has Management and Budget, 725 17th addressing the following issues: (1) is been requested by February 28, 1997. A Street, NW., Room 10235, New this collection necessary to the proper regular clearance process is also Executive Office Building, Washington, functions of the Department, (2) will beginning. Interested persons are DC 20503. Requests for copies of the this information be processed and used invited to submit comments on or before proposed information collection request in a timely manner, (3) is the estimate March 7, 1997. should be addressed to Patrick J. of burden accurate, (4) how might the ADDRESSES: Written comments Sherrill, Department of Education, 7th & Department enhance the quality, utility, regarding the emergency review should D Streets, SW., Room 5624, Regional and clarity of the information to be be addressed to the Office of Office Building 3, Washington, DC collected, and (5) how might the Information and Regulatory Affairs, 20202–4651. Department minimize the burden of this Attention: Wendy Taylor, Desk Officer: Written comments regarding the collection on the respondents, including Department of Education, Office of regular clearance and requests for copies through the use of information Management and Budget, 725 17th of the proposed information collection technology. Street, NW., Room 10235, New Executive Office Building, Washington, requests should be addressed to Patrick Dated: December 30, 1996. J. Sherrill, Department of Education, 600 DC 20503. Requests for copies of the Arthur F. Chantker, Independence Avenue, SW., Room proposed information collection request 5624, Regional Office Building 3, Acting Chief Information Officer, Office of should be addressed to Patrick J. the Chief Information Officer. Washington, DC 20202–4651, or should Sherrill, Department of Education, 7th & be electronic mailed to the internet Office of the Under Secretary D Streets, SW., Room 5624, Regional address #[email protected], or should be Office Building 3, Washington, DC Type of Review: New. faxed to 202–708–9346. 20202–4651. Title: Six-year Followup Study of the FOR FURTHER INFORMATION CONTACT: Written comments regarding the Student Support Services Program. Patrick J. Sherrill (202) 708–8196. regular clearance and requests for copies Abstract: The Planning and Individuals who use a of the proposed information collection Evaluation Service needs to survey telecommunications device for the deaf requests should be addressed to Patrick participants in the National Study of (TDD) may call the Federal Information J. Sherrill, Department of Education, 600 Student Support Services now, six years Relay Service (FIRS) at 1–800–877–8339 Independence Avenue, SW., Room after they began postsecondary between 8 a.m. and 8 p.m., Eastern time, 5624, Regional Office Building 3, education, to evaluate the effect of Monday through Friday. Washington, DC 20202–4651, or should receipt of Student Support Services. SUPPLEMENTARY INFORMATION: be electronic mailed to the internet Section Additional Information: Education # 3506 (c)(2)(A) of the Paperwork address [email protected], or should be needs the retention rates, transfer rates faxed to 202–708–9346. Reduction Act of 1995 (44 U.S.C. from 2-year colleges to 4-year colleges Chapter 3506 (c)(2)(A) requires that the FOR FURTHER INFORMATION CONTACT: and universities, graduation rates, and Patrick J. Sherrill (202) 708–8196. Director of OMB provide interested the impact of Student Support Services Federal agencies and the public an early Individuals who use a on participants’ jobs and careers. For telecommunications device for the deaf opportunity to comment on information data collection to begin April 15, 1997, collection requests. The Office of (TDD) may call the Federal Information this information collection should be Relay Service (FIRS) at 1–800–877–8339 Management and Budget (OMB) may cleared by April 1, 1997. amend or waive the requirement for between 8 a.m. and 8 p.m., Eastern time, Frequency: One time. public consultation to the extent that Monday through Friday. Affected Public: Individuals or public participation in the approval SUPPLEMENTARY INFORMATION: Section process would defeat the purpose of the households; Business or other for-profit. 3506 (c)(2)(A) of the Paperwork information collection, violate State or Annual Reporting and Recordkeeping Reduction Act of 1995 (44 U.S.C. Federal law, or substantially interfere Hour Burden: Chapter 3506 (c)(2)(A) requires that the with any agency’s ability to perform its Responses: 9,286. Director of OMB provide interested statutory obligations. The Acting Chief Burden Hours: 2,205. Federal agencies and the public an early Information Officer, Office of the Chief [FR Doc. 97–119 Filed 1–3–97; 8:45 am] opportunity to comment on information Information Officer, publishes this BILLING CODE 4000±01±P collection requests. The Office of 740 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Management and Budget (OMB) may office requests an emergency clearance, this collection necessary to the proper amend or waive the requirement for backed by the regular process. functions of the Department, (2) will public consultation to the extent that Frequency: Annually if applying for this information be processed and used public participation in the approval grant. in a timely manner, (3) is the estimate process would defeat the purpose of the Affected Public: Not-for-profit of burden accurate, (4) how might the information collection, violate State or institutions. Department enhance the quality, utility, Federal law, or substantially interfere Annual Reporting and Recordkeeping and clarity of the information to be with any agency’s ability to perform its Hour Burden: collected, and (5) how might the statutory obligations. The Acting Chief Responses: 550. Department minimize the burden of this Information Officer, Office of the Chief Burden Hours: 40,400. collection on the respondents, including Information Officer, publishes this [FR Doc. 97–00120 Filed 1–3–97; 8:45 am] through the use of information notice containing proposed information BILLING CODE 4000±01±P technology. collection requests at the beginning of Dated: December 30, 1996. the Departmental review of the Arthur F. Chantker, information collection. Each proposed Notice of Proposed Information Collection Requests Acting Chief Information Officer, Office of information collection, grouped by the Chief Information Officer. office, contains the following: (1) Type AGENCY: Department of Education. of review requested, e.g., new, revision, Office of Postsecondary Education ACTION: Submission for OMB review; extension, existing or reinstatement; (2) Type of Review: Reinstatement. comment request. Title; (3) Summary of the collection; (4) Title: Performance Report for the Description of the need for, and SUMMARY: The Acting Chief Information Ronald E. McNair Postbaccalaureate proposed use of, the information; (5) Officer, Office of the Chief Information Achievement Program. Respondents and frequency of Officer, invites comments on the Frequency: Semi-Annually. collection; and (6) Reporting and/or proposed information collection Affected Public: Not-for-profit Recordkeeping burden. ED invites requests as required by the Paperwork institutions. public comment at the address specified Reduction Act of 1995. Annual Reporting and Recordkeeping above. Copies of the requests are Hour Burden: DATES: Interested persons are invited to available from Patrick J. Sherrill at the Responses: 99. submit comments on or before February address specified above. Burden Hours: 891. 5, 1997. The Department of Education is Abstract: Ronald E. McNair especially interested in public comment ADDRESSES: Written comments should Postbaccalaureate Achievement Program addressing the following issues: (1) is be addressed to the Office of grantees are required to submit annual this collection necessary to the proper Information and Regulatory Affairs, performance reports. The reports are functions of the Department, (2) will Attention: Wendy Taylor, Desk Officer, used to evaluate project this information be processed and used Department of Education, Office of accomplishments, compliance, prior in a timely manner, (3) is the estimate Management and Budget, 725 17th experience, and collect impact data for of burden accurate, (4) how might the Street, NW., Room 10235, New budget submissions and Congressional Department enhance the quality, utility, Executive Office Building, Washington, hearings. and clarity of the information to be DC 20503. Requests for copies of the [FR Doc. 97–118 Filed 1–3–97; 8:45 am] proposed information collection collected, and (5) how might the BILLING CODE 4000±01±P Department minimize the burden of this requests should be addressed to Patrick collection on the respondents, including J. Sherrill, Department of Education, 600 through the use of information Independence Avenue, S.W., Room National Educational Research Policy technology. 5624, Regional Office Building 3, and Priorities Board; Meeting Washington, DC 20202–4651. Dated: December 30, 1996. FOR FURTHER INFORMATION CONTACT: AGENCY: National Educational Research Arthur F. Chantker, Patrick J. Sherrill (202) 708–8196. Policy and Priorities Board, Education. Acting Chief Information Officer, Office of Individuals who use a ACTION: Notice of meeting. the Chief Information Officer. telecommunications device for the deaf SUMMARY: Office of Postsecondary Education (TDD) may call the Federal Information This notice sets forth the Relay Service (FIRS) at 1–800–877–8339 schedule and proposed agenda of a Type of Review: Reinstatement. between 8 a.m. and 8 p.m., Eastern time, meeting of the National Educational Title: Application for Grants Under Monday through Friday. Research Policy and Priorities Board. This notice also describes the functions the Strengthening Institutions Program. SUPPLEMENTARY INFORMATION: Section of the Board. Notice of this meeting is Abstract: This information is required 3506 of the Paperwork Reduction Act of of institutions of higher education that required under Section 10 (a) (2) of the 1995 (44 U. S. C. Chapter 35) requires Federal Advisory Committee Act and is apply for grants under the Strengthening that the Office of Management and institutions Program, Title III, Part A of intended to notify the public of their Budget (OMB) provide interested opportunity to attend. the Higher Education Act of 1965, as Federal agencies and the public an early amended. This information will be used opportunity to comment on information DATE AND TIME: January 31, 1997, 8:30 in the evaluation process to determine collection requests. OMB may amend or a.m. to 5 p.m. which applicants should receive grant waive the comment at the address ADDRESSES: First Floor Conference funds. specified above. Copies of the requests Room, 80 F St., N.W., Washington, D.C. Additional Information: The are available from Patrick J. Sherrill at 20208. controlling law requires that all the address specified above. FOR FURTHER INFORMATION CONTACT: applicants be notified of their scores The Department of Education is Eve M. Bither, Executive Director, and panel recommendations by June 30. especially interested in public comment National Educational Research Policy To meet this deadline, the program addressing the following issues: (1) is and Priorities Board, 80 F St., N.W., Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 741

Washington, D.C. 20208–7564. available from the Board’s office on Energy, U.S. Department of Energy, Telephone: (202) 208–0692; Fax: (202) January 15. 1000 Independence Avenue, SW, 219–1528. Internet: Evel— Records are kept of all Board Washington, DC 20585 (FAX 202–287– [email protected]. proceedings, and are available for public 5736). SUPPLEMENTARY INFORMATION: The inspection at the office of the National FOR FURTHER INFORMATION CONTACT: National Educational Research Policy Educational Research Policy and William H. Freeman (Program Office) and Priorities Board is authorized by Priorities Board, 80 F St., NW 202–586–5883 or Michael Skinker Section 921 of the Educational Washington, D.C. 20208–7564. (Program Attorney) 202–586–6667. Research, Development, Dissemination, Dated: December 30, 1997. SUPPLEMENTARY INFORMATION: Exports of and Improvement Act of 1994 (the Act). Eve M. Bither, The Board works collaboratively with electricity from the United States to a Executive Director. the Assistant Secretary for the Office of foreign country are regulated and Educational Research and Improvement [FR Doc. 97–110 Filed 1–3–97; 8:45 am] require authorization under section (the Office) to forge a national BILLING CODE 4000±01±M 202(e) of the Federal Power Act (FPA) consensus with respect to a long-term (16 U.S.C. 824a(e)). agenda for educational research, On December 5, 1996, NYSEG filed an development, and dissemination, and to DEPARTMENT OF ENERGY application with the Office of Fossil provide advice and assistance to the [Docket No. EA±137] Energy (FE) of the Department of Energy Assistant Secretary in administering the (DOE) for authorization to export duties of the Office. The Act directs the Application to Export Electric Energy; electric energy to Canada pursuant to Board to provide guidance to the New York State Electric & Gas section 202(e) of the FPA. Specifically, Congress in its oversight of the Office; Corporation NYSEG proposes to sell surplus electric to advise the Untied States on the energy, operating capacity, and/or Federal educational research and AGENCY: Office of Fossil Energy, DOE. installed capacity, on either a firm or development effort; and to solicit advice AGENCY: Notice of application. interruptible basis, from its own form practitioners, policymakers, and generation sources or purchased from SUMMARY: New York State Electric & Gas researchers to define research needs and other electric utilities or Federal power Corporation (NYSEG), a regulated suggestions for research topics. The marketing agencies. NYSEG asserts that investor-owned utility, has submitted an meeting of the Board is open to the it will schedule all exports consistent application to export electric energy to public. with the reliability criteria, standards, The agenda for January 31 will Canada pursuant to section 202(e) of the and guidelines of the North American consider the adoption of proposed by- Federal Power Act. Electric Reliability Council and the laws; the approval of standards for the DATES: Comments, protests or requests Northeast Power Coordinating Council. conduct and evaluation of research, and to intervene must be submitted on or NYSEG would arrange for the for assessing performance on contracts, before February 5, 1997. exported energy to be transmitted to grants, and cooperative agreements, as ADDRESSES: Comments, protests or Canada over one or more of the well as standards for reviewing and requests to intervene should be following international transmission designating exemplary and promising addressed as follows: Office of Coal & lines for which Presidential permits (PP) programs. A final agenda will be Power Im/Ex (FE–52), Office of Fossil have been previously issued:

Presidential Owner Location Voltage permit No.

Niagara Mohawk Power Corp ...... Devil's Hole, NY ...... 230 kV PP±31 New York Power Authority ...... Devil's Hole, NY ...... 230 kV PP±30 Niagara Falls, NY ...... 2±345 kV PP±74 Fort Covington, NY ...... 765 kV PP±56 Massena, NY ...... 2±230 kV PP±25

PROCEDURAL MATTERS: Any persons Avenue, 27th Floor, New York, New Issued in Washington, DC on December 30, desiring to be heard or to protest this York 10158 (Fax: 212–661–5759). 1996. application should file a petition to A final decision will be made on this Anthony J. Como, intervene or protest at the address applications after the environmental Manager, Electric Power Regulation, Office provided above in accordance with of Coal & Power Systems, Office of Fossil impacts have been evaluated pursuant §§ 385.211 or 385.214 of the Rules of Energy. to the National Environmental Policy Practice and Procedures (18 CFR [FR Doc. 97–167 Filed 1–3–97; 8:45 am] Act of 1969 (NEPA), and a 385.211, 385.214). Fifteen copies of BILLING CODE 6450±01±P such petitions and protests should be determination is made by the DOE that filed with the DOE on or before the date the proposed action will not adversely listed above. Additional copies are to be impact on the reliability of the U.S. National Environmental Policy Act filed directly with: John R. Tigue, electric power supply system. Record of Decision for the Disposal of Manager—Bulk Power Sales, New York Copies of this application will be the S1C Prototype Reactor Plant State Electric & Gas Corporation, made available, upon request, for public AGENCY: Department of Energy. Corporate Drive, Kirkwood Industrial inspection and copying at the address Park, P.O. Box 5224, Binghamton, New provided above. ACTION: Record of decision. York 13902–5224 (Fax: 607–762–8496) AND Nicholas A. Giannasca, Esq., SUMMARY: This Record of Decision has Huber Lawrence & Abell, 605 Third been prepared on the proposed disposal 742 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices of the defueled S1C Prototype reactor waste will be disposed of at the DOE term commitment of the land for plant, located in Windsor, Connecticut, Savannah River Site in South Carolina. surveillance and maintenance of the pursuant to Section 102(2) of the There will be an estimated total of S1C Prototype reactor plant. The National Environmental Policy Act of twenty-three radioactive material occupational radiation exposure 1969 (NEPA), 42 U.S.C. 4321 et seq.), shipments to the Savannah River Site associated with the prompt and in accordance with the Council on and to commercial recycling facilities. dismantlement alternative is Environmental Quality regulations One or two of the shipments to the comparable in magnitude to the implementing NEPA procedures (40 Savannah River Site will be by rail and radiation exposure routinely received CFR parts 1500–1508), and Department the remainder of the radioactive during operation and maintenance of of Energy regulations implementing material shipments will be by truck. The Naval prototype reactors. Also, the NEPA procedures (10 CFR part 1021). Savannah River Site currently receives impacts associated with the prompt The Department of Energy (DOE) Office low-level radioactive waste from Naval dismantlement alternative have a higher of Naval Reactors (Naval Reactors) has Reactors sites in the eastern United degree of certainty than those associated decided to promptly dismantle the States. Both the volume and radioactive with actions thirty years in the future. defueled S1C Prototype reactor plant. content of the S1C Prototype reactor Since prompt dismantlement will result To the extent practical, the resulting plant low-level waste fall within the in unrestricted release of the Windsor low-level radioactive metals will be projections of Naval Reactors waste Site at the earliest time with little recycled at existing commercial provided to the Savannah River Site, occupational exposure risk to the facilities that recycle radioactive metals. which were included and analyzed in workers, and given that the impacts The remaining low-level radioactive the Savannah River Site Waste associated with prompt dismantlement wastes will be disposed of at the Management Final Environmental have a higher degree of certainty, Naval Department of Energy Savannah River Impact Statement dated July 1995. Reactors has decided to proceed with Site in South Carolina. The deferred dismantlement the preferred alternative of prompt Requests for further information alternative would involve keeping the dismantlement. should be directed to Mr. Christopher G. defueled S1C Prototype reactor plant in As discussed in the Final Overton, Chief, Windsor Field Office, protective storage for 30 years before Environmental Impact Statement, Naval Office of Naval Reactors, U.S. dismantling it. Deferring dismantlement Reactors implements a large number of Department of Energy, P.O. Box 393, for 30 years would allow nearly all of conservative engineering practices in its Windsor, CT 06095, telephone (860) the gamma radiation within the reactor operations. These conservative 687–5610. plant to decay away. engineering practices will serve to The ‘‘no action’’ alternative would SUPPLEMENTARY INFORMATION: The S1C assure that environmental impacts will involve keeping the defueled S1C be very small. No additional mitigative Prototype reactor plant is located on the Prototype reactor plant in protective 10.8-acre Windsor Site in Windsor, measures have been identified which storage indefinitely. This alternative are needed to further reduce the small Connecticut, approximately 5 miles would leave long-lived radioactivity at north of Hartford. As a result of the end impacts which were described in the the Windsor Site indefinitely. Final Environmental Impact Statement. of the Cold War and the downsizing of Naval Reactors distributed the Draft Accordingly, all practicable means to the Navy, the S1C Prototype reactor Environmental Impact Statement on the avoid or minimize environmental harm plant was permanently shut down in S1C Prototype Reactor Plant Disposal in from the preferred alternative have been March 1993. Removal of the spent June 1996. Comments from 28 adopted. nuclear fuel from the S1C Prototype individuals and agencies were received reactor was completed in February in either oral or written statements at a Issued at Arlington, VA this 30th day of 1995. After defueling, S1C Prototype public hearing or in letters. Nearly all of December 1996. reactor plant systems were drained and the commenters expressed a preference F.L. Bowman, placed in a stable protective storage for the prompt dismantlement Admiral, U.S. Navy, Director, Naval Nuclear condition. Since the S1C Prototype alternative. The Final Environmental Propulsion Program. reactor plant is the only activity at this Impact Statement, which includes [FR Doc. 97–169 Filed 1–3–97; 8:45 am] small site and there is no further need responses to public comments, has been BILLING CODE 6450±01±P for this plant, a decision is needed on issued and distributed to interested its disposal. parties. The alternatives analyzed in detail in From an environmental perspective, Office of Energy Efficiency and the Final Environmental Impact no single alternative stands out as the Renewable Energy Statement were the preferred alternative environmentally preferred alternative. of prompt dismantlement, a deferred The no action alternative is the least Energy Conservation Program for dismantlement alternative, and a ‘‘no preferable since it would leave long- Consumer Products: Granting of the action’’ alternative of keeping the lived radioactivity at the Windsor Site Application for Interim Waiver and defueled S1C Prototype reactor plant in indefinitely and does not provide for Publishing of the Petition for Waiver of protective storage indefinitely. eventual re-use of the Windsor Site. CFM Majestic Inc. from the DOE The alternative that DOE is selecting, Regarding prompt dismantlement and Vented Home Heating Equipment Test the preferred alternative, involves the deferred dismantlement, neither Procedure. (Case No. DH±008) prompt dismantlement of the reactor alternative stands out in this AGENCY: Office of Energy Efficiency and plant. All structures will be removed comparison, and neither is considered Renewable Energy, Department of from the Windsor Site, and the Windsor on balance to be environmentally Energy. Site will be released for unrestricted preferred. Deferred dismantlement has ACTION: Notice. use. To the extent practical, the the advantage of lower occupational resulting low-level radioactive metals radiation exposure while still providing SUMMARY: Today’s notice grants an will be recycled at existing commercial for eventual unrestricted release of the Interim Waiver to CFM Majestic Inc. facilities that recycle radioactive metals. Windsor Site. Prompt dismantlement from the existing Department of Energy The remaining low-level radioactive has the advantage of not requiring long (DOE or Department) test procedure Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 743 regarding pilot light energy (202) 586–9507 consumption and (b) weighted average consumption and weighted average SUPPLEMENTARY INFORMATION: The steady state efficiency. steady-state efficiency for its models Energy Conservation Program for CFM Majestic Inc. seeks an Interim A120, A125, A130, A132, A230, A232, Consumer Products (other than Waiver from the DOE test provisions in AB132, D130, D132, D230, D232, D332, automobiles) was established pursuant section 3.5 of Title 10 CFR Part 430, D334, D336, DR333, DR336, DR339, to the Energy Policy and Conservation Subpart B, Appendix O, that requires DT336, DT339, DT343, DVR33, DVR36, Act, as amended (EPCA), which requires measurement of energy input rate of the DVR39, DVRS3, DVT36, DVT39, DVT43, DOE to prescribe standardized test pilot light (Q ), and the use of this data DVTS2, FS22, FS32, FSDV22, FSDV32, procedures to measure the energy P in section 4.2.6 for the calculation of HE25, HE32, HEB32, and HEDV32 consumption of certain consumer AFUE, where: vented heaters. products, including vented home η η Today’s notice also publishes a heating equipment. The intent of the AFUE = (4400 SS uQin-max)/ η η ‘‘Petition for Waiver’’ from CFM test procedures is to provide a (4400 SSQin-max + 2.5(4600) uQP) Majestic Inc. CFM Majestic Inc.’s comparable measure of energy Instead, CFM Majestic Inc. requests Petition for Waiver requests DOE to consumption that will assist consumers that it be allowed to delete QP and grant relief from the DOE vented home in making informed purchasing accordingly, the (2.5(4600)ηu QP) term heating equipment test procedure decisions. These test procedures appear in the calculation of AFUE. CFM relating to the use of pilot light energy at Title 10 CFR Part 430, Subpart B. Majestic Inc. states that instructions to consumption in calculating the Annual The Department amended the test turn off the transient pilot by the user procedure rules to provide for a waiver Fuel Utilization Efficiency (AFUE) and when the heater is not in use are in the process by adding § 430.27 to Title 10 the calculation of weighted average User Instruction Manual and on a label steady state efficiency of its models CFR Part 430. 45 FR 64108, September 26, 1980. Subsequently, DOE amended adjacent to the gas control valve. A120, A125, A130, A132, A230, A232, Therefore, the additional energy savings AB132, D130, D132, D230, D232, D332, the waiver process to allow the Assistant Secretary for Energy Efficiency that result when the pilot is turned off D334, D336, DR333, DR336, DR339, (Q = 0) should be credited. Since the DT336, DT339, DT343, DVR33, DVR36, and Renewable Energy (Assistant P current DOE test procedure does not DVR39, DVRS3, DVT36, DVT39, DVT43, Secretary) to grant an Interim Waiver address pilot light energy savings, CFM DVTS2, FS22, FS32, FSDV22, FSDV32, from test procedure requirements to Majestic Inc. asks that the Interim HE25, HE32, HEB32, and HEDV32 manufacturers that have petitioned DOE vented heaters. CFM Majestic Inc. seeks for a waiver of such prescribed test Waiver be granted. to delete the required pilot light procedures. Title 10 CFR Part 430, CFM Majestic Inc. also seeks an § 430.27(a)(2). measurement (Qp) in the calculation of Interim Waiver from the DOE test AFUE when the pilot is off, and to test The waiver process allows the provisions in section 3.1.1 of Title 10 Assistant Secretary to waive temporarily at a minimum fuel input rate of two- CFR Part 430, Subpart B, Appendix O, test procedures for a particular basic thirds of the maximum fuel input rate which requires steady state efficiency of model when a petitioner shows that the instead of the specified 50 percent ± 5 manually controlled vented heaters with basic model contains one or more percent of the maximum fuel input rate various input rates to be determined at design characteristics which prevent in the calculation of AFUE. The ± testing according to the prescribed test a fuel input rate of 50 percent 5 Department is soliciting comments, procedures, or when the prescribed test percent of the maximum fuel input rate, data, and information respecting the procedures may evaluate the basic and the use of this data in section 4.2.4 Petition for Waiver. model in a manner so unrepresentative to determine the weighted average DATES: DOE will accept comments, data, of its true energy consumption as to steady state efficiency needed in the and information not later than February provide materially inaccurate calculation of AFUE. Instead, CFM 5, 1997. comparative data. Waivers generally Majestic Inc. requests that it be allowed ADDRESSES: Written comments and remain in effect until final test to determine steady state efficiency, statements shall be sent to: Department procedure amendments become weighted average steady state efficiency, of Energy, Office of Energy Efficiency effective, resolving the problem that is and AFUE at a minimum fuel input rate and Renewable Energy, Case No. DH– the subject of the waiver. of two-thirds of the maximum fuel input 008, Mail Stop EE–43, Room 1J–018, An Interim Waiver will be granted if rate for its manually controlled vented Forrestal Building, 1000 Independence it is determined that the applicant will heaters which do not adjust to an input Avenue, SW., Washington, DC 20585– experience economic hardship if the rate as low as 50 percent ± 5 percent. 0121, (202) 586–7140. Application for Interim Waiver is Since the current DOE test procedure denied, if it appears likely that the FOR FURTHER INFORMATION CONTACT: does not address steady state testing for Petition for Waiver will be granted, and/ manually controlled vented heaters with William W. Hui or the Assistant Secretary determines various input rates at fuel input rates U.S. Department of Energy that it would be desirable for public other than 50 percent ± 5 percent of the Office of Energy Efficiency and policy reasons to grant immediate relief Renewable Energy maximum fuel input rate, CFM Majestic pending a determination on the Petition Inc. asks that the waiver be granted. Mail Stop EE–43 for Waiver. Title 10 CFR Part 430, Forrestal Building Previous Petitions for Waiver to 1000 Independence Avenue, SW., § 430.27(g). An Interim Waiver remains in effect for a period of 180 days, or exclude the pilot light energy input term Washington, DC 20585–0121 in the calculation of AFUE for home (202) 586–9145 until DOE issues a determination on the Petition for Waiver, whichever is heating equipment with a manual Eugene Margolis, Esq. transient pilot control and allowance to U.S. Department of Energy sooner, and may be extended for an Office of General Counsel additional 180 days, if necessary. determine weighted average steady state Mail Stop GC–72 On October 31, 1996, CFM Majestic efficiency used in the calculation of Forrestal Building Inc. filed an Application for Interim AFUE at a minimum fuel input rate no 1000 Independence Avenue, SW., Waiver and a Petition for Waiver greater than two-thirds of the maximum Washington, DC 20585–0103 regarding (a) pilot light energy fuel input rate instead of the specified 744 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

50 percent ± 5 percent of the maximum appendix for manually controlled oil Issued in Washington, DC December 27, fuel input rate have been granted by vented heaters if the design of the heater 1996. DOE to Appalachian Stove and is such that 50 percent ± 5 percent of the Christine A. Ervin, Fabricators, Inc., 56 FR 51711, October maximum fuel input rate can not be set, Assistant Secretary, Energy Efficiency and 15, 1991; Valor Incorporated, 56 FR provided the tested input rate is no Renewable Energy. 51714, October 15, 1991; CFM greater than two-thirds of maximum October 31, 1996. International Inc., 61 FR 17287, April input rate of the heater. The Honorable Christine Ervin, 19, 1996; Vermont Castings, Inc., 61 FR (b) For manually controlled heater Assistant Secretary for Energy Efficiency & 17290, April 19, 1996; Superior with one single firing rate, the weighted Renewable Energy, Fireplace Company, 61 FR 17885, April average steady-state efficiency is the United States Department of Energy, 23, 1996; and Vermont Castings, Inc., 61 Forrestal Building, steady-state efficiency measured at the 1000 Independence Avenue, S.W., FR 57857, November 8, 1996. single firing rate. Thus, it appears likely that CFM Washington, D.C. 20585, (iii) Delete paragraph 4.2.6 of USA. Majestic Inc.’s Petition for Waiver for Appendix O and replace with the pilot light and weighted average steady Dear Madame: We would like to inform following paragraph: you that our name was recently changed to state efficiency for home heating 4.2.6 Annual Fuel Utilization reflect the current growth in our company. equipment will be granted. In those Accordingly, CFM International Inc. which instances where the likely success of the Efficiency. For manually controlled vented heaters, calculate the Annual was previously granted with the same Petition for Waiver has been waivers mentioned below was changed to demonstrated based upon DOE having Fuel Utilization Efficiency (AFUE) as a CFM Majestic Inc. granted a waiver for a similar product percent and defined as: Furthermore, CFM Majestic Inc. now have η design, it is in the public interest to AFUE = u four subsidiaries namely, The CFM Majestic have similar products tested and rated Where: Products Company; The Majestic Products Company; Vermont Casting Inc.; and for energy consumption on a ηu = as defined in section 4.2.5 of this Timberline Gas Logs Inc. comparable basis. appendix. CFM Majestic Inc. models DV32, DV34, Therefore, based on the above, DOE is (iv) With the exception of the DV36, DV40, DVS2, DVS3, FA20, FS30, granting CFM Majestic Inc. an Interim modification set forth above, CFM FSDV30, HE30, HEDV30/HEDV30–1 which Waiver for its models A120, A125, Majestic Inc. shall comply in all were granted waivers for pilot energy A130, A132, A230, A232, AB132, D130, respects with the procedures specified consumption relief for manually controlled D132, D230, D232, D332, D334, D336, in Appendix O of Title 10 CFR Part 430, heaters in the calculation of Annual Fuel DR333, DR336, DR339, DT336, DT339, Subpart B. Utilization Efficiency (AFUE) and calculation procedure for weighted average steady state DT343, DVR33, DVR36, DVR39, DVRS3, This Interim Waiver is based upon the DVT36, DVT39, DVT43, DVTS2, FS22, efficiency for manually controlled heaters presumed validity of statements and all with various input rates (please refer to FS32, FSDV22, FSDV32, HE25, HE32, allegations submitted by the company. Federal Register Notice dated Dec. 28, 1995 HEB32, and HEDV32 vented heaters. This Interim Waiver may be removed or & April 19, 1996—Case No. DH–004)—have CFM Majestic Inc. shall be permitted to modified at any time upon a been upgraded with new logs, new ceramic test its models A120, A125, A130, A132, determination that the factual basis front burner and new model number namely A230, A232, AB132, D130, D132, D230, underlying the Application is incorrect. DVR33, DVR36, DVT36, DVT43, DVTS2, DVRS3, HE25, FS32, FSDV32, HE32, HEB32, D232, D332, D334, D336, DR333, This Interim Waiver is effective on the DR336, DR339, DT336, DT339, DT343, HEDV32 respectively. However, the same date of issuance by the Assistant transient pilot and manually controlled gas DVR33, DVR36, DVR39, DVRS3, DVT36, Secretary for the Office of Energy DVT39, DVT43, DVTS2, FS22, FS32, valve which were petitioned and granted in Efficiency and Renewable Energy. The the aforementioned waivers were used to FSDV22, FSDV32, HE25, HE32, HEB32, Interim Waiver shall remain in effect for models DVR33, DVR36, DVT36, DVT43, and HEDV32 vented heaters on the basis a period of 180 days or until DOE acts DVTS2, DVRS3, HE25, FS32, FSDV32, HE32, of the test procedures specified in Title on the Petition for Waiver, whichever is HEB32, HEDV32. 10 CFR Part 430, Subpart B, Appendix sooner, and may be extended for an Also, we would like to inform you that O, with the modifications set forth additional 180-day period, if necessary. models HE40 and FADV20 which were below: granted waivers for pilot energy consumption (i) Delete paragraph 3.5 of Appendix CFM Majestic Inc.’s Petition for relief for manually controlled heaters in the O. Waiver requests DOE to grant relief from calculation of Annual Fuel Utilization (ii) Delete paragraph 4.2.4 of the DOE vented home heating Efficiency (AFUE) and calculation procedure Appendix O and replace with the equipment relating to the pilot light and for weighted average steady state efficiency following paragraph: weighted average steady state efficiency. for manually controlled heaters with various 4.2.4 Weighted Average Steady-State CFM Majestic Inc. seeks (a) to exclude input rates (please refer to Federal Register Notice dated Dec. 28, 1995 & April 19, Efficiency. (a) For manually controlled the pilot light energy consumption in the calculation of AFUE, and (b) to 1996—Case No. DH–004) will not be heaters with various input rates, the manufactured, hence waivers previously weighted average steady-state efficiency determine the weighted average steady granted to these models are no longer (ηSS-WT) is: state efficiency used in the calculation required. (1) At 50 percent ± 5 percent of the of AFUE at a minimum fuel input rate CFM Majestic Inc. would like to submit a maximum fuel input rate as measured in of two-thirds of the maximum fuel input Petition for Waiver and an Application for either section 3.1.1 to this appendix for rate instead of the specified 50 percent Interim Waiver pursuant to Title 10 Code of manually controlled gas vented heaters ± 5 percent of the maximum fuel input Federal Regulations 430.27, as amended on or section 3.1.2 to this appendix for rate. Pursuant to paragraph (b) of Title November 14, 1986 for models DVR33, DVR36, DVT36, DVT43, DVTS2, DVRS3, manually controlled oil vented heaters, 10 CFR Part 430.27, the Department is hereby publishing the ‘‘Petition for HE25, FS32, FSDV32, HE32, HEB32, or HEDV32. (2) At the minimum fuel input rate as Waiver.’’ Accordingly, CFM Majestic Inc. would like measured in either section 3.1.1 to this The Department solicits comments, to request acceptance of two waivers from the appendix for manually controlled gas data, and information respecting the test procedures which appears at 10 CFR, vented heaters or section 3.1.2 to this Petition. part 430, subpart B, Appendix O—Uniform Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 745

Test Method for Measuring the Energy which is to be turned off by the user when the Commission’s Regulations under the Consumption of Vented Home Heating the heater is not in use. The control knob on Natural Gas Act (18 CFR 157.205 and Equipment for gas appliance models the combination gas control in these heaters 157.211) for authorization to upgrade included in this request. Below are excerpts has three positions—‘‘OFF’’, ‘‘PILOT’’ and the Indiana Gas Company, Inc.’s from Vermont Castings Inc.’s letter to The ‘‘ON’’. Gas flow to the pilot is obtained by Honorable Christine Ervin dated July 7, rotating the control knob from ‘‘OFF’’ to (Indiana Gas) Bloomingdale Meter and 1995—explaining in detail the particulars ‘‘PILOT’’, depressing the knob, holding in, Regulation Station, an existing delivery regarding the waivers requested above. and pressing the piezo ignitor. When the point located in Parke County, Indiana. pilot heats a thermocouple element, Panhandle makes such request under its Waiver Request No. 1 sufficient voltage is supplied to the blanket certificate issued in Docket No. This request refers to section 3.1.1—Gas combination gas control for the pilot to CP83–83–000 pursuant to Section 7 of fueled vented home heating equipment and remain lit when the knob is released and the Natural Gas Act, all as more fully set section 4.2.4—Weighted average steady state turned to the ‘‘ON’’ position. The main forth in the request on file with the efficiency. These sections state that for burner can then be ignited by moving an Commission and open to public manually controlled heaters with various ‘‘ON/OFF’’ switch to the ‘‘ON’’ position. input rates the weighted average steady state Since the current test procedure does not inspection. efficiency is measured at a fuel rate input rate credit CFM Majestic Inc. for the additional Panhandle proposes to replace certain of plus or minus 5 percent of 50 percent of savings that occur when the pilot is turned inefficient and undersized facilities the maximum fuel input rate. All the gas off, we request the requirement to include with more efficient upgraded facilities appliance models included in this request energy input to the pilot light in AFUE so as to allow increased pressure at this utilize a combination gas control which has calculation be waived for these appliances. a variable pressure regulator set point which CFM Majestic Inc. requests to utilize the delivery point. The proposed facility allows the user to easily vary the manifold test procedure proposed by DOE on August upgrade is classified as minor, above pressure of the appliance within a fixed 23, 1993—58 FR44538. Specifically, we ground modifications, which will range of pressures. Specifically the range of request the term involving the pilot light include the upgrade of internal manifold pressure adjustment for Natural Gas energy consumption be deleted from the components of the regulators, such as is 3.5’’ w.c. to 1.7’’ w.c. and for Propane Gas calculation of AFUE for all gas appliance removing the current 500 psi maximum from 10.0’’ w.c. to 4.9’’ w.c. These pressure models included in this request. This results spring in the pilot of each of the four 3- ranges allow the user to vary the fuel input in an AFUE which is equal to the heating inch Mooney regulators and replacing it rates on all models included in this request seasonal efficiency. with a 400–900 psi range spring. It is from maximum input to minimum input Test data shows a significant increase in which is 70% of maximum input and it is the actual overall AFUE when compared to stated that such facility upgrade is therefore not possible to obtain a rate of 50% results obtained when energy input to the proposed to increase the maximum of the maximum input when the heater is pilot is included in the overall AFUE. Copies capacity of the Bloomingdale meter operated according to Manufacturer’s of confidential test data confirming the station to approximately 23,700 Mcf per Installation Operating Manual. Since the energy savings will be forwarded to you upon day, and increase the operating pressure 50% rate specified in the Regulations can not request. from 275 psig to 500 psig. Panhandle be normally achieved on these products we CFM Majestic Inc. is confident that both of indicates that the increased service these waivers will be granted, as similar request that this requirement be waived for availability will be provided within waivers have been granted in the past to the gas appliances included in this request. Indiana Gas’ existing entitlements. CFM Majestic Inc. requests to utilize the Vermont Casting Inc., CFM International Inc. test procedure proposed by DOE on August and other U.S. manufacturers. Also, the The estimated cost of upgrading the 23, 1993—58 FR 44538. Accordingly, we revisions to the test procedures which we proposed facilities is $5,000. Panhandle request to calculate the weighted average request have been published by DOE as states that Indiana Gas will reimburse steady state efficiency using the minimum proposed changes on August 23, 1993—58 the cost of the facilities. obtainable fuel input rate provided this rate FR 44538. is no greater than 2⁄3 the maximum input rate Any question regarding this subject, please Any person or the Commission’s staff of the heater. Specifically, the models contact me at the above address. Your help may, within 45 days after issuance of included in this request will be tested at 2⁄3 is highly appreciated. Thank you. the instant notice by the Commission, of maximum fuel input rate. Yours Truly, file pursuant to Rule 214 of the The current test procedure does not credit Ferdinand M. Francisco, Commission’s Procedural Rules (18 CFR CFM Majestic Inc. for the additional energy Lab. Manager, CFM Majestic Inc. 385.214) a motion to intervene or notice savings that occur when the minimum fuel [FR Doc. 97–168 Filed 1–3–97; 8:45 am] of intervention and pursuant to input rate is limited to 70% of maximum BILLING CODE 6450±01±M § 157.205 of the Regulations under the input rate. Test data shows a significant increase in the actual overall AFUE when Natural Gas Act (18 CFR 157.205) a compared to results obtained at a rate of 50% protest to the request. If no protest is of maximum fuel input rate. Copies of Federal Energy Regulatory filed within the time allowed therefor, confidential test data confirming the energy Commission the proposed activity shall be deemed to savings will be forwarded to you upon [Docket No. CP97±158±000] be authorized effective the day after the request. time allowed for filing a protest. If a Waiver Request No. 2 Panhandle Eastern Pipe Line protest is filed and not withdrawn Company; Notice of Request Under within 30 days after the time allowed This request refers to section 3.5—Pilot Light Measurement and section 4.2.6— Blanket Authorization for filing a protest, the instant request shall be treated as an application for Annual Fuel Utilization Efficiency (AFUE). December 30, 1996. These sections require the measurement of authorization pursuant to Section 7 of Take notice that on December 17, energy input to the pilot light (Qp) and the the Natural Gas Act. 1996, Panhandle Eastern Pipe Line use of this data in the calculation of AFUE Lois D. Cashell, for the energy consumed by the pilot light Company (Panhandle), Post Office Box Secretary. when the heater is not in operation. 1642, Houston, Texas 77251–1642, filed All gas appliance models included in this in Docket No. CP97–158–000 a request [FR Doc. 97–113 Filed 1–3–97; 8:45 am] request are designed with a transient pilot pursuant to §§ 157.205 and 157.211 of BILLING CODE 6717±01±M 746 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

ENVIRONMENTAL PROTECTION category XIV–A, entitled ‘‘Certification percent or greater reduction in AGENCY of Urban Bus Retrofit/Rebuild emissions of particulate matter (PM) for Equipment’’. This docket is located in petroleum fueled diesel engines relative [FRL±5672±8] room M–1500, Waterside Mall (Ground to an original engine configuration with Retrofit/Rebuild Requirements for 1993 Floor), U.S. Environmental Protection no after treatment installed. and Earlier Model Year Urban Buses; Agency, 401 M Street SW, Washington, Certification is applicable to engines Approval of a Notification of Intent to DC 20460. that are rebuilt to original specifications, Docket items may be inspected from Certify Equipment or in-use engines that are not rebuilt at 8:00 a.m. until 5:30 p.m., Monday the time the OCM is installed provided AGENCY: Environmental Protection through Friday. As provided in 40 CFR the engine meets engine oil Agency. Part 2, a reasonable fee may be charged consumption limits specified by ECS. ACTION: Notice of Agency Certification by the Agency for copying docket ECS is also certifying a 25 percent of Equipment for the Urban Bus materials. reduction in PM for engines that are Retrofit/Rebuild Program. DATES: The effective date of certification retrofit/rebuilt with certified rebuild kits is established in a letter to ECS dated that do not include after treatment SUMMARY: The Agency received a December 9, 1996 for the equipment devices if the OCM is installed at the notification of intent to certify described in the ECS notification. This same time the retrofit/rebuild occurs. equipment signed December 13, 1995, certified equipment may be used Currently, this applies to the DDC from Engine Control Systems Ltd. (ECS) immediately by urban bus operators. retrofit/rebuild kit which was certified with principal place of business at 165 Operators who have chosen to comply on October 2, 1995 (60 FR 51472) for the Pony Dr., Newmarket, Ontario, Canada with program 1 or program 2 can utilize 6V92TA MUI model and to the kit L3Y7V1 for certification of urban bus this equipment or other equipment that certified on July 19, 1996 (61 FR 37738) retrofit/rebuild equipment pursuant to is certified for any engine that is listed for the 6V92TA DDEC II model. in Table A that undergoes rebuild. 40 CFR 85.1401–85.1415. The Certification of the OCM does not equipment is applicable to petroleum- FOR FURTHER INFORMATION CONTACT: trigger any new program requirements fueled Detroit Diesel Corporation (DDC) Anthony Erb, Engine Compliance for applicable engines, because the two-cycle engines originally installed in Programs Group, Engine Program & requirement to use equipment certified an urban bus from model year 1979 to Compliance Division (6403J), U.S. to achieve at least a 25% reduction has model year 1993, exclusive of the DDC Environmental Protection Agency, 401 already been triggered for these engines. 6L71TA 1990 model year engines, all M St. SW, Washington, D.C. 20460. alcohol fueled engines, and models Telephone: (202) 233–9259. Using engine dynamometer testing in which were manufactured with accordance with the Federal Test SUPPLEMENTARY INFORMATION: particulate trap devices (see Table A). Procedure for heavy-duty diesel engines On August 8, 1996 EPA published a I. Background on a 1991 DDC 6V92TA DDEC II engine, ECS documented a 26% reduction in notice in the Federal Register that the By a notification of intent to certify PM emission after retrofit. The test notification had been received and signed December 13, 1995, ECS applied made the notification available for for certification of equipment applicable results for this engine with the certified public review and comment for a period to petroleum-fueled Detroit Diesel retrofit equipment installed meet of 45 days (60 F1 41408). EPA has Corporation (DDC) two-cycle engines applicable Federal emission standards completed its review of this notification, originally installed in an urban bus from for hydrocarbon (HC), carbon monoxide and the comments received, and the model year 1979 to model year 1993, (CO), oxides of nitrogen (NOx), and Director of the Engine Programs and exclusive of the DDC 6L71TA 1990 smoke emissions. In chassis testing Compliance Division has determined model year engines and models which performed over the Central Business that it meets all the requirements for were manufactured with particulate trap District (CBD) sequence on a 1987 DDC certification. Accordingly, EPA devices or alcohol fueled (see Table A). 6V71N engine, ECS demonstrated a 42% approves the certification of this The notification of intent to certify PM emission reduction after retrofit. equipment. states that the equipment being certified Using chassis testing performed over the The certified equipment provides 25 is an oxidation converter muffler New York Composite (NYC) sequence percent or greater reduction in exhaust (OCM). The OCM contains an oxidation on this same engine, ECS demonstrated emissions of particulate matter (PM) for catalyst developed specifically for diesel a 37% reduction in PM emission. the engines for which it is certified. applications, packaged as a direct Table A provides the PM emission The ECS notification, as well as other replacement for the muffler. The certification levels for the ECS materials specifically relevant to it, are application demonstrates that the equipment for the specified models and contained in Public Docket A–93–42, candidate equipment provides a 25 model years.

TABLE A.ÐCERTIFICATION LEVELS

PM Level 2with PM Level 1 OCM and Engine models Model year with OCM DDC Cer- Code/Family tified Re- build kit

6V92TA MUI ...... 1979±87 .. 0.38 0.22 All. 1988±1989 0.23 0.17 All. 6V92TA DDEC I ...... 1986±87 .. 0.23 N/A All. 6V92TA DDEC II ...... 1988±90 .. 0.23 0.17 All. 1991 ...... 0.23 N/A 1992±93 .. 0.19 N/A All. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 747

TABLE A.ÐCERTIFICATION LEVELSÐContinued

PM Level 2with PM Level 1 OCM and Engine models Model year with OCM DDC Cer- Code/Family tified Re- build kit

6V71N ...... 1973±89 .. 0.38 N/A All. 6V71T ...... 1985±86 .. 0.38 N/A All. 6L71TA ...... 1988±89 .. 0.23 N/A All. 6L71TA DDEC ...... 1990±91 .. 0.23 N/A All. 1 The original PM certification levels for the 1991 6V92TA DDEC II, and 6L71TA DDEC engine models are based on Family Emission Limits (FELs)under EPA's averaging, banking and trading program (AB&T). These limits are higher than the 1991 PM standard of 0.25 g/bhp-hr. The PM level listed in this table for the engines that are equipped with the OCM provide at least a 25% reduction from the FEL. The 1992 to 1993 6V92TA DDEC II engine models were also certified using FELs under the AB&T program and likewise the PM levels for the engines equipped with the OCM represent at least a 25% reduction from the FEL. 2 For 6V92TA MUI and 6V92TA DDEC II models that are rebuilt using a certified DDC emissions retrofit kit, ECS is certifying the PM engine emissions to reduced levels as provided in Table A. provided the OCM is installed at the same time the rebuild with the certified DDC upgrade kit takes place. The DDC upgrade kit certification notifications were published in the Federal Register on October 2, 1995 (60 FR51472) and July 19,1996 (61 FR37738) respectively.

Under Program 1, all rebuilds or engine certification testing for the 1991 In regard to DDC’s and Engelhard’s replacements of applicable engines must 4C rating (a non-trap configuration) had contention that the 1991 6V92TA DDEC use equipment certified to reduce PM a total PM level of 0.218 g/bhp-hr with II engine would not represent the worst levels by at least 25 percent. This a soluble fraction (SOF) of 21.5%. DDC case according to the regulations, EPA requirement will continue for the questioned how this engine could be agrees. However, the 1987 6V71N does applicable engines until such time as it considered ‘‘worst case’’. Given that qualify as a ‘‘worst case’’ engine for is superseded by equipment that is oxidation catalysts primarily reduce the testing purposes under the urban bus certified to trigger the 0.10 g/bhp-hr SOF portion of PM, DDC questioned retrofit regulations, and test results from emission standard for less than a life whether the OCM could reduce PM this engine provide the basis for the cycle cost of $7,940 (in 1992 dollars). emissions on the 1991 code 4C rating by certification discussed herein. ECS has established PM certification 25% when the entire SOF fraction is DDC questioned the relevancy of the levels as specified in Table A for this only 21.5%. chassis dynamometer test results equipment. Operators who choose to Based on the information presented obtained on the 6V71N engine using the comply with Program 2 and install this by ECS, it is unclear whether the engine Central Business District (CBD) and equipment, will use the specified PM rating at the time of testing was in the New York Composite (NYC) cycles and emission levels in their calculation of 4T or the 4C configuration. It was not noted that EPA should not rely on the fleet level attained. clear from ECS that the engine had been chassis test results in assessing whether the OCM technology meets II. Summary and Analysis of Comments converted from it’s original 4T rating. Also, background historical information requirements to reduce PM emission by EPA received comments from two for this engine could not be provided. 25%. In response, the regulations allow parties on this notification. The Detroit Since there is nothing in the record a certifier to use chassis based test Diesel Corporation (DDC) had a number which indicates that the engine was procedures representative of typical of comments in the following areas: test converted to the 4C configuration, the urban bus operation to show engine selection, extrapolation of test Agency assumes that it was tested in the compliance with the 25% or greater PM results, reductions in non-volatile original 4T configuration. Therefore, it reduction requirement. The CBD particulate matter, certification of is apparent that DDC’s comments simulates stop and go performance of equipment for use on different stages of relative to SOF content of the 4C urban buses in the city and the NYC was engine rebuild, certified emission levels, configuration relative to the test incorporated to represent some higher incomplete parts listing and performed on the 4T configuration average speeds not seen in the CBD representivity of test data. The would not be relevant in the which an urban bus may on occasion Engelhard Corporation commented on certification being discussed. However, encounter. After review, EPA found the the following areas: worst case it is noted that because an oxidation proposed chassis testing plan to be demonstration, incomplete parts listing, catalyst mainly reduces only the SOF acceptable and approved the use of representivity of test data to cover all portion of PM, it would not be possible chassis testing to demonstrate the 25% engines and types, and the ability of the to obtain a 25% reduction in PM for any reduction in PM. OCM to reduce PM emissions. engine for which the SOF portion of PM EPA agrees with the comment from DDC stated that the test configuration is less than 25%. EPA requests Engelhard and DDC that it is tenuous to of the 1991 DDC 6V92TA DDEC II information from industry and the base certification of OCMs, intended for engine was not clearly documented and general public with regard to the engines using non-particulate trap that the original configuration of the test percentage of SOF that particular in-use ratings, on testing where the 4T-trap engine was a 1992 code 4T engine engines produce. This information based rating was utilized. However, ECS intended for use with a particulate trap. would be considered for the provided acceptable chassis test results DDC questioned the relevance of testing certification being discussed in this performed on a non-trap engine that performed on an engine with a unique notice and in regard to the previous demonstrate reduction of PM by at least calibration originally intended for use certifications of oxidation catalysts 25%. on trap equipped engines. DDC noted under the urban bus retrofit/rebuild Engelhard also stated that the that test data it developed during new program. reduction of 26% demonstrated on the 748 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

6V92TA DDEC II engine does not to installing this equipment, ECS has PM emissions apply to the industry as demonstrate a sufficient margin beyond modified its application to remove the a whole and should not be confined to the 25% level to account for in-use language referring to ‘‘specified engine the ECS certification review process. deterioration of the catalyst over the calibrations’’ which DDC stated was EPA concurs that this issue should be 150,000 mile performance warranty vague and unenforceable and will addressed on an industry-wide basis. period. EPA finds that the results of this instead require that operators determine Further, EPA does not have sufficient test are not conclusive because the the oil consumption rate for an engine information to resolve this issue based engine configuration tested apparently to determine engine wear and condition on the comments submitted. Therefore, does not represent an urban bus engine prior to installing the OCM. If the rate EPA requests that industry and the that could be used to demonstrate PM of oil consumption exceeds 1.5 quarts of public provide any additional reduction under the retrofit/rebuild consumption per 10 hours of operation, information on this matter so that program since it was apparently in a ECS will require that the engine be resolution may be reached in the future. calibration for a particulate trap rebuilt prior to OCM installation. DDC and Engelhard commented that equipped engine. However, chassis Furthermore, ECS is responsible for the rebuild on the 6V71N engine testing data presented by ECS shows a meeting the performance warranty for a appeared to be incomplete. DDC noted decrease in PM of at least 37% period of 150,000 miles for each engine that the rebuild performed did not providing ample margin beyond the under this certification. EPA believes include fuel injectors, piston rings, or required 25% reduction. that operators will rebuild engines when cylinder liners all of which would be In the notification, ECS sought to use necessary in order to keep their fleet in replaced during a normal rebuild and the OCM kit on engines which were not reasonable operating condition. The which, if not replaced, would cause in need of rebuild at the time of OCM decision to rebuild will not be affected inflated PM levels. DDC stated that if installation based on a review of by the option to install a catalyst. the Agency is to rely on the chassis test specified engine conditions. DDC Rather, operators will only choose to data for certification of the OCM, it commented that certification should be install the catalyst in order to reduce should first make certain that it was approved only with respect to engines emissions, and not in place of a needed properly rebuilt to the original engine that have been rebuilt to original rebuild. It is noted that the chassis configuration prior to the testing. In specifications as the retrofit/rebuild testing data presented demonstrates a response, ECS has provided additional requirements do not apply until the 37% to 42% reduction in the case where documentation that the piston rings, operator rebuilds an engine. DDC agreed the engine was rebuilt. Based on these cylinder liners and injectors were that under Program 2 operators could levels of reduction, it is apparent there replaced at the time of rebuild and that conceivably install certified add-on should be ample margin between the in- the engine was rebuilt to standard equipment without rebuilding the base use emissions of an engine that the specifications. The failure to include engine and use the certified emission operator finds is not in need of a rebuild this in the original notification materials level in their fleet averaging, but to reasonably project that the levels was an oversight. With regard to certified emission expressed concerns that the engine may stated in Table A can be met. have worn cylinders or fuel injection levels, DDC commented that the components in need of rebuild and, as DDC questioned reported reductions proposed certification levels do not a result, the engine out PM emissions in the non-volatile PM fraction with the represent a full 25% reduction. For may be high. DDC stated that engine OCM, noting that it is commonly example, for the 1991 6V92TA DDEC wear conditions would create difficulty accepted that oxidation catalysts are engine codes 3C and 4C, the original in achieving the certification level when effective in oxidizing volatile certification testing yielded PM applying the OCM to an engine which particulate, but have little effect on the emission levels of 0.25 and 0.22 g/bhp- has not been rebuilt. non-volatile component. In response, hr, respectively, and the proposed DDC’s claim that program ECS explains that effective diesel certification level of 0.23 g/bhp-hr given requirements do not apply until an oxidation catalysts will have some in Table A represents only a 8% operator rebuilds an engine concerns activity towards reduction of the non- reduction on average from the original compliance programs. Operators volatile or insoluble portion of diesel certification test levels. choosing to comply with Program 1 are particulate. This activity allows the In response, the pre-rebuild levels not required to take any action until an catalyst to clean itself from carbon listed in section 85.1403 (c)(1)(iii)(A) affected engine is rebuilt or replaced. build-up and prevents catalyst fouling, were determined by EPA based on However, operators choosing to comply particulate build-up and eventual certification results or engineering data with Program 2 must ensure their fleet plugging of the substrate. ECS also and judgement. In Table A, of today’s is equal to or less than their target fleet stated that it is important to recognize notice, ECS has listed the PM levels to level at all times. Thus, program that, in the measurements taken, the which it is certifying for listed models requirements apply continuously to volatile organic fraction and non- and years. In a number of instances the Program 2 operators. In addition, if an volatile organic fractions were made certification levels shown represent a operator desires to be able to change using the direct filter injection gas 25% reduction from the pre-rebuild between programs, the regulations chromatography analysis DFI/GC levels that were listed in section require that both programs be complied technique developed by Southwest 85.1403(c)(1)(iii)(A) or the regulations. with prior to the switch. Research Institute. Using this procedure In other instances, the number reflects While it is true that Program 1 some small amount of high molecular a 25% reduction from the level that was requirements become effective when the weight solubles that did not volatize certified by DDC during new engine engine is rebuilt, EPA encourages the may exist in the unvolatized particulate certification. installation of certified equipment prior sample which would account for the In the case of the 1991 6V92TA DDEC to the time it is required under the reduction seen. ECS stated that since II 4C engine configuration, the new regulations in accordance with the diesel engine oxidation catalysts all engine certification testing by DDC manufacturer’s instructions. operate on the same basic principle, the yielded a PM emission level of 0.22 g/ In regard to DDCs’ concern that points being made relative to volatile vs. bhp-hr. However, DDC certified the engine wear needs to be evaluated prior non-volatile components of urban bus engine to a family emission level (FEL) Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 749 of 0.30 g/bhp-hr. The certification level be distributed to operators who certification should not be granted for of 0.23 g/bhp-hr PM provides for more purchase the kit. all engines. Unfortunately, while than a 25% reduction from the original DDC commented that EPA should Engelhard raised some interesting DDC certification level or FEL for this seek assurances that the certified questions in this area, it did not provide engine and from the pre-rebuild level of hardware will be available for all engine any data or information on catalyst section 85.1403(c). In previous urban bus combinations. ECS has indicated it efficiency as it relates to different bus retrofit/rebuild certifications, EPA has completed design work on the temperatures that could be used to has based certification on the FEL majority of converter mufflers required substantiate its claim. At this point, EPA which the original manufacturer for this market. If any specific design does not have information which would certified to meet in-use. In fact, the ECS should be encountered for which a lead it to conclude that the ECS catalyst certification levels for the models listed converter muffler cannot be provided would not be able to provide the 25% are identical to those for which which will meet the performance reduction on the models it has oxidation catalyst kits have been criterion, it will be reported to EPA. identified. However, it is noted that in certified to date. In declaring a FEL, the This coupled with the fact that other testing the 1991 6V92TA DDEC II engine manufacturer states the emission companies have already certified engine, ECS provides information that level it will achieve in-use. That is to equipment for the engines covered the OCM reduces emissions by 26% on say, even though the certification test under this application should provide an engine where the temperature level is determined, the engine adequate coverage of the marketplace. reached a maximum of 320 degrees manufacturer declares a different Engelhard commented that because Centigrade. These results address the emission level that it can meet in-use. thermal insulation was required on the concern relative to the ability of the Because the urban bus retrofit/rebuild pre-catalyst exhaust on testing OCM to reduce PM emissions on program applies to in-use buses, and performed on the 6V92TA DDEC II engines that operate at the lower end of since the rebuild certifier is certifying engine, insulation should be required on the temperature spectrum. In regard to that a rebuilt engine with the retrofit all pre-catalyst components for ECS the issue of differing emission rates, equipment will meet the rebuild converter mufflers to be covered by EPA needs information to conclusively certification level during the warranty certification. In response, ECS explained deal with this on an industry-wide basis period, it makes sense to apply the in- that no insulation was used during the and EPA welcomes such information use certification level or FEL as a basis chassis tests performed on the 6V71 from the public and industry. for the reduction. To require certifiers of engine for which PM reductions were demonstrated. Insulation of the exhaust DDC commented that certification of urban bus retrofit/rebuild equipment to the ECS equipment should not cause reduce emissions from an initial level system is not necessary for OCM installation on 6V71, 6V92 and 6L71 DDC to have additional liability. DDC that the original manufacturer did not mechanical engine families as the cited language in the preamble to the use during the original certification exhaust temperatures are sufficient for final rule published in the Federal would not be reasonable. As stated, EPA proper unit function. For the engine Register on April 21, 1993, page 21381. used the FEL as a basis for the 25% dynamometer testing performed on the DDC’s concern was centered around the reduction in previous decisions. EPA 6V92TA DDEC II engine, the entire following statement, ‘‘* * * However, if does not believe it would be reasonable exhaust system was insulated. ECS an engine manufacturer supplies to change the basis for the 25% subsequently performed additional retrofit/rebuild equipment, it is reduction as DDC has requested. testing which indicates that the responsible for the emissions DDC noted that in order to ensure temperature loss between the performance of the equipment.’’ DDC optimum engine performance, turbocharger and converter muffler is suggested that it was EPA’s intent to emissions durability and fuel economy, insignificant and that insulation on the make engine manufacturers accept DDC specifies maximum exhaust back piping between the turbocharger outlet additional liability for rebuild hardware pressure limits for all DDC engines. DDC and the converter muffler is not needed. which they sell and which is noted that there was a small However, ECS has determined that the subsequently used in a rebuild which backpressure increase during testing actual converter muffler must be has been approved under the program. and questioned whether the catalyst insulated in order to maintain minimum The statement simply means that if the used in testing had been aged prior to catalyst temperature for the DDEC II engine manufacturer supplies retrofit the test. DDC also noted that the engine. Accordingly, ECS has designed equipment as part of a certified rebuild instructions to be given to operators did all converter mufflers for use on these kit (such as the DDC certified upgrade not include backpressure specifications engines to include either insulation kit) then the manufacturer is responsible or procedures for checking backpressure located within the muffler shell or via for the warranties associated with the after the catalyst is installed. ECS has an external wrap/blanket over the retrofit/rebuild regulations. If, on the stated that careful attention will be paid muffler casing. other hand, the manufacturer sells to optimizing the exhaust backpressure Engelhard raised a concern based on equipment for rebuild through its to a level comparable to the original the different exhaust temperature normal sales process, and such sale is muffler. The catalyst used during testing profiles and engine out emissions that not part of a certified kit with which the was aged or degreened to provide exist relative to engines that are manufacturer is affiliated, the representative in-use performance. ECS naturally aspirated, turbo charged or manufacturer is not liable for equipment stated that it does not anticipate that turbo-charged after-cooled engines. performance beyond its normal liability. checking the backpressure should be Engelhard questioned whether an That is to say, for equipment not sold required under normal circumstances. engine that achieves a 25% reduction on by the manufacturer to be included in However, the converter mufflers a naturally aspirated engine could a certified kit under the retrofit/rebuild certified in this notice and produced by achieve the same on a turbo-charged program, the manufacturer is not ECS include a port to allow in-use engine. Engelhard stated that without a responsible for the defect warranty or backpressure checks and ECS has demonstration that 25% reduction in the performance warranty that is developed a procedure for checking and total PM could be obtained on all associated with the retrofit/rebuild cleaning the converter muffler that will versions of the 6V71, engine program. The retrofit/rebuild equipment 750 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices certifier, however, is responsible for and components used in the rebuilding FEDERAL COMMUNICATIONS these warranties. of urban bus engines. COMMISSION III. Certification Approval Richard D. Wilson, Acting Assistant Administrator for Air and Notice of Public Information The Agency has reviewed this Radiation. Collections Being Reviewed by the notification, along with comments [FR Doc. 97–41 Filed 1–3–97; 8:45 am] Federal Communications Commission received from interested parties, and BILLING CODE 6560±50±P finds that the equipment described in December 24, 1996. this notification of intent to certify: SUMMARY: The Federal Communications (1) Reduces particulate matter exhaust [FRL±5673±4] Commission, as part of its continuing effort to reduce paperwork burden emissions by at least 25 percent, Notice of Federal Advisory Committee without causing the applicable engine invites the general public and other Meeting, ORD Board of Scientific Federal agencies to take this families to exceed other exhaust Counselors emissions standards; opportunity to comment on the following information collection, as (2) Will not cause an unreasonable AGENCY: Environmental Protection required by the Paperwork Reduction risk to the public health, welfare, or Agency (EPA). Act of 1995, Public Law 104–13. An safety; ACTION: Notice of meeting. agency may not conduct or sponsor a (3) Will not result in any additional collection of information unless it range of parameter adjustability; and, SUMMARY: Pursuant to the Federal Advisory Committee Act, Public Law displays a currently valid control (4) Meets other requirements 92–463, as amended (5 U.S.C., App. 2), number. No person shall be subject to necessary for certification under the notice is hereby given that the any penalty for failing to comply with Retrofit/Rebuild Requirements for 1993 Environmental Protection Agency a collection of information subject to the and Earlier Model Year Urban Buses (40 (EPA), Office of Research and Paperwork Reduction Act (PRA) that CFR Sections 85.1401 through 85.1415). Development’s (ORD), Board of does not display a valid control number. The Agency hereby certifies this Scientific Counselors (BOSC), will hold Comments are requested concerning (a) equipment for use in the urban bus its Executive Committee Meeting, whether the proposed collection of retrofit/rebuild program as discussed January 13–14, 1997, at the Ritz-Carlton information is necessary for the proper below in section IV. Hotel, 1250 South Hayes Street, performance of the functions of the IV. Operator Requirements and Arlington, Virginia. On Monday, the Commission, including whether the Responsibilities meeting will begin at 1:00 p.m. and will information shall have practical utility; recess at 5:00 p.m., and on Tuesday, (b) the accuracy of the Commission’s This equipment may be used January 14, the meeting will begin at burden estimate; (c) ways to enhance immediately by urban bus operators 8:00 a.m. and will adjourn at 4:30 p.m. the quality, utility, and clarify of the who have chosen to comply with either All times noted are Eastern Time. information collected; and (d) ways to Program 1 or Program 2, but must be Agenda items include, but are not minimize the burden of the collection of properly applied. Currently, operators limited to, BOSC Operating Principles, information on the respondents, having certain engines who have chosen Laboratory Peer Review Discussion, including the use of automated to comply with Program 1 must use ORD Research Plan Evaluation: Methods collection techniques or other forms of equipment certified to reduce PM Development and Process and information technology. emissions by 25 percent or more when Procedures for Formulating Research those engines are rebuilt or replaced. DATES: Persons wishing to comment on Plans. Anyone desiring a draft BOSC Today’s Federal Register notice certifies this information collection should agenda may fax their request to Shirley the above-described ECS equipment as submit comments March 7, 1997. R. Hamilton (202) 260–0929. The meeting that PM reduction requirement. ADDRESSES: Direct all comments to meeting is open to the public. Any Only equipment that has been certified Dorothy Conway, Federal member of the public wishing to make to reduce PM by 25% or more may be Communications Commission, Room comments at the meeting, should used by operators with applicable 234, 1919 M St., N.W., Washington, DC contact Shirley Hamilton, Designated engines who have chosen Program 1. 20554 or via internet to Federal Official, Office of Research and Urban bus operators who choose to [email protected]. Development (8701), 401 M Street, SW., comply with Program 1 may use the FOR FURTHER INFORMATION CONTACT: For Washington, DC 20460; by telephone at certified ECS equipment (or other additional information or copies of the (202) 260–0468. In general, each certified equipment) until such time as information collections contact Dorothy individual making an oral presentation the 0.10 g/bhp-hr standard is triggered Conway at 202–418–0217 or via internet will be limited to a total time of three for the applicable engines. at [email protected]. minutes. Operators who choose to comply with SUPPLEMENTARY INFORMATION: Program 2 and use the ECS equipment FOR FURTHER INFORMATION CONTACT: Shirley R. Hamilton, Designated Federal OMB Approval No.: 3060–0599. will use the appropriate PM emission Official, U.S. Environmental Protection Title: Implementation of Sections 3(n) level from Table A when calculating Agency, Office of Research and and 332 of the Communications Act. their fleet level attained (FLA). Development, NCERQA (MC8701), 401 Form No.: N/A. As stated in the program regulations M Street, SW., Washington, DC 20460, Type of Review: Revision of an (40 CFR 85.1400 through 85.1415), 202–260–0468. existing collection. operators are required to maintain Respondents: State or local records for each engine in their fleet to Dated: December 24, 1996. governments; Businesses or other for- demonstrate that they are in compliance Joseph K. Alexander, profit; Small businesses or with the program requirements Acting Assistant Administrator for Research organizations. beginning January 1, 1995. These and Development. Number of Respondents: 85. records include purchase records, [FR Doc. 97–104 Filed 1–3–97; 8:45 am] Estimated Time Per Response: 1.66 receipts, and part numbers for the parts BILLING CODE 6560±50±M hours. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 751

Total Annual Burden: 141 hours. take this opportunity to comment on the time allowed by this notice, you should Needs and Uses: Collection of following proposed and/or continuing advise the contact listed below as soon information complies with creation of information collections, as required by as possible. regulatory symmetry among similar the Paperwork Reduction Act of 1995, ADDRESSES: Direct all comments to mobile services. The information is Public Law 104–13. An agency may not Dorothy Conway, Federal necessary to ensure that commercial conduct or sponsor a collection of Communications, Room 234, 1919 M mobile radio service is made available information unless it displays a St., N.W., Washington, DC 20554 or via to the public at reasonable rates and on currently valid control number. No internet to [email protected] and resonable terms in a competitive person shall be subject to any penalty Timothy Fain, OMB Desk Officer, 10236 marketplace. The information is used by for failing to comply with a collection NEOB 725 17th Street, N.W., Commission staff in carrying out its of information subject to the Paperwork Washington, DC 20503 or duties under the Communications Act. Reduction Act (PRA) that does not [email protected]. This collection is being revised to display a valid control number. FOR FURTHER INFORMATION CONTACT: eliminate a one-time collection Comments are requested concerning (a) For requirement and a collection whether the proposed collection of additional information or copies of the requirement that must have been filed information is necessary for the proper information collections contact Dorothy by August 10, 1994. performance of the functions of the Conway at 202–418–0217 or via internet at [email protected]. Federal Communications Commission. Commission, including whether the SUPPLEMENTARY INFORMATION: William F. Caton, information shall have practical utility; (b) the accuracy of the Commissions OMB Approval No.: 3060–0710. Acting Secretary. burden estimates; (c) ways to enhance Title: Policy and Rules Concerning the [FR Doc. 97–96 Filed 1–3–97; 8:45 am] the quality, utility, and clarity of the Implementation of the Local BILLING CODE 6712±01±P information collected and (d) ways to Competition Provisions in the minimize the burden of the collection of Telecommunications Act of 1996—CC information on the respondents, Docket 96–98 First Report and Order. Notice of Public Information including the use of automated Form No.: N/A. Collections Submitted to OMB for collection techniques or other forms of Review and Approval Type of Review: Extension of a information technology. currently approved collection. December 27, 1996. DATES: Written comments should be Respondents: Businesses or other for SUMMARY: The Federal Communications, submitted on or before February 5, 1997. profit; State, Local and Tribal as part of its continuing effort to reduce If you anticipate that you will be Governments. paperwork burden invites the general submitting comments, but find it Number of and Estimated Time for public and other Federal agencies to difficult to do so within the period of Response are as follows:

Type of information submitted Responses Time per response Total burden a. Submission of Information Necessary to Reach Agreement ...... 255 100 hours ...... 25,500 hours. b1. Submission of Agreements to the State Commission (new) ...... 255 1 hour ...... 255 hours. b2. Submission of Agreements to the State Commission (pre-existing Class A) ...... 80 1 hour ...... 80 hours. b3. Submission of Agreements to the State Commission (Non Class A) ...... 500 1 hour ...... 500 hours. c. Burden of Proof Regarding Interconnection and Access to Unbundled Network 1,000 25 hours ...... 25,000 hours. Elements. d. Collocation ...... 1,000 25 hours ...... 25,000 hours. e. Notification of the State Commission ...... 30 1 hour ...... 30 hours. f. Rural and Small Carriers ...... 500 10 hours ...... 5,000 hours. g1. Pole Attachment Modifications ...... 1,050,000 30 minutes ...... 525,000 hours. g2. Maintaince Modification Notifications ...... 12,250 30 minutes ...... 6,125 hours. h1. Pole Attachment Requests ...... 2,500 1 hour ...... 2,500 hours. h2. Pole Attachment Denials ...... 250 3 hours ...... 750 hours. i1. Dispute Resolution Complainants ...... 250 4±25 hours ...... 7,250 hours. j. Economic Cost Studies to Determine Rates for Interconnection ...... 100 1,440 hours ...... 144,000 hours. k. Cost Studies on Avoidable Costs to Determine Resale Discounts ...... 200 480 hours ...... 96,000 hours. l. Economic Cost Studies to Determine Reciprocal Rates ...... 100 1,440 hours ...... 144,000 hours. m. Measurement of Traffic ...... 550 700 hours ...... 385,000 hours. n. File Required for Arbitration ...... 200 4 hours ...... 800 hours. o. Determination of Rates for Interconnection . . . State Commission Review ...... 50 2,160 hours ...... 108,000 hours. p. Determination of Resale Discount Percentage . . . State Commission Review .... 50 640 hours ...... 32,000 hours. q. Petition for Incumbent LEC Status ...... 30 1 hour ...... 30 hours. r. Use of Proxies by State . . . Articulating Reasons for Choice ...... 50 120 hours ...... 6,000 hours. s. Preparation of Forward-looking Economic Cost Studies to Establish Rates for 50 720 hours ...... 36,000 hours. Transport.

Total Annual Burden: 1,574,820 Specifically, the Order required rates that are cost based and just and hours. incumbent local exchange carrier reasonable; and that they provide access Needs and Uses: CC Docket 96–98, (LEC’s) to offer interconnection, to rights-of way as well as establish First Report and Order, the Commission unbundled network elements, transport reciprocal compensation arrangements adopts rules and regulations to and termination, and wholesale rates for for the transport and termination of implement parts of the Sections 251 and retail services to new entrants; that telecommunications traffic. 252 that affect local competition. incumbent LECs’ price such services at 752 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Federal Communications Commission. all regulations and guidelines financial and operational weaknesses or William F. Caton, implementing common statutory or adverse trends. Acting Secretary. supervisory policies. Section 303(a)(1) The UFIRS also serves as a useful [FR Doc. 97–97 Filed 1–3–97; 8:45 am] of the Riegle Act requires the FDIC to vehicle for identifying problem or deteriorating financial institutions, as BILLING CODE 6712±01±P review its own regulations and written policies and to streamline those well as for categorizing institutions with regulations and policies where possible. deficiencies in particular component areas. Further, the rating system assists FEDERAL DEPOSIT INSURANCE To fulfill the section 303 mandate, the Congress in following safety and CORPORATION FDIC has been reviewing on an interagency basis and internally, its soundness trends and in assessing the Uniform Financial Institutions Rating regulations and written policies to aggregate strength and soundness of the System identify those areas where streamlining financial industry. As such, the UFIRS or updating is appropriate. As a result assists the agencies in fulfilling their AGENCY: Federal Deposit Insurance of those reviews, the FDIC is adopting collective mission of maintaining Corporation. the updated UFIRS effective for stability and public confidence in the ACTION: Notice of adoption of policy examination commenced on or after nation’s financial system. statement. January 1, 1997. Overview The text of the policy statement SUMMARY: The Board of Directors of the Under the UFIRS, each financial Federal Deposit Insurance Corporation follows: institution is assigned a composite (FDIC) (Board) has considered the Uniform Financial Institutions Rating rating based on an evaluation and rating proposed revisions to the Uniform System of six essential components of an Financial Institutions Rating System institution’s financial condition and Introduction (UFIRS) as approved by the Federal operations. These component factors Financial Institutions Examination The Uniform Financial Institutions address the adequacy of capital, the Council (FFIEC) on December 9, 1996. Rating System (UFIRS) was adopted by quality of assets, the capability of On December 20, 1996, the Board the Federal Financial Institutions management, the quality and level of adopted the updated UFIRS as a policy Examination Council (FFIEC) on earnings, the adequacy of liquidity, and statement of the FDIC and rescinded the November 13, 1979. Over the years, the the sensitivity to market risk. 1979 statement of policy published in UFIRS has proven to be an effective Evaluations of the components take into the FDIC’s regulatory service (FDIC Law, internal supervisory tool for evaluating consideration the institution’s size and Regulations and Related Acts) at page the soundness of financial institutions sophistication, the nature and 5079. on a uniform basis and for identifying complexity of its activities, and its risk EFFECTIVE DATE: January 1, 1997. those institutions requiring special profile. Composite and component ratings are FOR FURTHER INFORMATION CONTACT: attention or concern. A number of changes, however, have occurred in the assigned based on a 1 to 5 numerical Daniel M. Gautsch, Examination scale. A 1 indicates the highest rating, Specialist, (202) 898–6912, Office of banking industry and in the Federal supervisory agencies’ policies and strongest performance and risk Policy, Division of Supervision. For management practices, and least degree legal issues, Linda L. Stamp, Counsel, procedures which have prompted a review and revision of the 1979 rating of supervisory concern, while a 5 (202) 898–7310, Supervision and indicates the lowest rating, weakest Legislation Branch, Federal Deposit system. The revisions to UFIRS include the addition of a sixth component performance, inadequate risk Insurance Corporation, 550 17th Street management practices and, therefore, NW, Washington, D.C. 20429. addressing sensitivity to market risks, the explicit reference to the quality of the highest degree of supervisory SUPPLEMENTARY INFORMATION: The FDIC risk management processes in the concern. is a Federal financial institutions The composite rating generally bears management component, and the regulatory agency under the Federal a close relationship to the component identification of risk elements within Financial Institutions Examination ratings assigned. However, the the composite and component rating Council Act of 1978. The FFIEC adopted composite rating is not derived by descriptions. an updated UFIRS after a notice and computing an arithmetic average of the request for comment was published in The revisions to UFIRS are not component ratings. Each component the Federal Register on July 18, 1996 at intended to add to the regulatory burden rating is based on a qualitative analysis 61 FR 37472. On December 9, 1996, the of institutions or require additional of the factors comprising that Task Force on Supervision of the FFIEC policies or processes. The revisions are component and its interrelationship approved under delegated authority the intended to promote and complement with the other components. When updated UFIRS to update the rating efficient examination processes. The assigning a composite rating, some system to address changes in the revisions have been made to update the components may be given more weight financial services industry and in rating system, while retaining the basic than others depending on the situation supervisory policies and procedures framework of the original rating system. at the institution. In general, assignment occurring since the rating system was The UFIRS takes into consideration of a composite rating may incorporate adopted in 1979. certain financial, managerial, and any factor that bears significantly on the Section 303(a)(2) of the Riegle compliance factors that are common to overall condition and soundness of the Community Development and all institutions. Under this system, the financial institution. Assigned Regulatory Improvement Act of 1994 (12 supervisory agencies endeavor to ensure composite and component ratings are U.S.C. 4803(a)) (Riegle Act) provides that all financial institutions are disclosed to the institution’s board of that the FDIC shall, consistent with the evaluated in a comprehensive and directors and senior management. principles of safety and soundness, uniform manner, and that supervisory The ability of management to respond statutory law and policy, and the public attention is appropriately focused on the to changing circumstances and to interest, work jointly to make uniform financial institutions exhibiting address the risks that may arise from Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 753 changing business conditions, or the adequacy of liquidity, and sensitivity to more severely than 4. Management may initiation of new activities or products, market risk. The rating scale ranges from lack the ability or willingness to is an important factor in evaluating a 1 to 5, with a rating of 1 indicating: the effectively address weaknesses within financial institution’s overall risk profile strongest performance and risk appropriate time frames. Financial and the level of supervisory attention management practices relative to the institutions in this group generally are warranted. For this reason, the institution’s size, complexity, and risk less capable of withstanding business management component is given special profile; and the level of least fluctuations and are more vulnerable to consideration when assigning a supervisory concern. A 5 rating outside influences than those composite rating. indicates: the most critically deficient institutions rated a composite 1 or 2. The ability of management to identify, level of performance; inadequate risk Additionally, these financial measure, monitor, and control the risks management practices relative to the institutions may be in significant of its operations is also taken into institution’s size, complexity, and risk noncompliance with laws and account when assigning each profile; and the greatest supervisory regulations. Risk management practices component rating. It is recognized, concern. The composite ratings are may be less than satisfactory relative to however, that appropriate management defined as follows: the institution’s size, complexity, and practices vary considerably among risk profile. These financial institutions financial institutions, depending on Composite 1 require more than normal supervision, their size, complexity, and risk profile. Financial institutions in this group which may include formal or informal For less complex institutions engaged are sound in every respect and generally enforcement actions. Failure appears solely in traditional banking activities have components rated 1 or 2. Any unlikely, however, given the overall and whose directors and senior weaknesses are minor and can be strength and financial capacity of these managers, in their respective roles, are handled in a routine manner by the institutions. actively involved in the oversight and board of directors and management. Composite 4 management of day-to-day operations, These financial institutions are the most relatively basic management systems capable of withstanding the vagaries of Financial institutions in this group and controls may be adequate. At more business conditions and are resistant to generally exhibit unsafe and unsound complex institutions, on the other hand, outside influences such as economic practices or conditions. There are detailed and formal management instability in their trade area. These serious financial or managerial systems and controls are needed to financial institutions are in substantial deficiencies that result in unsatisfactory address their broader range of financial compliance with laws and regulations. performance. The problems range from activities and to provide senior As a result, these financial institutions severe to critically deficient. The managers and directors, in their exhibit the strongest performance and weaknesses and problems are not being respective roles, with the information risk management practices relative to satisfactorily addressed or resolved by they need to monitor and direct day-to- the institution’s size, complexity, and the board of directors and management. day activities. All institutions are risk profile, and give no cause for Financial institutions in this group expected to properly manage their risks. supervisory concern. generally are not capable of For less complex institutions engaging withstanding business fluctuations. Composite 2 in less sophisticated risk taking There may be significant activities, detailed or highly formalized Financial institutions in this group noncompliance with laws and management systems and controls are are fundamentally sound. For a regulations. Risk management practices not required to receive strong or financial institution to receive this are generally unacceptable relative to satisfactory component or composite rating, generally no component rating the institution’s size, complexity, and ratings. should be more severe than 3. Only risk profile. Close supervisory attention Foreign Branch and specialty moderate weaknesses are present and is required, which means, in most cases, examination findings and the ratings are well within the board of directors’ formal enforcement action is necessary assigned to those areas are taken into and management’s capabilities and to address the problems. Institutions in consideration, as appropriate, when willingness to correct. These financial this group pose a risk to the deposit assigning component and composite institutions are stable and are capable of insurance fund. Failure is a distinct ratings under UFIRS. The specialty withstanding business fluctuations. possibility if the problems and examination areas include: Compliance, These financial institutions are in weaknesses are not satisfactorily Community Reinvestment, Government substantial compliance with laws and addressed and resolved. regulations. Overall risk management Security Dealers, Information Systems, Composite 5 Municipal Security Dealers, Transfer practices are satisfactory relative to the Agent, and Trust. institution’s size, complexity, and risk Financial institutions in this group The following two sections contain profile. There are no material exhibit extremely unsafe and unsound the composite rating definitions, and the supervisory concerns and, as a result, practices or conditions; exhibit a descriptions and definitions for the six the supervisory response is informal critically deficient performance; often component ratings. and limited. contain inadequate risk management practices relative to the institution’s Composite Ratings Composite 3 size, complexity, and risk profile; and Composite ratings are based on a Financial institutions in this group are of the greatest supervisory concern. careful evaluation of an institution’s exhibit some degree of supervisory The volume and severity of problems managerial, operational, financial, and concern in one or more of the are beyond management’s ability or compliance performance. The six key component areas. These financial willingness to control or correct. components used to assess an institutions exhibit a combination of Immediate outside financial or other institution’s financial condition and weaknesses that may range from assistance is needed in order for the operations are: capital adequacy, asset moderate to severe; however, the financial institution to be viable. quality, management capability, magnitude of the deficiencies generally Ongoing supervisory attention is earnings quantity and quality, the will not cause a component to be rated necessary. Institutions in this group 754 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices pose a significant risk to the deposit Ratings transactions, such as unfunded insurance fund and failure is highly 1 A rating of 1 indicates a strong commitments, credit derivatives, probable. capital level relative to the institution’s commercial and standby letters of credit, and lines of credit. Component Ratings risk profile. • 2 A rating of 2 indicates a The diversification and quality of Each of the component rating satisfactory capital level relative to the the loan and investment portfolios. • The extent of securities descriptions is divided into three financial institution’s risk profile. underwriting activities and exposure to sections: an introductory paragraph; a 3 A rating of 3 indicates a less than counterparties in trading activities. list of the principal evaluation factors satisfactory level of capital that does not • The existence of asset that relate to that component; and a fully support the institution’s risk concentrations. brief description of each numerical profile. The rating indicates a need for rating for that component. Some of the • The adequacy of loan and improvement, even if the institution’s investment policies, procedures, and evaluation factors are reiterated under capital level exceeds minimum one or more of the other components to practices. regulatory and statutory requirements. • The ability of management to reinforce the interrelationship between 4 A rating of 4 indicates a deficient components. The listing of evaluation properly administer its assets, including level of capital. In light of the the timely identification and collection factors for each component rating is in institution’s risk profile, viability of the no particular order of importance. of problem assets. institution may be threatened. • The adequacy of internal controls Capital Adequacy Assistance from shareholders or other and management information systems. external sources of financial support • A financial institution is expected to The volume and nature of credit may be required. maintain capital commensurate with the documentation exceptions. 5 A rating of 5 indicates a critically nature and extent of risks to the deficient level of capital such that the Ratings institution and the ability of institution’s viability is threatened. management to identify, measure, 1 A rating of 1 indicates strong asset Immediate assistance from shareholders monitor, and control these risks. The quality and credit administration or other external sources of financial effect of credit, market, and other risks practices. Identified weaknesses are support is required. on the institution’s financial condition minor in nature and risk exposure is should be considered when evaluating Asset Quality modest in relation to capital protection the adequacy of capital. The types and and management’s abilities. Asset The asset quality rating reflects the quality in such institutions is of quantity of risk inherent in an quantity of existing and potential credit institution’s activities will determine minimal supervisory concern. risk associated with the loan and 2 A rating of 2 indicates satisfactory the extent to which it may be necessary investment portfolios, other real estate to maintain capital at levels above asset quality and credit administration owned, and other assets, as well as off- practices. The level and severity of required regulatory minimums to balance sheet transactions. The ability properly reflect the potentially adverse classifications and other weaknesses of management to identify, measure, warrant a limited level of supervisory consequences that these risks may have monitor, and control credit risk is also on the institution’s capital. attention. Risk exposure is reflected here. The evaluation of asset commensurate with capital protection The capital adequacy of an institution quality should consider the adequacy of and management’s abilities. is rated based upon, but not limited to, the allowance for loan and lease losses 3 A rating of 3 is assigned when an assessment of the following and weigh the exposure to counterparty, asset quality or credit administration evaluation factors: issuer, or borrower default under actual practices are less than satisfactory. • The level and quality of capital and or implied contractual agreements. All Trends may be stable or indicate the overall financial condition of the other risks that may affect the value or deterioration in asset quality or an institution. marketability of an institution’s assets, • increase in risk exposure. The level and The ability of management to including, but not limited to, operating, severity of classified assets, other address emerging needs for additional market, reputation, strategic, or weaknesses, and risks require an capital. compliance risks, should also be • elevated level of supervisory concern. The nature, trend, and volume of considered. There is generally a need to improve problem assets, and the adequacy of The asset quality of a financial credit administration and risk allowances for loan and lease losses and institution is rated based upon, but not management practices. other valuation reserves. limited to, an assessment of the 4 A rating of 4 is assigned to • Balance sheet composition, following evaluation factors: financial institutions with deficient including the nature and amount of • The adequacy of underwriting asset quality or credit administration intangible assets, market risk, standards, soundness of credit practices. The levels of risk and problem concentration risk, and risks associated administration practices, and assets are significant, inadequately with nontraditional activities. appropriateness of risk identification controlled, and subject the financial • Risk exposure represented by off- practices. institution to potential losses that, if left balance sheet activities. • The level, distribution, severity, unchecked, may threaten its viability. • The quality and strength of and trend of problem, classified, 5 A rating of 5 represents critically earnings, and the reasonableness of nonaccrual, restructured, delinquent, deficient asset quality or credit dividends. and nonperforming assets for both on- administration practices that present an • Prospects and plans for growth, as and off-balance sheet transactions. imminent threat to the institution’s well as past experience in managing • The adequacy of the allowance for viability. growth. loan and lease losses and other asset • Access to capital markets and other valuation reserves. Management sources of capital, including support • The credit risk arising from or The capability of the board of provided by a parent holding company. reduced by off-balance sheet directors and management, in their Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 755 respective roles, to identify, measure, reporting; safeguard assets; and ensure strengthening management or the board monitor, and control the risks of an compliance with laws, regulations, and may be necessary. institution’s activities and to ensure a internal policies. 5 A rating of 5 indicates critically financial institution’s safe, sound, and • Compliance with laws and deficient management and board efficient operation in compliance with regulations. performance or risk management applicable laws and regulations is • Responsiveness to practices. Management and the board of reflected in this rating. Generally, recommendations from auditors and directors have not demonstrated the directors need not be actively involved supervisory authorities. ability to correct problems and in day-to-day operations; however, they • Management depth and succession. implement appropriate risk must provide clear guidance regarding • The extent that the board of management practices. Problems and acceptable risk exposure levels and directors and management is affected significant risks are inadequately ensure that appropriate policies, by, or susceptible to, dominant identified, measured, monitored, or procedures, and practices have been influence or concentration of authority. controlled and now threaten the • established. Senior management is Reasonableness of compensation continued viability of the institution. responsible for developing and policies and avoidance of self-dealing. • Replacing or strengthening management implementing policies, procedures, and Demonstrated willingness to serve or the board of directors is necessary. practices that translate the board’s goals, the legitimate banking needs of the objectives, and risk limits into prudent community. Earnings • operating standards. The overall performance of the This rating reflects not only the Depending on the nature and scope of institution and its risk profile. quantity and trend of earnings, but also an institution’s activities, management Ratings factors that may affect the sustainability practices may need to address some or or quality of earnings. The quantity as all of the following risks: credit, market, 1 A rating of 1 indicates strong well as the quality of earnings can be operating or transaction, reputation, performance by management and the affected by excessive or inadequately strategic, compliance, legal, liquidity, board of directors and strong risk managed credit risk that may result in and other risks. Sound management management practices relative to the loan losses and require additions to the practices are demonstrated by: active institution’s size, complexity, and risk allowance for loan and lease losses, or oversight by the board of directors and profile. All significant risks are by high levels of market risk that may management; competent personnel; consistently and effectively identified, unduly expose an institution’s earnings adequate policies, processes, and measured, monitored, and controlled. to volatility in interest rates. The quality controls taking into consideration the Management and the board have of earnings may also be diminished by size and sophistication of the demonstrated the ability to promptly undue reliance on extraordinary gains, institution; maintenance of an and successfully address existing and nonrecurring events, or favorable tax appropriate audit program and internal potential problems and risks. effects. Future earnings may be 2 A rating of 2 indicates satisfactory control environment; and effective risk adversely affected by an inability to management and board performance monitoring and management forecast or control funding and and risk management practices relative information systems. This rating should operating expenses, improperly to the institution’s size, complexity, and reflect the board’s and management’s executed or ill-advised business risk profile. Minor weaknesses may ability as it applies to all aspects of strategies, or poorly managed or exist, but are not material to the safety banking operations as well as other uncontrolled exposure to other risks. financial service activities in which the and soundness of the institution and are The rating of an institution’s earnings institution is involved. being addressed. In general, significant is based upon, but not limited to, an The capability and performance of risks and problems are effectively assessment of the following evaluation management and the board of directors identified, measured, monitored, and factors: is rated based upon, but not limited to, controlled. • The level of earnings, including an assessment of the following 3 A rating of 3 indicates trends and stability. evaluation factors: management and board performance • The ability to provide for adequate • The level and quality of oversight that need improvement or risk capital through retained earnings. and support of all institution activities management practices that are less than • The quality and sources of earnings. by the board of directors and satisfactory given the nature of the • The level of expenses in relation to management. institution’s activities. The capabilities operations. • The ability of the board of directors of management or the board of directors • The adequacy of the budgeting and management, in their respective may be insufficient for the type, size, or systems, forecasting processes, and roles, to plan for, and respond to, risks condition of the institution. Problems management information systems in that may arise from changing business and significant risks may be general. conditions or the initiation of new inadequately identified, measured, • The adequacy of provisions to activities or products. monitored, or controlled. maintain the allowance for loan and • The adequacy of, and conformance 4 A rating of 4 indicates deficient lease losses and other valuation with, appropriate internal policies and management and board performance or allowance accounts. controls addressing the operations and risk management practices that are • The earnings exposure to market risks of significant activities. inadequate considering the nature of an risk such as interest rate, foreign • The accuracy, timeliness, and institution’s activities. The level of exchange, and price risks. effectiveness of management problems and risk exposure is excessive. information and risk monitoring Problems and significant risks are Ratings systems appropriate for the institution’s inadequately identified, measured, 1 A rating of 1 indicates earnings size, complexity, and risk profile. monitored, or controlled and require that are strong. Earnings are more than • The adequacy of audits and internal immediate action by the board and sufficient to support operations and controls to: promote effective operations management to preserve the soundness maintain adequate capital and and reliable financial and regulatory of the institution. Replacing or allowance levels after consideration is 756 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices given to asset quality, growth, and other times of financial stress or adverse maturing obligations or other liquidity factors affecting the quality, quantity, changes in market conditions. needs. and trend of earnings. Liquidity is rated based upon, but not 2 A rating of 2 indicates earnings limited to, an assessment of the Sensitivity to Market Risk that are satisfactory. Earnings are following evaluation factors: The sensitivity to market risk sufficient to support operations and • The adequacy of liquidity sources component reflects the degree to which maintain adequate capital and compared to present and future needs changes in interest rates, foreign allowance levels after consideration is and the ability of the institution to meet exchange rates, commodity prices, or given to asset quality, growth, and other liquidity needs without adversely equity prices can adversely affect a factors affecting the quality, quantity, affecting its operations or condition. financial institution’s earnings or and trend of earnings. Earnings that are • The availability of assets readily economic capital. When evaluating this relatively static, or even experiencing a convertible to cash without undue loss. component, consideration should be slight decline, may receive a 2 rating • Access to money markets and other given to: management’s ability to provided the institution’s level of sources of funding. identify, measure, monitor, and control earnings is adequate in view of the • The level of diversification of market risk; the institution’s size; the assessment factors listed above. funding sources, both on- and off- nature and complexity of its activities; 3 A rating of 3 indicates earnings balance sheet. and the adequacy of its capital and that need to be improved. Earnings may • The degree of reliance on short- earnings in relation to its level of market not fully support operations and term, volatile sources of funds, risk exposure. provide for the accretion of capital and including borrowings and brokered For many institutions, the primary allowance levels in relation to the deposits, to fund longer term assets. source of market risk arises from institution’s overall condition, growth, • The trend and stability of deposits. nontrading positions and their and other factors affecting the quality, • The ability to securitize and sell sensitivity to changes in interest rates. quantity, and trend of earnings. certain pools of assets. In some larger institutions, foreign 4 A rating of 4 indicates earnings • The capability of management to operations can be a significant source of that are deficient. Earnings are properly identify, measure, monitor, market risk. For some institutions, insufficient to support operations and and control the institution’s liquidity trading activities are a major source of maintain appropriate capital and position, including the effectiveness of market risk. allowance levels. Institutions so rated funds management strategies, liquidity Market risk is rated based upon, but may be characterized by erratic policies, management information not limited to, an assessment of the fluctuations in net income or net systems, and contingency funding following evaluation factors: interest margin, the development of plans. • The sensitivity of the financial significant negative trends, nominal or Ratings institution’s earnings or the economic unsustainable earnings, intermittent value of its capital to adverse changes in losses, or a substantive drop in earnings 1 A rating of 1 indicates strong interest rates, foreign exchange rates, from the previous years. liquidity levels and well-developed commodity prices, or equity prices. 5 A rating of 5 indicates earnings funds management practices. The • The ability of management to that are critically deficient. A financial institution has reliable access to identify, measure, monitor, and control institution with earnings rated 5 is sufficient sources of funds on favorable exposure to market risk given the experiencing losses that represent a terms to meet present and anticipated institution’s size, complexity, and risk distinct threat to its viability through liquidity needs. profile. the erosion of capital. 2 A rating of 2 indicates satisfactory • The nature and complexity of liquidity levels and funds management Liquidity interest rate risk exposure arising from practices. The institution has access to nontrading positions. In evaluating the adequacy of a sufficient sources of funds on acceptable • Where appropriate, the nature and financial institution’s liquidity position, terms to meet present and anticipated complexity of market risk exposure consideration should be given to the liquidity needs. Modest weaknesses arising from trading and foreign current level and prospective sources of may be evident in funds management operations. liquidity compared to funding needs, as practices. well as to the adequacy of funds 3 A rating of 3 indicates liquidity Ratings management practices relative to the levels or funds management practices in 1 A rating of 1 indicates that market institution’s size, complexity, and risk need of improvement. Institutions rated risk sensitivity is well controlled and profile. In general, funds management 3 may lack ready access to funds on that there is minimal potential that the practices should ensure that an reasonable terms or may evidence earnings performance or capital position institution is able to maintain a level of significant weaknesses in funds will be adversely affected. Risk liquidity sufficient to meet its financial management practices. management practices are strong for the obligations in a timely manner and to 4 A rating of 4 indicates deficient size, sophistication, and market risk fulfill the legitimate banking needs of its liquidity levels or inadequate funds accepted by the institution. The level of community. Practices should reflect the management practices. Institutions rated earnings and capital provide substantial ability of the institution to manage 4 may not have or be able to obtain a support for the degree of market risk unplanned changes in funding sources, sufficient volume of funds on taken by the institution. as well as react to changes in market reasonable terms to meet liquidity 2 A rating of 2 indicates that market conditions that affect the ability to needs. risk sensitivity is adequately controlled quickly liquidate assets with minimal 5 A rating of 5 indicates liquidity and that there is only moderate loss. In addition, funds management levels or funds management practices so potential that the earnings performance practices should ensure that liquidity is critically deficient that the continued or capital position will be adversely not maintained at a high cost, or viability of the institution is threatened. affected. Risk management practices are through undue reliance on funding Institutions rated 5 require immediate satisfactory for the size, sophistication, sources that may not be available in external financial assistance to meet and market risk accepted by the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 757 institution. The level of earnings and Parties: POL-Atlantic, Orient Overseas Dated: December 30, 1996. capital provide adequate support for the Container Line (UK) Ltd., Joseph C. Polking, degree of market risk taken by the Transportacion Maritima Mexicana, Secretary. institution. S.A. de C.V., Neptune Orient Lines Ltd., [FR Doc. 97–111 Filed 1–3–97; 8:45 am] 3 A rating of 3 indicates that control Hyundai Merchant Marine Co., Ltd., BILLING CODE 6730±01±M of market risk sensitivity needs P&O Containers Limited, Nippon Yusen improvement or that there is significant Kaisha, Tecomar S.A. de C.V., Hanjin potential that the earnings performance Shipping Co., Ltd., Atlantic Container Notice of Agreement(s) Filed or capital position will be adversely Line AB, Cho Yang Shipping Co. Ltd., affected. Risk management practices Sea-Land Service, Inc., A.P. Moller- The Commission hereby gives notice need to be improved given the size, Maersk Line, Nedlloyd Lijnen BV, of the filing of the following sophistication, and level of market risk Hapag Lloyd Ag, Mediterranean agreement(s) under the Shipping Act of accepted by the institution. The level of Shipping Co., S.A., DSR-Senator Lines. 1984. earnings and capital may not adequately Synopsis: The proposed modification, Interested parties can review or obtain support the degree of market risk taken which pertains to through intermodal copies of agreements at the Washington, by the institution. point rates, exempts service contracts DC offices of the Commission, 800 4 A rating of 4 indicates that control covering ‘‘non-containerizable cargo’’ North Capitol Street, N.W., Room 962. of market risk sensitivity is and/or shipments to and/or from any Interested parties may submit comments unacceptable or that there is high place in the former Soviet Union from on an agreement to the Secretary, potential that the earnings performance the requirement that rates for through Federal Maritime Commission, or capital position will be adversely transportation to and/ or from inland Washington, DC 20573, within 10 days affected. Risk management practices are points covered by contracts be of the date this notice appears in the deficient for the size, sophistication, constructed only by combining rates Federal Register. and level of market risk accepted by the covering inland portions with rates Agreement No.: 224–201014. institution. The level of earnings and covering ocean port-to-port portions. Title: Port of San Francisco/Madrigal- capital provide inadequate support for Such shipments are also exempt from Wan Hai Lines Terminal Agreement. the degree of market risk taken by the the application of standard assessorial Parties: City and County of San institution. charges published in tariffs of the Francisco (‘‘Port’’), Madrigal-Wan Hai 5 A rating of 5 indicates that control contracting carrier parties. The above Lines (‘‘Madrigal’’). of market risk sensitivity is exemptions expire on December 31, Synopsis: The proposed Agreement unacceptable or that the level of market 1997. grants Madrigal the non-exclusive right to use the Port’s South Container risk taken by the institution is an Agreement No.: 232–011559. imminent threat to its viability. Risk Terminal, located at piers 94/96, and Title: CMA/Croatia Line Reciprocal management practices are wholly provides for discounted dockage and Space Charter, Sailing and Cooperative inadequate for the size, sophistication, wharfage rates. The Agreement’s term is Working Agreement. and level of market risk accepted by the five years. Parties: Compagnie Maritime institution. D’Affretement (‘‘CMA’’) Croatia Line Agreement No.: 224–201014–001. By Order of the Board of Directors dated Rijeka (‘‘Croatia Line’’). Title: Port of San Francisco/Madrigal- Wan Hai Lines Terminal Agreement. at Washington, D.C., this 20th day of Synopsis: The proposed Agreement December, 1996. Parties: City and County of San authorizes the parties to charter space to Francisco (‘‘Port’’), Madrigal-Wan Hai Federal Deposit Insurance Corporation. and from each other on vessels they Lines (‘‘Madrigal’’). Jerry L. Langley, operate in the trades between U.S. East Synopsis: The proposed amendment Executive Secretary. Coast ports, and inland and coastal provides that the Port will indemnify, [FR Doc. 97–155 Filed 1–3–97; 8:45 am] points served via those ports, and ports defend and hold Madrigal harmless BILLING CODE 6714±01±P and points of the Mediterranean Sea, from all losses, expenses, claims, Red Sea, Arabian Gulf and Indian actions or liabilities to the extent they Subcontinent. The parties may also are caused by the negligence or willful FEDERAL MARITIME COMMISSION coordinate their sailings, jointly misconduct of the Port. advertise sailings, establish equipment Notice of Agreement(s) Filed pools, and jointly contract for terminal By order of the Federal Maritime and other shoreside services. The Commission. The Commission hereby gives notice parties have requested expedited Dated: December 31, 1996. of the filing of the following approval. Ronald D. Murphy, agreement(s) under the Shipping Act of 1984. Agreement No.: 224–201012. Assistant Secretary. Interested parties can review or obtain Title: Port of Oakland/American [FR Doc. 97–166 Filed 1–3–97; 8:45 am] copies of agreements at the Washington, President Lines Preferential Crane BILLING CODE 6730±01±M DC offices of the Commission, 800 Assignment. North Capitol Street, NW., Room 962. Parties: The City of Oakland (‘‘Port’’) Ocean Freight Forwarder License Interested parties may submit comments American President Lines, Ltd. (‘‘APL’’). Applicants on an agreement to the Secretary, Synopsis: The proposed agreement Federal Maritime Commission, authorizes APL the nonexclusive Notice is hereby given that the Washington, DC 20573, within 10 days preferential right to use three container following applicants have filed with the of the date this notice appears in the cranes and other equipment at berths Federal Maritime Commission Federal Register. 60–63 at the Port’s Middle Harbor applications for licenses as ocean freight Agreement No.: 202–011375–027. Terminal Area. forwarders pursuant to section 19 of the Title: Trans-Altantic Conference By order of the Federal Maritime Shipping Act of 1984 (46 U.S.C. app. Agreement. Commission. 1718 and 46 CFR part 510). 758 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Persons knowing of any reason why incorporated in the notice below will allows disclosures to commercial any of the following applicants should take effect upon publication. reporting agencies. not receive a license are requested to ADDRESSES: Please address comments Use 20 allows disclosure to Treasury contact the Office of Freight Forwarders, to: Deputy Assistant Secretary, Finance or a Debt Collection Center to collect the Federal Maritime Commission, Room 739–H, Hubert H. Humphrey debt. Use 21 allows disclosures in Washington, D.C. 20573. Building, 200 Independence Ave., SW, connection with selling the debt. International Consultants, Inc., 1032 Washington, D.C. 20201. Comments Because all of these are for purposes of Chuck Danley Blvd., Suite E, Mt. received will be available for inspection recovering or liquidating debts, they are Pleasant, SC 29464. Officer: Paul A. at this same address from 9 a.m. to 3 compatible with the purposes for which Flaherty, President. p.m. Monday through Friday. HHS maintains this system. Other revisions were made (1) to Horizon Trading Company, Inc., 1510 H FOR FURTHER INFORMATION CONTACT: Ms. Street, N.W., Suite 500, Washington, Sue Mundstuk Privacy Act Coordinator, eliminate areas where the Social D.C. 20005. Officer: J. Browning Office of Financial Policy, DASF/ASMB, Security Administration (SSA) is Rockwell, Pres./Dir./Stockh. Room 705–D, Hubert H. Humphrey referenced since SSA is no longer a part Hilldrup Transfer and Storage, Inc., Building, 200 Independence Ave, SW, of HHS; (2) to improve the quality of the d/b/a Hilldrup Moving & Storage, Washington, D.C. 20201, Telephone: document by making minor editorial 4022 Jefferson Davis Highway, (202) 690–6228. changes; and (3) to combine the two Appendices into one Appendix, Stafford, VA 22555. Officers: Charles SUPPLEMENTARY INFORMATION: The G. McDaniel, President, Hilton G. including the updating of system system notice was last published in full records locations. Marshall, Vice President of Finance. at 59 FR 7675 (1994). It was Ultimate Media Express Inc., d/b/a The complete system notice is subsequently amended at 59 FR 55845 republished below. Ultimate Express, 144–25, 155th (1994). Street, Jamaica, NY 11434. Officers: On April 26, 1996, the Congress Dated: December 23, 1996. Diane M. Correll, President, James W. passed Pub. L. 104–134, Sec. 31001 John J. Callahan, Correll, Sr., Sec. Treasurer. known as the ‘‘Debt Collection Assistant Secretary for Management and Dated: December 30, 1996. Improvement Act of 1996’’ (DCIA). The Budget. [FR Doc. 97–112 Filed 1–3–97; 8:45 am] purposes of this Act are to: (1) maximize SYSTEM NAME: collections of delinquent debts owed to BILLING CODE 6730±01±M Financial Transactions of HHS the Government, (2) minimize the costs Accounting and Finance Offices, HHS/ of debt collection, (3) reduce losses OS/ASMB. arising from debt management activities, DEPARTMENT OF HEALTH AND (4) ensure that the public is fully SECURITY CLASSIFICATION: HUMAN SERVICES informed of the Federal Government’s None. Office of the Secretary debt collection policies, (5) ensure debtors are cognizant of their financial SYSTEM LOCATION: Privacy Act of 1974: Altered System of obligations to repay amounts owed to See Appendix 1. Records the Government, (6) ensure that debtors Memoranda copies of claims have all appropriate due process rights, submitted for reimbursement of travel AGENCY: Office of the Assistant including the ability to verify, and other expenditures while on official Secretary for Management and Budget, challenge, and compromise claims, and business may also be maintained at the Office of the Secretary, HHS. access to administrative appeals administrative office of the HHS ACTION: Notice of an altered system of procedures, and (7) encourage agencies, employee. Records concerning records. when appropriate to sell delinquent outstanding debts may also be debts, particularly debts with maintained at the program office or by SUMMARY: In accordance with the underlying collateral, and rely on the the designated claims officer apart from requirements of the Privacy Act, the experience and expertise of private the finance office. U.S. Department of Health and Human sector professionals to provide debt Services (HHS) is publishing a notice of CATEGORIES OF INDIVIDUALS COVERED BY THE collection services to Federal agencies. SYSTEM: a proposed altered system of records, The DCIA authorizes and requires All persons who receive a payment 09–90–0024, ‘‘Financial Transactions of several new techniques for collecting from the Operating Divisions (OPDIV) HHS Accounting and Finance Offices.’’ debts and claims, and we have modified Headquarters, Area and District offices The principal purpose for the changes is existing routine uses and added ones to and all persons owing monies to these in order to comply with the implement this statute. In particular, we HHS components. Persons receiving requirements of the Debt Collection have modified use 1 to provide for payments include, but are not limited Improvement Act of 1996 (Pub. L. 104– payment by methods other than checks. to, travelers on official business, 134, Sec. 31001). The proposal includes We have amended use 11(b) to allow grantees, contractors, consultants, and new and modified routine uses disclosure to the Treasury Department recipients of loans and scholarships. described below for this system. for purposes of administrative offset Persons owing monies include, but are DATES: HHS submitted a report of an even when Treasury will not be the not limited to, persons who have been altered system to the Office of agency that effects the offset. We have overpaid and who owe HHS a refund Management and Budget and to the amended use 11(e) to conform with the and persons who have received from Congress on December 24, 1996. The provision for using debt collection HHS goods or services for which there new routine uses and the amendments agents or contractors in the statute as is a charge or fee ( e.g., Freedom of to existing routine uses will take effect amended by the DCIA. We have added Information Act requesters). without further notice 40 days after the uses 18–21 to provide for new date of publication, unless HHS receives techniques authorized by the DCIA. Use CATEGORIES OF RECORDS IN THE SYSTEM: comments which would result in a 18 allows the computer matching of Name, identification number, address, contrary determination. Other changes debtors and federal employees. Use 19 purpose of payment, accounting Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 759 classification and amount paid. Also, in maintaining civil, criminal or other 9. A record about a loan applicant or the event of an overpayment and for relevant enforcement records or other potential contractor or grantee may be outstanding loans, grants or pertinent records, such as current disclosed from the system of records to scholarships, the amount of the licenses, if necessary to obtain a record credit reporting agencies to obtain a indebtedness, the repayment status and relevant to an agency decision credit report in order to determine the the amount to be collected. concerning the hiring or retention of an person’s credit worthiness. employee, the issuance of a security 10. When a person applies for a loan AUTHORITY FOR MAINTENANCE OF THE SYSTEM: clearance, the letting of a contract or the under a loan program as to which the Budget and Accounting Act of 1950 issuance of a license, grant or other OMB has made a determination under (Pub. L. 81–784); Debt Collection Act of benefit. I.R.C. 6103(a)(3), a record about his/her 1982 (Pub. L. 97–365); Debt Collection 5. A record from this system may be application may be disclosed to the Improvement Act of 1996 (Pub. L. 104– disclosed to a Federal agency, in Treasury Department to find out 134, Sec. 31001). response to its request, in connection whether he/she has a delinquent tax with the hiring or retention of an account, for the sole purpose of PURPOSE(S): employee, the issuance of a security determining the person’s These records are an integral part of clearance, the reporting of an creditworthiness. the accounting systems at OPDIVs investigation of an employee, the letting 11. A record from this system may be Headquarters and specific Area and of a contract or the issuance of a license, disclosed to the following entities in District locations. The records are used grant or other benefit by the requesting order to help collect a debt owed the to keep track of all payments to agency, to the extent that the record is United States: individuals, exclusive of salaries and relevant and necessary to its decision on a. To another Federal agency so that wages, based upon prior entry into the the matter. agency can effect a salary offset; systems of the official commitment and 6. Where Federal agencies having the b. To the Treasury Department or obligation of government funds. When a power to subpoena other Federal another Federal agency in order to effect person is to repay funds advanced as a agencies’ records, such as the Internal an administrative offset under common loan or scholarship, etc., the records Revenue Service (IRS) or the Civil law or under 31 U.S.C. 3716 will be used to establish a receivable Rights Commission, issue a subpoena to (withholding from money payable to, or record and to track repayment status. In HHS for records in this system of held on behalf of, the individual); the event of an overpayment to a person, records, HHS will make such records c. To the Treasury Department to the record is used to establish a available, provided however, that in request the person’s mailing address receivable record for recovery of the each case, HHS determines that such under I.R.C. 6103(m)(2) in order to help amount claimed. The records are also disclosure is compatible with the locate the person or to have a credit used internally to develop reports to the purpose for which the records were report prepared; Internal Revenue Service (IRS) and collected. d. To agents of HHS and to other third applicable State and local taxing 7. Where a contract between a parties, including credit reporting officials of taxable income. This is a component of HHS and a labor agencies, to help locate the person or to Department-wide notice of payment and organization recognized under E.O. obtain a credit report on him/her, in collection activities at all locations 11491 provides that the agency will order to help collect or compromise a listed in Appendix 1. disclose personal records relevant to the debt; organization’s mission, records in the e. To debt collection agents or ROUTINE USES OF RECORDS MAINTAINED IN THE system of records may be disclosed to contractors under 31 U.S.C. 3718 or SYSTEM, INCLUDING CATEGORIES OF USERS AND such organization. under common law to help collect a THE PURPOSES OF SUCH USES: 8. A record may be disclosed to the past due amount or locate or recover 1. Records will be routinely disclosed Department of Justice, to a court, or debtors’ assets; to the Treasury Department in order to other tribunal, or to another party before f. To the Justice Department for effect payment. such tribunal, when: (1) HHS, or any litigation or for further administrative 2. Records may be disclosed to component thereof; (2) Any HHS action; and members of Congress concerning a employee in his/her official capacity; (3) g. To the public, as provided by 31 Federal financial assistance program in Any HHS employee in his/her U.S.C. 3720E, in order to publish or order for members to make informed individual capacity where the otherwise publicly disseminate opinions on programs and/or activities Department of Justice (or HHS, where it information regarding the identity of the impacting on legislative decisions. Also, is authorized to do so) has agreed to person and the existence of a nontax disclosure may be made to a represent the employee; or (4) the debt. congressional office from an United States or any agency thereof Disclosure under part (d) and (g) of individual’s record in response to an where HHS determines that the this routine use is limited to the inquiry from the congressional office litigation is likely to affect HHS or any individual’s name, address, social made at the request of the individual in of its components, is a party to litigation security number, and other information order to be responsive to the or has an interest in such litigation, and necessary to identify the person. constituency. HHS determines that the use of such Disclosure under parts (a)–(c) and (e) is 3. In the event HHS deems it desirable records by the Department of Justice, the limited to those items; the amount, or necessary, in determining whether tribunal, or the other party is relevant status, and history of the claim; and the particular records are required to be and necessary to the litigation and agency or program under which the disclosed under the Freedom of would help in the effective claim arose. An address obtained from Information Act, disclosure may be representation of the governmental IRS may be disclosed to a credit made to the Department of Justice for party, provided however, that in each reporting agency under part (d) only for the purpose of obtaining its advice. case, HHS determines that such purposes of preparing a credit report on 4. A record from this system may be disclosure is compatible with the the individual. disclosed as a ‘‘routine use’’ to a purpose for which the records were 12. A record from this system may be Federal, State or local agency collected. disclosed to another Federal agency that 760 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices has asked HHS to effect an if they need access to the records in Policies and Practices for Storing, administrative offset under common law order to perform their assigned agency Retrieving, Accessing, Retaining, and or under 31 U.S.C. 3716 to help collect functions. Disposing of Records in the System a debt owed the United States. 18. A record from this system may be STORAGE: Disclosure under this routine use is disclosed to any Federal agency or its limited to: name and address, Social agents in order to participate in a Hard copy documents are maintained Security number, and other information computer matching of a list of debtors in file folders at agency headquarters necessary to identify the individual; against a list of Federal employees. and area/district office sites; and on information about the money payable to Disclosure of records is limited to computer disc pack and magnetic tape or held for the individual; and other debtors’ names, names of employers, at central computer sites. information concerning the taxpayers identifying numbers, administrative offset. RETRIEVABILITY: 13. Disclosure with regard to claims addresses (including addresses of or debts arising under or payable under employers), and dates of birth, and other This varies according to the particular the Social Security Act may be made information necessary to establish the accounting system within the HHS from this system to ‘‘consumer reporting person’s identity. Operating Divisions, Area and District agencies’’ as defined in the Fair Credit 19. A record may be disclosed to a Offices. Usually the hard copy Reporting Act (15 U.S.C. § 1681a(f)) or commercial reporting agency that a document is filed by name within the Federal Claims Collection Act of person is responsible for a current accounting classification. Computer 1986 (31 U.S.C. § 3701(a)(3)). The claim, in order to aid in the collection records may be indexed by social purpose of this disclosure is to aid in of claims, typically by providing an security number and voucher number. the collection of outstanding debts owed incentive to the person to repay the Intra-departmental uses and transfers the Federal Government. Disclosure of claim or a debt timely. Disclosure of concern the validation and certification records is limited to the individual’s records is limited to information about for payment, and for HHS internal name, address, Social Security number, a person as is relevant and necessary to audits. and other information necessary to meet the principal purpose(s) for which establish the individual’s identity; the it is intended to be used under the law. SAFEGUARDS: amount, status and history of the claim; 20. A record from this system may be and the agency or program under which 1. Authorized Users: Employees and the claim arose. disclosed to the Treasury Department or officials directly responsible for 14. Information in this system of to an agency operating a Debt Collection programmatic or fiscal activity, records is used to prepare W–2s and Center designated by the Treasury in including administrative and staff 1099 Forms to submit to the Internal order to effect a collection of past due personnel, financial management Revenue Service and applicable State amounts. personnel, computer personnel, and and local governments items considered 21. If HHS decides to sell a debt managers who have responsibilities for to be included as income to a person: pursuant to 31 U.S.C. § 3711(i), a record implementing HHS funded programs. certain travel related payments to from the system may be disclosed to 2. Physical Safeguards: File folders, employees, all payments made to purchasers, potential purchasers, and reports and other forms of personnel persons not treated as employees (e.g., contractors engaged to assist in the sale data, and electronic diskettes are stored fees to consultants and experts), and or to obtain information necessary for in areas where fire and life safety codes amounts written-off as legally or potential purchasers to formulate bids are strictly enforced. All documents and administratively uncollectible, in whole and information necessary for diskettes are protected during lunch or in part. purchasers to pursue collection hours and nonworking hours in locked 15. A record may be disclosed to remedies. file cabinets or locked storage areas. banks enrolled in the Treasury Credit Magnetic tapes and computer matching Card Network to collect a payment or Disclosure to Consumer Reporting tapes are locked in a computer room debt when the person has given his/her Agencies and tape vault. credit card number for this purpose. 3. Procedural Safeguards: Password 16. Records may be disclosed to a Disclosure pursuant to 5 U.S.C. protection of automated records is contractor (and/or to its subcontractor) § 552a(b)(12): Disclosure may be made provided. All authorized users protect who has been engaged to perform from this system to ‘‘consumer reporting information from public view and from services on an automated data agencies,’’ as defined in 31 U.S.C. unauthorized personnel entering an processing (ADP) system used in § 3701(a)(3). The purpose of this office. The safeguards described above processing financial transactions. The disclosure is to aid in the collection of were established in accordance with contractor may have been engaged to outstanding debts owed to the Federal HHS Chapter 45–13 of the General develop, modify and test a new ADP Government, typically, to provide an Administration Manual; and the HHS system, including both software and incentive for debtors to repay their debts ADP System Manual Part 6, ‘‘ADP hardware upgrades or enhancements to timely, by making these debts part of Systems Security.’’ such a system; perform periodic or their credit records. major maintenance on an existing ADP Disclosure of records is limited to the RETENTION AND DISPOSAL: system; audit or otherwise evaluate the individual’s name, address, social performance of such an ADP system; security number, and other information Records are purged from automated and/or operate such a system. necessary to establish the individual’s files once the accounting purpose has 17. Records may be disclosed to identity; the amount, status and history been served; printed copy and manual student volunteers, individuals working of the claim; and the agency or program documents are retained and disposed of under a personal services contract, and under which the claim arose. The in accordance with General Accounting other individuals performing functions disclosure will be made only after the Office principles and standards as for the Department but technically not procedural requirements of 31 U.S.C. authorized by the National Archives and having the status of agency employees, § 3711(e) have been followed. Records Service. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 761

SYSTEM MANAGER(S) AND ADDRESS: 250 Gambell Street 2nd and Chestnut Streets Department of Health and Human Anchorage, AK 99501 Philadelphia, PA 19106 Services, DHHS, Assistant Secretary for Albuquerque Area, IHS Food and Drug Administration, FDA Management and Budget, Office of the 505 Marquette NW 900 Madison Avenue Secretary, Room 510A, Hubert H. Suite 1502 Baltimore, MD 21201 Humphrey Building, Washington, DC Albuquerque, NM 57102–2163 Food and Drug Administration, FDA 20201. Albuquerque Headquarters West, IHS San Juan District Office 300 San Mateo, NE PO Box 5719 PTA NOTIFICATION PROCEDURE: De Tierra Station Suite 500 Inquiries should be made, either in San Juan, PR 00906–5719 Albuquerque, NM 87108 writing or in person, to the Food and Drug Administration, FDA organizations listed under ‘‘Location’’ in Bemidji Area, IHS Room 1222 Appendix 1, with the exception of Food 203 Federal Building Main Post Office Building and Drug Administration records. For Bemidji, MN 56601 433 West Van Buren Street those records, contact: Billings Area, IHS Chicago, IL 60607 FDA Privacy Act Coordinator (HFW–30) 711 Central Avenue Food and Drug Administration, FDA Food and Drug Administration Billings, MT 59103 1560 East Jefferson Avenue 5600 Fishers Lane California Area, IHS Detroit, MI 48207 Rockville, MD 20857 1825 Bell Street Food and Drug Administration, FDA 1141 Central Parkway The individual making the inquiry Sacramento, CA 95825–1097 Cincinnati, OH 45202 must show proof of identity before Nashville Area, IHS information is released. Give name and 3310 Perimeter Hill Drive Food and Drug Administration, FDA social security number, purpose of Nashville, TN 37211 240 Hennepin Avenue Minneapolis, MN 55401 payment or collection (travel, grant, etc.) Navajo Area, IHS Food and Drug Administration, FDA and, if possible, the agency accounting P.O. Box ‘‘G’’ classification. 3032 Bryan Street Window Rock, AZ 86515–5004 Dallas, TX 75204 RECORD ACCESS PROCEDURES: Oklahoma Area IHS Food and Drug Administration, FDA Same as notification procedures. 3625 NW 56th Street 4298 Elysian Fields Requesters should also clearly specify Five Corporation Plaza New Orleans, LA 70122 the record contents being sought, and Oklahoma City, OK 73112 Food and Drug Administration, FDA may include a request for an accounting Phoenix Area, IHS National Center for Toxicological of disclosures that have been made of 3738 North 16th Street Research their records, if any. (These access Suite ‘‘A’’ Jefferson, AR 72079 procedures are in accordance with HHS Phoenix, AZ 85016–5981 Food and Drug Administration, FDA regulations (45 CFR 5b.5(a)(2)).) Portland Area, IHS 1009 Cherry Street 1220 SW Third Avenue Kansas City, MO 64106 CONTESTING RECORD PROCEDURES: Room 476 Food and Drug Administration, FDA Contact the official at the address Portland, OR 97204–2892 US Courthouse and Courthouse specified under notification procedure Office of Health Program Research and Building above, and reasonably identify the Development, IHS 1114 Market Street, Room 1002 record and specify the information 7900 South ‘‘J’’ Stock Road St. Louis, MO 63101 being contested, the corrective action Tucson, AZ 85746–9352 Food and Drug Administration, FDA sought, and the reasons for requesting Building 20 the correction, along with supporting Food and Drug Administration District Denver Federal Center information to show how the record is Offices (FDA) PO Box 25087 inaccurate, incomplete, untimely, or Denver, CO 80255–0087 Food and Drug Administration, FDA irrelevant. Food and Drug Administration, FDA 60 Eighth Street, NE Federal Office Building RECORD SOURCE CATEGORIES: Atlanta, GA 30309 Room 506 Travel vouchers submitted by the Food and Drug Administration, FDA 50 United National Plaza individual; grant, contract and loan Boston District Office San Francisco, CA 94102 award document; delinquent loan, grant One Montvale Avenue Food and Drug Administration, FDA and scholarship record; consultant Stoneham, MA 62180 1521 West Pico Boulevard invoice of services rendered; and Food and Drug Administration, FDA Los Angeles, CA 90015 application for travel advance. 599 Delaware Avenue Food and Drug Administration, FDA Buffalo, NY 14202 22201 23rd Avenue, SE EXEMPTIONS CLAIMED FOR THE SYSTEM: Food and Drug Administration, FDA Bothell, WA 98021–4421 None. Room 700 Food and Drug Administration, FDA Appendix 1 Federal Office Building Headquarters Office 5600 Fishers Lane Location 850 3rd Avenue (at 30th Street) Brooklyn, NY 11232 Room 11–83 Indian Health Service Area Offices (IHS) Parklawn Building Food and Drug Administration, FDA Rockville, MD 20857 Aberdeen Area, IHS 61 Main Street Federal Building West Orange, NJ 07052 Centers for Disease Control and 115 Fourth Ave., SE Food and Drug Administration, FDA Prevention (CDC) Aberdeen, SD 57401 Room 1204 Centers for Disease Control and Alaska Area, IHS US Customhouse Prevention, CDC 762 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Accounting Section (CO–5) Division of Fiscal Services permitting nonphysicians to select Robert A. Taft Laboratories 5600 Fishers Lane antigens and schedule immunizations; 4676 Columbia Parkway Room 16–05 (2) failure to adequately determine Cincinnati, OH 45226 Rockville, MD 20857 donor suitability by: (a) Not excluding Centers for Disease Control and [FR Doc. 97–16 Filed 1–3–97; 8:45 am] for the required 8-week period at least Prevention, CDC BILLING CODE 4150±04±P 21 donors who lost whole blood (21 and CFR 640.63(e)); (b) routinely Agency for Toxic Substances and reevaluating donor hematocrit without Disease Registry (ATSDR) Food and Drug Administration recording the initial hematocrit values; Financial Management Office and (c) routinely not complying with 1600 Clifton Road NE, (M/S D–04) [Docket No. 96N±0290] established standard operating Atlanta, GA 30333 AM±Rho Laboratories, Inc.; Revocation procedures that required the cross Health Care Financing Administration of U.S. License No. 991±001 checking of donors against deferral logs; (HCFA) (3) failure to maintain complete, accurate, and concurrent donor records Health Care Financing Administration, AGENCY: Food and Drug Administration, (21 CFR 606.160) by: (a) Routinely HCFA HHS. Room C3–0927 ACTION: Notice. forging physician’s signatures on 7500 Security Boulevard numerous records; (b) not completing Baltimore, MD 21244 SUMMARY: The Food and Drug maintenance and calibration records Administration (FDA) is announcing the concurrently with work done; (c) National Institutes of Health (NIH) revocation of the establishment license inaccurate documentation of red blood National Institutes of Health, NIH (U.S. License No. 991–001) and the cells not returned to the donor; (d) Building 1, Room 222 product license issued to AM–Rho documenting as destroyed red blood Rocky Mountain Laboratory Laboratories, Inc., Jacksonville, FL, for cells that were returned to the donor; Hilton, MT 59840 the manufacture of Source Plasma. In a and (e) not providing a unit number for National Institutes of Health, NIH letter to FDA dated April 11, 1996, AM– certain plasmapheresis products; (4) National Institute of Mental Health Rho Laboratories, Inc., voluntarily failure to maintain and follow standard WAW Building, Room 562 requested revocation of its operating procedures (21 CFR St. Elizabeth’s Hospital establishment and product licenses. In a 606.100(b)) by: (a) Inadequately Washington, DC 20032 letter dated July 3, 1996, FDA informed preparing phlebotomy sites on at least National Institutes of Health, NIH the firm that the establishment and 25 donors; (b) not following the Frederick Cancer Research Facility product licenses for its Jacksonville procedure for verifying correct Fort Detrick Building, Room 427 location were revoked. reinfusion of red blood cells; and (c) Frederick, MD 21702–1201 DATES: The revocation of the permitting donors to leave the premises National Institutes of Health, NIH establishment license (U.S. License No. before the minimum time for National Institutes of 991–001) and the product license postimmunization observation. Environmental Health Sciences Room B2–03, Building 101 became effective July 3, 1996. FDA concluded that the serious Research Triangle Park, NC 27709 FOR FURTHER INFORMATION CONTACT: nature of the deficiencies identified National Institutes for Health, NIH Dano B. Murphy, Center for Biologics during the inspection and during the National Institute on Drug Abuse Evaluation and Research (HFM–630), concurrent investigation of AM–Rho Addiction Research Center Food and Drug Administration, 1401 Laboratories, Inc., were the direct Building C, Room 248 Rockville Pike, Rockville, MD 20852– consequence of the establishment’s 4940 Eastern Avenue 1448, 301–594–3074. disregard for the applicable regulations Baltimore, MD 21224 SUPPLEMENTARY INFORMATION: FDA has and standards in the license application. National Institutes for Health, NIH revoked the establishment license (U.S. FDA determined that these deficiencies Headquarters Office License No. 991–001) and product constitute a danger to the public health Operations Accounting Branch license for the manufacture of Source that warranted suspension under 21 Building 31, Room B1–B63 Plasma of AM–Rho Laboratories, Inc., CFR 601.5(b) and 601.6(a). Additionally, 9000 Rockville Pike 4130 Salisbury Rd., suite 2100, the deficiencies noted demonstrated Bethesda, MD 20892–0134 Jacksonville, FL 32216. management’s failure to exercise control Individual records of the following FDA inspected AM–Rho Laboratories, over the facility relating to compliance HHS Operating Divisions may be Inc., from October 16, 1995, through and to assure adequate training and obtained from the Program Support November 9, 1995. The inspection also supervision of personnel as required by Center (PSC): involved a concurrent investigation that 21 CFR 600.10(a) and (b) and 606.20(a) Administration for Children and included interviews with individuals and (b). Families (ACF) knowledgeable in the daily operations In a November 27, 1995, letter to the of the firm. The inspection of the facility firm, FDA suspended the establishment Administration on Aging (AoA) and concurrent investigation revealed license (U.S. License No. 991–001) and Agency for Health Care Policy and serious deviations from applicable product license for Source Plasma. In a Research (AHCPR) Federal regulations. The deficiencies February 14, 1996, letter to FDA, the noted included, but were not limited to, firm stated it would not seek Indian Health Service (IHS) the following: (1) Failure to properly reinstatement of the suspended license Substance Abuse and Mental Health immunize donors (21 CFR 640.66) by: (U.S. License No. 991–001) and would Services Administration (SAMHSA) (a) Permitting nonphysicians, working destroy all plasma products in Office of the Secretary (OS) without a physician present, to inject at inventory. In a letter to FDA dated April least 37 donors with red blood cell 11, 1996, AM–Rho Laboratories, Inc., Program Support Center (PSC) antigen; (b) immunizing at least one requested voluntary revocation of U.S. Program Support Center, PSC donor during plasmapheresis; and (c) License No. 991–001. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 763

FDA has placed copies of the letters SUPPLEMENTARY INFORMATION: The Drug and oils in prepackaged ready-to-eat relevant to the license revocation on file Price Competition and Patent Term savory (i.e., salty or piquant, but not under the docket number found in Restoration Act of 1984 (Pub. L. 98–417) sweet) snacks. Subsequent to this brackets in the heading of this and the Generic Animal Drug and Patent approval, the Patent and Trademark document with the Dockets Term Restoration Act (Pub. L. 100–670) Office received a patent term restoration Management Branch (HFA–305), Food generally provide that a patent may be application for Olean (U.S. Patent No. and Drug Administration, 12420 extended for a period of up to 5 years 4,005,196) from Proctor & Gamble Co. Parklawn Dr., rm. 1–23, Rockville, MD so long as the patented item (human and the Patent and Trademark Office 20857. These documents are available drug product, animal drug product, requested FDA’s assistance in for public examination in the Dockets medical device, food additive, or color determining this patent’s eligibility for Management Branch between 9 a.m. and additive) was subject to regulatory patent term restoration. In a letter dated 4 p.m., Monday through Friday. review by FDA before the item was May 9, 1996, FDA advised the Patent Accordingly, under 21 CFR 601.5(a), marketed. Under these acts, a product’s and Trademark Office that this food section 351 of the Public Health Service regulatory review period forms the basis additive product had undergone a Act (42 U.S.C. 262), and under authority for determining the amount of extension regulatory review period and that the delegated to the Commissioner of Food an applicant may receive. listing of Olean represented the first and Drugs (21 CFR 5.10) and A regulatory review period consists of permitted commercial marketing or use redelegated to the Director, Center for two periods of time: a testing phase and of the product. Shortly thereafter, the Biologics Evaluation and Research (21 an approval phase. For food and color Patent and Trademark Office requested CFR 5.68), the establishment license additives: (1) The testing phase begins that FDA determine the product’s (U.S. License No. 991–001) and the on the date a major health or regulatory review period. product license for the manufacture of environmental effects test is begun and FDA has determined that the Source Plasma issued to AM–Rho ends on the date a petition relying on applicable regulatory review period for Laboratories, Inc., Jacksonville, FL the test and requesting the issuance of Olean is 5,418 days. Of this time, 2,191 32216, were revoked effective July 3, a regulation for use of the additive days occurred during the testing phase 1996. under section 409 or 721 of the Federal of the regulatory review period, while This notice is issued and published Food, Drug, and Cosmetic Act (the act) 3,227 days occurred during the approval under 21 CFR 601.8 and the is initially submitted to FDA. An phase. These periods of time were redelegation at 21 CFR 5.67(c). ‘‘environmental effects’’ test may be any derived from the following dates: test which: (a) Is reasonably related to 1. The date a major health or Dated: December 19, 1996. the evaluation of the product’s health environmental effects test was begun: Kathryn C. Zoon, effects, or both; (b) produces data April 2, 1981. The applicant does not Director, Center for Biologics Evaluation and necessary for marketing approval; and specifically state a date when a test Research. (c) is conducted over a period of not less involving this food additive product [FR Doc. 97–186 Filed 1–3–97; 8:45 am] than 6-months duration, excluding time was begun. However, FDA records BILLING CODE 4160±01±F required to analyze or evaluate test indicate that the test was begun on April results. (2) The approval phase begins 2, 1981. [Docket No. 96E±0080] on the date a petition requesting the 2. The date a petition requesting the issuance of a regulation for use of the issuance of a regulation for use of the Determination of Regulatory Review additive under section 409 or 721 of the food additive under section 409 of the Period for Purposes of Patent act is initially submitted to FDA and act was initially submitted: April 1, Extension; Olean ends upon whichever of the following 1987. FDA has verified the applicant’s occurs last: (a) The regulation for the claim that the petition for Olean was AGENCY: Food and Drug Administration, additive becomes final; or (b) objections initially submitted on April 1, 1987. HHS. filed against the regulation that result in 3. The date the regulation for the food ACTION: Notice. a stay of effectiveness are resolved and additive petition became effective: commercial marketing is permitted; or January 30, 1996. The applicant claims SUMMARY: The Food and Drug (c) proceedings resulting from that the regulation for the food additive Administration (FDA) has determined objections to the regulation, after became effective on January 24, 1996. the regulatory review period for Olean commercial marketing has been However, FDA records indicate that, by and is publishing this notice of that permitted and later stayed pending its terms, the regulation for the food determination as required by law. FDA resolution of the proceedings, are finally additive became effective on January 30, has made the determination because of resolved and commercial marketing is 1996 (61 FR 3118, January 30, 1996). the submission of an application to the permitted. Although only a portion of a This determination of the regulatory Commissioner of Patents and regulatory review period may count review period establishes the maximum Trademarks, Department of Commerce, toward the actual amount of extension potential length of a patent extension. for the extension of a patent which that the Commissioner of Patents and However, the U.S. Patent and claims that food additive product. Trademarks may award (for example, Trademark Office applies several ADDRESSES: Written comments and half the testing phase must be statutory limitations in its calculations petitions should be directed to the subtracted as well as any time that may of the actual period for patent extension. Dockets Management Branch (HFA– have occurred before the patent was In this application for patent extension, 305), Food and Drug Administration, issued), FDA’s determination of the this applicant seeks 730 days of patent 12420 Parklawn Dr., rm. 1–23, length of a regulatory review period for term extension. Rockville, MD 20857. a color or food additive will include all Anyone with knowledge that any of FOR FURTHER INFORMATION CONTACT: of the testing phase and approval phase the dates as published is incorrect may, Brian J. Malkin, Office of Health Affairs as specified in 35 U.S.C. 156(g)(2)(B). on or before March 7, 1997, submit to (HFY–20), Food and Drug FDA recently approved for marketing the Dockets Management Branch Administration, 5600 Fishers Lane, the food additive product Olean (address above) written comments and Rockville, MD 20857, 301–443–1382. (olestra). Olean is used in place of fats ask for a redetermination. Furthermore, 764 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices any interested person may petition FDA, Joint Meeting of the Nonprescription number of requests to consider a health- on or before July 7, 1997, for a Drugs and Anti-Infective Drugs care continuum as a model for the determination regarding whether the Advisory Committees regulation of OTC health-care antiseptic applicant for extension acted with due drug products. The proposed model diligence during the regulatory review Date, time, and place. January 22, defines six drug product categories period. To meet its burden, the petition 1997, 8:30 a.m., Holiday Inn— (preoperative skin preparation, surgical must contain sufficient facts to merit an Gaithersburg, Grand Ballroom, Two hand scrub, health-care personnel FDA investigation. (See H. Rept. 857, Montgomery Village Ave., Gaithersburg, handwash, food handler handwash, part 1, 98th Cong., 2d sess., pp. 41–42, MD. antimicrobial handwash, and Type of meeting and contact person. 1984.) Petitions should be in the format antimicrobial body wash) and proposes Open public hearing, 8:30 a.m. to 9:30 specified in 21 CFR 10.30. testing requirements, key a.m., unless public participation does Comments and petitions should be characteristics, and labeling for each of not last that long; open committee submitted to the Dockets Management the categories. The model also proposes discussion, 9:30 a.m. to 5 p.m.; Ermona Branch (address above) in three copies that the public health impact of these B. McGoodwin or Danyiel A. D’Antonio, (except that individuals may submit products is the lowest for consumer use Center for Drug Evaluation and Research single copies) and identified with the products and continuously increases (HFD–21), Food and Drug docket number found in brackets in the through the model as follows: Administration, 5600 Fishers Lane, heading of this document. Comments Antimicrobial hand washes, Rockville, MD 20857, 301-443-5455, or and petitions may be seen in the antimicrobial body washes, food FDA Advisory Committee Information Dockets Management Branch between 9 handler handwash, health-care Hotline, 1–800–741–8138 (301–443– a.m. and 4 p.m., Monday through personnel handwash, surgical hand 0572 in the Washington, DC area), Friday. scrub, and preoperative skin Nonprescription Drugs Advisory Dated: November 25, 1996. preparation. Conversely, the model Committee, code 12541, or Anti- proposes that the size of the population Stuart L. Nightingale, Infective Drugs Advisory Committee, impacted by these products Associate Commissioner for Health Affairs. code 12530. Please call the hotline for continuously decreases from consumer [FR Doc. 97–138 Filed 1–3–97; 8:45 am] information concerning any possible use products to professional use BILLING CODE 4160±01±F changes. General function of the committee. products. FDA is seeking an evaluation The Nonprescription Drugs Advisory of the model’s impact on public health Advisory Committees; Notice of Committee reviews and evaluates in light of the isolation of pathogenic Meetings available data concerning the safety and bacteria-bearing plasmids encoding for effectiveness of over-the-counter both topical antiseptic and multiple AGENCY: Food and Drug Administration, antibiotic resistance and is soliciting the HHS. (nonprescription) human drug products for use in the treatment of a broad advice and opinions from the advisory ACTION: Notice. spectrum of human symptoms and committees on this issue. The agency encourages investigators, academicians, SUMMARY: This notice announces diseases. The Anti-Infective Drugs forthcoming meetings of public advisory Advisory Committee reviews and and manufacturers of these products to committees of the Food and Drug evaluates available data concerning the respond to this notice with information Administration (FDA). This notice also safety and effectiveness of marketed and bearing on this issue and to present summarizes the procedures for the investigational human drug products for their views on this issue before the meetings and methods by which use in the treatment of infectious committees. interested persons may participate in diseases and disorders. A Joint Meeting of the open public hearings before FDA’s Agenda—open public hearing. Nonprescription Drugs Advisory advisory committees. Interested persons may present data, Committee and the Cardiovascular FDA has established an Advisory information, or views, orally or in and Renal Drugs Advisory Committee Committee Information Hotline (the writing, on issues pending before the hotline) using a voice-mail telephone committee. Those desiring to make Date, time, and place. January 23, system. The hotline provides the public formal presentations should notify the 1997, 8:30 a.m., Holiday Inn— with access to the most current contact person before January 13, 1997, Gaithersburg, Two Montgomery Village information on FDA advisory committee and submit a brief statement of the Ave., Gaithersburg, MD. meetings. The advisory committee general nature of the evidence or Type of meeting and contact person. hotline, which will disseminate current arguments they wish to present, the Open public hearing, 8:30 a.m. to 9:30 information and information updates, names and addresses of proposed a.m., unless public participation does can be accessed by dialing 1–800–741– participants, and an indication of the not last that long; open committee 8138 or 301–443–0572. Each advisory approximate time required to make their discussion, 9:30 a.m. to 5 p.m.; Tracy K. committee is assigned a 5-digit number. comments. Riley or Joan C. Standaert, Center for This 5-digit number will appear in each Open committee discussion. The joint Drug Evaluation and Research (HFD– individual notice of meeting. The committees will discuss issues relating 21), Food and Drug Administration, hotline will enable the public to obtain to a health-care continuum model. In 5600 Fishers Lane, Rockville, MD information about a particular advisory the Federal Register of June 17, 1994 20857, 301–443–5455, or FDA Advisory committee by using the committee’s 5- (59 FR 31402 through 31452) the agency Committee Information Hotline, 1–800– digit number. Information in the hotline published a proposed rule for OTC 741–8138 (301–443–0572 in the is preliminary and may change before a health-care antiseptic drug products, Washington, DC area), Nonprescription meeting is actually held. The hotline i.e., patient preoperative skin Drugs Advisory Committee, code 12541, will be updated when such changes are preparations, surgical hand scrubs, and or Cardiovascular and Renal Drugs made. health-care personnel and antiseptic Advisory Committee, code 12533. MEETINGS: The following advisory handwashes. In response to the Please call the hotline for information committee meetings are announced: proposed rule, the agency received a concerning any possible changes. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 765

General function of the committee. data, and (4) a closed committee The transcript may be viewed at the The Nonprescription Drugs Advisory deliberation. Every advisory committee Dockets Management Branch (HFA– Committee reviews and evaluates meeting shall have an open public 305), Food and Drug Administration, available data concerning the safety and hearing portion. Whether or not it also 12420 Parklawn Dr., rm. 1–23, effectiveness of over-the-counter includes any of the other three portions Rockville, MD 20857, approximately 15 (nonprescription) human drug products will depend upon the specific meeting working days after the meeting, between for use in the treatment of a broad involved. There are no closed portions the hours of 9 a.m. and 4 p.m., Monday spectrum of human symptoms and for the meetings announced in this through Friday. Summary minutes of diseases. The Cardiovascular and Renal notice. The dates and times reserved for the open portion of the meeting may be Drugs Advisory Committee reviews and the open portions of each committee requested in writing from the Freedom evaluates data on the safety and meeting are listed above. of Information Office (address above) effectiveness of marketed and The open public hearing portion of investigational human drugs for used in the meeting(s) shall be at least 1 hour beginning approximately 90 days after cardiovascular and renal disorders. long unless public participation does the meeting. Agenda—open public hearing. not last that long. It is emphasized, This notice is issued under section Interested persons may present data, however, that the 1 hour time limit for 10(a)(1) and (a)(2) of the Federal information, or views, orally or in an open public hearing represents a Advisory Committee Act (5 U.S.C. app. writing, on issues pending before the minimum rather than a maximum time 2), and FDA’s regulations (21 CFR part committee. Those desiring to make for public participation, and an open 14) on advisory committees. formal presentations should notify the public hearing may last for whatever contact person before January 8, 1997, longer period the committee Dated: December 20, 1996. and submit a brief statement of the chairperson determines will facilitate Michael A. Friedman, general nature of the evidence or the committee’s work. Deputy Commissioner for Operations. arguments they wish to present, the Public hearings are subject to FDA’s [FR Doc. 97–92 Filed 1–3–97; 8:45 am] names and addresses of proposed guideline (subpart C of 21 CFR part 10) BILLING CODE 4160±01±F participants, and an indication of the concerning the policy and procedures approximate time required to make their for electronic media coverage of FDA’s comments. public administrative proceedings, Advisory Committee; Notice of Meeting Open committee discussion. The including hearings before public committees will jointly discuss issues advisory committees under 21 CFR part AGENCY: Food and Drug Administration, relevant to professional labeling 14. Under 21 CFR 10.205, HHS. indications for aspirin. A citizen representatives of the electronic media petition requested that the may be permitted, subject to certain ACTION: Notice. Commissioner of Food and Drugs limitations, to videotape, film, or approve various vascular professional otherwise record FDA’s public SUMMARY: This notice announces a labeling indications for aspirin. FDA has administrative proceedings, including forthcoming meeting of a public already acted on some of the issues presentations by participants. advisory committee of the Food and raised, while others have not been Meetings of advisory committees shall Drug Administration (FDA). This notice resolved. FDA is now soliciting advice be conducted, insofar as is practical, in also summarizes the procedures for the and opinions from the advisory accordance with the agenda published meeting and methods by which committees regarding the use of aspirin in this Federal Register notice. Changes interested persons may participate in for expanded professional labeling in the agenda will be announced at the open public hearings before FDA’s indications for aspirin. Issues to be beginning of the open portion of a advisory committees. discussed include the use of aspirin in meeting. patients deemed to be at elevated risk of Any interested person who wishes to FDA has established an Advisory cardiovascular events due to some form be assured of the right to make an oral Committee Information Hotline (the of vascular disease or other conditions presentation at the open public hearing hotline) using a voice-mail telephone implying an increased risk of occlusive portion of a meeting shall inform the system. The hotline provides the public vascular disease (i.e., patients contact person listed above, either orally with access to the most current undergoing coronary, cerebral, or or in writing, prior to the meeting. Any information on FDA advisory committee peripheral arterial revascularization person attending the hearing who does meetings. The advisory committee procedures; patients with chronic not in advance of the meeting request an hotline, which will disseminate current nonvalvular atrial fibrillation; patients opportunity to speak will be allowed to information and information updates, requiring hemodialysis access with a make an oral presentation at the can be accessed by dialing 1–800–741– fistula or shunt; patients with chronic hearing’s conclusion, if time permits, at 8138 or 301–443–0572. Each advisory stable angina; and other patients the chairperson’s discretion. committee is assigned a 5-digit number. deemed to be at elevated risk). The The agenda, the questions to be This 5-digit number will appear in each agency encourages investigators, addressed by the committee, and a individual notice of meeting. The academicians, and members of the current list of committee members will hotline will enable the public to obtain pharmaceutical industry with be available at the meeting location on information about a particular advisory information about the use of aspirin in the day of the meeting. committee by using the committee’s 5- Transcripts of the open portion of the patients at increased risk of digit number. Information in the hotline cardiovascular events to respond to this meeting may be requested in writing is preliminary and may change before a notice. from the Freedom of Information Office FDA public advisory committee (HFI–35), Food and Drug meeting is actually held. The hotline meetings may have as many as four Administration, rm. 12A–16, 5600 will be updated when such changes are separable portions: (1) An open public Fishers Lane, Rockville, MD 20857, made. hearing, (2) an open committee approximately 15 working days after the MEETING: The following advisory discussion, (3) a closed presentation of meeting, at a cost of 10 cents per page. committee meeting is announced: 766 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

National Mammography Quality separable portions: (1) An open public 12A–16, Rockville, MD 20857, Assurance Advisory Committee hearing, (2) an open committee approximately 15 working days after the discussion, (3) a closed presentation of meeting, at a cost of 10 cents per page. Date, time, and place. January 13, data, and (4) a closed committee The transcript may be viewed at the 1997, 9 a.m., and January 14 and 15, deliberation. Every advisory committee Dockets Management Branch (HFA– 1997, 8 a.m., Bethesda Marriott Hotel, meeting shall have an open public 305), Food and Drug Administration, Grand Ballroom, 5151 Pooks Hill Rd., hearing portion. Whether or not it also 12420 Parklawn Dr., rm. 1–23, Bethesda, MD. A limited number of includes any of the other three portions Rockville, MD 20857, approximately 15 overnight accommodations have been will depend upon the specific meeting working days after the meeting, between reserved at the hotel. Attendees involved. There are no closed portions the hours of 9 a.m. and 4 p.m., Monday requiring overnight accommodations for the meetings announced in this through Friday. Summary minutes of may contact the hotel at 301–897–9400 notice. The dates and times reserved for the open portion of the meeting may be and reference the FDA Committee the open portions of each committee requested in writing from the Freedom meeting block. Reservations will be meeting are listed above. of Information Office (address above) confirmed at the group rate based on The open public hearing portion of beginning approximately 90 days after availability. the meeting(s) shall be at least 1 hour the meeting. Type of meeting and contact person. long unless public participation does This notice is issued under section Open public hearing, January 13, 1997, not last that long. It is emphasized, 10(a)(1) and (a)(2) of the Federal 9 a.m. to 10 a.m., unless public however, that the 1 hour time limit for Advisory Committee Act (5 U.S.C. app. participation does not last that long; an open public hearing represents a 2), and FDA’s regulations (21 CFR part open committee discussion, 10 a.m. to minimum rather than a maximum time 14) on advisory committees. 6:30 p.m.; open committee discussion, for public participation, and an open January 14, 1997, 8 a.m. to 6 p.m.; open public hearing may last for whatever Dated: December 20, 1996. committee discussion, January 15, 1997, longer period the committee Michael A. Friedman, 8 a.m. to 3 p.m.; Charles K. Showalter, chairperson determines will facilitate Deputy Commissioner for Operations. Center for Devices and Radiological the committee’s work. [FR Doc. 97–93 Filed 1–3–97; 8:45 am] Health (HFZ–240), Food and Drug Public hearings are subject to FDA’s BILLING CODE 4160±01±F Administration, 1350 Piccard Dr., guideline (subpart C of 21 CFR part 10) Rockville, MD 20850, 301–594–3332, or concerning the policy and procedures FDA Advisory Committee Information for electronic media coverage of FDA’s DEPARTMENT OF HOUSING AND Hotline, 1–800–741–8138 (301–443– public administrative proceedings, URBAN DEVELOPMENT 0572 in the Washington, DC area), including hearings before public National Mammography Quality advisory committees under 21 CFR part [Docket No. FR±4153±D±01] Assurance Advisory Committee, code 14. Under 21 CFR 10.205, Revocation and Redelegation of 12397. Please call the hotline for representatives of the electronic media Authority to FHA Comptroller information concerning any possible may be permitted, subject to certain changes. limitations, to videotape, film, or AGENCY: Office of the Assistant General function of the committee. otherwise record FDA’s public Secretary for Housing—Federal Housing The committee advises the agency on administrative proceedings, including Commissioner, HUD. developing appropriate quality presentations by participants. ACTION: Notice of revocation, and standards and regulations for the use of Meetings of advisory committees shall redelegation of authority to the FHA mammography facilities. be conducted, insofar as is practical, in Comptroller. Agenda—Open public hearing. accordance with the agenda published Interested persons may present data, in this Federal Register notice. Changes SUMMARY: To assist in the efficient information, or views, orally or in in the agenda will be announced at the management of the Office of Housing, writing, on issues pending before the beginning of the open portion of a the Assistant Secretary for Housing— committee. Those desiring to make meeting. Federal Housing Commissioner is formal presentations should notify the Any interested person who wishes to herein transferring, from the Deputy contact person before January 2, 1997, be assured of the right to make an oral Assistant Secretary for Operations, to and submit a brief statement of the presentation at the open public hearing the FHA Comptroller, authority general nature of the evidence or portion of a meeting shall inform the regarding asset sales of Secretary-held arguments they wish to present, the contact person listed above, either orally multifamily mortgages. names and addresses of proposed or in writing, prior to the meeting. Any EFFECTIVE DATE: November 8, 1996. participants, and an indication of the person attending the hearing who does approximate time required to make their not in advance of the meeting request an FOR FURTHER INFORMATION CONTACT: comments. opportunity to speak will be allowed to Robert G. Hunt, Director, Management Open committee discussion. On make an oral presentation at the Services Division, Office of Housing, January 13, 14, and 15, 1997, the hearing’s conclusion, if time permits, at Room 9116, Department of Housing and committee will discuss the proposed the chairperson’s discretion. Urban Development, Washington, DC final regulations under the The agenda, the questions to be 20410, (202) 708–0826. A Mammography Quality Standards Act addressed by the committee, and a telecommunications device for the (MQSA) of 1992. Copies of the proposed current list of committee members will hearing impaired is available via the final regulations may be obtained by be available at the meeting location on Federal Information Relay Service at 1– submitting a written request to MQSA, the day of the meeting. 800–877–8339. c/o KRA, 1010 Wayne Ave., suite 850, Transcripts of the open portion of the SUPPLEMENTARY INFORMATION: In this Silver Spring, MD 20910, or faxing a meeting may be requested in writing document, the Assistant Secretary for request to 301–495–9410. from the Freedom of Information Office Housing—Federal Housing FDA public advisory committee (HFI–35), Food and Drug Commissioner is transferring meetings may have as many as four Administration, 5600 Fishers Lane, rm. responsibilities related to the asset sales Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 767 of Secretary-held multifamily as are necessary to effect the sale and/ covered by the system. The system mortgages. These responsibilities, or transfer of the Secretary-held being altered, ‘‘Safety Management previously handled by the Deputy multifamily mortgages and the Information System—Interior, DOI–60,’’ Assistant Secretary for Operations, will accompanying assigned mortgage notes, is described in the notice published in now be handled by the FHA including any related assets, if any. its entirety below. The system was Comptroller. The Assistant Secretary for 4. The authority to take or cause to be previously described as ‘‘Safety Housing—Federal Housing taken, and direct any action necessary to Management Information System— Commissioner has determined that, compromise and resolve breach notices Interior, OS–60,’’ as published on from an organizational standpoint, these concerning the sale of Secretary-held January 17, 1989 (54 FR 1800). functions more appropriately belong multifamily mortgages and the The Safety Management Information with the FHA Comptroller. accompanying assigned mortgage notes, System was established to assist the Accordingly, the Assistant Secretary including all related assets, if any. Department in reducing its employee for Housing—Federal Housing Without limiting the generality of the injury and accident rate. The System Commissioner redelegates authority as foregoing, this authority shall include presently contains employee injury, follows: the execution, acknowledgement, seal accident and personnel data records. To improve the quality, timeliness and Section A. Authority Redelegated. and delivery, on behalf of the Secretary, of all documents responding to, efficiency of injury and accident The FHA Comptroller is redelegated: accepting, rejecting or compromising reporting and analysis, four additional 1. The authority to recommend the breach notices as well as the taking of types of information are being added to terms and conditions under which the such other action as may be necessary the System: employee birth date, home Department offers for sale Secretary- on behalf of the Secretary to respond to, address, sex and salary. This additional held multifamily mortgages and the accept, reject or compromise breach information will allow employees and accompanying assigned mortgage notes, notices. supervisors to report injuries and including all related assets, if any; upon 5. The authority to coordinate and be accidents electronically from their approval of the recommendations, the deciding official for all of the Office of computer workstations. This will authority to offer for sale such Housing’s responsibilities for litigation eliminate duplication of costly forms mortgages and assigned mortgage notes, concerning the sale of Secretary-held and administrative processes, afford including all related assets, if any; and multifamily mortgages and the employees and supervisors a secure the authority to execute agreements in accompanying assigned mortgages one-time entry process, provide a high the name of the Secretary pursuant to notes, including all related assets, if degree of accuracy, allow timely and which the Secretary-held multifamily any. multiple use of injury compensation mortgages and the accompanying 6. The authority to take all other information needed by Department of assigned mortgage notes, including all actions as may be necessary to effect the Labor, permit real time safety analysis, related assets, if any, may be sold. sale and/or transfer of the Secretary- and require no new user technical 2. The authority to take or cause to be held multifamily mortgages and the support or computer hardware. taken, and direct any action necessary to accompanying assigned mortgage notes, All other changes in the notice initiate or respond to correspondence on including any related assets, if any. describing ‘‘Safety Management behalf of the Department concerning the Information System—Interior DOI–60’’ sale of Secretary-held multifamily Section B. Authority to Further are editorial in nature. They clarify and mortgages and the accompanying Redelegate. update existing statements and reflect assigned mortgage notes, including all The FHA Comptroller may further organizational, address and other related assets, if any; redelegate the authority granted within miscellaneous administrative revisions 3. The authority to take or cause to be Section A, above. which have occurred since the previous taken, and direct any action necessary to publication of the material in the consummate the sale of Secretary-held Section C. Authority Revoked. Federal Register. multifamily mortgages and the This document revokes the As required by the Privacy Act of accompanying assigned mortgage notes, redelegation of authority at 61 FR 1974, the Office of Management and including all related assets, if any. 15818, published on April 9, 1996. Budget, the Senate Committee on Without limiting the generality of the Authority: Sec. 7(d) of the Department of Governmental Affairs, and the House foregoing, this authority shall include Housing and Urban Development Act (42 Committee on Government Reform and the execution, acknowledgement, seal U.S.C. 3535(d)). Oversight have been given notice of this and delivery, on behalf of the Secretary Dated: November 8, 1996. proposed Privacy Act system alteration. of (i) assignments of the mortgages and/ The Privacy Act of 1974 requires that Nicolas P. Retsinas, or deeds of trust; (ii) perfection and the public be provided with a 30-day Assistant Secretary for Housing, Federal assignments of UCC financing Housing Commissioner. period in which to comment on the statements; (iii) document delivery Department’s proposal to alter [FR Doc. 97–142 Filed 1–3–97; 8:45 am] notices; (iv) assignments of collateral ‘‘Interior—DOI–60.’’ The Office of mortgage loan documents; (v) mortgage BILLING CODE 4210±27±P Management and Budget, in its Circular note endorsements, deeds of trust note A–130, requires a 40-day period in endorsements and mortgage notes; (vi) which to review such proposals. Written release of regulatory agreements; (vii) DEPARTMENT OF THE INTERIOR comments on this proposal can be letters to mortgagors/borrowers, Privacy Act of 1974ÐPublic Notice addressed to the Departmental Privacy insurance companies and taxing Alteration of System of Records Act Officer, Department of the Interior, authorities advising them of the sale Office of the Secretary, 1849 ‘‘C’’ Street and/or transfer of the mortgage loans, as The Department of the Interior NW, Mail Stop 1414 MIB, Washington, well as letters as may be necessary to proposes to alter a system of records DC 20240, telephone (202) 208–6045, residents of projects secured by the managed by the Office of Occupational fax 202–208–5048. Comments received Secretary-held multifamily mortgage Safety and Health to add four new within 40 days of publication in the loans; and (viii) such other documents categories of information on individuals Federal Register will be considered. 768 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

The notice shall be effective as proposed illnesses in compliance with 29 CFR by electronic firewall, and maintained at the end of the comment period, 1960.6; (3) To the U.S. Department of with safeguards meeting the unless comments are received which Justice or in a proceeding before a court requirements of ‘‘the Computer Security would require a contrary determination. or adjudicative body when (a) the Guidelines for Implementing the Dated: December 24, 1996. United States, the Department of the Privacy Act of 1974’’ (43 CFR 2.51) Sue Ellen Sloca, Interior, a component of the Department, or, when represented by RETENTION AND DISPOSAL: Departmental Privacy Act Officer. the government, an employee of the Records are retained in accordance INTERIOR/DOI±60 Department is a party to litigation or with National Archives and Records anticipated litigation or has an interest Administration’s General Records SYSTEM NAME: in such litigation, and (b) the Safety Management Information Schedule (GRS) 10, Item 5; GRS 18, Item Department of the Interior determines 11; and GRS–20. System—Interior, DOI–60. that the disclosure is relevant or SYSTEM LOCATION: necessary to the litigation and is SYSTEM MANAGER(S) AND ADDRESS: compatible with the purpose for which U.S. Department of the Interior, Office the records were compiled; (4) Of (1) Chief System Administrator, of Occupational Safety and Health, P.O. information indicating a violation or Safety Management Information System, Box 25007 (D–115), Denver, Colorado potential violation of a statute, U.S. Department of the Interior, Office 80225. regulation, rule, order or license, to of Occupational Safety and Health, P.O. CATEGORIES OF INDIVIDUALS COVERED BY THE appropriate Federal, State, local or Box 25007 (D–115), Denver, Colorado SYSTEM: foreign agencies responsible for 80225. Employees of the Department of the investigating or prosecuting the Interior, contractors, concessionaires, violation or for enforcing or NOTIFICATION PROCEDURE: and public visitors to Interior facilities implementing the statute, rule, A request for notification of the who have been involved in an accident regulation, order or license; and (5) To existence of records shall be addressed resulting in personal injury and/or a congressional office from the record of to the System Manager. The request property damage. an individual in response to an inquiry shall be in writing, signed by the the individual has made to the requester, and comply with the content CATEGORIES OF RECORDS IN THE SYSTEM: congressional office. requirements of 43 CFR 2.60. It shall For individuals covered by the state that the requester seeks system: Name of individual; Social POLICIES AND PRACTICES FOR STORING, RETRIEVING AND ACCESSING, RETAINING AND information about himself/herself. Security Number, birth date, sex, home DISPOSING OF RECORDS IN THE SYSTEM: address, occupation, and salary (for RECORD ACCESS PROCEDURES: employees of the Department, only) of STORAGE: the individual; date and location of the Official records are maintained and A request for access to records shall accident; data elements about the stored in electronic form on a host be addressed to the System Manager. accident for analytical purposes; and a computer housed in the system location The request shall be in writing, signed descriptive narrative concerning what office. They are created and updated on by the requester, and comply with the caused the accident. the individual workstations of any/all content requirements of 43 CFR 2.63. It employees and supervisors, shall state that the requester seeks AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Departmentwide, that can communicate, information about himself/herself. (1) 5 U.S.C. 7901, (2) 26 U.S.C. 2671– electronically, with the host computer. 2680, (3) 31 U.S.C. 240–243, (4) 29 CFR CONTESTING RECORD PROCEDURES: Part 1960, (5) Executive Order 12196. RETRIEVABILITY: Records are retrieved both by personal A request for amendment of a record ROUTINE USES OF RECORDS MAINTAINED IN THE identifiers of covered individuals and shall be addressed to the System SYSTEM, INCLUDING CATEGORIES OF USERS AND by data elements associated with the Manager. The request shall be in THE PURPOSES OF SUCH USES: accidents via automated lookup tables. writing, signed by the requester, and The primary uses of the records are (a) comply with the content requirements To provide summary data of injury, SAFEGUARDS: of 43 CFR 2.71. It shall state that the illness and property loss information to (1) Access to the records is limited to requester seeks information about the bureaus in a number of formats for Departmental employees who have an himself/herself. analytical purposes in order for them to official need to use the records in the improve accident prevention policies, performance of their duties. Access to RECORD SOURCE CATEGORIES: procedures, regulations, standards, and the records is controlled by (a) required Employees involved in accidents. operations; (b) To provide listings of user IDs and passwords, and by (b) Supervisors of employees involved in individual cases to bureaus to insure unique identifying personnel accidents, supervisors of operations that accidents occurring are reported characteristics of users. where public visitors are involved in through the Safety Management (2) Personal information is accidents, officials responsible for Information System; and (c) To electronically tagged upon input into oversight of contractors and adjudicate tort and employee claims. the system by employees or supervisors. concessionaires, safety professionals Disclosures outside the Department of It is not displayed or printed from the and other management officials. the Interior may be made: (1) To a workstations of individuals not Federal, State or local government authorized to have access to it. It is EXEMPTIONS CLAIMED FOR THE SYSTEM: agency that has partial or complete protected from unauthorized access, jurisdiction over the claim or related during transmission, by electronic No parts of this system are exempted claims; (2) To provide to the Department transmission encryption. from provisions of the act. of Labor quarterly summary listings of (3) Records are stored in a controlled [FR Doc. 97–84 Filed 1–3–97; 8:45 am] fatalities and disabling injuries and area, secured from unauthorized access BILLING CODE 4310±RK±M Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 769

Bureau of Land Management discussed below. The Act requires that Type of Request: Emergency OMB provide interested Federal reinstatement without change of a [OR±030±1220: G5±0288] agencies and the public an opportunity previously approved collection and Notice of Postponement and to comment on information collection subsequent extension of a currently Announcement of Meeting of requests. The Act also provides that an approved collection of information. Southeast Oregon Resource Advisory agency may not conduct or sponsor, and Form Number: N/A. Council a person is not required to respond to, a collection of information unless it Comments: The OMB is required to AGENCY: Vale District, Bureau of Land displays a currently valid OMB control make a decision on a request for Management (BLM), Interior. number. emergency processing within the time period requested by the agency ACTION: Notice of postponement of DATES: Submit written comments by submitting the collection of information. meeting of Southeast Oregon Resource February 5, 1997. Advisory Council; Notice of We requested approval within 7 days ADDRESSES: Submit comments and after OMB receives our request. OMB announcement of meeting of Southeast suggestions directly to the Office of Oregon Resource Advisory Council. may approve an emergency request for Information and Regulatory Affairs, 120 days. OMB, Attention: Desk Officer for the SUMMARY: Notice is given that the During that period of emergency meeting of the Southeast Oregon Department of the Interior (1010–0057), 725 17th Street, NW., Washington, DC approval, MMS will immediately Resource Advisory Council scheduled resubmit a request to OMB for a for January 27 and 28, 1997 is 20503. Send a copy of your comments to the standard 3-year extension of this postponed to February 27 and 28, 1997. collection of information. OMB may The meeting location remains the same: Chief, Engineering and Standards Branch, Mail Stop 4700, Minerals make a decision to approve or The Holiday Inn, 1249 Tapadera disapprove this collection of Avenue, Ontario, Oregon. Management Service, 381 Elden Street, Herndon, Virginia 20170–4817. information after 30 days from receipt of Public comments will be received that request. Therefore, your comments FOR FURTHER INFORMATION CONTACT: from 12:00 p.m. to 12:15 p.m., Feb. 27, are best ensured of being considered by Alexis London, Engineering and 1997. Topics to be discussed during the OMB if OMB receives them within that Standards Branch, Minerals meeting are administrative activities of time period. the Council, the Southeastern Oregon Management Service, telephone (703) Resource Management Plan, and the 787–1600. You may obtain copies of the The publication of this notice for Interior Columbia Basin Ecosystem proposed collection of information and comments will serve as notice for both Management Project and the proposed related forms by contacting MMS’s submissions to OMB. All comments will rules regarding BLM’s law enforcement Information Collection Clearance Officer become a matter of public record. authority. at (703) 787–1242. On July 11, 1996, MMS provided an DATES: The Southeast Oregon Resource SUPPLEMENTARY INFORMATION: opportunity for comments (61 FR Advisory Council meeting will be in at 36565) as required by 5 CFR 1320.8(d). 8:00 a.m. and run to 5:00 p.m. Feb. 27, Title: 30 CFR 250, Subpart C, No comments were received in response and, 8:00 a.m. to 12:00 noon on Feb. 28, Pollution Prevention and Control. to that notice. 1997. OMB Number: 1010–0057. Abstract: The information collected Bureau Clearance Officer: Carole de FOR FURTHER INFORMATION CONTACT: consists of information that MMS uses Witt (703) 787–1242. Jonne Hower, Bureau of Land to assess the ability of a lessee to Dated: December 4, 1996. Management, Vale District, 100 Oregon prevent or contain pollution in offshore Street, Vale, OR 97918; (Telephone 541– E.P. Danenberger, waters. Responses to this collection of 473–3144). Acting Deputy Associate Director for information are mandatory. Lynn P. Findley, Operations and Safety Management. Description of Respondents: Federal [FR Doc. 97–193 Filed 1–3–97; 8:45 am] Assistant District Manager, Operations. Outer Continental Shelf oil, gas, and [FR Doc. 97–127 Filed 1–3–97; 8:45 am] sulphur lessees. BILLING CODE 4310±MR±M BILLING CODE 4310±33±M Estimated Number of Respondents: 130. National Park Service Frequency: The reporting and Minerals Management Service recordkeeping requirements and Submission of Study Package to Office number of respondents vary by section Agency Information Collection of Management and Budget; Review and are on occasion or monthly. Opportunity for Public Comment Activities: Submission for Office of Estimated Annual Burden on Management and Budget Review; Respondents: Reporting burden of Comment Request AGENCY: Department of the Interior; 12,440 hours and recordkeeping burden National Park Service; Martin Luther AGENCY: Minerals Management Service of 137,070 hours, for a total of 149,510 King, Jr., National Historic Site; Mojave (MMS), Interior. burden hours. The average burden per National Preserve; Virgin Islands ACTION: Notice to reinstate a previously respondent for both reporting and National Park. approved collection. recordkeeping is estimated to be 1,150 hours. ACTION: Notice and request for SUMMARY: The Department of the Estimated Annual Other Costs to comments. Interior has submitted to the Office of Respondents: $250,000 annualized one- Management and Budget (OMB) for time cost for the collection of ABSTRACT: The National Park Service approval under the provisions of the meteorological data from selected sites (NPS) Visitor Services Project and three Paperwork Reduction Act of 1995 (Act) to determine cumulative impacts of air parks (Martin Luther King, Jr., National a request for emergency processing to quality within the 100-kilometer radius Historic Site in Georgia; Mojave reinstate the collection of information of the Breton National Wilderness Area. National Preserve in California; Virgin 770 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Islands National Park in the U.S. Virgin Sciences; University of Idaho; Moscow, FOR FURTHER INFORMATION CONTACT: Vera Islands) propose to conduct visitor ID 83844–1133. Libeau (202–205–3176), Office of surveys to learn about visitor FOR FURTHER INFORMATION OR A COPY OF Investigations, U.S. International Trade demographics and visitor opinions THE QUESTIONNAIRE SUBMITTED FOR OMB Commission, 500 E Street SW, about services and facilities in each of REVIEW, CONTACT: Washington, DC 20436. Hearing- these three parks. The results of the Margaret Littlejohn, 208–885–7863. impaired persons can obtain surveys will be used by park managers information on this matter by contacting to improve the services they provide to SUPPLEMENTARY INFORMATION: the Commission’s TDD terminal on 202– visitors while better protecting park Title: National Park Service (NPS) 205–1810. Persons with mobility natural and cultural resources. Study Visitor Services Project Visitor Surveys impairments who will need special packages that include the proposed at Three Parks. assistance in gaining access to the survey questionnaires for these three Form: Not applicable. Commission should contact the Office proposed park studies have been OMB Number: To be assigned. of the Secretary at 202–205–2000. submitted to the Office of Management Expiration Date: To be assigned. General information concerning the and Budget for review. Type of Request: Request for new Commission may also be obtained by SUMMARY: Under the provisions of the clearance. accessing its internet server (http:// Paperwork Reduction Act of 1995 and 5 Description of Need: The National www.usitc.gov or ftp://ftp.usitc.gov). CFR Part 1320, Reporting and Record Park Service needs information SUPPLEMENTARY INFORMATION: On Keeping Requirements, the NPS invites concerning visitor demographics and December 30, 1996, the Department of public comment on these three visitor opinions about the services and Commerce informed the Commission proposed information collection facilities that the National Park Service that a suspension agreement had been requests (ICR). Comments are invited provides in each of these three parks. signed in the subject investigation. on: (1) the need for the information The proposed information to be Accordingly, the Commission hereby including whether the information has collected regarding visitors in these cancels the hearing on the investigation practical utility; (2) the accuracy of the three parks is not available from existing currently scheduled for January 7, 1997, reporting burden estimate; (3) ways to records, sources, or observations. the prehearing briefs currently due enhance the quality, utility, and clarity Description of Respondents: A sample December 31, 1996, and the posthearing of the information to be collected; and of visitors to each of these three parks. briefs currently due January 14, 1997. Estimated Average Number of (4) ways to minimize the burden of the AUTHORITY: This investigation is being information collection on respondents, Respondents: 360 at Martin Luther King, Jr., National Historic Site; 432 at Mojave conducted under authority of title VII of including the use of automated the Tariff Act of 1930; this notice is collection techniques or other forms of National Preserve; and 728 at Virgin Islands National Park. published pursuant to section 207.21 of information technology. the Commission’s rules. The purpose of the three proposed Estimated Average Number of ICRs is to document the demographics Responses: 360 at Martin Luther King, By order of the Commission. of visitors to the three parks, to learn Jr., National Historic Site; 432 at Mojave Issued: December 30, 1996. about the motivations and expectations National Preserve; and 728 at Virgin Donna R. Koehnke, these visitors have for their park visits, Islands National Park. Secretary. and to obtain their opinions regarding Estimated Average Burden Hours Per [FR Doc. 97–131 Filed 1–3–97; 8:45 am] Response: 12 minutes. services provided by the three parks and BILLING CODE 7020±02±P the suitability of the visitor facilities Estimated Annual Reporting Burden: maintained in the three parks. This 72 hours at Martin Luther King, Jr., National Historic Site; 86.4 hours at information will be used by park PAROLE COMMISSION planners and managers to plan, develop, Mojave National Preserve; and 146 and operate visitor services and hours at Virgin Islands National Park. Sunshine Act Meeting facilities in ways that maximize use of Estimated Frequency of Response: AGENCY HOLDING MEETING: Department of limited park financial and personnel One time. Justice, United States Parole resources to meet the expectations and Dated: December 31, 1996. Commission. desires of park visitors. Terry N. Tesar, DATE AND TIME: There were no public comments Information Collection Clearance Officer, The first Tuesday of each received as a result of publishing in the Audits and Accountability Team, National month throughout Calendar Year 1997, Federal Register a 60 day notice of Park Service. at 3:30 p.m., with the exception of those intention to request clearance of [FR Doc. 97–136 Filed 1–3–97; 8:45 am] months in which the Commission gives public notice of the holding of a information collection for these three BILLING CODE 4310±70±M surveys. quarterly business meeting. DATES: Public comments will be PLACE: 5550 Friendship Boulevard, accepted for thirty days from the date INTERNATIONAL TRADE Suite 400, Chevy Chase, Maryland listed at the top of this page in the COMMISSION 20815. Federal Register. STATUS: Closed to the public pursuant to [Investigation No. 731±TA±740 (Final)] SEND COMMENTS TO: Office of 5 U.S.C. 552b(c)(10). Information and Regulatory Affairs of Sodium Azide from Japan MATTERS TO BE CONSIDERED: The OMB, Attention Desk Officer for the following matters will be considered Interior Department, Office of AGENCY: United States International during the monthly meetings covered by Management and Budget, Washington, Trade Commission. this announcement: DC 20530; and also to: Margaret ACTION: Cancellation of hearing and Prisoner and parolee appeals to the Littlejohn; Cooperative Park Studies briefs. National Appeals Board under 28 CFR 2.26, Unit; Department of Forest Resources; and initial decisions regarding original College of Forestry, Wildlife and Range EFFECTIVE DATE: December 30, 1996. jurisdiction cases under 28 CFR 2.17, Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 771 whenever such cases are found to require request to OMB and solicitation of at the NRC Public Document Room, discussion among the Commissioners prior to public comment. 2120 L Street NW., (lower level), voting. These decisions pertain to cases Washington, DC. Members of the public initially heard by examiners wherein inmates SUMMARY: The NRC is preparing a who are in the Washington, DC, area can of Federal prisons or persons on Federal submittal to OMB for review and parole have applied for parole or are access this document via modem on the approval of a new information Public Document Room Bulletin Board contesting revocation of parole or mandatory collection under the provisions of the release. (NRC’s Advance Copy Document Paperwork Reduction Act of 1995 (44 Library), NRC subsystem at FedWorld, AGENCY CONTACT: Tom Kowalski, Case U.S.C. Chapter 35). 703–321–3339. Members of the public Operations, United States Parole Information pertaining to the who are located outside of the Commission, (301) 492–5862. requirement to be submitted: Washington, DC, area can dial Dated: December 20, 1996. 1. The title of the information FedWorld, 1–800–303–9672, or use the Michael A. Stover, collection: Joint NRC/EPA Survey of FedWorld Internet address: Sewage Sludge/Ash. fedworld.gov (Telnet). The document General Counsel, U.S. Parole Commission. 2. Current OMB approval number: [FR Doc. 97–287 Filed 1–2–97; 2:24 pm] will be available on the bulletin board None. for 30 days after the signature date of BILLING CODE 4410±01±M 3. How often the collection is this notice. If assistance is needed in required: This is a one-time collection. accessing the document, please contact 4. Who is required or asked to report: the FedWorld help desk at 703–487– Selected publicly owned treatment DEPARTMENT OF LABOR 4608. Additional assistance in locating works (POTWs), and Agreement States. the document is available from the NRC Office of the Assistant Secretary for 5. The number of annual respondents: Public Document Room, nationally at 1– Veterans' Employment and Training 600 POTWs for the questionnaire, and 800–397–4209, or within the 300 POTWs for sample collection, plus Washington, DC, area at 202–634–3273. Proposed Collection; Comment 29 Agreement States for reporting of Zip Request: Correction Codes. Comments and questions about the 6. The number of hours needed information collection requirements ACTION: Correction. annually to complete the requirement or may be directed to the NRC Clearance SUMMARY: In notice document 96–33023 request: An average of 2 hours per Officer, Brenda Jo. Shelton, U.S. Nuclear beginning on page 68303 in the issue of respondent for questionnaires and 6 Regulatory Commission, T–6 F33, Friday, December 27, 1996, make the hours each for selected respondents for Washington, DC, 20555–0001, by following correction: collecting samples, plus 8 hours each telephone at (301) 415–7233, or by On page 68303 in the first column, for 29 Agreement States. The total Internet electronic mail at after the sentence, ‘‘The Department of burden is 3,232 hours. [email protected]. Labor is particularly interested in 7. Abstract: The survey will obtain Dated at Rockville, Maryland, this 20th of comments which:’’ insert the following: national estimates of the levels of December, 1996. * Evaluate whether the proposed radioactive materials in sludge and ash For the Nuclear Regulatory Commission. at POTWs, estimate the extent to which collection of information is necessary Gerald F. Cranford, for the proper performance of the radioactive contamination comes from either NRC/Agreement State licensees or Designated Senior Official for Information functions of the agency, including Resources Management. from naturally occurring radioactivity, whether the information will have [FR Doc. 97–156 Filed 1–3–97; 8:45 am] practical utility. and support possible rulemaking On page 68303 in the second column decisions by NRC and EPA. NRC and BILLING CODE 7590±01±P under ADDRESSES, the following EPA will send questionnaires to selected POTWs. Based on the results of statement is added after the telephone Advisory Committee on Reactor that survey, NRC will identify number: (This is not a toll-free number). Safeguards, Joint Meeting of the ACRS approximately 300 POTWs from which In the section FOR FURTHER Subcommittees on Materials and samples of sewer sludge/ash will be INFORMATION CONTACT, the following Metallurgy and on Severe Accidents taken and analyzed. Results of the full statement is added after the telephone Rescheduled; Notice of Meeting number: (This is not a toll-free number). survey will be published for use by Federal agencies, States, POTWs, and Dated: December 30, 1996. A joint meeting of the ACRS local POTW officials. Subcommittees on Materials and Jeffrey C. Crandall, Submit, by March 7, 1997, comments Metallurgy and on Severe Accidents Director of Planning. that address the following questions: [FR Doc. 97–165 Filed 1–3–97; 8:45 am] 1. Is the proposed collection of scheduled to be held on January 9, 1997, Room T–2B3, 11545 Rockville Pike, BILLING CODE 4510±79±M information necessary for the NRC to properly perform its functions? Does the Rockville, Maryland, as been information have practical utility? rescheduled to allow more time for 2. Is the burden estimate accurate? discussion. The meeting has been NUCLEAR REGULATORY rescheduled for January 9, 1997, 12:30 COMMISSION 3. Is there a way to enhance the quality, utility, and clarity of the p.m. until 3:30 p.m. All other items pertaining to this meeting remain the Agency Information Collection information to be collected? same as previously published in the Activities: Proposed Collection; 4. How can the burden of the Federal Register on December 24, 1996 Comment Request information collection be minimized, including the use of automated (61 FR 67859). AGENCY: U. S. Nuclear Regulatory collection techniques or other forms of For further information contact: Mr. Commission (NRC). information technology? Noel F. Dudley, cognizant ACRS staff ACTION: Notice of pending NRC action to A copy of the draft supporting engineer, (telephone 301/415–6888) submit an information collection statement may be viewed free of charge between 7:30 a.m. and 4:15 p.m. (EST). 772 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Dated: December 30, 1996. (‘‘SOES Automated Quotation Update SEC Rule 11Ac1–1(c)(5), the so-called Paul Boehnert, Feature’’). These rules are part of a set ECN Rule.6 Acting Chief, Nuclear Reactors Branch. of SOES rules approved by the SEC on As described in more detail below, [FR Doc. 97–178 Filed 1–3–97; 8:45 am] a pilot basis known as the Interim SOES because the NASD believes 3 implementation of the SOES Minimum BILLING CODE 7590±01±P Rules. Exposure Limit Rule and the SOES II. Self-Regulatory Organization’s Automated Quotation Update Feature Statement of the Purpose of, and have been associated with positive SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule developments in the markets for Nasdaq COMMISSION Change securities and clearly have not had any [Release No. 34±38094; File No. SR±NASD± In it filing with the Commission, the negative effects on market quality, the 96±49] NASD included statements concerning NASD believes it is appropriate and the purpose of and basis for the consistent with the maintenance of fair Self-Regulatory Organizations; Notice proposed rule change and discussed any and orderly markets and the protection of Proposed Rule Change by the comments it received on the proposed of investors for the Commission to National Association of Securities rule change. The text of these statements approve a further limited extension of Dealers, Inc., Relating to an Extension may be examined at the places specified the effectiveness of these rules. The of the SOES Minimum Exposure Limit in Item IV below. The NASD has NASD believes the SOES Minimum Rule and the SOES Automated prepared summaries, set forth in Exposure Limit Rule and the SOES Quotation Update Feature Until July Sections (A), (B), and (C) below, of the Automated Quotation Update Feature 31, 1997 most significant aspects of such reflect a reasoned approach by the statements. December 30, 1996. NASD to address the adverse effects on market liquidity attributable to active Pursuant to Section 19(b)(1) of the A. Self-Regulatory Organization’s intra-day trading activity through SOES, Securities Exchange Act of 1934 Statement of the Purpose of, and while at the same time not (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is Statutory Basis for, the Proposed Rule compromising the ability of small, retail hereby given that on December 16, 1996, Change investors to receive immediate the National Association of Securities The Commission originally approved executions through SOES. Specifically, Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) the SOES Minimum Exposure Limit these rules are designed to address filed with the Securities and Exchange Rule and the SOES Automated concerns that concentrated, aggressive Commission (‘‘Commission’’ or ‘‘SEC’’) Quotation Update Feature on a one-year use of SOES by a growing number of the proposed rule change as described pilot basis in December 1993, along order entry firms has resulted in in Items I, II, and III below, which Items with two other SOES rules which have increased volatility in quotations and have been prepared by the NASD. The 4 since lapsed. Since December 1993, the transaction prices, wider spreads, and Commission is publishing this notice to SEC has approved five NASD proposals the loss of liquidity for individual and solicit comments on the proposed rule to extend the effectiveness of the rules, institutional investor orders. change from interested persons. with the most recent approval extending The NASD believes that the same the rules through January 31, 1997.5 I. Self-Regulatory Organization’s arguments and justifications made by With this filing the NASD proposes to Statement of the Terms of Substance of the NASD in support of approval of the further extend the effectiveness of the the Proposed Rule Change SOES Minimum Exposure Limit Rule SOES Minimum Exposure Limit Rule and the SOES Automated Quotation The NASD proposes to extend, until and the SOES Automated Quotation Update Feature and five extensions of July 31, 1997, the effectiveness of Update Feature until July 31, 1997, so these rules are just as compelling today certain rules governing the operation of that the rules can continue on an as they were when the SEC relied on The Nasdaq Stock Market, Inc.’s uninterrupted basis until the SEC has them to initially approve these rules. In (‘‘Nasdaq’’) Small Order Execution had an opportunity to consider Nasdaq’s sum, the NASD continues to believe that System (‘‘SOES’’). Specifically, these proposals to amend SOES, SelectNet, concentrated bursts of SOES activity by SOES rules, which were previously and a variety of NASD rules to conform active order-entry firms contribute to approved by the Commission on a pilot to the SEC’s new limit order display increased short-term volatility, wider basis on December 23, 1993 1 and rule, Rule 11Ac1–4, and amendments to spreads, and less market liquidity on recently extended through January 31, Nasdaq and that the SOES Minimum 1997,2 provide for: (1) a reduction in the 3 As first approved by the Commission on Exposure Limit Rule and the SOES minimum exposure limit for December 23, 1993, the Interim SOES Rules had Automated Quotation Update Feature unpreferenced SOES orders from five four components: (1) the SOES Minimum Exposure Limit; (2) the Automated Quotation Update; (3) a are an effective means to minimize these times the maximum order size to two reduction in the maximum size order eligible for adverse market impacts. In addition, times the maximum order size, and for execution through SOES from 1,000 shares to 500 given the increased utilization of SOES the elimination of exposure limits for shares (‘‘SOES Maximum Order Size’’); and (4) the since the SOES Maximum Order Size preferenced orders (‘‘SOES Minimum prohibition of short sales through SOES. The SOES Maximum Order Size Rule lapsed effective March Rule lapsed at the end of March 1995, Exposure Limit Rule’’); and (2) 28, 1995 and the rule prohibiting the execution of the NASD believes it is even more implementation of an automated short sales through SOES lapsed effective January imperative that the SOES Minimum function for updating market maker 26, 1995. 4 Exposure Limit Rule and the SOES quotations when the market maker’s See Interim SOES Rules Approval Order, supra exposure limit has been exhausted note 1. 5 See Interim SOES Rules Extension Order, supra 6 See Securities Exchange Act Release No. 38008 note 2, and Securities Exchange Act Release Nos. (December 2, 1996), 61 FR 64550 (December 5, 1 See Securities Exchange Act Release No. 33377 35275 (January 25, 1995), 60 FR 6327 (February 1, 1996). Should the Commission approve SR–NASD– (December 23, 1993), 58 FR 69419 (December 30, 1995); 35535 (March 27, 1995), 60 FR 16690 (March 96–43 prior to July 31, 1997, the rule amendments 1993) (‘‘Interim SOES Rules Approval Order’’). 31, 1995); 36311 (September 29, 1995), 60 FR 52438 contained in that filing would supersede and 2 See Securities Exchange Act Release No. 37502 (October 6, 1995) (‘‘October 1995 Extension replace the SOES Minimum Exposure Limit Rule (July 30, 1996), 61 FR 40869 (August 6, 1996) Order’’); and 36795 (January 31, 1996), 61 FR 4504 and the SOES Automated Quotation Update Feature (‘‘Interim SOES Rules Extension Order’’). (February 6, 1996). where appropriate. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 773

Automated Quotation Update Feature d. The Commission believes that there are The NASD believes these significant remain in effect to help to ensure the increased costs associated with active intra- statutory findings by the SEC regarding integrity of the Nasdaq market and day trading activity through SOES that the SOES Minimum Exposure Limit undermine Nasdaq market quality * * *. Rule and the SOES Automated prevent waves of SOES orders from a Active intra-day trading activity through handful of SOES order-entry firms from SOES can also contribute to instability in the Quotation Update Feature and the SEC’s degrading market liquidity and market.10 assessment of the likely benefits to the contributing to excessive short-term e. In addition, these waves of executions marketplace that would result from the market volatility. can make it difficult to maintain orderly rules have been confirmed and The NASD notes that the SEC made markets. Given the increased volatility substantiated by econometric studies on specific findings in the Interim SOES associated with these waves of intra-day the effectiveness of the Interim SOES Rules Approval Order that the SOES trading activity, market makers are subject to Rules conducted by the NASD’s increased risks that concentrated waves of Economic Research Department 15 and Minimum Exposure Limit Rule and the orders will cause the market to move away. SOES Automated Quotation Update As a result, individual market makers may be an independent economist 16 Feature were consistent with the Act. In unwilling to narrow the current spread and commissioned by the NASD. When particular, the SEC stated in its approval commit additional capital to the market by the SEC approved the Interim SOES order that: raising the bid or lowering the offer. When Rules, it stated that ‘‘[a]ny further action market makers commit less capital and quote a. Because the benefits for market quality the NASD seeks with respect to SOES— less competitive markets, prices can be extension of these modifications upon of restricting SOES usage outweighs any expected to deteriorate more rapidly. potential decrease in pricing efficiency, the expiration, or introduction of other Accordingly, the Commission believes that it changes—will require independent Commission concludes that the net effect of is appropriate for the NASD to take measured the proposal is to remove impediments to the steps to redress the economic incentives for consideration under Section 19 of the 17 mechanism of a free and open market and a frequent intra-day trading inherent in SOES Act.’’ In addition, the SEC stated that, national market system, and to protect to prevent SOES activity from having a should the NASD desire to extend these investors and the public interest, and that the negative effect on market prices and SOES changes or modify SOES, the proposed rule changes are designed to volatility.11 Commission would expect ‘‘the NASD produce accurate quotations, consistent with f. The Commission does not believe that to monitor the quality of its markets and Sections 15A(b)(6) and 15A(b)(11) of the Act. intra-day trading strategies through SOES In addition, the Commission concludes that assess the effects of the approved SOES contribute significantly to market efficiency changes on market quality for Nasdaq the benefits of the proposal in terms of in the sense of causing prices to reflect preserving market quality and preserving the information more accurately.12 securities.’’ Also, if feasible, the SEC operational efficiencies of SOES for the g. The Commission has evaluated each of instructed the NASD to provide a processing of small size retail orders the proposed modifications to SOES, and quantitative and statistical assessment outweigh any potential burden on concludes that each of the modifications of the effects of the SOES changes on competition or costs to customers or broker- reduces the adverse effects of active trading market quality; or, if an assessment is dealers affected adversely by the proposal. through SOES and better enables market not feasible, the SEC stated that the Thus, the Commission concludes that the makers to manage risk while maintaining proposal is consistent with Section 15A(b)(9) NASD should provide a reasoned continuous participation in SOES. In explanation supporting that of the Act in that it does not impose a burden addition, the Commission does not believe on competition which is not necessary or that any of the modifications will have a determination. appropriate in furtherance of the purposes of In sum, the NASD’s study found that: significant negative effect on market quality. • the Act.7 To the extent that any of the modifications Since the SOES changes went into b. The Commission also concludes that the may result in a potential loss of liquidity for effect in January 1994, the statistical proposal advances the objectives of Section small investor orders, the Commission evidence indicated that when average 11A of the Act. Section 11A provides that it believes that these reductions are marginal daily volume, stock price, and stock is in the public interest and appropriate for and are outweighed by the benefits of price volatility are held constant the protection of investors and the preserving market maker participation in through regression techniques, quoted maintenance of fair and orderly markets to SOES and increasing the quality of percentage spreads in Nasdaq securities assure economically efficient execution of executions for public and institutional orders securities transactions, fair competition as a result of the modifications.13 experienced a decline in the immediate among market participants, and the h. The Commission * * * has determined period of following implementation of practicality of brokers executing orders in the that the instant modifications to SOES the changes and have continued to best market. The Commission concludes that furthers the objectives of investor protection decline since then. The statistical the proposal furthers these objectives by and fair and orderly markets, and that these evidence also showed that the preserving the operational efficiencies of goals, on balance, outweigh any marginal narrowing of quoted percentage spreads SOES for the processing of small orders from effects on liquidity for small retail orders, became more pronounced and robust retail investors.8 and any anti-competitive effects on order c. The Commission believes that it is entry firms and their customers. The the longer the Interim SOES Rules were appropriate to restrict trading practices Commission concludes that the ability of in effect. In particular, quoted spreads through SOES that impose excessive risks active traders to place trades through a in cents per share for the 500 largest and costs on market makers and jeopardize system designed for retail investors can Nasdaq National Market (‘‘NNM’’) market quality, and which do not provide impair market efficiency and jeopardize the securities experienced a sharp decline significant contributions to liquidity or level of market making capital devoted to pricing efficiency. . . . The Commission Nasdaq issues. The Commission believes that 15 See letter from Gene Finn, Vice President & believes that it is more important to ensure the rule change is an appropriate response to Chief Economist, NASD, to Katherine England, that investors seeking to establish or active trading through SOES, and that the Assistant Director, National Market System & OTC liquidate an inventory position have ready modifications will reduce the effects of Regulation, SEC, dated October 24, 1994 (letter concentrated intra-day SOES activity on the submitted in connection with the NASD’s access to a liquid Nasdaq market and SOES • than to protect the ability of customers to use market.14 N PROVE filing, SR–NASD–94–13 (the NASD later withdrew this filing)). SOES for intra-day trading strategies.9 16 See The Association Between the Interim SOES 10 Id. Rules and Nasdaq Market Quality, Dean Furbush, 7 Interim SOES Rules Approval Order, supra note 11 Id. at 69425–26. Ph.D., Economists, Inc., Washington, D.C., 1, 58 FR at 69423. 12 Id. December 30, 1994 (‘‘Furbush Study’’). 8 Id. 13 Id. 17 Interim SOES Rules Approval Order, supra 9 Id. at 69424–25. 14 Id. at 69429. note 1, 59 FR at 69429. 774 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices from April 28 to May 12 and from June concentrated waves of orders entered the Nasdaq market, the NASD also 23 to July 18.18 into SOES by active order-entry firms believes that SEC reconsideration of its • With the exception of a brief, resulted in discernible degradation to position with respect to the entry of market-wide period of volatility the quality of the Nasdaq market. 1,000-share orders into SOES is experienced by stocks traded on Specifically, the study found, among warranted. Nasdaq, the New York Stock Exchange, other things, that: (1) bursts of orders The NASD also has prepared another and the American Stock Exchange entered into SOES by active order entry report that the NASD believes illustrates during the Spring of 1994, the volatility firms frequently result in a decline in that the SOES Minimum Exposure Limit of Nasdaq securities appears to be the bid price and a widening of the bid- Rule and the SOES Automated unchanged in the period following ask spread; (2) that there is a significant Quotation Update Feature have had no implementation of the changes; and positive relationship between increases adverse impact on the market for • A smaller percentage of Nasdaq in spreads and volume attributable to Nasdaq securities.22 This report was in stocks experienced extreme relative active order-entry firms as it related to response to the Commission’s request in price volatility after implementation of total SOES volume per security; and (3) the October 1995 Extension Order that the rules and that these modifications, activity by active order-entry firms the NASD: in turn, suggest a reduction in relative resulted in higher price volatility and Monitor the extent to which exposure volatilities since the rules were put into less liquidity—higher price changes are limits are exhausted, the extent to which the effect. associated with high active trading firm automated quotation update feature is used, The Furbush Study found that there volume, even after controlling for and the effects these two aspects have on was a statistically significant normal price fluctuations. liquidity. Moreover, the Commission expects improvement in effective spreads for the The NASD also believes market the NASD to consider the possibility of top 100 Nasdaq stocks (based on dollar activity since the SOES Maximum Order enhancements to eliminate the potential for delayed and/or inferior executions.23 volume) during the three month period Size Rule lapsed on March 28, 1995, following implementation of the rules. provides further support for the In sum, the December 1995 Moreover, the study also found that the effectiveness of the SOES Minimum Monitoring Report found that it is very most significant improvement in Exposure Limit Rule and the SOES infrequent occurrence for a market effective spreads for the top 100 stocks Automated Quotation Update Feature maker to have its exposure limit occurred for trade sizes between 501 and the NASD’s economic rationale for exhausted in a NNM security. In and 1,000 shares, precisely the level that these rules. In particular, an analysis particular, from the period October 2, was made ineligible for SOES trading by prepared by the NASD’s Economic 1995 to November 22, 1995, there were, the Interim SOES Rules. In addition, the Research Department clearly illustrates on average, 83 instances per day where study found that the average number of that there has been a dramatic increase a market maker’s exposure limit in 24 market makers for the top ten Nasdaq- in SOES volume since the SOES NNM securities was exhausted. Thus, listed stocks increased from 44.3 to 46.0, Maximum Order Size Rule lapsed and given the fact that there was an average or 3.8 percent, and from 30.2 to 30.9 for that many market maker positions have of 44,062 market making positions in the top 100 stocks, or 2.3 percent. been abandoned. These two phenomena NNM securities and 3,932 NNM Although correlation does not appear to be linked. Those Nasdaq securities trading per day during this necessarily imply causation, as noted by stocks that have experienced the time period, the impact of these the SEC when it approved the Interim greatest decline in the number of market individual exposure limit exhaustions SOES Rules and extensions of the makers are the ones that have on the availability of SOES to investors Interim SOES Rules, the NASD believes experienced the greatest increase in throughout the trading day was that positive market developments SOES volume since the rule lapsed.20 infinitesimal. Each market making clearly have been associated with The NASD believes these figures position experienced .0019 exposure limit exhaustions per day over this time implementation of the Interim SOES indicate that the relaxation of one of the period and each NNM securities Rules. Interim SOES Rules may have The NASD also believes that these contributed to some of the adverse experienced .0211 exhaustions per day. studies of the effectiveness of the market developments that the NASD Moreover, while Nasdaq could not Interim SOES Rules lend credence to was seeking to avoid through readily determine the extent to which another NASD study that was submitted implementation of the Interim SOES the exposure limit exhaustions occurred simultaneously in the same security, to the SEC in support of approval of the Rules (e.g., degradation in market maker given the stark infrequency with which Interim SOES Rules.19 In the May 1993 participation and market liquidity).21 the exposure limit exhaustions SOES Study, the NASD found that Accordingly, the NASD believes that occurred, the NASD believes it is any further relaxation of the Interim extremely improbable that a NNM 18 Some press reports have attributed the recent SOES Rules by permitting the SOES security would experience a situation decline in spreads for Nasdaq stocks to the Minimum Exposure Limit Rule or the publication, on May 26 and 27, 1994, of newspaper where the SOES exposure limits for all SOES Automated Quotation Update articles in The Wall Street Journal, The Los Angeles market makers in that stock were Feature to lapse would further harm the Times and other publications reporting the results exhausted at the same time. Indeed, this of an economic study conducted by two Nasdaq market. In light of the academicians that illustrated the lack of odd-eighth significance of these figures and their quotes for active Nasdaq stocks. Contrary to these 22 See Monitoring Report of Exhaustion of SOES press reports, this study shows that spreads had indicated adverse ramifications upon Exposure Limits and the Usage of Nasdaq indeed narrowed before publication of these articles Automated Quotation Update Feature, NASD (from April 28 to May 12), stabilized at these 20 See letter from Richard G. Ketchum, Executive Economic Research Department, December 18, narrower levels from mid-May until June 23, and Vice President & Chief Operating Officer, NASD, to 1995. declined again from June 23 to July 18. Brandon Becker, Director, Division of Market 23 October 1995 Extension Order, supra note 5, 60 19 See NASD Department of Economic Research: Regulation, SEC, dated August 1, 1995. FR at 52439, n. 12 (‘‘December 1995 Monitoring Impact of SOES Active Trading Firms on Nasdaq 21 The NASD believes that elimination of the ban Report’’). Market Quality (May 12, 1993) (‘‘May 1993 SOES against short sales through SOES did not have a 24 The highest number of exposure limits Study’’). See also Securities Exchange Act Release dramatic negative market effect because the NASD’s exhausted on any day during this period was 119 No. 32313 (May 17, 1993), 58 FR 29647 (publication short sale rule was approved during the time that on November 21, 1995 and the lowest number was of the study for comment). the ban was in effect. 47 on October 4, 1995. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 775 conclusion is borne out by the liquidity. The NASD and Nasdaq also The NASD believes that the proposed extremely short time-span in which believe the monitoring report illustrates rule change is consistent with Sections SOES orders are executed. Specifically, that implementation of the Automated 15A(b)(6), 15A(b)(9), 15A(b)(11) and the report shows that, on average, SOES Quotation Update Feature and the SOES 11A(a)(1)(C) of the Act. Among other orders are executed 1.62 seconds after Minimum Exposure Limit Rule have not things, Section 15A(b)(6) requires that entry and that 98.5 percent of all SOES diminished the significant benefits the rules of a national securities orders are executed within three provided to investors through the association be designed to prevent seconds.25 automatic execution capabilities of fraudulent and manipulative acts and The report also showed that SOES SOES. Simply put, these two SOES practices, to promote just and equitable exposure limit exhaustions tend to rules have in no way altered the principles of trade, to foster cooperation cluster in active NNM securities with operation of SOES as an automatic and coordination with persons engaged high numbers of market makers. This execution system that affords small, in regulating, clearing, settling, further illustrates the extremely low retail investors immediate executions at processing information with respect to, probability that all market makers in the the inside market. and facilitating transactions in same security would ever have their Moreover, in the Interim SOES Rules securities, to remove impediments to exposure limits exhausted Extension Order, an order approving a and perfect the mechanism of a free and simultaneously. Lastly, examining one proposal identical to the NASD’s instant open market and a national market trading day, the report shows that active proposal, the SEC found that the system and in general to protect SOES order entry firms accounted for 92 continued effectiveness of the SOES investors and the public interest. percent of the exposure limit Minimum Exposure Limit Rule exhaustion, as might be expected given ‘‘provides customers fair access to the Specifically, the NASD is proposing to that these firms account for 89 percent Nasdaq market and reasonable extend the effectiveness of the SOES of SOES dollar volume. Accordingly, assurance of timely executions.’’26 With Minimum Exposure Limit Rule and the the NASD and Nasdaq believe that the respect to the SOES Automated SOES Automated Quotation Update SOES Minimum Exposure Limit Rule Quotation Update Feature, the SEC also Feature until July 31, 1997 because of has had a very negligible, if any, impact stated that it believes ‘‘that extending concerns that concentrated, aggressive on the availability of SOES to small, the automated update feature is use of SOES by a growing number of retail investors. consistent with the Act and, in order entry firms has resulted in The report also found that the particular, the Firm Quote Rule. The increased volatility in quotations and Automated Quotation Update Feature update function provides market makers transaction prices, wider spreads, and appears to be used extensively by some the opportunity to update their the loss of liquidity for individual and market making firms. Specifically, the quotations automatically after institutional investor orders, all to the report shows that the quote update executions through SOES; under the detriment of public investors and the feature is used by 126 market makers for Commission’s Firm Quote Rule, market public interest. The NASD believes the 10,644 market making positions. Thus, makers are entitled to update their SOES Minimum Exposure Limit Rule this feature is currently being used by quotations following an execution and and the SOES Automated Quotation 26 percent of the market makers and for prior to accepting a second order at their Update Feature have operated to rectify 24 percent of all market making published quotes.’’27 this situation while continuing to positions. In addition the report showed Therefore, in light of the above-cited provide an effective opportunity for the that, on average, 3,394 quotations a day statutory findings made by the SEC prompt, reliable execution of small were generated by the quote update when it first approved the SOES orders received from the investing feature from October 2, 1995 to Minimum Exposure Limit Rule and the public. Accordingly, in order to protect November 21, 1995. Accordingly, the SOES Automated Quotation Update investors and the public interest, the NASD and Nasdaq believe that the Feature and extensions of these rules, NASD believes the SEC should approve Automated Update Feature has coupled with the NASD’s findings that an additional six-month extension of the effectively served its intended purpose these rules have been associated with SOES Minimum Exposure Limit Rule of helping to maintain continuous positive market developments in terms and the SOES Automated Quotation of lower spreads on Nasdaq and less quotations in Nasdaq, minimize ‘‘closed Update Feature through July 31, 1997, stocks with extreme relative price quote’’ conditions, and avoid unexcused so that small investors’ orders will volatility, the NASD believes it would market maker withdrawals, thereby continue to receive the fair and efficient be consistent with the Act for the promoting market liquidity. executions that SOES was designed to Commission to extend the effectiveness Accordingly, the NASD believes the provide. Commission should properly view these of the SOES Minimum Exposure Limit Rule and the SOES Automated two SOES rules as strictures that are Commission’s approval of New York Stock highly correlated with improvements in Quotation Update Feature for an Exchange (‘‘NYSE’’) Rule 80A on a permanent basis market liquidity, not as rules that have additional six-month period. Moreover, illustrates that the Commission and would still had or could have a damaging effect on even if the Commission is unwilling to have a sufficient basis to approve an extension of find positive significance in the NASD’s the rules for a six-month period. In particular, the SEC’s discussion of the statutory basis for approval 25 The report also found that SOES orders can statistical analyses, at the very least, experience brief execution delays in isolated these studies indicate that the market of NYSE Rule 80A focused in large part on the fact instances, as one order took as long as 87 seconds has not been harmed by implementation that Rule 80A did not have any adverse impacts on to be executed. While the NASD could not readily of these rules.28 market quality on the NYSE and that, as a result, identify the reasons for these infrequent execution the NYSE should be given the latitude to take delays, the NASD believes these delays are likely reasonable steps to address excessive volatility in 26 the result of two factors. First, consistent with the Interim SOES Rules Extension Order, supra its marketplace. See Securities Exchange Act note 2, 61 FR at 40870. NASD’s short-sale rule, short sales entered into Release No. 29854 (October 24, 1994), 56 FR 55963 27 SOES cannot be executed on down bids. Second, Id. (footnotes omitted). (October 30, 1994). Accordingly the NASD believes 28 waves of SOES orders transmitted by active SOES Even if the Commission concludes that the the SEC should afford the NASD the same order-entry firms cause queues to develop in the SOES Minimum Exposure Limit Rule and the SOES regulatory flexibility that it afforded the NYSE to processing of SOES orders, which, in turn, causes Automated Quotation Update Feature have had no execution delays. impact on market quality, the NASD believes the implement rules reasonably designed to enhance the quality of Nasdaq and minimize the effects of potentially disruptive trading practices. 776 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Section 15A(b)(9) provides that the Finally, the NASD believes that the B. institute proceedings to determine rules of the Association may not impose proposed rule change is consistent with whether the proposed rule change any burden on competition not significant national market system should be disapproved. necessary or appropriate in furtherance objectives contained in Section IV. Solicitation of Comments of the purposes of the Act. The SOES 11A(a)(1)(C) of the Act. This provision Minimum Exposure Limit Rule and the states it is in the public interest and Interested persons are invited to SOES Automated Quotation Update appropriate for the protection of submit written data, views, and Feature apply across the board and do investors and the maintenance of fair arguments concerning the foregoing. not target any particular user or and orderly markets to assure, among Persons making written submissions participant, as all dealers may set their other things: (i) economically efficient should file six copies thereof with the exposure limits at two times the tier size execution of securities transactions; (ii) Secretary, Securities and Exchange and all dealers may elect to utilize the fair competition among brokers and Commission, 450 Fifth Street, N.W., automated quote update feature. dealers; and (iii) the practicality of Washington, D.C. 20549. Copies of the Accordingly, the NASD believes that brokers executing investor orders in the Submission, all subsequent these rule changes are not best market. Specifically, the SOES amendments, all written statements anticompetitive, as they are uniform in Minimum Exposure Limit Rule and the with respect to the proposed rule application and they seek to preserve SOES Automated Quotation Update change that are filed with the the ability of SOES to provide fair and Feature advance each of these objectives Commission, and all written efficient automated executions for small by preserving the operational communications relating to the investor orders, while preserving market efficiencies of SOES for the processing proposed rule change between the maker participation in SOES and market of small investors’ orders, by Commission and any person, other than liquidity. maintaining current levels of market those that may be withheld from the Section 15A(b)(11) empowers the maker participation through reduced public in accordance with the NASD to adopt rules governing the form financial exposure from unpreferenced provisions of 5 U.S.C. 552, will be and content of quotations relating to orders, and by reducing price volatility available for inspection and coping in securities in the Nasdaq market. Such and the widening of market makers’ the Commission’s Public Reference rules must be designed to produce fair spreads in response to the practices of Room. Copies of such filing will also be and informative quotations, prevent order entry firms active in SOES. available for inspection and copying at fictitious and misleading quotations, In addition, for the same reasons the principal office of the NASD. All and promote orderly procedures for provided by the SEC when it approved submissions should refer to the file collecting and distributing quotations. the Interim SOES Rules that are cited number in the caption above and should The NASD is seeking to continue the above in the text accompanying be submitted by January 27, 1997. effectiveness of the SOES Minimum footnotes 7 through 14, the NASD For the Commission, by the Division of Exposure Limit Rule and the SOES believes that the proposed rule change Market Regulation, pursuant to delegated Automated Quotation Update Feature so is consistent with Sections 15A(b)(6), authority.29 that SOES activity may not result in 15A(b)(9), 15A(b)(11) and 11A(a)(1)(C) Margaret H. McFarland, misleading quotations in the Nasdaq of the Act. Deputy Secretary. market. Market makers place quotes in B. Self-Regulatory Organization’s [FR Doc. 97–147 Filed 1–3–97; 8:45 am] the Nasdaq system and these quotes BILLING CODE 8010±01±M comprise the inside market and define Statement on Burden on Competition the execution parameters of SOES. The NASD believes that the proposed When volatility in the SOES rule change will not result in any environment causes market makers to [Release No. 34±38092; File No. SR±NASD± burden on competition that is not 96±52] widen spreads or to change quotes in necessary or appropriate in furtherance anticipation of waves of SOES orders, of the purposes of the Act. Self-Regulatory Organizations; Notice quotes in the Nasdaq market become of Filing of Proposed Rule Change by C. Self-Regulatory Organization’s more volatile and may be misleading to the National Association of Securities Statement on Comments on the the investing public. Accordingly, Dealers, Inc. Relating to the Reporting Proposed Rule Change Received From absent continuation of the SOES of Short Sale Transactions by Market Members, Participants, or Others Minimum Exposure Limit Rule and the Makers Exempt from the NASD's Short SOES Automated Quotation Update Comments were neither solicited nor Sale Rule Feature, the quotations published by received. Nasdaq may not reflect the true market December 27, 1996. in a security and, as a result, there may III. Date of Effectiveness of the Pursuant to Section 19(b)(1) of the be short-term volatility and loss of Proposed Rule Change and Timing for Securities Exchange Act of 1934 liquidity in Nasdaq securities, to the Commission Action (‘‘Act’’),1 notice is hereby given that on detriment of the investing public. December 17, 1996, the National Within 35 days of the date of Further, the continuation of the Association of Securities Dealers, Inc. publication of this notice in the Federal automated refresh feature will ensure (‘‘NASD’’ or ‘‘Association’’) filed with Register or within such longer period (i) that a market maker’s quotation is the Securities and Exchange as the Commission may designate up to updated after an exposure limit is Commission (‘‘Commission’’ or ‘‘SEC’’) 90 days of such date if it finds such exhausted. Uninterrupted use of this the proposed rule change as described longer period to be appropriate and function will maintain continuous in Items I, II, and III below, which Items publishes its reasons for so finding or quotations in Nasdaq as market makers have been prepared by the NASD. The (ii) as to which the NASD consents, the exhausting their exposure limits in Commission is publishing this notice to SOES will not be subject to a ‘‘closed Commission will: quote’’ condition or an unexcused A. by order approve such proposed 29 17 CFR 200.30–3(a)(12). withdrawal from the market. rule change, or 1 15 U.S.C. 78s(b)(1). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 777 solicit comments on the proposed rule prepared summaries, set forth in of the following four criteria to be change from interested persons. Sections A, B, and C below, of the most eligible for an exemption from the short significant aspects of such statements. sale rule: (1) The market maker must be I. Self-Regulatory Organization’s at the best bid or best offer as shown on Statement of the Terms of Substance of A. Self-Regulatory Organization’s Nasdaq no less than 35 percent of the the Proposed Rule Change Statement of the Purpose of, and time; (2) the market maker must The NASD is proposing to amend its Statutory Basis for, the Proposed Rule Change maintain a spread no greater than 102 Automated Confirmation Transaction percent of the average dealer spread; (3) (‘‘ACT’’) Service rules to require all On June 29, 1994, the SEC approved no more than 50 percent of the market Primary Market Makers (‘‘PMMs’’) to the NASD’s short sale rule applicable to maker’s quotation updates may occur mark their ACT reports to denote when short sales in Nasdaq National Market without being accompanied by a trade they have relied on the PMM exemption (‘‘NNM’’) securities on an eighteen- execution of at least one unit of trading; 2 to the NASD’s short sale rule. In order month pilot basis through March 5, or (4) the market maker executes 11⁄2 to afford NASD members ample time to 1996.3 The NASD’s short sale rule times its ‘‘proportionate’; volume in the modify their automated systems to prohibits member firms from effecting stock.5 If a market maker is a PMM for comply with the proposed rule change, short sales at or below the current inside a particular stock, there is a ‘‘P’’ the NASD proposes to establish an bid as disseminated by Nasdaq indicator next to its quote in that stock. effective date for the rule change in a whenever that bid is lower than the If a member firm is a PMM in 80 Notice-to-Members announcing previous inside bid.4 The rule is in percent or more of the securities in Commission approval of the proposal, effect during normal domestic market which it has registered, the firm may which Notice-to-Members shall be hours (9:30 a.m. to 4:00 p.m., Eastern immediately become a PMM (i.e., a published within thirty days of Time). qualified market maker) in an NNM Commission approval of the proposal In order to ensure that market maker security be registering and entering and which effective date shall be no activities that provide liquidity and quotations in that issue. Otherwise, it longer than three weeks after the date of continuity to the market are not may become a PMM in a stock only after publication of the Notice. The text of the adversely constrained when the short it has registered in the stock as a regular proposed rule change is as follows. sale rule is involved, the rule provides Nasdaq market maker an satisfied the (Deletions are bracketed.) an exemption to ‘‘qualified’’ Nasdaq PMM qualification standards for the * * * * * market makers. Even if a market maker next review period. The ability of a is able to avail itself of the qualified member firm to achieve and maintain NASD Rule 6130 market maker exemption, it can only PMM status in 80 percent of the NNM * * * * * utilize the exemption from the short sale issues in which it is registered also has rule for transactions that are made in other corollary effects in market maker (d) Trade Information To Be Input connection with bona fide market registration situations involving initial Each ACT report shall contain the making activity. If a market maker does public offerings, secondary offerings, following information: not satisfy the requirements for a mergers and acquisitions. (1)–(5). No change. qualified market maker, it can remain a In order to enhance the NASD’s (6) A symbol indicating whether the market maker in the Nasdaq system, ability to surveil for compliance with transaction is a buy, sell, sell short, sell although it cannot take advantage of the the short-sale rule, when the short exempt [*] or cross; exemption from the rule. Commission approved the NASD’s (7)–(12). No change. To be a ‘‘qualified’’ market maker, a short-sale rule it also approved an [* The ‘‘sell short’’ and ‘‘sell exempt’’ market maker must satisfy the Nasdaq NASD proposal to require NASD indicators must be entered for all Primary Market Maker (‘‘PMM’’) members to append a designator to their customer short sales, including cross Standards. Under the PMM Standards, a ACT reports to denote whether their transactions, and for short sales effected market maker must satisfy at least two sale transactions were long sales, short by members that are not qualified sales, or exempt short sales. However, 3See Securities Exchange Act Release No. 34277 market makers pursuant to Rule 3350.] (June 29, 1994), 59 FR 34885 (July 7, 1994) (‘‘Short market makers exempt from the short- sale rule are not required to append II. Self-Regulatory Organization’s Sale Rule Approval Order’’). The termination date for the pilot program has subsequently been ‘‘sell short’’ or ‘‘sell short exempt’’ to Statement of the Purpose of, and extended through October 1, 1997, See Securities their ACT reports.6 Accordingly, in Statutory Basis for, the Proposed Rule Exchange Act Release Nos. 36171 (August 30, order to enhance the NASD’s ability to Change 1995), 60 FR 46651; 36532 (November 30, 1995), 60 FR 62519; 37492 (July 29, 1996), 61 FR 40693; and surveil for potential abuses of the In its filing with the Commission, the 37919 (November 1, 1996), 61 FR 57934. market maker exemption and examine NASD included statements concerning 4 Nasdaq calculated the inside bid or best bid and monitor the market impacts of the the purpose of and basis for the from all market makers in the security (including bids on behalf of exchanges trading Nasdaq market maker exemption, the NASD is proposed rule change and discussed any securities on an unlisted trading privileges basis), comments it received on the proposed and disseminates symbols to denote whether the 5 Specifically, the proportionate volume test rule change. The text of these statements current inside bid is an ‘‘up bid’’ or a ‘‘down bid.’’ requires a market maker to account for volume of may be examined at the places specified Specifically, an ‘‘up bid’’ is denoted by a green at least 11⁄2 times its proportionate share of overall in Item IV below. The NASD has ‘‘up’’ arrow and a ‘‘down bid’’ is denoted by a red volume in the security for the review period. For ‘‘down’’ arrow. Accordingly, absent an exemption example, if a security has 10 market makers, each from the rule, a member cannot effect a short sale market maker’s proportionate share volume is 10 2 A short sale is a sale of a security which the at or below the inside bid for a security in its percent. Therefore, the proportionate share volume seller does not own or any sale which is proprietary account or a customer’s account if there consummated by the delivery of a security is a red arrow next to the security’s symbol on the is one-and-a-half times 10, or 15 percent of overall borrowed by, or for the account of, the seller. To screen. In order to effect a ‘‘legal’’ short sale on a volume. determine whether a sale is a short sale members down bid, the short sale must be executed at a price 6 Specifically, the footnote to NASD Rule must adhere to the definition of a ‘‘short sale’’ at least a 1/16th of a point above the current inside 6130(d)(6) provides that ‘‘[t]he ‘sell short’ and ‘sell contained in SEC Rule 3b–3, which rule is bid. Conversely, if the security’s symbol has a green short exempt’ indicators must be entered for all incorporated into Nasdaq’s short sale rule by NASD up arrow next to it, members can effect short sales customer short sales, including cross transactions, Rule 3350(k)(1). in the security without any restrictions. and for short sales effected by members that are not qualified market makers pursuant to Rule 3350.’’ 778 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices proposing to delete the footnote to B. Self-Regulatory Organization’s Margaret H. McFarland, NASD Rule 6130(d)(6), thereby Statement on Burden on Competition Deputy Secretary. requiring all exempt market makers to The NASD believes that the proposed [FR Doc. 97–149 Filed 1–3–97; 8:45 am] mark their ACT reports to denote when rule change will not result in any BILLING CODE 8010±01±M they have relied on the market maker burden on competition that is not exemption.7 In this connection, the necessary or appropriate in furtherance NASD also notes that SEC staff has of the proposes of the Act. [Release No. 34±38091; File No. SR±NASD± expressed preliminary concerns with 96±55] the fact that the NASD’s short sale rule C. Self-Regulatory Organization’s Statement on Comments on the does not apply uniformly to all market Self-Regulatory Organizations; Notice participants by virtue of the market Proposed Rule Change Received From Members, Participants, or Others of Proposed Rule Changes by the maker exemption. As a result, to justify National Association of Securities retention of the market maker Comments were neither solicited nor Dealers, Inc. Relating to Primary exemption, SEC staff has indicated that received. Market Maker Standards the NASD must, among other things, III. Date of Effectiveness of the conduct a thorough analysis of the use December 27, 1996. Proposed Rule Change and Timing for and effects of the market maker Commission Action Pursuant to Section 19(b)(1) of the exemption. Securities Exchange Act of 1934 The NASD requests that the proposed The NASD believes the short-sale (‘‘Act’’),1 notice is hereby given that on rule change be approved on an information that would be gathered December 23, 1996, the Nasdaq Stock accelerated basis. The NASD believes upon approval of this rule filing would Market, Inc. (‘‘Nasdaq’’) filed with the that good cause exists to accelerate be a necessary and critical component of Securities and Exchange Commission approval of the proposal because of the (‘‘SEC’’ or ‘‘Commission’’) the proposed such an analysis of the market maker NASD’s need to commence capturing rule change as described in Items I, II, exemption. exempt sales by exempt market makers and III below, which Items have been The NASD believes the proposed rule through ACT for a sufficient time in prepared by Nasdaq. The Commission is change is consistent with Sections advance of the expiration of the pilot publishing this notice to solicit 15A(b)(6) of the Act.8 Section 15A(b)(6) program for the rule on October 1, 1997. requires that the rules of a national With the information collected, the comments on the proposed rule change securities association be designed to NASD’s Economic Research Department from interested persons. prevent fraudulent and manipulative can conduct a meaningful and I. Self-Regulatory Organization’s acts and practices, to promote just and statistically significant study on, among Statement of the Terms of Substance of equitable principles of trade, to foster other things, the market impact of the the Proposed Rule Change cooperation and coordination with market maker exemption from the rule. Nasdaq, a wholly owned subsidiary of persons engaged in regulating, clearing, IV. Solicitation of Comments settling, processing information with the National Association of Securities respect to, and facilitating transactions Interested persons are invited to Dealers, Inc. (‘‘NASD’’ or in securities, and to remove submit written data, views, and ‘‘Association’’), proposes to temporarily impediments to and perfect the arguments concerning the foregoing. waive NASD Rule 4612, regarding mechanism of a free and open market. Persons making written submissions primary Nasdaq market maker standards Specifically, the NASD believes that should file six copies thereof with the for the remainder of the current pilot requiring exempt market makers to mark Secretary, Securities and Exchange period of the Nasdaq Short Sale Rule 2 their ACT reports to denote when they Commission, 450 Fifth Street, NW., or until new primary market maker have relied on the market maker Washington, DC 20549. Copies of the standards can be devised. submission, all subsequent exemption will help to enhance the II. Self-Regulatory Organization’s ability of NASD Regulation, Inc. to amendments, all written statements with respect to the proposed rule Statement of the Purpose of, and monitor whether market makers are Statutory Basis for, the Proposed Rule abusing the exemption and facilitate the change that are filed with the Commission, and all written Change NASD’s ability to examine the market communications relating to the impacts of the market maker exemption In its filing with the Commission, proposed rule change between the from the short sale rule. Nasdaq included statements concerning Commission and any person, other than the purpose of and basis for the those that may be withheld from the 7 proposed rule change and discussed any In this connection, consistent with SEC public in accordance with the statements regarding the intraday netting comments it received on the proposed provisions of 5 U.S.C. § 552, will be obligations of firms under SEC Rule 3b–3, the rule change. The text of these statements NASD notes that it will be permissible for firms to available for inspection and copying in may be examined at the places specified conduct a ‘‘firm-wide netting’’ of long and short the Commission’s Public Reference in Item IV below. Nasdaq has prepared positions once a day. Accordingly, the NASD Room. Copies of such filing will also be believes it would be permissible for a Nasdaq summaries, set forth in Sections (A), (B), available for inspection and copying at trading desk to receive a stock position report at the and (C) below, of the most significant opening and net those trades effected by the Nasdaq the principal office of the NASD. All aspects of such statements. trading desk against this position throughout the submissions should refer to File No. day to determine whether particular sale was long or short. Of course, if a firm has developed the SR–NASD–96–52, and should be 1 15 U.S.C. § 78s(b)(1) (1988). capability to continuously net its positions submitted by January 27, 1997. 2 On November 1, 1996, the Commission throughout that day, that firm would have to rely For the Commission, by the Division of extended the pilot period of the NASD Short Sale on such updated position reports to determine Market Regulation, pursuant to delegated Rule through October 1, 1997. Securities Exchange whether a particular sale was long or short. See 9 Act Release No. 37917 (November 1, 1996), 61 FR Securities Exchange Act Release No. 27938 (April authority. 23, 1990), 55 FR 17949, 17950. 57934 (or approving on an accelerated basis an 8 15 U.S.C. § 78o–3(b)(6). 9 17 CFR 200.30–3(a)(12) (1996). extension to the NASD’s Short Sale Rule through October 1, 1997). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 779

(A) Self-Regulatory Organization’s effect. These new rules will require designation would mean that market Statement of the Purpose of, and Nasdaq market makers to change their makers without the designation would Statutory Basis for, the Proposed Rule quotes when they are in receipt of not be permitted to avail themselves of Change customer limit orders that improve the short sale exemption for primary Nasdaq has evaluated its existing upon their current quotations. market makers. If a significant number qualification criteria in the primary Furthermore, under newly refined best of registered market makers were to lose market maker standards rule, Rule 4612 execution principles enunciated by the the short sale exemption, or if a single (a) and (b), in light of the new SEC rules SEC, market makers will be required to market maker that handled a significant regarding a Nasdaq market maker’s execute orders under different portion of the order flow in a security order handling obligations (‘‘Order circumstances from today. Finally, were to lose the exemption, Nasdaq Handling Rules’’).3 Nasdaq strongly entities that are not market makers, (e.g., believes liquidity in that particular believes that because of the potential electronic communication networks stock could be seriously harmed. changes in quotation and trading (‘‘ECNs’’)), will participate in Nasdaq Therefore, Nasdaq is proposing that and may have a substantial impact on activity in Nasdaq securities when the starting on February 1, 1997, any market quotations and executions. Nasdaq Order Handling Rules become effective, maker making a market in any of the believes that each of the current criteria the existing numerical criteria used to initial 50 stocks selected for the first will be affected. For example, as to the qualify a registered market maker as a phase of implementation of the Order 102% of average dealer spread test, primary market maker will be Handling Rules on January 10, 1997, dealer quotes will not be driven not significantly affected. Because the will be able to avail itself of the short merely by the market maker’s precise effects on market maker quotes sale exemption for qualified market proprietary interests, but also the and trades are not possible to predict makers found in Rule 3350(c)(1). interests of customers that place limit until Nasdaq can develop practical Similarly, Nasdaq proposes that as orders with the market maker. Under experience with new patterns of activity stocks are phased in to the new Order the new rules, a quote of a market maker Handling Rules, any registered market under the Order Handling Rules, driven by a customer limit order will be Nasdaq believes that it should attempt maker in the stock would be deemed to indistinguishable from that of a quote be qualified for purposes of the short to minimize the possible harmful driven by a customer order. In addition, unintended consequences that could sale qualified market maker exemption. the test regarding the percentage of time In seeking to temporarily suspend the occur by leaving the current standards in which the market maker’s quote is at in place. Accordingly, Nasdaq believes use of the primary market maker the inside will also be driven to some qualification criteria, Nasdaq believes that the existing standards should be extent by customer limit order interest. temporarily suspended on the same that the suspension of the criteria is an Further, because ECNs will be able to appropriate balance between the need schedule for the phase in of the Order drive the inside price, the parameters Handling Rules which commence on for limitations on the market maker for this factor may need to be short sale exemption and the potential January 10, 1997. reevaluated. Finally, Nasdaq believes Under existing Rule 4612, a registered for loss of liquidity and market that the ‘‘quote change to executed trade disruption in a period when new Nasdaq Market Maker may be deemed to ratio test’’ will also be affected by patterns and practices of trading are first be a primary market maker in national customer limit orders which may be being developed. Nasdaq believes that market securities if the market maker changed or cancelled by the customer the period of time in which the Order meets two of three criteria: (1) The without the market maker being Handling Rules are first being market maker maintains the best bid or involved in an execution. At this time, implemented may be a period of best offer as shown on Nasdaq no less however, Nasdaq believes it is virtually uncertainty for market makers and than 35% of the time; (2) a market impossible to predict with any accuracy investors alike and that the prudent maker maintains a spread no greater precisely how market makers will course of action would be to identify than 102% of the average dealer spread; change their quotation and execution and eliminate as many potential areas and (3) no more than 50% of a market patterns. maker’s quotation changes occur Because of this uncertainty, Nasdaq for increasing that uncertainty as without a trade execution. In addition, believes that it is in the public investor’s possible. Nasdaq has identified this if a registered market maker meets only best interests to temporarily suspend the issue as a critical area of uncertainty one of the above criteria, it may operation of the primary market maker and believes that the suspension of the nevertheless qualify as a primary market standards that currently exist. If the market maker qualification standards on maker if the market maker accounts for standards are not suspended, and there a temporary basis is an appropriate volume at least 11⁄2 times its is a significant shift in the patterns of market quality response. Nasdaq proportionate share of overall volume in quotation and executions, Nasdaq believes that this relief will enable the stock. The review period for meeting believes that market makers operating Nasdaq market makers to better satisfy any of these criteria is one calendar under the existing standards and investor liquidity demands and could month. earning the primary market maker help to promote pricing efficiency. Commencing on January 10, 1997,4 designation could conceivably lose that Nasdaq also plans to develop new the Order Handling Rules will go into status. Nasdaq believes that loss of the standards as soon as practicable after the Order Handling Rules become 3 These rules include Rule 11Ac1-4, the customer the rules on January 13, 1997, because of concerns effective and Nasdaq can obtain limit order display rule and amended Rule 11Ac1- that it would pose an untenable system change risk experience with the manner in which 1, amendments to the firm quote rule regarding the to attempt to rush the introduction of new trading the new rules affect market makers. display of priced orders entered by market makers system software during the trading week. If the SEC or specialists into electronic communications grants the relief sought, the commencement date for Nasdaq plans to obtain the data from networks. See Securities Exchange Act Release No. this proposed rule change would also be January 13, January and discuss the practices among 37619 (September 6, 1996); 61 FR 48290 (Order 1997. Thus, in the course of the filing on this staff and with the Quality of Markets Handling Rules Adopting Release). proposed rule change, while Nasdaq refers to Committee. 4 Nasdaq has requested relief from the January 10, January 10, 1997, as the commencement date, if the 1997 commencement date of the Order Handling SEC grants the relief requested, the actual Nasdaq believes that the proposed Rules. Nasdaq seeks to commence compliance with implementation date would be January 13, 1997. rule change is consistent with Section 780 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

15A(b)(6) of the Act 5 in that it is Persons making written submissions I. Self-Regulatory Organization’s designed to prevent fraudulent and should file six copies thereof with the Statement of the Terms of Substance of manipulative acts and facilitates Secretary, Securities and Exchange the Proposed Rule Change transactions in securities. In particular, Commission, 450 Fifth Street, N.W., Nasdaq believes this temporary Washington, D.C. 20549. Copies of the Pursuant to the provisions of Section amendment to the existing rule should submission, all subsequent 19(b)(1) under the Securities Exchange provide market makers with certainty amendments, all written statements Act of 1934 (‘‘Act’’), The Nasdaq Stock Market, Inc., (‘‘Nasdaq’’), a wholly regarding whether they are entitled to with respect to the proposed rule owned subsidiary of the National an exemption under the rule which change that are filed with the Association of Securities Dealers, Inc. should promote market efficiency and Commission, and all written (‘‘NASD’’ or ‘‘Association’’), is herewith enhance the orderliness of the market communications relating to the filing a proposed rule change to amend: during a transition period. Nasdaq proposed rule change between the further believes the proposed rule (1) Rule 4770 of the Small Order Commission and any person, other than change should also help in reducing Execution System (‘‘SOES’’) Rules, those that may be withheld from the investor confusion at this time and regarding the fees charged for thereby promote efficient and fair public in accordance with the executions and cancellation of orders markets. provisions of 5 U.S.C. 552, will be entered in SOES, and (2) Rule 7010, available for inspection and copying in related to charges for orders and (B) Self-Regulatory Organization’s the Commission’s Public Reference cancellation of orders entered into Statement on Burden on Competition Room. Copies of such filing will also be SelectNet. Nasdaq has requested that the Nasdaq does not believe that the available for inspection and copying at Commission approve the proposed rule proposed rule change will result in any the principal office of the NASD. All change on an accelerated basis. Below is burden on competition that is not submissions should refer to File No. the text of the proposed rule change. necessary or appropriate in furtherance SR–NASD–96–55, and should be Proposed new language is underlined; of the purposes of the Act, as amended. submitted by January 16, 1997. proposed deletions are in brackets. (C) Self-Regulatory Organization’s For the Commission, by the Division of Rule 4700 Small Order Execution Statement on Comments on the Market Regulation, pursuant to delegated System (SOES) Proposed Rule Change Received From authority.7 Members, Participants, or Others Margaret H. McFarland, * * * * * Written comments were neither Deputy Secretary. Rule 4770. solicited nor received. [FR Doc. 97–150 Filed 1–3–97; 8:45 am] [A fee of $.005 per share shall be III. Date of Effectiveness of the BILLING CODE 8010±01±M assessable to SOES Market Makers for Proposed Rule Change and Timing for all transactions executed through SOES Commission Action provided, however, that the minimum Nasdaq has requested that the [Release No. 34±38084; File No. SR±NASD± charge per execution shall be $.50 and Commission find good cause pursuant 96±48] the maximum charge per execution to Section 19(b)(2) 6 for approving the shall be $1.00.] Self-Regulatory Organizations; Notice proposed rule change prior to the 30th of Proposed Rule Changes by the (a) A fee for orders executed through day after its publication in the Federal National Association of Securities SOES shall be assessed, to be allocated Register. The date that the Order as follows: the SOES Market Maker Dealers, Inc. Relating to: (1) Rule 4770 Handling Rules go into effect and executing the order shall be assessed of the SOES Rules, Regarding the Fees Nasdaq must make system changes to $0.50 per transaction and the SOES Charged for Executions and accommodate the new regulatory Order Entry Firm of SOES Market Maker requirements is January 10, 1997. Cancellation of Orders Entered in entering the order shall be assessed Because Nasdaq believes that market SOES, and (2) Rule 7010, Related to $0.50 per order. makers must be provided with Charges for Orders and Cancellation of (b) For each order entered by a SOES information regarding the exemption Orders Entered Into SelectNet Order Entry Firm of a SOES Market from the short sale rule as soon as Maker that is cancelled, the SOES Order possible before February 1, 1997, December 24, 1996. Entry Firm or SOES Market Maker that Nasdaq requests the Commission to Pursuant to Section 19(b)(1) of the cancels such order shall be assessed a accelerate the effectiveness of the Securities Exchange Act of 1934 fee of $0.25. proposed rule change prior to the 30th (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is day after its publication in the Federal hereby given that on December 16, 1996, * * * * * Register. The alternative is potential the Nasdaq Stock Market, Inc. Rule 7000 Charges for Services and confusion and market disruption as (‘‘Nasdaq’’) filed with the Securities and Equipment market makers may be unsure about Exchange Commission (‘‘SEC’’ or whether they are in fact eligible to sell ‘‘Commission’’) the proposed rule * * * * * short in the course of their market change as described in Items I, II, and Rule 7010 System Services making activities. III below, which Items have been IV. Solicitation of Comments prepared by Nasdaq. The Commission is (a)–(d) No changes. Interested persons are invited to publishing this notice to solicit (e) SelectNet Service. submit written data, views, and comments on the proposed rule change The following charges shall apply to arguments concerning the foregoing. from interested persons. the use of SelectNet: Transaction Charge—$2.50/side 5 15 U.S.C. 78o–3(b)(6). 6 15 U.S.C. 78s(b)(2). 7 17 CFR 200.30–3(a)(12) (1996). Cancellation Fee—$.25/per order Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 781

II. Self-Regulatory Organization’s market and marketable limit orders into these published prices. Moreover, it Statement of the Purpose of and SOES, unlike the current SOES Rules equitably allocates charges to both sides Statutory Basis for, the Proposed Rule which prohibit market maker entry of of the transaction that are utilizing this Change such orders, unless the market makers public facility, both of whom benefit In its filing with the Commission, self-preference those orders, i.e., direct from the execution and both of whom Nasdaq included statements concerning them to themselves. Because the order consume resources in utilizing the the purpose of and basis for the handling rules change the current system. In this new structure, there is no proposed rule change and discussed any approach to market maker quoting in reason to allocate all of the costs in comments it received on the proposed Nasdaq securities from a pure dealer- operating SOES to the market maker. rule change.The text of these statements driven quote to a more order-driven Instead, the more equitable allocation of may be examined at the places specified quote, the NASD and Nasdaq believe costs is to charge both the order entry in Item IV below. Nasdaq has prepared that the disparate application of the firm and the order execution firm. In current SOES fee structure to the market summaries, set forth in Sections (A), (B), this way, both parties to the transaction maker should be changed to take into and (C) below, of the most significant are allocated the costs that Nasdaq aspects of such statements. account the new process by which quotes are established and orders are incurs in developing and operating this 3 (A) Self-Regulatory Organization’s executed. Accordingly, the NASD and system. Statement of the Purpose of, and Nasdaq propose to establish a charge (2) SOES and SelectNet Cancellation Statutory Basis for, the Proposed Rule assessed against both sides to the Fees Change transaction regardless of the size of the The NASD and Nasdaq have transaction—both the order entry firm The NASD and Nasdaq also evaluated the current fee structures for and the market maker will be charged authorized a new fee related to SOES and the SelectNet system that will for the execution in SOES. Under the cancellations entered into SOES and be changed to accommodate the new new fee structure, if an order entry firm SelectNet.4 The fee adopted for orders SEC rules regarding a Nasdaq market or a market maker were to enter an order entered into either system is $0.25 for maker’s order handling obligations, i.e., of 1,000 shares into SOES, and that each order cancelled. Neither SOES nor Rule 11Ac1–4 (the customer limit order order were executed against a single SelectNet currently have an order display rule) and amended Rule 11Ac1– market maker, the firm entering the cancellation fee. However, Nasdaq has 1 (amendments to the firm quote rule order (whether a market maker or order taken note of the significant number of regarding the display of priced orders entry firm) would be assessed $.50 and orders entered into both systems and entered by market makers or specialists the market maker executing the order cancelled, sometimes almost into electronic communications would be assessed $.50. If a SOES order simultaneously with order entry. By networks (‘‘ECNs’’).1 The NASD and entered by an order entry firm were way of example, on a typical day, Nasdaq have determined, as explained executed against multiple market approximately 161,400 SelectNet orders below, to restructure SOES and makers, the order entry firm would be may be entered, while approximately SelectNet fees because of changes to charged a single $0.50 fee while each 125,600 of such orders are cancelled. market maker participating in the their operation as addressed in recently Only 19,000 are executed. In SOES, of executions would also be charged a $.50 filed NASD proposed rule changes approximately 100,000 orders entered, fee. stemming from the SEC’s new rules. All 30,000 typically are cancelled.5 of the recommended fee changes are The NASD and Nasdaq have proposed this charge against both parties to an Moreover, many cancellations occur contingent upon commencement of the within a 30 second period after order new NASD rules. execution in recognition of the significant market structure changes entry. For example, on November 8, (1) SOES Fees caused by the SEC rules, the respective 1996, the heaviest user of SelectNet SOES is Nasdaq’s small order use of Nasdaq facilities to support SOES entered 70,000 orders, and cancelled a execution system in which orders 1,000 operations by both market makers and total of almost 64,000 orders, of which shares or less are automatically order entry firms, and the significant 30,000 were cancelled within 30 executed against available Nasdaq benefits that both sides of the trade seconds of order entry. Such use of the market makers. receive in the new SOES. Unlike in the system requires that Nasdaq construct In a separate rule filing before the past when the quotations represented its system to handle the large system Commission,2 Nasdaq has proposed to solely market maker proprietary and network utilization that occurs in make significant changes to SOES to interest, in the new environment market such use. Accordingly, recognizing that permit market makers to comply with makers may be displaying a priced order order cancellations consume significant new obligations to display customer under the customer limit order display system resources, Nasdaq adopted a limit orders in their quotations and to rule. Because market makers may be cancellation fee to achieve an equitable execute orders at such quotes only up to quoting a particular price in order to allocation of the communications costs actual displayed size, as opposed to an attract order flow, it is appropriate to associated with the Nasdaq network artificial ‘‘tier size’’, as currently occurs. assess them a reasonable fee for using Moreover, among other things, the SOES to obtain executions. 3 Under NASD Rules, members are permitted to NASD and Nasdaq have proposed to The fee structure is fair and either absorb the costs assessed, or to pass the fee allow market makers to enter customer reasonable in that it is similar to along to the ultimate customer. transaction charges assessed in the 4 It should be noted that SelectNet fees will remain as currently structured. It should also be 1 See Securities Exchange Act Release No. securities industry for automatic noted that the SelectNet transaction fee applies to 37619A (September 6, 1996); 61 FR 48290 executions. The system that the NASD (September 12, 1996) (Order Handling Rules and Nasdaq are providing to the both sides of the transaction. Moreover, the fee will apply to all parties using the system, including Adopting Release). membership attempts to provide 2 See Securities Exchange Act Release No. 38008 electronic communications networks whose priced (December 2, 1996); 61 FR 64550 (December 5, members with an economically efficient orders are accessed by NASD members entering 1996); (publishing notice of filing of SR–NASD–96– means of accessing public quotations orders into SelectNet, 43). and executing securities transactions at 5 Data was extracted from November 20, 1996, data. 782 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices among all firms that utilize the capacity available for inspection and copying at provisions that no longer apply to of the system. the principal office of the NASD. All executions of odd lot orders on the Nasdaq believes that for the foregoing submissions should refer to File No. Exchange. reasons the proposed rule change is SR–NASD–96–48 and should be II. Self-Regulatory Organization’s consistent with the provisions of submitted by January 27, 1997. Statement of the Purpose of, and Section 15A(b)(5) of the Act in that the For the Commission, by the Division of proposed fees provide for the equitable Statutory Basis for, the Proposed Rule Market Regulation, pursuant to delegated Change allocation of reasonable fees among authority, 17 CFR 200.30–3(a)(12). members using facilities and systems Margaret H. McFarland, In its filing with the Commission, the operated by Nasdaq meet the Deputy Secretary. self-regulatory Organization included requirements of Section 15A(b)(5) of the [FR Doc. 97–152 Filed 1–3–97; 8:45 am] statements concerning the purpose of Act. and basis for the proposed rule change BILLING CODE 8010±01±M and discussed any comments it received (B) Self-Regulatory Organization’s on the proposed rule change. The text Statement on Burden on Competition [Release No. 34±38087; File No. SR±PSE± of these statements may be examined at Nasdaq does not believe that the 96±35] the places specified in Item IV below. proposed rule change will result in any The self-regulatory organization has Self-Regulatory Organizations; Notice burden on competition that is not prepared summaries, set forth in of Filing of Proposed Rule Change and necessary or appropriate in furtherance sections A, B and C below, of the most Amendment No. 1 Thereto by the of the purposes of the Act, as amended. significant aspects of such statements. Pacific Stock Exchange Incorporated (C) Self-Regulatory Organization’s Relating to Its Rules on Executions of A. Self-Regulatory Organization’s Statement on Comments on the ``Odd Lot'' Equity Orders Statement of the Purpose of, and Proposed Rule Change Received From Statutory Basis for, the Proposed Rule Members, Participants, or Others December 24, 1996. Change Pursuant to section 19(b)(1) of the Written comments were neither Securities Exchange Act of 1934 1. Purpose solicited nor received. 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, The Exchange is proposing this rule III. Date of Effectiveness of the notice is hereby given that on change in order to provide better service Proposed Rule Change and Timing for September 25, 1996, the Pacific Stock to customers and to be competitive with Commission Action Exchange Incorporated (‘‘PSE’’ or other exchanges.4 The Exchange is ‘‘Exchange’’) filed with the Securities Within 35 days of the date of proposing to modify Rule 5.34(b) (‘‘Odd and Exchange Commission publication of this notice in the Federal Lot Executions’’) to provide as follows: (‘‘Commission’’ or ‘‘SEC’’) the proposed Register or within such longer period (i) First, with regard to market orders, rule change as described in Items I, II as the Commission may designate up to the proposal states that an odd lot and III below, which Items have been 90 days of such date if it finds such market order shall be executed off the prepared by the self-regulatory price reflected in the consolidated quote longer period to be appropriate and organization. On December 17, 1996, the system’s best bid/offer. (The current rule publishes its reasons for so finding or PSE submitted an amendment states that such orders shall be filled at (ii) as to which the NASD consents, the (‘‘Amendment No. 1’’) to the proposed the price of the first round lot Commission will: rule change.3 The Commission is A. by order approve such proposed transaction which takes place on the publishing this notice to solicit rule change, or primary market, plus if a buy order, or comments on the proposed rule change B. institute proceedings to determine minus if a sell order, an odd lot from interested persons. whether the proposed rule change differential, if any.) should be disapproved. I. Self-Regulatory Organization’s Second, with regards to limit orders, Statement of the Terms of Substance of the proposed rule states that an odd lot IV. Solicitation of Comments the Proposed Rule Change limit order shall be filled at, or better Interested persons are invited to The PSE is proposing to amend its than, the price of the first regular way submit written data, views, and rules on executions of ‘‘odd lot’’ equity round lot transaction that is at, or better arguments concerning the foregoing. orders. Under the rule change, odd lot than, the limit order’s price printed on Persons making written submissions limit orders will be placed in the front the consolidated tape from the security’s should file six copies thereof with the 5 of the book for priority and book display primary market. It further states that Secretary, Securities and Exchange purposes. The rule change will also such odd lot orders shall be allowed to Commission, 450 Fifth Street, N.W., modify the basis on which limit, stop establish precedence without regard to Washington, D. C. 20549. Copies of the limit and stop orders must be executed. priority of existing round-lot bids or submission, all subsequent In addition, the rule change will offers at that price. (The current rule amendments, all written statements prohibit certain practices involving the states that such orders shall be filled at with respect to the proposed rule entry of odd-lot orders. Finally, the the price of the first round lot change that are filed with the proposal will modify the Exchange’s transaction which takes place on the Commission, and all written odd lot rule in order to remove certain primary market, which in the case of a communications relating to the buy order is below the specified limit by proposed rule change between the 1 15 U.S.C. 78s(b)(1). the amount of the trading differential, or Commission and any person, other than 2 17 CFR 240.19b–4. by a greater amount; or which in the those that may be withheld from the 3 Letter from Michael D. Pierson, Senior Attorney, case of a sell order is above the specified public in accordance with the Regulatory Policy, PSE to Janet Russell-Hunter, limit by the amount of the trading provisions of 5 U.S.C. 552, will be Special Counsel, Office of Market Supervision, Division of Market Regulation, SEC, dated differential, or by a greater amount; plus available for inspection and copying in December 17, 1996. In Amendment No. 1, the PSE the Commission’s Public Reference clarified the purpose of the rule change and made 4 See Amendment No. 1, supra note 3. Room. Copies of such filing will also be technical corrections to the text of the rule. 5 See amendment No. 1, supra note 3. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 783 if a buy order, or minus if a sell order, of the Act, in general, and Section and should by submitted by January 27, an odd lot differential, if any). 6(b)(5) of the Act, in particular, in that 1997. Third, with regard to stop orders, the it is designed to facilitate transactions in For the Commission, by the Division of proposal states that an odd lot stop securities and to promote just and Market Regulation, pursuant to delegated order to buy shall become a market equitable principles of trade. authority. order when a regular way round lot B. Self-Regulatory Organization’s Margaret H. McFarland, transaction takes place at or above the Deputy Secretary. price of the stop order on the primary Statement on Burden on Competition [FR Doc. 97–151 Filed 1–3–97; 8:45 am] market.6 An odd lot stop order to sell The Exchange does not believe that shall become a market order when a the proposed rule change will impose BILLING CODE 8010±01±M regular way round lot transaction takes any burden on competition that is not place at or below the price of the stop necessary or appropriate in furtherance [Release No. 34±38093; File No. SR-Phlx± order on the primary market.7 (The of the purposes of the Act. 96±32] current rule states that an odd lot stop C. Self-Regulatory Organization’s order becomes a market order when a Self-Regulatory Organizations; Order Statement on Comments on the round lot transaction takes place on the Granting Approval to Proposed Rule primary market, which in the case of a Proposed Rule Change Received From Change and Notice of Filing and Order buy order is at or above the stop price; Members, Participants, or Others Granting Accelerated Approval to or which in the case of a sell order is Written comments on the proposed Amendment No. 1 to Proposed Rule at or below the stop price; and it further rule change were neither solicited nor Change by the Philadelphia Stock states, that the order shall then be filled received. Exchange, Inc., Relating to Index Options Exercise Advices at the price of the next round lot III. Date of Effectiveness of the transaction which takes place on the Proposed Rule Change and Timing for primary market, plus if a buy order, or December 27, 1996. Commission Action minus if a sell order, an odd lot I. Introduction Within 35 days of the date of differential, if any.) On July 29, 1996, the Philadelphia Fourth, the proposed rule states that publication of this notice in the Federal Stock Exchange, Inc. (‘‘Phlx’’ or it shall be inconsistent with the purpose Register or within such longer period (i) ‘‘Exchange’’) submitted to the Securities and intent of this Rule to engage in the as the Commission may designate up to and Exchange Commission following actions: (a) The unbundling of 90 days of such date if it finds such (‘‘Commission’’), pursuant to Section round-lots for the purpose of entering longer period to be appropriate and 19(b)(1) of the Securities Exchange Act odd-lot limit orders in the comparable publishes its reasons for so finding or of 1934 (‘‘Act’’) 1 and Rule 19b–4 amounts; (b) the failure to aggregate (ii) as to which the self-regulatory thereunder,2 a proposed rule change to odd-lot orders into round-lots when organization consents, the Commission amend Exchange Rule 1042A, Exercise such orders are for the same account or will— of Option Contracts, and Floor for various accounts in which there is a (A) by order approve such rule Procedure Advice (‘‘Advice’’) G–1, common monetary interest; and (c) the change, or retitled Index Option Exercise Advice entry of both buy and sell odd-lot limit (B) institute proceedings to determine Forms. On December 4, 1996, the orders in the same stock before one of whether the proposed rule change Exchange submitted Amendment No. 1 the orders is executed for the purpose of should be disapproved. to their proposal to provide that the capturing the ‘‘spread’’ in the stock. It IV. Solicitation of Comments deadline for submitting a memorandum further states that, in general, the to exercise and an exercise advice form Exchange views order entry practices Interested persons are invited to will be ‘‘no later than 4:30 p.m. or that are intended to circumvent the submit written data, views and fifteen minutes after the close of trading, round-lot auction market as abuses of arguments concerning the foregoing. if it occurs at a time other than the the intent and purpose of the odd-lot Persons making written submission regular close of trading.’’ 3 Currently, the system and such practices shall be should file six copies thereof with the deadline for such submissions is ‘‘no considered violations of these rules. Secretary, Securities and Exchange Finally, the Exchange is proposing to Commission, 450 Fifth Street, N.W., later than 4:30 p.m.’’ In addition, the remove several provisions from the Washington, D.C. 20549. Copies of the Phlx proposed to codify that anyone rules relating to odd lot executions that submission, all subsequent intending to exercise index options no longer apply. First, the Exchange is amendments, all written statements must complete a memorandum to proposing to eliminate all provisions in with respect to the proposed rule exercise and/or an exercise advice form Rule 5.34(b) on odd lot differentials. change that are filed with the in compliance with the exercise cut-off Second, the proposal modifies rule Commission, and all written time and must exercise the amount of 5.34(b) to eliminate the distinction communications relating to the 1 between ‘‘PMP stocks’’ and ‘‘non-PMP proposed rule change between the 15 U.S.C. 78s(b)(1) (1988). 2 17 CFR 240.19b–4. 8 Commission and any person, other than stocks.’’ 3 those that may be withheld from the See Letter from Philip H. Becker, Senior Vice 2. Basis President, Chief Regulatory Officer, Phlx, to public in accordance with the Matthew Morris, Office of Market Supervision, The Exchange believes that the provisions of 5 U.S.C. 552, will be Division of Market Regulation, Commission, dated proposal is consistent with section 6(b) available for inspection and copying in December 4, 1996 (‘‘Amendment No. 1’’). According to the Phlx, the purpose of this change is to clarify the Commission’s Public Reference that modified hours are not limited to trading hours 6 Id. Room, 450 Fifth Street, N.W., extending beyond 4:15 p.m., but include any 7 Id. Washington, D.C. 20549. Copies of such modification to Exchange trading hours, including 8 ‘‘PMP’’ stocks are those for which Exchange filing will also be available for an early close. As such, the Phlx’s revised rule specialists provide primary market protection. language does not alter the Exchange’s original Today, such protection applies to all stocks that inspection and copying at the principal intent. (The Commission notes that the Exchange may be executed on P/COAST, the Exchange’s office of the PSE. All submissions inadvertently filed Amendment No. 1 to the rule automatic execution system for equity securities. should refer to File No. SR–PSE–96–35 proposal as Amendment No. 2.) 784 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices option contracts indicated on such or fifteen minutes after the close of regulating, clearing, settling, and forms. trading, if it occurs at a time other than processing information with respect to The proposed rule change appeared in the regular close of trading. For securities, as well as to protect investors the Federal Register on August 28, instance, on certain days prior to a and the public interest, by allowing a 1996.4 No comments were received on holiday, the Exchange may cease trading reasonable amount of time to submit an the proposed rule change. This order broad-based index options at 1:15 p.m. exercise decision when trading hours approves the Phlx’s proposal, as Under the current rule, however, the are modified or extended. The amended. exercise cut-off time would remain at Commission believes that the II. Background and Description 4:30 p.m., regardless of when trading amendments to Exchange Rule 1042A ceased. In comparison, under the and Advice G–1 which modify the Exchange Rule 1042A and Advice G– proposal, the exercise cut-off time in the deadline for submitting exercise advice 1 govern the exercise of index options.5 above example would change to 1:30 forms and memoranda will benefit Specifically, Exchange Rule 1042A(a)(i) p.m. market participants by enabling them to requires that a memorandum to exercise With respect to trading hours make investment decisions based upon any American-style index option extending beyond 4:15 p.m., the the evaluation of their final positions contract must be received or prepared Exchange notes that in certain situations after having completed trading for the by the Phlx member organization no a trading rotation may occur after the day. Specifically, the proposal clarifies later than 4:30 p.m. on the day of ordinary 4:10 or 4:15 p.m. close of the application of Exchange Rule 1042A exercise. In addition, Exchange Rule trading. For instance, if a halt in the and Advice G–1 during periods when 1042A(a)(ii) requires the submission of trading of a component issue causes an trading ends at a non-regular time. This an exercise advice form to the Exchange index option to halt trading, and if the clarification should help ensure that no later than 4:30 p.m. when exercising index option re-opens at 4:00 p.m., an market participants have neither an American-style index option contracts.6 opening rotation may need to be inadequate nor an excessive amount of In this regard, the Exchange has conducted. Because such rotation may time in order to make their option attempted to create a level playing field result in extended trading hours, the exercise decisions after the close of among option investors by maintaining exercise cut-off time under the proposal trading.9 a cut-off time to ensure that all exercise would be fifteen minutes after the end The Commission finds good cause to decisions occur promptly after the close of the rotation. In this manner, a cut-off approve Amendment No. 1 to the of trading. Consequently, to prevent time of fifteen minutes after the close of proposed rule change prior to the fraud and unfairness, a long option trading will ensure that index option thirtieth day after the date of holder is prohibited from exercising traders and investors have adequate publication of notice of filing thereof in index options on non-expiration days time to make exercise decisions. the Federal Register. Specifically, based on information obtained after the In addition, the Exchange proposes to because the revised rule language cut-off.7 adopt an amendment procedure to contained in Amendment No. 1 only The Exchange currently proposes to facilitate changes in exercise decisions serves to clarify the Exchange’s amend these provisions such that the prior to the cut-off time. The amended submitted proposal, no new regulatory exercise cut-off time would be 4:30 p.m. exercise advice form and amendment concerns are raised. In addition, the procedure should add certainty to the Phlx’s rule proposal was subject to a full 4 See Securities Exchange Act Release No. 37593 exercise process by clarifying how a notice and comment period, and no (August 21, 1996), 61 FR 44379 (August 28, 1996). change in a decision to exercise should comments were received. Accordingly, 5 The Exchange notes that with respect to index option contracts, clearing members are also be indicated to the Exchange. In this the Commission believes that it is required to follow the procedures of the Options manner, when amending an exercise consistent with Sections 6(b)(5) and Clearing Corporation (‘‘OCC’’) for tendering exercise decision, a new exercise advice form 19(b)(2) of the Act to approve notices. Exercise notices are the exercise must be filed with the Exchange, listing Amendment No. 1 to the proposed rule instructions required by OCC and are distinct from exercise advices which are required by Exchange all exercise decisions, not just the one change on an accelerated basis. rules. being amended. Omitting one series Interested persons are invited to 6 The Phlx notes that Exchange Rule 1042A means that no exercise of that series is submit written data, views, and previously allowed the submission of a intended and a violation of the rule arguments concerning Amendment No. memorandum to exercise and an exercise advice occurs if that series is exercised. 1 to the rule proposal. Persons making form until five minutes after the close of trading. See Securities Exchange Act Release No. 32991 Further, all exercise advice forms, written submissions should file six (September 30, 1993), 58 FR 52337 (October 7, whether original or those amending copies thereof with the Secretary, 1993) (File No. SR-Phlx–92–31). Specifically, the previous submissions, must be filed Securities and Exchange Commission, exercise cut-off time for narrow-based index options prior to the exercise cut-off time. 450 Fifth Street, N.W., Washington, D.C. was 4:15 p.m. or five minutes after the close of 20549. Copies of the submission, all trading, and for broad-based index options it was III. Discussion 4:20 p.m. or five minutes after the close of trading. subsequent amendments, all written When the exercise cut-off time was changed to 4:30 The Commission finds that the statements with respect to the proposed p.m., however, the language ‘‘or five minutes after proposed rule change is consistent with rule change that are filed with the the close of trading’’ was deleted. See Securities the requirements of the Act and the Exchange Act Release No. 37077 (April 5, 1996), 61 Commission, and all written FR 16156 (April 11, 1996) (File No. Phlx–95–86). rules and regulations thereunder communications relating to the As such, the Phlx’s current proposal resurrects this applicable to a national securities proposed rule change between the concept. exchange, and, in particular, with the Commission and any person, other than 7 Pursuant to Exchange Rule 1042A(b), however, requirements of Section 6(b)(5),8 in that these requirements are not applicable on the last those that may be withheld from the business day before expiration, generally an it is designed to promote just and ‘‘expiration Friday.’’ The above requirements are equitable principles of trade, prevent 9 The Commission notes that any change to the also not applicable to European-style index options fraudulent and manipulative acts and Phlx’s regular trading hours for affected options which, by definition, cannot be exercised prior to practices, to foster cooperation and would require an amendment to Exchange Rule expiration. Lastly, the Exchange notes that the 1042A and Advice G–1 in order to maintain the procedures for exercising equity option contracts, coordination with persons engaged in appropriate time interval allowed between the close contained in Exchange Rule 1042, are not affected of trading and the required submission of exercise by this rule proposal. 8 15 U.S.C. § 78f(b) (1988). forms and memoranda. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 785 public in accordance with the 0034 dated December 10, 1996 r11; Public Convenience and Necessity for provisions of 5 U.S.C. § 552, will be Expedited TC3 Resolutions; Intended Route 566. available for inspection and copying at effective date: expedited January 15, Paulette V. Twine, the Commission’s Public Reference 1996. Chief, Documentary Services. Section, 450 Fifth Street, N.W., Docket Number: OST–96–2031. [FR Doc. 97–125 Filed 1–3–97; 8:45 am] Washington, D.C. 20549. Copies of such Date filed: December 19, 1996. BILLING CODE 4910±62±P filing also will be available for Parties: Members of the International inspection and copying at the principal Air Transport Association. office of the Phlx. All submissions Subject: COMP Telex Reso 033f; Local Office of the Secretary of should refer to File No. SR–Phlx–96–32 Currency Rate Changes—Pakistan; Transportation and should be submitted by January 27, Intended effective date: upon [Docket No. OST±96±1188] 1997. government approvals. IV. Conclusion Paulette V. Twine, National Freight Transportation Policy Chief, Documentary Services. For the foregoing reasons, the AGENCY: Office of the Secretary of Commission finds that the Phlx’s [FR Doc. 97–124 Filed 1–3–97; 8:45 am] Transportation, Department of proposal is consistent with the BILLING CODE 4910±62±P Transportation. requirements of the Act and the rules ACTION: Final Policy Statement. and regulations thereunder. It is therefore ordered, pursuant to Notice of Applications for Certificates SUMMARY: The Department of Section 19(b)(2) of the Act,10 that the of Public Convenience and Necessity Transportation is publishing a final proposed rule change (SR–Phlx–96–32), and Foreign Air Carrier Permits Filed policy statement on freight as amended, is approved. Under Subpart Q During the Week transportation that establishes the most For the Commission, by the Division of Ending December 20, 1996 important principles that will guide Market Regulation, pursuant to delegated Federal decisions affecting freight authority.11 The following Applications for Certificates of Public Convenience and transportation across all modes. The aim Margaret H. McFarland, Necessity and Foreign Air Carrier of these guiding principles is to direct Deputy Secretary. Permits were filed under Subpart Q of decisions to improve the Nation’s [FR Doc. 97–148 Filed 1–3–97; 8:45 am] the Department of Transportation’s freight transportation systems to serve BILLING CODE 8010±01±M Procedural Regulations (See 14 CFR its citizens better by supporting 302.1701 et. seq.). The due date for economic growth, enhancing Answers, Conforming Applications, or international competitiveness and DEPARTMENT OF TRANSPORTATION Motions to modify Scope are set forth ensuring the system’s continued safety, below for each application. Following efficiency and reliability while Aviation Proceedings; Agreements the Answer period DOT may process the protecting the environment. We are Filed During the Week Ending 12/20/96 application by expedited procedures. maintaining Docket No. OST–96–1188 to receive comments or suggestions that The following Agreements were filed Such procedures may consist of the could be useful in preparing future with the Department of Transportation adoption of a show-cause order, a editions of this policy statement. It is under the provisions of 49 U.S.C. 412 tentative order, or in appropriate cases our intention to update the statement and 414. Answers may be filed within a final order without further periodically as warranted by changing 21 days of date of filing. proceedings. conditions and events. Docket Number: OST–96–2026. Docket Number: OST–96–2028. Date filed: December 17, 1996. Date filed: December 17, 1996. EFFECTIVE DATE: January 6, 1997. Parties: Members of the International Due Date for Answers, Conforming ADDRESSES: Submit written, signed Air Transport Association. Applications, or Motion to Modify comments to Docket No. OST–96–1188, Subject: PTC3 0026 dated December Scope: January 14, 1997. the Docket Clerk, U.S. Department of 10, 1996 r1; Within Southeast Asia (US Description: Application of United Transportation, Room PL–401, C–55, Territories); PTC3 0031 dated December Air Lines, Inc., pursuant to 49 U.S.C. 400 Seventh Street, SW., Washington, 10, 1996 r2; Southeast Asia-SW Pacific Section 41101, and Subpart Q of the DC 20590. All comments received will (US Territories); (Summary attached.); Regulations, applies for renewal of be available for examination at the Intended effective date: expedited authority to engage in scheduled foreign above address between 9:00 a.m. and January 15, 1996. air transportation of persons, property, 5:00 p.m., ET, Monday through Friday, Docket Number: OST–96–2027. and mail between the terminal point Los except Federal holidays. Those desiring Date filed: December 17, 1996. Angeles, California, and Mexico City, notification of receipt of comments must Parties: Members of the International Mexico, and beyond Mexico City to the include a self-addressed, stamped Air Transport Association. following points: Guatemala City, envelope or postcard. Subject: PTC3 0024 dated December Guatemala; San Salvador, El Salvador; FOR FURTHER INFORMATION CONTACT: Mr. 10, 1996 r1; PTC3 0025 dated December Tegucigalpa, Honduras; Managua, Carl Swerdloff, Office of Economics, at 10, 1996 r2–3; PTC3 0027 dated Nicaragua; San Jose, Costa Rica; Panama (202) 366–5427, Office of the Secretary, December 10, 1996 r4; PTC3 0028 dated City, Panama; Barranquilla, Colombia; 400 Seventh Street, SW., Washington, December 10, 1996 r5–6; PTC3 0029 Maracaibo and Caracas, Venezuela; Port DC 20590. Office hours are from 8:30 dated December 10, 1996 r7; PTC3 0030 of Spain, Trinidad and Tobago; a.m. to 5:00 p.m. ET, Monday through dated December 10, 1996 r8; PTC3 0032 Georgetown, Guyana; Paramaribo, Friday, except Federal holidays. dated December 10, 1996 r9; PTC3 0033 Suriname; Sao Paulo, Rio de Janeiro, Summary of Written Submissions to the dated December 10, 1996 r10; PTC3 Brasilia and Belem, Brazil; Montevideo, Uruguay; and Buenos Aires, Argentina. Docket 10 15 U.S.C. § 78s(b)(2) (1988). These services are authorized on Written responses to the Notice of 11 17 CFR 200.30–3(a)(12). segment 4 of United’s Certificate of Proposed Policy (NPP) were received 786 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices from a total of 18 organizations should address the growing demand on framework that will help shape representing a broad range of our domestic freight transportation important decisions affecting freight governmental and private sector systems from international trade. These transportation across all modes. Our entities. Virtually all commented commentors noted that the Federal interest is to ensure the nation has a favorably on the DOT’s decision to Government should consider these safe, reliable, and efficient freight prepare a freight transportation policy, impacts on our transportation facilities transportation system that supports in response to the Intermodal Surface as part of future international trade economic growth and international Transportation Efficiency (ISTEA), agreements. The policy statement has competitiveness both now and in the which emphasized that freight been revised to account for variability in future, while protecting and transportation needed greater attention State, regional and local requirements contributing to a healthy and secure by planning and development agencies, and conditions that must be considered environment. The goal of this statement and because it would be useful to State in applying these policy principles. is to provide guidance for making the and local government to set out a The integrated nature of the Nation’s Nation’s transportation system serve its framework for addressing freight transportation system, freight and citizens better. To achieve this goal, new transportation issues. Some suggestions passenger, has been noted in the final partnerships must be formed among for modifying the statement appeared in policy statement in response to a public agencies, the freight several submissions and are discussed suggestion of one commentor. transportation industries and shippers. below. Concern was expressed by some that Highways, airports, rail facilities, Several commentors were critical of although there is agreement with the ports, pipelines, waterways, intermodal the NPP because it was at too high a general goal of greater freight transportation, and the freight carriers level of generality and that it was, transportation efficiency, we should, at and shippers they serve all play a vital therefore, of less utility to those outside the same time, understand that other role in the Nation’s economic health. the Department seeking information on important goals, such as improved air The integrated nature of the Nation’s future Federal priorities and quality and safety, present restraints transportation facilities and operations programmatic or regulatory directions. that may not allow for maximum is an important feature that must be Some thought that the policy statement efficiency in our freight transportation accounted for in the establishment of should expand upon the general systems. While this point is well taken, principles and actions that are directed principles and include how the DOT it applies to a number of the general at improving freight transportation. An would apply them in establishing principles stated in the policy. Under efficient transportation system results in strategic plans for addressing national varying circumstances or local lower production and logistics costs for freight transportation requirements. situations a number of the guiding U.S. firms and better prices for Several stated that the policy should, in principles can be in conflict, consumers. In order to compete fact, include specific actions the DOT necessitating trade-offs and successfully in international markets anticipated for improving the freight compromises in reaching solutions that U.S. firms must be able to rely on an transportation system. On the other satisfy all parties. We believe the efficient domestic freight transportation hand, one commentor was concerned original policy statement addressed this system that is effectively managed. The that the DOT’s expressed role in freight point and that added discussion is system also must support achievement transportation infrastructure planning unnecessary. of other national goals by fostering safe, and development not extend beyond Several commentors questioned the effective, timely and environmentally general principles and broad national policy principle that efficient pricing sound freight transportation that goals, leaving to the States the systems are to be encouraged that reflect improves the quality of life for all U.S. responsibility for setting local priorities the full costs of developing, maintaining citizens. and solutions that reflected local and operating public transportation Effective freight transportation policy and planning must consider that much political and economic realities. The infrastructure. They noted that this of our transportation infrastructure is policy statement and the principles could lead to higher user costs or be provided by the different levels of presented are intended as guidance for exploited by local governments as a government and that major portions are the development of more specific source of general revenue. The policy put in place by private capital. The strategic action plans, proposals or advocates the use of appropriate and policy must allow for variations in decisions by the DOT, Congress, and efficient pricing which does not include State, regional and local conditions, State and local governments. We believe excessive charges for general revenue requirements and resources. Further, the the policy principles presented in the purposes. We believe the principle, as statement describe, in general, the role fusion of public and private investment presented, is correct and should be and responsibilities of the DOT in creates economic opportunities but also advanced. freight transportation matters. In A number of other wording changes may raise regulatory conflicts, and both response to the comments that the have been made in response to specific must be considered in national freight policy statement include actions the comments submitted to the docket. policy and planning. DOT anticipates for improving national These changes are, for the most part, for II. Recent Trends in Freight Movements freight transportation, an addendum has clarification or emphasis purposes and been added to present examples of such Freight moves on systems of have not altered the purpose or activities that are either underway or to increasingly integrated supply chains objectives of the principles as stated in be initiated in the near term. and distribution networks operating in Several comments suggested that the the NPP. States and metropolitan areas, as well as NPP include greater attention to multi- Freight Transportation Policy regionally, nationally, and state, regional and local economic and Statement internationally. Reliance on just-in-time transportation differences that need to production and current inventory be taken into account in developing I. Introduction management practices have increased freight transportation solutions. This This statement of guiding principles the demand for more efficient and issue was also raised in regard to the for the Nation’s freight transportation reliable freight transportation. Shippers general concern that as a nation we system sets forth a DOT policy are increasingly rationalizing the mix of Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 787 transportation, inventory, handling, and effective infrastructure investments that network that is a Federal concern and loss and damage costs, striving to support broad national goals. responsibility. reduce their total logistics costs. They 2. Promote economic growth by In cooperation with DOT and other are using increasingly fast, reliable removing unwise or unnecessary Federal agencies, the Office of transportation in place of large regulation and through the efficient Management and Budget (OMB) has inventories. pricing of publicly financed established guidelines for the economic The productivity of freight transportation infrastructure. analysis of Federal infrastructure transportation firms and their ability to 3. Ensure a safe transportation system. investments.1 The guidelines apply provide timely and reliable service 4. Protect the environment and rigorous cost-benefit standards to all depends not only on the efficiency of conserve energy. proposed investments, including a individual modal systems and the 5. Use advances in transportation provision that requires the measurement effectiveness of the laws and regulations technology to promote transportation of costs and benefits over a project’s life- under which they operate, but also on efficiency, safety and speed. cycle. The OMB guidelines also the efficiency of intermodal facilities 6. Effectively meet our defense and encourage, when appropriate, private that govern the effectiveness of their emergency transportation requirements. sector participation in infrastructure connections to one another. U.S. 7. Facilitate international trade and projects and more cost-effective State intermodal freight transportation links commerce. and local infrastructure investment the various modes to meet customers 8. Promote effective and equitable programs. market needs by providing integrated joint utilization of transportation 2. Promote economic growth by origin-to-destination service. It utilizes infrastructure for freight and passenger removing unwise or unnecessary advanced technologies and operating service. regulation and through the efficient systems designed to enhance 1. Provide funding and a planning pricing of publicly financed productivity, reduce transportation transportation infrastructure. costs, increase service speed and quality framework that establishes priorities for for shippers and lower prices for allocation of Federal resources to cost- Although freight transportation consumers. effective infrastructure investments that services are provided almost exclusively International freight movement takes support broad national goals. by the private sector, the Federal advantage of the latest innovations in Enactment of ISTEA, with its Government plays an essential role in the global marketplace that reduce cost requirement for greater emphasis on maintaining competition in the and better serve the customer. intermodal and freight policy issues, transportation marketplace and in Customers are establishing global marked a new era in transportation protecting the public from unsafe and supply chains. Innovations that are investment decision-making. The environmentally damaging developed by individual carriers are transportation planning process has transportation operations. By promoting copied by others when results in savings become increasingly important. competition, Federal policies can help or service are seen. The use of real-time, Metropolitan and State officials are now to foster an environment that interactive electronic data interchange, encouraged to include major freight encourages improvements and changes and vessel/asset sharing agreements all distribution issues in their planning that reduce transportation and logistics provide more efficient and rapid processes. They are also urged to work costs. National objectives for the freight transportation of international freight with carriers and industry to find ways transportation system can be addressed movements. for improving the efficiency of freight through Federal activities such as the Contractual regimes governing the movements while protecting the deregulation of entry and ratemaking in movement of freight have been environment. Thus, the transportation the trucking and air cargo industries, in established by the private sector which planning procedures adopted in ISTEA order to foster an effective, competitive sometime result in conflicts with public are aimed at an improved approach to freight transportation environment. As the logistical requirements of regulations and create impediments to developing freight transportation policy businesses become more complex, some the safe and efficient operation of freight at all levels of government. shippers and transportation providers transportation. Government typically While much of the surface will rely increasingly on intermodal regulates the safety, and environmental transportation infrastructure is provided services. Such services should not be aspects of infrastructure and equipment. by the private sector (e.g., rail freight hindered by artificial constraints. It also may be appropriate for facilities, waterside and truck terminals, Physical and institutional barriers that Government to facilitate problem oil and gas pipelines), much of the impede the flow of freight from one solving and provide technical assistance infrastructure would not be built or mode of transportation to another where private and public sector maintained without public financial should be eliminated. The elimination requirements create barriers to safe and support that is affected by Federal of physical and operational barriers to efficient freight movement. Economic policies. Private facilities are often freight intermodal operations is consequences are increasingly a matter dependent on public investment for primarily the responsibility of of market decisions by the private their effectiveness, (e.g., waterside transportation carriers, shippers, and sector. terminals that require public channels, State and local government. The Federal etc.). Federal participation may be III. Principles of Federal Freight Government, however, may take action appropriate when infrastructure Transportation Policy to improve inadequate public investment projects have a national or infrastructure to support essential The following eight principles regional significance or when Federal freight intermodal operations or to provide the basis for a Federal freight involvement may facilitate the reduce legal and regulatory barriers transportation policy and describe the resolution of a freight transportation such as those that until 1996 impeded Federal role in freight transportation: problem. The value of a particular 1. Provide funding and a planning transportation facility is often 1 Executive Order 12893, ‘‘Principles for Federal framework that establishes priorities for dependent on the existence and Infrastructure Investments,’’ Federal Register, allocation of Federal resources to cost- effectiveness of a regional or national Volume 59, No. 20, January 31, 1994. 788 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices railroad ownership of barge and transportation modes including the full 5. Use advances in transportation trucking companies. The Federal social costs of accidents. Federal technology to promote transportation Government may also encourage State research will focus on the causes of efficiency, safety and speed. and local governments to take necessary transportation accidents: the role of Application of advanced technology action, or in extreme cases even truck, rail, aircraft, and vessel design in the transportation system offers preempt them, in order to reduce and performance in accidents and their significant opportunities to improve its statutory impediments to intermodal solutions, as well as the contribution of safety, efficiency, capacity, and transportation. human factors and infrastructure design. productivity. The prices charged for public sector The Federal Government will also Private firms invest in advanced transportation facilities and services continue to work with the private sector communication, navigation, determine whether they are used on a cooperative basis, to ensure that surveillance, and information efficiently. Public facilities costs that are proven safety advances are rapidly technologies which improve the not included in the transportation rates efficiency of their operations. These paid by shippers may lead to inefficient incorporated into practice, especially advanced technologies facilitate the use of the Nation’s limited when substantial public benefits will movement and tracking of goods and transportation resources. Whenever result from their adoption. vehicles as well as the exchange of feasible, fees and taxes adequate to 4. Protect the environment and conserve information among carriers and their cover the cost of building, operating, energy. and maintaining public infrastructure customers in the intermodal facilities should be recovered from the Responsible environmental protection transportation system. They also offer tools for strengthening intermodal parties that use and benefit from them. is another important Federal policy connections. Public and private However, fees that exceed the cost of objective and, like transportation safety, investments for applying these providing freight services will adversely environmental protection requires the affect the efficiency and effectiveness of advanced technologies to the air, cooperation of all levels of government highway, marine, and rail the transportation system and should be and the private sector. The total social avoided. infrastructures have improved the costs of environmental degradation are overall efficiency of the transportation Federal actions must be evaluated not not borne by the transportation users only for their short-term impacts but for system. (e.g., the social costs associated with DOT’s Federal role in research and their longer-term consequences for pollution are not reflected in the costs maintaining viable, competitive, development of technologies is to incurred by the users or prices charged multimodal freight transportation to promote the efficiency and safety of the for transportation services). Thus, the serve the Nation. Therefore, freight national transportation system and to regulatory and investment policies must Federal Government plays, and must support the application of technologies take into account the linkages between continue to play, an important role in in the movement of freight. Specifically, freight transportation performance and reducing these social costs and ensuring DOT provides leadership for the economic performance at the local, that they are more accurately reflected interagency coordination of Federal regional, national, and international in the price of transportation services transportation research. This includes levels both today and in the future. The through appropriate regulation or maintaining close dialogue with the DOT has completed a comprehensive modifications to existing programs. In private sector and State and local assessment of its regulations as part of addition, the Federal Government will governments to ensure that DOT the National Performance Review. It continue to support research and research funding reflects the priorities will reexamine its policies, programs, technology development that is directed of freight transportation users and and regulations periodically to assess at increasing transportation productivity providers. DOT will coordinate their effectiveness and whether they while maintaining environmental Federally funded research to ensure that should be continued. protection. there is no redundancy. DOT will maintain a leadership role in In pursuing its environmental 3. Ensure a safe transportation system. development of an intermodal research protection objective, the Federal Making the transportation system framework. Government needs to continue to assess safer is a critical Federal policy Advances in information technology the impacts of environmental regulation objective. Because the marketplace are having a dramatic effect on alone may not be effective in producing on the performance of transportation transportation requirements and the an acceptable level of public safety, the operations and will work with the planning of future capacity investments. Federal Government will continue to private sector and the environmental DOT works with the private sector to promote transportation safety through community to implement appropriate facilitate communications across modes regulation; through enforcement, environmental protection measures and for intermodal compatibility of engineering and education; and through technologies in a cost effective and technology applications, such as Global support of voluntary compliance efforts environmentally sound manner. The Positioning Systems (GPS) and by industry. Success in maintaining and Federal Government will seek to Geographic Information Systems (GIS). improving the safety of our freight develop regulations that contain DOT coordinates with other Federal transportation networks requires the performance based rather than agencies, such as the Department of cooperation of each level of government technology specific standards or criteria Defense and the National Oceanic and and the private sector. so as to permit industry flexibility and Atmospheric Administration, to ensure The Federal Government will innovation in meeting regulatory that underlying data (such as weather continue to support safety research and requirements. DOT will continue and positioning information) required as the dissemination of information related working to promote and develop input to these various systems continue to safety. The DOT will continue to techniques for conserving energy and to be available. support activities to improve the for better quantifying the social costs of DOT will continue to work closely information base needed to monitor the environmental and community with the freight industry to ensure that safety performance of all freight degradation. the United States is well represented in Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 789 international transportation technology States and localities affected by such intergovernmental partnerships, a strong and standards forums. policy decisions. Government can commitment to safety, and enhanced provide new opportunities for American planning—have been well received and 6. Effectively meet defense and exporters by leading trade negotiations successful and should be preserved. The emergency transportation requirements. with the European Union, with other goal for reauthorization is to develop a Recent changes in our Nation’s industrialized countries, and with proposal for the next century that allows defense strategy and the downsizing of emerging markets, such as those in Asia our Nation to preserve our competitive the U.S. military establishment have and Latin America, and by providing advantage throughout the world and increased the need for effective technical assistance programs to maintain the well being of our citizens. deployment of those forces in times of promote American transportation and There are a number of freight a national emergency. They have infrastructure technologies. transportation issues that are being emphasized the need for rapid considered, including: deployment of large numbers of people 8. Promote effective and equitable joint Increased Funding Flexibility: and large amounts of material on short utilization of transportation Alternatives are under study for notice. Similarly, when natural disaster infrastructure for freight and passenger increasing the flexibility for use of strikes, a high-quality, multimodal service. Federal funds for projects that improve transportation system is critical to The efficient use of the Nation’s the connectivity of freight transportation ensuring the safety of the affected transportation infrastructure may systems and for the development or population and the ability of local, State require the joint use of facilities by improvement of freight terminals that and Federal officials to start rebuilding freight and passenger transport serve more than a single mode of devastated communities. Deploying operators. When appropriate, the transportation. personnel, equipment, and supplies Federal Government, in conjunction Truck Size and Weight Regulation: through the air, over land or on the seas, with State and local agencies and the The DOT is currently conducting a requires well-planned, maintained, and private sector, will support the equitable comprehensive analysis of the effects of sufficient alternative transportation sharing of transportation facilities and changing current truck size and weight systems and facilities for both the infrastructure and reasonable regulations on safety, transportation military mission and disaster relief compensation for their use. costs, modal competition, and operations. Potential safety problems and reduced environmental and energy impacts. The The Department of Defense has freight transportation operations results of this effort, which should be adopted policies that will require efficiency may arise from the sharing of completed in early 1997, will be greater use of civilian transportation facilities. These concerns should be reported to the Congress and used in the resources in meeting its transportation taken into account in policy initiatives evaluation of any proposed changes to needs. The Nation’s freight that address the joint use of facilities. current truck size and weight transportation operators, therefore, have The DOT will continue to support regulations. The range of alternatives an essential role to play in the research in this area and will encourage being studied include maintaining the mobilization and deployment of transportation firms to adopt new status quo, increasing individual State personnel, equipment, and supplies in technologies and operating practices regulatory authority over truck size and the event of a national emergency or a that would reduce the adverse weight limits, and increasing Federal natural disaster. The DOT will continue consequences that may arise from the responsibility in establishing greater to work with the Department of Defense, joint use of facilities. national uniformity. other Federal agencies, and the Highway Cost Allocation Study: The transportation community to identify Addendum Department is conducting an analysis of short- and long-term national defense The following is a list of near term the responsibility of highway user and emergency transportation DOT initiatives that may have groups for both the direct and external requirements and to ensure that the significant implications for freight costs of the highway program as well as transportation system can meet those transportation. They are representative alternative methods for collecting requirements. of a much larger number of activities revenues from users. This study, which underway or anticipated by the DOT should be completed in 1996, will 7. Facilitate international trade and that will improve the safety, efficiency, provide an analytic capability to commerce. reliability and environmental evaluate alternative highway user tax To retain and enhance the Nation’s performance of the freight systems and other revenue collection options competitive position and its economic consistent with the guiding principles that may arise in ISTEA reauthorization, vitality, domestic firms must have presented in this policy statement. including the cost responsibility of the access to foreign markets through an Included are development, operating, heavy combination vehicles. efficient transportation system. A research and regulatory activities that National Highway System (NHS): competitive international transportation affect individual as well as intermodal Programs that provide national industry requires highly efficient freight systems, and the cooperation of connectivity, increase the capacity of connections to and within the domestic public and private entities. the system and improve the flow of transportation system. Where ISTEA Reauthorization: The traffic, such as the National Highway international trade agreements are being Intermodal Surface Transportation System and its intermodal connectors, negotiated, as in the case of the North Efficiency Act of 1991 expires at the end will be continued. The NHS, American Free Trade Agreement of fiscal year 1997, and the DOT has approximately 160,000 miles of major (NAFTA) and the World Trade completed its outreach and analysis roads, represents only 4 percent of the Organization (WTO), regulatory policy effort and is in the process of total mileage but carries 75 percent of decisions that primarily affect developing the Administration’s heavy truck traffic. All major rail-truck international freight movements will proposal for reauthorization. The central intermodal facilities will be connected also take into account their implications elements of ISTEA—strategic to the NHS. for domestic freight operations and infrastructure investments, Border Crossings: We are concerned competition as well as the interests of intermodalism, flexibility, about the special trade-related 790 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices transportation needs of certain areas of airways capacity and efficiency; Issued in Washington, DC on December 27, the country, particularly along the facilitate railroads’ ability to implement 1996. Mexican and Canadian borders and the positive train control systems increasing Federico Pen˜ a, North-South corridors that serve them, safety and capacity; be a component of Secretary of Transportation. that will facilitate trade resulting from the Intelligent Transportation System [FR Doc. 97–139 Filed 1–3–97; 8:45 am] NAFTA. Programs will be considered (ITS) reducing congestion and BILLING CODE 4910±62±P that are designed to improve the flow of improving railroad grade crossing trade and traffic across the borders. safety; improve harbor approach and Intelligent Transportation Systems intra-harbor safety nationwide and track Federal Aviation Administration (ITS): Consideration is being given to movement of tankers through Prince investments in ITS technologies that Aviation Rulemaking Advisory William Sound; improve safety and hold the promise of increasing the Committee Meeting on Transport efficiency of ships moving through the carrying capacity and efficiency of our Airplane and Engine Issues current infrastructure. ITS is expected to St. Lawrence Seaway and Panama AGENCY: increase the capacity of our Canal; and more rapidly locate and Federal Aviation transportation system at a fraction of the respond to motor vehicle accidents, Administration (FAA), DOT. cost of traditional infrastructure hazardous materials spills and vessels ACTION: Notice of meeting. in distress. building. ITS also is expected to provide SUMMARY: The FAA is issuing this notice substantial safety and environmental Pipeline Risk-based Programs: The to advise the public of a meeting of the benefits. One major element of this DOT will continue the examination of Federal Aviation Administration’s program—particularly focused on gas and hazardous liquid pipeline Aviation Rulemaking Advisory freight transportation—is the regulations to incorporate up-to-date Committee to discuss transport airplane Commercial Vehicles Information technology and to more fully and engine issues. System and Networks (CVISN) which incorporate risk-based factors in the will develop standards and protocols to DATES: The meeting will be held on prioritization and selection of safety January 22 and 23, 1997 beginning at allow freight carriers to electronically requirements. exchange information required by 8:30 a.m. on January 22. Arrange for oral regulatory authorities using Conclude Additional International presentations by January 15, 1997. commercially available communications Aviation Agreements: We will continue ADDRESSES: The meeting will be held at infrastructure. The goal of the CVISN is efforts to reach new agreements with Allied Signal Engines, 111 South 34th, to provide greater compatibility of the other nations that open new and Phoenix, Arizona 85034 in the Kachina information systems owned and improved opportunities for U.S. airlines Conference Room. operated by state/local governments, in international passenger and air cargo FOR FURTHER INFORMATION CONTACT: carriers, and other stakeholders. markets, and strengthen and expand the Jackie Smith, Office of Rulemaking, Rail-Highway Grade Crossings: The competitive international aviation FAA, 800 Independence Avenue, SW., current program under ISTEA will be marketplace. Washington, DC 20591, telephone (202) considered for continuation as part of Shipyard Revitalization Initiative: 267–9682. the reauthorization effort. The program Assist efforts within the shipbuilding SUPPLEMENTARY INFORMATION: Pursuant provides funds for rail-highway grade and repair industry to compete to section 10(a)(2) of the Federal crossing improvements and for the internationally by helping firms convert Advisory Committee Act (Pub. L. 92– conduct of studies and dissemination of 463; 5 U.S.C. App. II), notice is given of information on better grade crossing from defense to civilian markets. This includes ensuring fair international a meeting of the Aviation Rulemaking designs and construction safety Advisory Committee to be held January competition, improving competitiveness measures that will, in part, improve the 22 and 23, 1997 at Allied Signal through technology transfer and applied safety performance of the freight Engines, 111 South 34th, Phoenix, research, eliminating unnecessary transportation system . Arizona. regulations, financing ship sales for both Implementation of the NAFTA The agenda for the meeting will export and U.S. flag operations, and Agreement: We will continue working include: with our Canadian and Mexican assisting in international marketing. • Opening remarks. partners to improve the safety, National Dredging Policy: We are • FAA Report. efficiency, and productivity of freight implementing the report of the • Joint Aviation Authorities Report. transportation among the three nations Interagency Working Group on the • Review Action Items. while protecting U.S. safety standards, Dredging Process, by working with • Executive Committee (EXCOM) including the improvement of Federal and State agencies to resolve Report. • enforcement of cross-border truck safety impediments to dredging projects that Significant Regulatory Differences requirements. are necessary to maintain shipping Discussion. Deploy Global Positioning System for • channels in the major U.S. ports. Flight Test Harmonization Working Transportation Purposes: The DOT is Group (HWG) Report. the designated lead agency for all Voluntary Intermodal Sealift • Engine HWG Report and Vote. Federal civil GPS matters and will Agreement: We will continue Thursday, January 23, 1997 coordinate the development and development of this program in implementation of Federal partnership with U.S. flag carriers and • Powerplant Installation HWG augmentation measures to the basic GPS the Department of Defense to achieve Report. for civil transportation applications. We agreement from carriers to commit • Electromagnetic Effects HWG will coordinate activities to minimize intermodal sealift capacity in time of Report. cost and duplication. The DOT will war or national emergency and to —HIRF work to augment GPS to: improve maximize DOD’s use of the U.S. —Lightning aviation navigation during adverse maritime industry’s intermodal • Loads and Dynamics HWG Report weather conditions and increase capacity. and Vote. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 791

• General Structures HWG Report. (DSRC) systems specified in the Office, (202) 366–2639; Ms. Beverly M. • Braking Systems HWG Report. Intelligent Transportation Systems Russell, Office of Chief Counsel, (202) • Airworthiness Assurance Working National Architecture. These issues are 366–1355, Federal Highway Group Report and Vote as follows: Administration, 400 Seventh Street, • Systems Design and Analysis (1) Should the FHWA require that SW., Washington, D.C. 20590. Office (25.1309) HWG Report. DSRC systems purchased with Federal- hours are from 7:45 a.m. to 4:15, e.t., • Closure aid highway funds and ITS Federal Monday through Friday, except Federal —Action Items funds meet draft standard holidays. specifications, such as that of the —Schedule for Future Meetings SUPPLEMENTARY INFORMATION: —Draft Agenda for Next Meeting American Society for Testing Materials # The Aviation Rulemaking Advisory (ASTM) proposed Draft 6 standard and Background Committee will vote on the following the Committee for European In the 1980’s a novel approach to documents during the January 1997 Normalisation (CEN) draft documents facilitating transportation developed. meeting: N473, N474, and N505 prior to their The dedicated short range • Bird Strike (Engines HWG) formal adoption as industry standards communication (DSRC) industry, as it • Repairs (Airworthiness Assurance in an effort to reduce the proliferation came to be known, utilized radio Working Group) of non-interoperable systems? Should frequency systems to facilitate hands-off • Revised Landing Gear Shock the FHWA also include message set data communication between vehicles Absorption Test Requirements (Loads requirements, such as the Commercial and electronic reading devices on the and Dynamics HWG) Vehicle Information Systems and roadside. This application of Anyone interested in obtaining a copy Networks (CVISN) Dedicated Short communications technology to of these documents should contact the Range Communications Interface transportation has enabled motorists to individual listed under the heading FOR Requirements of April 2, 1996 (Johns pay highway tolls and commercial FURTHER INFORMATION CONTACT. Hopkins University-Applied Physics motor vehicles to clear weigh stations Attendance is open to the interested Lab)? Should compliance with specific and ports of entry without stopping. The public, but will be limited to the space draft standards be required for main hardware components of the DSRC available. The public must make Commercial Vehicle Operations (CVO) system consist of a transponder, or tag, arrangements by January 15, 1997, to applications only; for both CVO and mounted on a vehicle, communicating present oral statements at the meeting. Electronic Toll and Traffic Management wirelessly with a roadside reading The public may present written (ETTM) applications; or for CVO, device. The transponder, or tag, stores at statements to the committee at any time ETTM, and additional applications? a minimum a unique ID number that is by providing 25 copies to the Assistant (2) Should the FHWA require that received by the reading device and is Executive Director for Transport DSRC systems purchased with Federal- matched to a corresponding record on a Airplane and Engine Issues or by aid highway funds and ITS Federal computer system that identifies the bringing the copies to the meeting. In funds meet an escalating vehicle/container/rolling stock and its addition, sign and oral interpretation interoperability formula? An example associated records. The benefits derived can be made available at the meeting, as would be that first, all CVO applications from installation of this new technology well as an assistive listening device, if must be nationally interoperable; reflect a significant return on requested 10 calendar days before the second, all new (after specified date) investment; especially in the toll and meeting. Arrangements may be made by and upgrading electronic toll collection fleet management business. contacting the person listed under the systems and other DSRC applications The Department of Transportation’s heading FOR FURTHER INFORMATION must be interoperable with CVO Intelligent Transportation Systems (ITS) CONTACT. applications. program was established by Congress in (3) Should a single standard be the Intermodal Surface Transportation Issued in Washington, DC, on December developed for all applications, or should 30, 1996. Efficiency Act of 1991 (ISTEA) (Pub. L. separate standards be developed with an 102–240, 105 Stat. 1914). In the ISTEA, Joseph A. Hawkins, assumption that trucks and buses, and Executive Director, Aviation Rulemaking Congress directed the Department to perhaps other users, would likely develop and implement standards and Advisory Committee. require separate technology to perform [FR Doc. 97–174 Filed 1–3–97; 8:45 am] protocols to promote widespread use of those functions? ITS. See Pub. L. 102–240, § 6053(b), 105 BILLING CODE 4910±13±M DATES: The FHWA requests comments Stat. at 2190 (as codified at 23 U.S.C. by February 1, 1997. 307 note). A precursor to the Federal Highway Administration ADDRESSES: Submit written, signed development of standards has been the comments to FHWA Docket No. 96–49, formation of a National System [FHWA Docket No. 96±49] Room 4232, HCC–10, Office of the Chief Architecture which provides a Counsel, Federal Highway framework that describes how system Achieving Interoperability With Administration, 400 Seventh Street, components should work and interact. Dedicated Short Range SW., Washington, D.C. 20590. All A system architecture addresses how Communication comments received will be available for system data flows, how various traffic AGENCY: Federal Highway examination at the above address from and traveler information message Administration (FHWA), DOT. 8:30 a.m. to 3:30 p.m., e.t., Monday formats are structured, how electrical through Friday, except Federal holidays. ACTION: Notice; request for comments. interfaces are formed, and which Those desiring notification of receipt of communication system mediums are SUMMARY: With this notice the Federal comments must include a self- used for data transmission. The Highway Administration (FHWA) is addressed, stamped postcard. Department began an intensive ITS requesting comments on three items of FOR FURTHER INFORMATION CONTACT: Mr. National Architecture Program in concern relating to the implementation Michael P. Onder, Intelligent December 1994, and concluded with 29 of dedicated short range communication Transportation Systems Joint Program user services in July, 1996. The 29 user 792 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices services have been defined to date as corridor in the Mid-West and the I–5, I– During the same time frame, the FHWA part of the national planning and 8, and I–10 corridors on the West Coast. has been developing the architecture for architectural development process. A The I–75 corridor, under the Advantage CVO and other ITS Programs. This 30th user service (Highway-Rail CVO Project, has 29 sites electronically development has matured to the point Intersection) has recently been defined linked from Florida through Ontario to that the FHWA is ready to initiate seven and is now being included in the allow for non-stop clearance of model deployments of CVISN and the national architectural process. The commercial vehicles as they are Intelligent Transportation Infrastructure National Architecture envisions a weighed at highway speeds. The three in four major metropolitan areas to test transportation system in which DSRC is corridors on the West Coast comprise the system under operational the favored method of wireless the HELP, Inc. Pre-Pass system which conditions. In order for the fundamental communication for Commercial Vehicle operates in a similar fashion to the concept of wireless vehicle to roadside Operations (CVO) and for Electronic Advantage CVO Project. Soon to be communication to be viable for Toll and Traffic Management (ETTM) installed are CVO DSRC systems along commercial fleets, it is essential that applications. The objectives of CVO the I–95 corridor from Virginia to interoperability exist nationwide. services are to increase productivity of Maine. Both Idaho and Utah also have Therefore, the FHWA believes it must commercial vehicle regulatory agencies installed electronic clearance systems, insist that model deployments be and commercial vehicle operators, and and the State of Washington is in the interoperable with each other. If the to enhance the safety of CVO drivers process of implementing such a industry stalemate continues, the and vehicles. Examples of CVO services program. In addition, DSRC systems are FHWA may be forced to seek a process include automated permit and currently being installed in four to stop the proliferation of non- registration acquisition, vehicle international border crossing sites at interoperable DSRC systems. To performance monitoring, and hazardous Otay Mesa, California, Nogales, Arizona, continue to allow Federal funds to be materials incident response. ETTM Buffalo, New York, and Detroit, invested in non-compatible systems will allows drivers to pay highway tolls Michigan. In the planning stages for exacerbate the problem. As a result, without stopping, and allows traffic installation of DSRC equipment are the unless the DSRC industry can identify a managers to use transponders as probes Laredo and El Paso, Texas and the solution to non-interoperability in high traffic volume areas to facilitate Blaine, Washington border crossings, as immediately, the FHWA will be forced incident detection. well as sites in seven model deployment to find an interoperability solution that states for CVISN. Interoperability tests will not only support the near term Application of DSRC have been done successfully between deployment, but also the long term The largest installed base of DSRC Advantage CVO and HELP, Inc. with expanded deployments that are systems are in electronic toll collection equipment that is compatible with the expected to be utilizing Federal-aid (ETC) systems. The northeastern region ASTM draft #6 proposed standard. funds. of the United States, where nearly two- Requirements for interoperability are in Solicitation for Public Comment thirds of all tolls in the United States are place; letters of agreement, have been collected, has electronic toll collection used to ensure that only equipment that In the House report accompanying the systems in place from Virginia to Maine. is compatible with the ASTM draft #6 1996 DOT appropriations bill, the ETC systems are also in place in proposed standard be used at the border Committee on Appropriations explicitly California, Texas, Louisiana, Oklahoma, crossing sites and in the model stated that the Department should Kansas, Georgia, and Florida. Upcoming deployment States. However, a major require that Federally supported ITS ETC systems are planned for growth of DSRC systems is also operations tests be consistent and widespread use in such high travel areas expected with CVO projects, and the compatible with the National as the Maryland, Illinois, and Indiana problem of non-seamless transportation Architecture to promote tollways and the Pennsylvania, Ohio, between DSRC sites will only be interoperability. H.R. Rep. No. 177, and Florida turnpikes. None of the exacerbated without interoperability 104th Cong., 1st Sess. (1995). In the electronic toll facilities are interoperable standards. spirit of that requirement, this notice is with regard to reciprocity in collecting being issued to solicit public comment tolls. Relatively few are interoperable in Problem on the following issues. terms of either utilizing the same The problem is that DSRC standards (1) Should the FHWA require that transponder devices or having a governing the wireless communication DSRC systems purchased with Federal- common reading device that could read between the transponder and reader, aid highway funds and ITS Federal different transponders. Recent and the message sets on the funds meet draft standard procurement requests from Maryland transponder, do not exist. Therefore, specifications, such as that of the and Florida have addressed regional interoperability does not exist between American Society for Testing Materials interoperability. Today there are several the equipment of different (ASTM) proposed Draft #6 standard and hundred thousand transponders in use manufacturers. Interoperability, in this the Committee for European on tollways. In the near future there are case, is the ability of a roadside reading Normalisation (CEN) draft documents expected to be several million or interrogation device of one N473, N474, and N505 prior to their transponders in use. The problems manufacturer to meaningfully process formal adoption as industry standards caused by this lack of standards and the data from any given transponder in an effort to reduce the proliferation interoperability will grow in intensity as mounted in a vehicle. Over the past six of non-interoperable systems? Should demand and usage grow. years, the DSRC industry has been the FHWA also include message set Commercial Vehicle Operations do unable to agree upon a path for requirements, such as the Commercial not have as large an installed base of standardizing DSRC at levels one and Vehicle Information Systems and transponders as ETC. Currently there are two of the International Standards Networks (CVISN) Dedicated Short two major areas of operations in the Organization’s Open Systems Range Communications Interface United States where heavy vehicles are Interconnect (OSI) reference model, Requirements of April 2, 1996 (Johns cleared electronically as they pass which deals with the air interface and Hopkins University-Applied Physics weigh stations. These are the I–75 the physical properties of the system. Lab)? Should compliance with specific Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 793 draft standards be required for new and upgrading regional projects to Issued on: December 24, 1996. Commercial Vehicle Operations (CVO) begin adherence with the national Rodney E. Slater, applications only; for both CVO and standard. Federal Highway Administrator. Electronic Toll and Traffic Management (3) Should a single standard be [FR Doc. 97–172 Filed 1–3–97; 8:45 am] (ETTM) applications; or for CVO, developed for all DSRC applications, or BILLING CODE 4910±22±P ETTM, and additional applications? should separate standards be developed The FHWA must continue to meet with an assumption that trucks and schedules for deployment of ITS Surface Transportation Board projects using DSRC as the buses, and perhaps other users, would communications medium. Our likely require separate technology to [STB Docket No. AB±488X] understanding is that at least two perform those functions? competing products exist that comply The FHWA recognizes that CVO and Ludington & Northern Railway, Inc.Ð with the open architecture of ASTM ETTM applications, as well as other # Abandonment ExemptionÐin Mason draft 6. On the other hand, it is also our DSRC applications, have different County, MI understanding that the European requirements that have also shaped the standard (CEN) is not used in any design and operation of the equipment. Ludington & Northern Railway, Inc. products available in the United States While it may be desirable to have a (L&N) has filed a notice of exemption that use the 902–928 MHz spectrum. To single standard, it may not be practical. under 49 CFR 1152 Subpart F—Exempt disrupt the project schedules could have The FHWA is requesting comments on Abandonments to abandon its entire a severely detrimental effect on the ITS whether the agency should pursue the line of railroad from the south line of program. Although we desire to single standard approach, encourage the Michigan Highway 116 in Hamlin minimize any detrimental effect on the development of dual standards (one for Township south and east through Pere program, we also understand the need the short term and one for the long Marquette Township to terminus in the of the industry to set the DSRC term), or sponsor dual standards for the city of Ludington, in Mason County, MI, standards. Our strongest desire is for short term and pursue single standards a distance of 2.54 miles. standards to be set that will best serve for the next generation of DSRC? L&N has certified that: (1) no local the users and the industry. It is not our The FHWA is looking to the industry traffic has moved over the line for at intention to institute a standards least 2 years; (2) there is no overhead process that would not be agreeable to and users to come to some agreement as to DSRC standards for both the short traffic on the line; (3) no formal the industry and users. complaint filed by a user of rail service term (1–3 years) and the long term (4– (2) Should the FHWA require that on the line (or by a state or local 10 years). The FHWA has demonstrated DSRC systems purchased with Federal- government entity acting on behalf of its willingness to assist in this process aid highway funds and ITS Federal such user) regarding cessation of service funds meet an escalating by funding standards development over the line either is pending with the interoperability formula? An example organizations for this purpose. The Surface Transportation Board (Board) or would be that first, all CVO applications solution to this problem must be sought with any U.S. District Court or has been must be nationally interoperable; together through a team effort by all of decided in favor of complainant within second, all new (after specified date) the stakeholders. The successful the 2-year period; and (4) the and upgrading ETC systems must be implementation of the ITS model requirements at 49 CFR 1105.7 interoperable with CVO applications; deployments is not possible without a (environmental reports), 49 CFR 1105.8 third, all other new (after specified date) demonstrated willingness on the part of (historic reports), 49 CFR 1105.11 and upgrading DSRC applications must all parties to seek a solution through the (transmittal letter), 49 CFR 1105.12 be interoperable with CVO applications? established standard setting processes. (newspaper publication), and 49 CFR Nationwide interoperability is critical The FHWA has further demonstrated its for the efficient operation of vehicles 1152.50(d)(1) (notice to governmental willingness to pursue a solution by agencies) have been met. using DSRC equipment transiting the funding a contractor to meet one-on-one Where, as here, the carrier is nation, especially commercial vehicles. with purchasers and manufacturers of As such, it is imperative that CVO abandoning its entire line, the Board DSRC equipment to develop a concept does not normally impose labor programs be built with a national focus. of operations, a migration plan, and a ETC programs, on the other hand, are protection under 49 U.S.C. 10505(g) draft memorandum of agreement unless the evidence indicates the focused on regional travel, and its between purchasers of DSRC customers may not be very concerned existence of a corporate affiliate that equipment. The FHWA has also been will: (1) continue rail operations; or (2) about interoperability outside the local participating in all discussions travel area, with exception to realize significant benefits in addition to sponsored by ITS America that have commercial carriers. The same regional being relieved of the burden of deficit been taking place between users and emphasis may hold true with other operations by its affiliated railroad. See manufacturers. We are now looking for DSRC applications, like in-vehicle T and P Railway-Abandonment-in the industry to do its part. The FHWA signing or transit vehicle signal priority, Shawnee, Jefferson and Atchison would prefer that the industry set the parking payments, and traffic network Counties, KS, Docket No. AB–381, et. al. performance monitoring. It may not be necessary standards through the (ICC served Apr. 27, 1993). Because practical to immediately hold all users consensus building process that the these conditions do not appear to exist of DSRC equipment to a single national FHWA is sponsoring. In the meantime, here, employee protection conditions standard. Instead, a course of action to the FHWA is seeking comments on how will not be imposed. achieve national interoperability may be it can most effectively administer the Provided no formal expression of to include a migration plan that requires ITS programs, that rely on DSRC intent to file an offer of financial CVO applications to adhere to a national systems, without the necessary assistance (OFA) has been received, this DSRC standard, followed by DSRC standards in place. exemption will be effective on February applications with regional emphasis. A Authority: Pub. L. 102–240, § 6053(b) (as 5, 1997, unless stayed pending —best fit— date can be specified for codified at 23 U.S.C. 307 note); 49 CFR 1.48. reconsideration. Petitions to stay that do 794 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices not involve environmental issues,1 DEPARTMENT OF THE TREASURY Internal Revenue Service formal expressions of intent to file an [IA±17±90] OFA under 49 CFR 1152.27(c)(2),2 and Fiscal Service trail use/rail banking requests under 49 Proposed Collection; Comment CFR 1152.29 3 must be filed by January [Dept. Circ. 570, 1996 Rev., Supp. No. 4] Request for Regulation Project 16, 1997. Petitions to reopen or requests for public use conditions under 49 CFR Surety Companies Acceptable on AGENCY: Internal Revenue Service (IRS), Treasury. 1152.28 must be filed by January 27, Federal Bonds, American Interstate 1997, with: Office of the Secretary, Case Insurance Company ACTION: Notice and request for Control Branch, Surface Transportation comments. A Certificate of Authority as an Board, 1201 Constitution Avenue, N.W., SUMMARY: The Department of the Washington, DC 20423. acceptable surety on Federal Bonds is Treasury, as part of its continuing effort hereby issued to the following company A copy of any petition filed with the to reduce paperwork and respondent under Sections 9304 to 9308, Title 31, burden, invites the general public and Board should be sent to applicant’s of the United States Code. Federal bond- representative: Thomas F. McFarland, other Federal agencies to take this approving officers should annotate their opportunity to comment on proposed Jr., Attorney for Ludington & Northern reference copies of the Treasury Circular Railway, Inc., McFarland & Herman, 20 and/or continuing information 570, 1996 Revision, on page 34283 to collections, as required by the North Wacker Drive, Suite 1330, reflect this addition: Paperwork Reduction Act of 1995, Chicago, IL 60606–2902. American Interstate Insurance Public Law 104–13 (44 U.S.C. If the verified notice contains false or Company. BUSINESS ADDRESS: 1807 3506(c)(2)(A)). Currently, the IRS is misleading information, the exemption Highway 190 West, DeRidder, soliciting comments concerning an is void ab initio. Louisiana, 70634–6005. PHONE: (318) existing final regulation, IA–17–90 (TD L&N has filed an environmental 463–9052. UNDERWRITING 8571), Reporting Requirements for report which addresses the LIMITATION b/: $2,578,000. SURETY Recipients of Points Paid on Residential abandonment’s effects, if any, on the LICENSES c/: AR, GA, IN, KY, LA, ME, Mortgages (§§ 1.6050H–1 and 1.6050H– environment and historic resources. The MN, MS, PA, SC, SD, TX, VA, WI, WY. 2). Section of Environmental Analysis INCORPORATED IN: Louisiana. DATES: Written comments should be received on or before March 7, 1997 to (SEA) will issue an environmental Certificates of Authority expire on be assured of consideration. assessment (EA) by January 10, 1997. June 30 each year, unless revoked prior ADDRESSES: Interested persons may obtain a copy of to that date. The Certificates are subject Direct all written comments the EA by writing to SEA (Room 3219, to subsequent annual renewal as long as to Garrick R. Shear, Internal Revenue Service, room 5571, 1111 Constitution Surface Transportation Board, the companies remain qualified (31 Avenue NW., Washington, DC 20224. Washington, DC 20423) or by calling CFR, Part 223). A list of qualified Elaine Kaiser, Chief of SEA, at (202) companies is published annually as of FOR FURTHER INFORMATION CONTACT: 927–6248. Comments on environmental July 1 in Treasury Department Circular Requests for additional information or and historic preservation matters must 570, with details as to underwriting copies of the information collection should be directed to Carol Savage, be filed within 15 days after the EA limitations, areas in which licensed to (202) 622–3945, Internal Revenue becomes available to the public. transact surety business and other Service, room 5569, 1111 Constitution information. Environmental, historic preservation, Avenue NW., Washington, DC 20224. public use, or trail use/rail banking The Circular may be viewed and SUPPLEMENTARY INFORMATION: conditions will be imposed, where downloaded through the Internet (http:/ Title: Reporting Requirements for appropriate, in a subsequent decision. /www.ustreas.gov/treasury/bureaus/ Recipients of Points Paid on Residential finman/c570.html) or through our Decided: December 30, 1996. Mortgages. computerized public bulletin board OMB Number: 1545–1380. By the Board, David M. Konschnik, system (FMS Inside Line) at (202) 874– Regulation Project Number: IA–17–90 Director, Office of Proceedings. 6887. A hard copy may be purchased Abstract: These regulations require Vernon A. Williams from the Government Printing Office the reporting of certain information Secretary. (GPO), Washington, DC, telephone (202) relating to payments of mortgage [FR Doc. 97–181 Filed 1–3–97; 8:45 am] 512–1800. When ordering the Circular interest. Taxpayers must separately state BILLING CODE 4915±00±P from GPO, use the following stock on Form 1098 the amount of points and number: 048–000499–7. the amount of interest (other than points) received during the taxable year 1 The Board will grant a stay if an informed Questions concerning this Notice may decision on environmental issues (whether raised on a single mortgage and must provide be directed to the U.S. Department of to the payer of the points a separate by a party or by the Board’s Section of the Treasury, Financial Management Environmental Analysis in its independent statement setting forth the information investigation) cannot be made before the Service, Funds Management Division, being reported to the IRS. exemption’s effective date. See Exemption of Out- Surety Bond Branch, 3700 East-West Current Actions: There is no change to of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any Highway, Room 6F04, Hyattsville, MD this existing regulation. request for a stay should be filed as soon as possible 20782, telephone (202) 874–7116. Type of Review: Extension of OMB so that the Board may take appropriate action before the exemption’s effective date. Dated: December 23, 1996. approval. Affected Public: Business or other for- 2 See Exempt. of Rail Abandonment—Offers of Charles F. Schwan III, profit organizations. Finan. Assist., 4 I.C.C.2d 164 (1987). Director, Funds Management Division, 3 Estimated Number of Respondents: The Board will accept late-filed trail use Financial Management Service. requests as long as the abandonment has not been 37,644. consummated and the abandoning railroad is [FR Doc. 97–95 Filed 1–3–97; 8:45 am] Estimated Time Per Respondent: 7 willing to negotiate an agreement. BILLING CODE 4810±35±M hrs. 31 min. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 795

Estimated Total Annual Burden Independence Avenue, S.W., following proposal for the collection of Hours: 283,056. Washington, D.C. 20547, Tel: (202) information under the provisions of the The following paragraph applies to all 619–2102; or Paperwork Reduction Act (44 U.S.C. of the collections of information covered Ms. Patricia H. Noble (Co-Executive Chapter 35). by this notice: Secretary), Chief, Civil Service OMB Control Number: 2900–0042. An agency may not conduct or Division, Office of Human Resources, Title and Form Number: Statement of sponsor, and a person is not required to U.S. Information Agency, 301 4th Accredited Representative in Appealed respond to, a collection of information Street, S.W., Washington, D.C. 20547, Case, VA Form 646. unless the collection of information Tel: (202) 619–4617. Type of Review: Reinstatement, displays a valid OMB control number. SUPPLEMENTARY INFORMATION: In without change, of a previously Books or records relating to a collection accordance with Section 4314(c) (1) approved collection for which approval of information must be retained as long through (5) of the Civil Service Reform has expired. as their contents may become material Act of 1978 (P.L. 95454), the following Need and Uses: The form is used by in the administration of any internal list supersedes the U.S. Information an accredited representative of a revenue law. Generally, tax returns and Agency Notice (60 FR 203, October 20, veterans’ service organization to present tax return information are confidential, 1995). argument to the BVA on behalf of an appellant whom the service as required by 26 U.S.C. 6103. Chairperson: Associate Director for organization represents. Further, it aids Request for Comments: Comments Management Henry Howard, Jr. the VA in assuring that rights to submitted in response to this notice will (Presidential Appointee) representation have been honored by be summarized and/or included in the Deputy Chairperson: Acting Associate establishing that the record has been request for OMB approval. All Director for International Broadcasting made available to the representative for comments will become a matter of Bureau Eva Jane Fritzman review and presentation of argument. public record. Comments are invited on: Career SES Members: Affected Public: Not-for-profit (a) whether the collection of information Hattie Baldwin, Director, Office of institutions. is necessary for the proper performance Civil Rights Estimated Annual Burden: 40,000 of the functions of the agency, including Alfred Davidson, Deputy of Network whether the information shall have hours. Operations, Office of Engineering Estimated Average Burden Per practical utility; (b) the accuracy of the Sidney Davis, Director of Programs, agency’s estimate of the burden of the Respondent: 1 hour. Voice of American Programs Frequency of Response: On occasion. collection of information; (c) ways to James Hulen, Director, Office of enhance the quality, utility, and clarity Estimated Number of Respondents: Strategic Planning 40,000. of the information to be collected; (d) Rick Ruth, Deputy Chief of Staff, ADDRESSES: ways to minimize the burden of the Office of the Director A copy of this submission collection of information on Stanley Silverman, Director, Office of may be obtained from Ron Taylor, VA respondents, including through the use the Comptroller Clearance Officer (045A4), Department of automated collection techniques or Alterante Career SES Members: of Veterans Affairs, 810 Vermont other forms of information technology; Daniel Campbell, Director, Office of Avenue, NW, Washington, DC 20420, and (e) estimates of capital or start-up Technology (202) 273–8015. costs and costs of operation, Earl Klitenic, Director of Business Comments and recommendations maintenance, and purchase of services Development concerning this submission should be to provide information. Ronald Linz, Deputy for Systems directed to VA’s OMB Desk Officer, Approved: December 23, 1996. Engineering Allison Eydt, OMB Human Resources and Housing Branch, New Executive Garrick R. Shear, This supersedes the previous U.S. IRS Reports Clearance Officer. Office Building, Room 10235, Information Agency Notice (60 FR 203 Washington, DC 20503 (202) 395–4650. [FR Doc. 97–94 Filed 1–3–97; 8:45 am] October 20, 1995) DO NOT send requests for benefits to BILLING CODE 4830±01±U Dated: December 30, 1996. this address. Henry Howard, Jr., DATES: Comments on the information Associate Director for Management, U.S. collection should be directed to the UNITED STATES INFORMATION Information Agency. OMB Desk Officer on or before February AGENCY [FR Doc. 97–179 Filed 1–3–97; 8:45 am] 5, 1997. Performance Review Board Members BILLING CODE 8230±01±M FOR FURTHER INFORMATION CONTACT: Ron Taylor, VA Clearance Officer (045A4), AGENCY: United States Information (202) 273–8015. Agency. DEPARTMENT OF VETERANS Dated: December 17, 1996. AFFAIRS ACTION: Notice. By direction of the Secretary: SUMMARY: This Notice is issued to revise Agency Information Collection: Donald L. Neilson, the membership of the United States Submission for OMB Review; Director, Information Management Service. Information Agency (USIA) Performance Comment Request [FR Doc. 97–190 Filed 1–3–97; 8:45 am] Review Board. BILLING CODE 8320±01±P AGENCY: Board of Veterans’ Appeals, DATES: Upon publication. Department of Veterans Affairs. FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Associated Health Professions Review Ms. Kathleen Kelly (Co-Executive Subcommittee of the Special Medical Secretary), Supervisory Personnel SUMMARY: The Board of Veterans’ Advisory Group; Notice of Meeting Management Specialist, Office of Appeals (BVA), Department of Veterans Personnel, International Broadcasting Affairs, has submitted to the Office of The Department of Veterans Affairs Bureau, U.S. Information Agency, 330 Management and Budget (OMB) the (VA) gives notice that a meeting of the 796 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Associated Health Professions Review On January 30, the Committee will Headquarters, 810 Vermont Avenue, Committee of the Special Medical begin the activities to accomplish the NW, Washington, DC. Advisory Group will be held January 29 Committee’s goals and make additional This purpose of the committee is to and 30, 1997. This committee will work assignments. study and formulate recommendations review and recommend changes in Both days’ meetings will be open to to the Under Secretary for Health on Veterans Health Administration’s (VHA) the public up to the meeting capacity of how VA can generally promote and role and priorities in education and the room. Due to limited seating support health care innovations in training, specifically with reference to capacity of the room, those who plan to which nurses play key leadership and the use of associated health attend or who have questions clinical roles and which promote VHA’s professionals in the delivery of concerning the meeting should contact reengineering efforts. healthcare. Associated health Linda Johnson, Ph.D., R.N., Acting On January 15, the Committee will disciplines are defined as all healthcare Director, Associated Health Professions define issues and assign tasks to providers other than medicine. Each Office (143), at 202–273–8372. subgroups. Additionally, public year, approximately 45,000 students in comment may be offered from 3:00 p.m. associated health professions receive all Dated: December 31, 1996. until 3:30 p.m. On January 16, the or part of their training program clinical By direction of the Secretary: Committee will outline and plan future experience at VA facilities. The meeting Heyward Bannister, activities to accomplish the Committee’s on both days will be held at the Committee Management Officer. goals. Department of Veterans Affairs, 810 [FR Doc. 97–191 Filed 1–3–97; 8:45 am] The meeting will be open to the Vermont Avenue, NW, Room 230, BILLING CODE 8320±01±M public. Due to limited seating capacity Washington, DC. The meeting will of the room, those who plan to attend convene at 9:30 a.m. on January 29, and or who have questions concerning the 8:30 a.m. on January 30. The meeting VA Innovations in Nursing Advisory meeting should contact the Designated will adjourn on January 29 at 4:30 p.m., Committee; Notice of Meeting Federal Official for the Committee: Ms. and at 12 noon on January 30. Charlotte F. Beason, Ed.D., RN, at (202) On January 29, the Committee will The Department of Veterans Affairs 273–8422. review the current status of associated (VA) gives notice that the first meeting Dated: December 31, 1996. health training in VA and the Nation, of the VA Innovations in Nursing the future of VHA, and the associated Advisory Committee will be held By direction of the Secretary: health workforce needs for future January 15 and 16, 1997, and will start Heyward Bannister, healthcare delivery systems. The at 8:00 a.m. on both days and end Committee Management Officer. Committee will plan the activities to approximately 4:30 p.m. The meeting [FR Doc. 97–192 Filed 1–3–97; 8:45 am] accomplish the Committee’s goals. will be held in Room 230, at VA BILLING CODE 8320±01±M federal register January 6,1997 Monday Deactivation; ProposedRule and ProposedRuleAirBag Occupant CrashProtection;FinalRule Federal MotorVehicleSafetyStandards; 49 CFRParts571and595 Administration National HighwayTrafficSafety Transportation Department of Part II 797 798 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: include any system that automatically Table of Contents prevents an air bag from injuring the National Highway Traffic Safety two groups of children that experience Administration I. Background. has shown to be at special risk from air II. Overview and Summary. bags: infants in rear-facing child seats, 49 CFR Part 571 III. Current and Proposed Requirements Concerning Manual Cutoff Switches. and children who are out-of-position [Docket No. 74±14; Notice 109] IV. Summary of Comments. (because they are unbelted or A. Vehicle manufacturers. improperly belted) when the air bag RIN 2127±AG60 B. Dealers. deploys. NHTSA proposed that vehicles Federal Motor Vehicle Safety C. Suppliers. D. Child seat manufacturers. lacking smart passenger-side air bags Standards; Occupant Crash Protection E. Insurance, safety, and medical groups. would be required to have new, AGENCY: National Highway Traffic F. Other commenters. attention-getting warning labels. By Safety Administration (NHTSA), DOT. V. Agency Decision. limiting the labeling requirement to A. Option for Manual Cutoff Switches. vehicles without smart passenger-side ACTION: Final rule. B. Performance Requirements for Manual Cutoff Switches. air bags, NHTSA hoped to encourage the SUMMARY: This rule extends until C. Effective Date. introduction of the next generation of September 1, 2000, the time period VI. Rulemaking Analyses and Notices. air bags as soon as possible. NHTSA during which vehicle manufacturers are A. Executive Order 12866 and DOT proposed to define smart air bags permitted to offer manual cutoff Regulatory Policies and Procedures. broadly to give manufacturers flexibility switches for the passenger-side air bag B. Regulatory Flexibility Act. in making design choices. The agency for vehicles without rear seats or with C. National Environmental Policy Act. requested comments concerning rear seats that are too small to D. Executive Order 12612 (Federalism). whether it should require installation of accommodate rear facing infant seats. E. Civil Justice Reform. smart air bags and, if so, on what date Rear facing infant seats cannot be used I. Background such a requirement should become safely in front of an air bag, and should effective. While air bags are providing ordinarily be placed in the back seat. NHTSA also proposed to expand an significant overall safety benefits, The purpose of the option for manual existing option that permits NHTSA is very concerned because cutoff switches is to ensure that the manufacturers to install manual cutoff current designs have adverse effects in vehicle manufacturers have a means of switches for the passenger-side air bag some situations. Most important, while accommodating their customers’ need to for vehicles without rear seats or with passenger side air bags are estimated to carry rear facing infant seats in vehicles rear seats that are too small to have saved 164 lives to date, they have without rear seats or with rear seats that accommodate rear facing infant seats. also killed 32 children in relatively low are too small for these devices. The That option is scheduled to expire on speed collisions. Eighteen of those agency is extending the time period for September 1, 1997 for passenger cars deaths have occurred this year. Driver the option to ensure that manufacturers and September 1, 1998 for light trucks. air bags, by contrast, are estimated to have adequate time to implement better, The agency proposed to extend the have saved 1500 lives to date. The automatic solutions. option for a longer period of time, and agency is aware of 19 relatively low to expand it to cover all vehicles. DATES: Effective Date: The amendments speed crashes in which a driver has made in this rule are effective February been killed by the air bag. II. Overview and Summary 5, 1997. Within the past year, the agency has NHTSA is implementing a Petitions: Petitions for reconsideration published two documents in the comprehensive plan of rulemaking and must be received by February 20, 1997. Federal Register to address this subject. other actions (e.g., primary enforcement ADDRESSES: Petitions for reconsideration On November 9, 1995, NHTSA of State safety belt use laws) addressing should refer to the docket and notice published a request for comments to the adverse effects of air bags. As part number of this notice and be submitted inform the public about NHTSA’s efforts of that plan, NHTSA is issuing three to: Administrator, National Highway to reduce the adverse effects of air bags, separate, but related, notices today. Traffic Safety Administration, 400 and to invite the public and industry to Each notice is intended to ensure that Seventh Street, SW, Washington, DC share information and views with the some or all or the risks are reduced, and 20590. agency. 60 FR 56554. benefits retained, to the maximum FOR FURTHER INFORMATION CONTACT: For On August 6, 1996, the agency extent possible. They provide information about air bags and related published a notice of proposed immediate and/or interim solutions to rulemakings: Visit the NHTSA web site rulemaking (NPRM) to reduce the the problem. A later notice, a proposal at http://www.nhtsa.dot.gov and select adverse effects of air bags, especially to require smart air bags, would provide ‘‘AIR BAGS Information about air bags.’’ those on children. 61 FR 40784. The a permanent solution. For non-legal issues: Mr. Clarke NPRM proposed several amendments to In this final rule, which is based on Harper, Chief, Light Duty Vehicle Standard No. 208, Occupant Crash the August 1996 NPRM, NHTSA is Division, NPS–11, National Highway Protection, and Standard No. 213, Child extending until September 1, 2000, a Traffic Safety Administration, 400 Restraint Systems. provision in Standard No. 208 Seventh Street, SW, Washington, DC In the August 1996 NPRM, the agency permitting vehicle manufacturers to 20590. Telephone: (202) 366–2264. Fax: explained that eventually, either offer manual cutoff switches for the (202) 366–4329. through market forces or government passenger air bag for new vehicles For legal issues: Mr. Edward Glancy, regulation, it expects that ‘‘smart’’ without rear seats or with rear seats that Office of Chief Counsel, NCC–20, passenger-side air bags will be installed are too small to accommodate rear- National Highway Traffic Safety in passenger cars and light trucks to facing infant restraints. Administration, 400 Seventh Street, SW, mitigate these adverse effects. NHTSA The other rulemaking actions Washington, DC 20590. Telephone: indicated that, for purposes of the addressing the adverse side effects of air (202) 366–2992. Fax: (202) 366–3820. NPRM, it considered smart air bags to bags are as follows: Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 799

• Also based on the August 1996 NPRM, To address this dilemma, on May 23, NHTSA also noted that a second the agency issued on November 22, 1996, a 1995, NHTSA published a final rule reason for permitting manual cutoff final rule amending Standards No. 208 and allowing manufacturers the option of switches in all vehicles is that the deep- No. 213 to require improved labeling on new installing a manual device that seated desire of some parents to keep vehicles and child restraints to better ensure that drivers and other occupants are aware of motorists could use to deactivate the their infants near them under their close the dangers posed by passenger air bags to front passenger-side air bag in vehicles and watchful eye may be sufficiently children. The labeling places particular that are manufactured on or after June strong that they choose to place their emphasis on placing rear-facing infant 22, 1995, and that cannot accommodate children in the front seat instead of the restraints in the rear seats of vehicles with rear-facing child seats anywhere except rear seat where the child would be operational passenger air bags. 61 Fed. Reg. in the front seat. In addition to limiting safer.2 The agency stated that it was 60206; November 27, 1996. The new labels the types of vehicles which were concerned that some parents may are required on vehicles not equipped with permitted to have the manual cutoff decide to place a rear-facing child seat smart passenger air bags beginning February 25, 1997, and on child restraints beginning switch, the final rule also included a in the front seat where the infant can be May 27, 1997. number of conditions that had to be closely monitored, even in the presence • NHTSA is also issuing an NPRM to satisfied. The manual cutoff switch had of an activated air bag and warning temporarily amend Standard No. 208 to to use an ignition key to turn off the air labels. NHTSA noted that while it does permit or facilitate approximately 20 to 35 bag and to turn on the air bag by manual not wish to encourage parents to place percent depowering of current air bags. means. The manufacturer had to also children in the front seat, a cutoff • The agency also is issuing an NPRM install a warning light that was separate switch would enable these parents to proposing to permit motor vehicle dealers from the air bag readiness indicator and eliminate the risk from the air bag. and repair businesses to deactivate, upon the would indicate when the air bag was NHTSA requested comments on the request of consumers, driver and passenger air bags that do not meet the agency’s criteria turned off. The light had to be visible to availability of alternative automatic for smart air bags. Final action is expected in both the driver and passenger. The devices, and how such availability early 1997. manufacturer had to include should affect its decision regarding the • In addition to these actions, NHTSA will information on the manual cutoff switch manual cutoff switch option. The issue a separate supplemental NPRM in the owner’s manual. Finally, the agency also requested comments on (SNPRM) to require a phasing-in of smart air option was only available for passenger whether it should endeavor to further bags, beginning on September 1, 1998, and to cars manufactured before September 1, encourage smart passenger-side air bags establish performance requirements for those 1997, and light trucks manufactured by specifying an expiration date for the air bags. The proposal will be issued in early before September 1, 1998. The agency manual cutoff switch option and, if so, 1997. decided to place a time limit on the what date. III. Current and Proposed option for manual cutoff switches The agency noted that many Requirements Concerning Manual because it believed that better, commenters to the November 1995 Cutoff Switches automatic solutions would soon be request for comments expressed concern Until smart passenger-side air bags available. about the potential for misuse of a can be installed in new vehicles, the In the August NPRM, NHTSA manual cutoff switch. A switch could be improved labeling requirements proposed to extend the period of misused either by a driver or other recently announced by the agency will availability of the option for manual vehicle occupant deactivating the air better ensure that drivers and other cutoff switches and to permit bag when an occupant other than a occupants are aware of the dangers installation of those devices in all child in a rear facing child seat is posed by air bags to unbelted children vehicles with passenger air bags lacking present, or by a driver simply forgetting and children in rear-facing child seats smart capability. The agency issued this to reactivate the air bag after using such located in the front seat. Adult proposal out of concern that smart air a restraint. In either case, the air bag occupants will ideally respond to the bags were not becoming available as would not be available to protect labels by ensuring that, whenever quickly as anticipated, and that the need persons who could benefit from its possible, a child occupies the back seat to place rear facing infant seats in the deployment. of a vehicle, instead of the front, and is front seat goes beyond vehicles lacking In the Preliminary Regulatory properly restrained there. Further, the rear seats that can accommodate these Evaluation (PRE) for this rulemaking, adult will ensure that if a child, other devices. NHTSA assessed possible benefit trade- than an infant in a rear-facing child seat, The agency noted that some children offs associated with a manual cutoff must sit in the front seat, the child is have special medical problems requiring switch provided for the right front properly restrained and the seat is close monitoring, which cannot be passenger seat and intended to be used moved all the way back. accomplished if the driver places the when a rear-facing child restraint is For rear-facing infant seats, however, child in the rear seat. The agency had placed there. The agency stated that it securing them tightly in a front seat received a number of comments appeared that there would be more using the vehicle safety belts and concerning this problem in response to moving the front seat all the way back a request for comments concerning monitored closely, indicating a need for those will not protect an infant because the adverse effects of air bags published in children to be transported in the front seat. That organization stated that approximately two percent child seat would still extend too far the Federal Register on November 9, 1995 (60 FR 56554).1 of all children (which translates into about 400,000 forward. The infant’s head would still children under the age of 5 and close to 100,000 be located very close to the air bag. For under the age of one) have some type of medical 1 Among other things, the parents of an infant condition or disability which requires some type of this reason, a rear-facing child seat with medical problems commented that those should never be placed in a seating medical problems require them to be able to nonmedical assistive technology. Also, about 0.1 position with an activated air bag. monitor the child and that cannot be done with the percent (or about 20,000 children under the age of However, some vehicles do not have child in the back seat. The agency also noted that five and 5,000 infants) require medical technology the National Association of Pediatric Nurse assistance such as respirators, surveillance devices, back seats, or have back seats which are Associates & Practitioners had submitted a or nutritive assistance devices. not large enough to accommodate a rear- comment identifying a number of medical 2 A child is safer in the back seat of a vehicle, facing child seat. conditions for which infants would need to be regardless of whether the vehicle has an activated passenger air bag in the front seat. 800 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations benefits to allowing a cutoff switch than should apply to cutoff switches, Ford stated that it supports extension losses if misuse levels were below seven assuming they are permitted, are beyond September 1, 1998 of the percent. NHTSA noted that its addressed later in this document. existing option to install manual educational efforts would focus on deactivation switches in vehicles that A. Vehicle Manufacturers preventing such misuse, and also noted cannot fit rear-facing infant restraints in that the requirement for an extra The American Automobile the rear seat, because it may be unable warning light would reduce the Manufacturers Association (AAMA), to install automatic deactivation for possibility of drivers forgetting to representing GM, Ford, and Chrysler, children in all pickup trucks by that reactivate the air bag after using a rear- recommended that the current option date. Ford stated, however, that it facing child restraint in the front seat. for installing manual cutoff switches in opposes expansion of the option to Currently, pursuant to Standard No. certain vehicle configurations be passenger cars and other vehicles that 208, a yellow warning light displays the continued. It noted that its members are can fit rear-facing infant restraints in the message ‘‘AIR BAG OFF’’ whenever the already on record as considering this rear seat, because automatic (weight right front passenger air bag is approach to be an interim measure until threshold) deactivation technology has deactivated by someone operating the systems that can discriminate occupant now advanced sufficiently to be cutoff switch. weight and location have been proven to considered for future models of such Based on discussions with Ford, the be sufficiently reliable and effective for vehicles. vehicle manufacturer with the largest production vehicle use. Chrysler stated that it is concerned AAMA recommended, however, that number of manual cutoff switches,3 about the many opportunities for misuse the allowable use of manual cutoff NHTSA stated that it was not aware of of cutoff switches, even if their use is switches not be expanded to cover other any misuse problems with these limited to the vehicles in which they vehicle configurations than those devices. Nevertheless, NHTSA may now be installed. That company currently permitted. That organization specifically requested comments on stated that drivers are faced with a noted that the cutoff switch option whether there are any quantitative data dilemma about how to use a cutoff currently allowed in Standard No. 208 or other information concerning the switch with three passenger front provides a method to manually likelihood of manual cutoff switches seating. Given the confusion associated being misused. The agency stated that it deactivate the passenger side air bag in vehicles where the alternative of placing with this problem and ordinary driver was particularly interested in distractions, it believes that the information derived from the real-world a rear-facing child seat in the rear seat of the vehicle does not exist because of potential for misuse of cutoff switches experience with the vehicles equipped the configuration of the vehicles’ could exceed the seven percent with manual cutoff switches. interior. AAMA stated that in these ‘‘breakeven’’ figure cited by the agency IV. Summary of Comments vehicles, there may be specific crash in its Preliminary Regulatory Evaluation situations where a properly utilized for the August 1996 NPRM. NHTSA received comments Chrysler also argued that it believes concerning its August 1996 proposal on manual cutoff switch could provide a benefit. That commenter added, cutoff switches may discourage seat belt manual cutoff switches from vehicle use, and dilute the message that manufacturers, suppliers, safety groups, however, that there are no data publicly available to evaluate the net children should be seated in the rear and private individuals. Commenters seat. Chrysler stated that given NHTSA’s generally supported extending the effectiveness of a cutoff switch— particularly considering the long term statement that the likelihood of injuries/ period of availability of the existing fatalities is 29 percent less for someone option for manual cutoff switches. The potential for misuse. Therefore, AAMA believes that for other vehicle sitting in the rear seat instead of in the comments were mixed, however, with front seat, this encouragement of front respect to expanding the option to cover configurations that already offer preferable alternatives to placing rear- seat use alone could negate the all vehicles. A variety of commenters, purported benefits of cutoff switches. including the domestic auto facing child seats in the vehicles’ front seat, the net potential benefit of a cutoff Toyota stated that it believes manual manufacturers and several insurance cutoff switches are the most reliable and safety groups, opposed such an switch is questionable. GM stated that it supports the resolution currently available when expansion. Some were concerned about agency’s proposal to extend indefinitely used as intended, i.e., to install a the potential misuse of the cutoff, while the currently permitted use of manual rearward facing infant restraint. That others thought that such an expansion cutoff switches for passenger air bags. company indicated that it is planning to would inadvertently and unavoidably That company noted that it is currently provide such switches in its 1998 model compromise various safety messages, installing these switches in its 1997 year pickup trucks. Toyota stated that, i.e., that rear facing infant seats should regular and extended full size pickup with respect to vehicles other than those always be placed in the back seat and trucks. GM stated that its review of the without adequate seats for rear facing that the back seat is the safest place for various automatic suppression infant seats, manual cutoff switches all children. technologies currently being developed have some inherent problems. This section summarizes comments is ongoing. According to that Honda stated that it is extremely concerning whether the option for cutoff commenter, as automatic suppression concerned about the potential for switches should be extended in time technology becomes production misuse or abuse of manual cutoff and/or expanded in scope. Comments capable, its ability to replace manual switches by some users. That company concerning what specific requirements suppression systems will be evaluated stated that vehicle operators may 3 At the time of the NPRM, NHTSA knew of only and, when appropriate, implemented as inadvertently forget to deactivate the air three models utilizing cutoff switches—the model quickly as possible. GM stated that it bag with the switch when necessary, or year 1996 Ford Ranger pickup, the model year 1997 does not agree with the agency’s may intentionally deactivate the Ford F150 pickup, which was introduced in proposal to expand the allowable use of passenger air bag with the cutoff switch February 1996, and the LE and SE versions of the model year 1996 Mazda B-series pickup trucks, manual cutoff switches to include when it is not appropriate to do so. which are equipped with an optional passenger side vehicles other than the configurations Honda stated it believes the manual air bag. currently permitted. cutoff switch represents the least Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 801 effective of any solutions to the problem vehicles. However, TRW recommended IIHS also cited a danger that manual of air bag induced injuries. continued use of the cutoff switch only cutoff switches send consumers a mixed Mercedes Benz stated that unless until more inclusive, automatic means message by encouraging drivers to place required by law, it will not offer any can be demonstrated and adopted. infants and children in the front seat. type of manual cutoff switch because of Autoliv stated that manual cutoff That commenter noted that a central expected driver misuse or non-use. switches should be considered as an objective of the educational effort to Volvo stated that it believes manual interim solution. That company stated reduce the adverse effects of passenger cutoff switches should be allowed for all that it believes market forces will air bags is to convince adults that categories of vehicles. That generate devices for automatic infants and children should ride in rear manufacturer stated that this technology deactivation and that a time limit for seats. A recent Institute survey of must be considered an interim solution. permitting manual cutoff switches is vehicles in parking lots found rear- Volvo stated it believes market forces unnecessary. Autoliv also argued that facing restraints in the front seat of cars will act as soon as more advanced another reason for not setting a time with passenger air bags only 9 percent technology is available and will make limit is that there may be a justification of the time, compared with 36 percent any manually operated system obsolete. for a combination of manual and in cars without passenger air bags. IIHS Therefore, that company believes there automatic systems, highly depending on stated that it would be a mistake if, as should be no time limit for when the direction that the development of a result of switches, more infants and manual cutoff switches should no automatic systems takes. children are placed in the front seat. The National Association of longer be allowed. D. Child Seat Manufacturers Volvo noted that in Europe, due to Independent Insurers (NAII) stated that customer requests, most manufacturers Cosco stated that it believes cutoff it is extremely concerned by the have developed new car retail service switches should immediately be proposal to allow use of manual procedures for deactivation and permitted in all vehicles as the fastest switches to allow vehicle users to reactivation of passenger side air bags. way of providing an option for those deactivate passenger-side air bags. NAII Volvo recommended making new car who must, or prefer to, have a baby in cited several concerns about this issue retail service procedures legal in the the front seat. That company stated that previously raised by IIHS and stated U.S. for all customers who wish to it does not believe permitting cutoff that, in NAII’s estimation, many people deactivate the passenger side air bag. switches will delay the introduction of may run a greater risk of getting injured BMW stated that it believes manual smart bags, but will allow the thoughtful simply because they have forgotten to cutoff switches remain a practical and intelligent introduction of effective turn the switch back on. alternative and allowing them on all smart systems. Advocates for Highway and Auto vehicles is a reasonable interim Cosco also commented that certain car Safety (Advocates) stated that while it solution. That company stated that it is beds, including its ‘‘Dream Ride,’’ are would support an extension of time for important to offer parents alternatives compatible with seating positions the installation of manual cutoff until advanced technologies can be equipped with air bags. Cosco cited a switches in vehicles without back seats, developed and implemented. BMW test performed by NHTSA for this it believes that NHTSA should stated that if the fast pace of technology conclusion. Cosco stated that such car encourage the use of automatic weight for advanced systems continues at its beds that have been proven to be sensors and should not permit the current rate, it expects that the need for compatible with air bags do not require installation of manual cutoff switches in an allowance for manual devices may be the deactivation of the air bag. That vehicles with back seats. According to eliminated about the year 2002. commenter stated that until cutoff that organization, permitting the BMW noted that as an alternative to switches or other devices are adopted, installation of manual cutoff switches in manual devices, a more direct approach NHTSA should make an effort to inform all passenger vehicles would result in consists of temporarily deactivating the parents that a car bed is an acceptable potential safety risks for many air bag. That manufacturer stated that it alternative, especially since, for passengers due to the inevitable misuse believes that NHTSA could develop medically fragile infants and also for of cutoff switches. Advocates stated that procedures similar to those being cars with non-compatible rear vehicle the misuse of cutoff switches is utilized by vehicle manufacturers in belts, a car bed is their only option. foreseeable and will result in a safety trade-off that will, in fact, undermine Europe. In Europe, a BMW dealer is E. Insurance, Safety, and Medical the proven life saving benefits of air allowed to temporarily deactivate the Groups passenger air bag for individuals who bags. may have a special need or normally IIHS stated that it does not support Advocates argued that permitting transport children after advising them of NHTSA’s proposal to allow manual manual cutoff switches in all vehicles the benefits of air bags and approval cutoff switches in all vehicles with will make air bag protection subject to forms are signed. passenger air bags. That organization the vagaries of what the agency has in stated that it is concerned that cutoff the past referred to as operator error. B. Dealers switches will not be an effective The safety benefits of air bags will then The National Automobile Dealers solution to the problem of child deaths depend on the ability and willingness of Association (NADA) supported the and may lead to additional harm to adults to set the switch in the ‘‘off’’ agency’s proposal to expand the option other vehicle occupants. According to position for infants or toddlers but for manual cutoff switches to cover all IIHS, some people undoubtedly would return it to the ‘‘on’’ position for other vehicles. use the switches correctly, but it is passengers. Advocates stated that it is likely that many parents and other convinced that manual cutoff switches C. Suppliers drivers would misuse the switches. That will not be correctly used. Advocates TRW stated that it believes the cutoff commenter stated that there is no reason also stated that while it has not switch to be the most positive means of to believe that many adults who allow quantified the potential risk, it believes shutting off the air bag if understood children to ride unrestrained or that the higher level of exposure of non- and used properly, and therefore improperly restrained would use air bag infant occupants to risk when an air bag supported allowing its use in all deactivation switches correctly. is turned off will far exceed the present 802 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations level of adverse effects of passenger-side anticipation of a crash, inadvertently children on ventilators, usually need to air bags on children in rear-facing child placing themselves at great risk of injury be the back seat anyway, since they restraints. or death. Ms. Weber stated that parents need large quantities of equipment and Advocates also argued that the need the option of suppressing must be accompanied by skilled care manual cutoff switch sends the wrong deployment of passenger air bags by givers at their sides. safety message to parents. According to either manual or automatic means, and The National Association of that commenter, the existence of a also urged the agency to address this Children’s Hospitals and Related manual switch strongly implies that it is problem for owners of current vehicles. Institutions (NACHRI) stated that it has safe to place infants and children in the The American Academy of Pediatrics serious concerns with the proposal to front seat. (AAP) stated that it is very concerned permit manual air bag cutoff switches Public Citizen stated that it opposes about the possibility of extending and for any vehicle without a smart installation of air bag on/off switches. expanding the availability of manual air passenger side air bag, although it That organization argued that this bag cutoff switches. That organization understands and supports the existing proposal is misguided and would stated that efforts to educate families option for vehicles in which rear facing undercut the automatic nature of air through labels regarding the potential child seats can only be used in the front bags. One of the disadvantages, dangers of air bags to infants in rear seat. That organization stated that key according to Public Citizen, is the facing child seats have demonstrated public awareness campaigns are danger that the air bag will be left off for that compliance is extremely difficult to currently presenting one message as an adult passengers when it should be on. accomplish. AAP expressed concern absolute—infants in rear facing child That commenter also stated that the that with a manual cutoff switch, seats should never ride in the front seat proposal sends a wrong and deadly drivers may fail to deactivate the air bag of a vehicle with a passenger side air message—that it’s okay for kids to ride when the rear facing seat is present or bag. NACHRI stated that while this in the front seat. Public Citizen stated fail to reactivate the air bag after an message is only now taking hold with that a far preferable technical change appropriate deactivation. That the public, it questions how NHTSA would be a minimum trigger speed of organization stated that increased would, if manual switches are permitted approximately 15 mph, which would availability of the manual cutoff switch in all vehicles, adjust the message significantly reduce the number of low would lead to the development of a without hampering the credibility of all speed crash air bag inflations, the type much larger fleet of vehicles in which child passenger safety public awareness of crash in which children are being such misuse could result. AAP stated efforts. NACHRI also stated that another killed and injured. that ensuring proper use of the cutoff SafetyBeltSafe U.S.A. stated that it message—the safest place for all switch by so many drivers would entail children is in the back seat—would also agrees that cutoff switches may be a an enormous and extremely difficult necessary, temporary solution for some be seriously affected by a change in educational challenge and would almost regulation on manual cutoff switches. vehicles, but they should not be surely result in a significant amount of NACHRI stated that it recognizes that permitted beyond a specified date. misuse. National Safe Kids Campaign (NSKC), AAP stated that it is also concerned there are a small number of pediatric whose chairman is C. Everett Koop, that the availability of a manual cutoff medical conditions that require close M.D., stated that it believes that in the switch will dilute the important monitoring during vehicle travel, e.g., best interest of children, manual cutoff message that ‘‘Back Seat is Best.’’ That complications of prematurity. NACHRI switches should be required until smart organization stated that although many recommended, however, that instead of passenger-side air bags are developed. parents feel that they need a manual permitting cutoff switches for all That organization stated that while there cutoff switch so that they can place an vehicles—and addressing the resulting are behavioral issues associated with infant in the front seat for observation, public education and safety issues—it cutoff switches, it recognizes that the number of children who actually may be simpler to educate the small families with small children will have a medical need for observation is number of parents of medically fragile sometimes need to transport them in the smaller than parents realize. In fact, infants to ride with another adult front seat as a last resort. That AAP stated the number of such children whenever possible or to stop the vehicle organization stated that the cutoff is very small. AAP argued that periodically to monitor the infant. switch gives the responsible parent/ consumer concerns could better be Dr. Phyllis Kiehl of LaTouche driver the option to turn off the air bag addressed through a focused, short-term Pediatrics stated that she strongly deployment system and then more education effort until a passive encouraged the cutoff switch option for safely transport an infant or child in the deactivation air bag system can be vehicles without smart air bags, while front seat. implemented. also arguing that the introduction of Kathleen Weber, Director of the Child AAP stated that the transportation of smart air bags should be mandated. Passenger Research Program at the children with special needs who must Philip O. Morton, Chairman of the University of Michigan Medical School, be observed should be addressed on a Board of the American Tinnitus supported the agency’s proposal. Ms. case-by-case basis by the child’s Association, expressed concern about Weber stated that despite all the physician. That organization stated that the connection between vehicle air bag warnings in the world, parents want to the vast majority of the small number of deployment and the corresponding put babies in the front seat, and older children for whom observation may be incidence of tinnitus. Mr. Morton urged children also like to ride up front with medically desirable can be safely that on/off switches be available for all the driver. That commenter stated that, transported in a car bed in the front-seat vehicle air bags, including driver air with respect to the latter, it is becoming position, which would not be affected bags. increasingly clear that, even when older by a passenger-side air bag. AAP added F. Other Commenters children are suitably restrained by a lap/ that the duration of time that this level shoulder belt, they can easily and of observation is necessary is usually Safe Ride News urged NHTSA to unpredictably move forward to adjust extremely short—i.e., a few months. require rather than permit the use of the radio, pick up something from the AAP stated that older children with cutoff switches for all vehicles without floor, or brace themselves in high-risk medical needs, such as smart air bags. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 803

A number of private individuals phased in beginning with the model switches in all vehicles, rather than a requested that cutoff switches be year 1999 fleet, i.e., approximately permissive option for manufacturers. provided. Some, including persons September 1, 1998. However, this would Some commenters also argued that this concerned that air bag deployment may not mean that vehicle manufacturers requirement should apply to driver-side cause hearing problems for persons with would be able to install smart bags on air bags as well as passenger-side air tinnitus or hyperacusis, requested that all of the models for which they would bags. One proponent expressed the view cutoff switches be provided for both use manual cutoff switches by that date. that cutoff switches provide the most passenger and driver air bags. Second, a consensus has emerged ‘‘positive’’ means of shutting of air bags. concerning the need to develop and After considering the comments, V. Agency Decision implement smart passenger air bags as however, the agency has decided not to A. Option for Manual Cutoff Switches soon as possible, and manufacturers and expand the option to include additional suppliers are working toward that end. vehicles. The reasons for this decision NHTSA believes there is a consensus Moreover, the agency is announcing are explained below. that the only fully effective solution to plans to issue an SNPRM to propose The agency begins by acknowledging the problem of adverse effects from performance requirements for smart air that, given current air bag designs, there passenger-side air bags is smart bags. bags and a phase-in schedule for are situations in which there is a need Moreover, the vehicle manufacturers requiring these devices. Given these or a strong desire to turn off passenger- have indicated that they plan to developments, the agency believes there side air bags in vehicles with large introduce these devices as soon as they is less reason to have concern that the enough rear seats to accommodate a become available. availability of an option for manual rear-facing child restraint. An example The agency is encouraged that several cutoff switches will delay of this is the situation in which a rear suppliers commenting on the August implementation of better solutions. facing infant restraint must be placed in 1996 NPRM indicated that smart bags Given the importance of ensuring that the front seat so that a special medical can begin to be phased in beginning the vehicle manufacturers have a means condition of the infant can be closely with the model year 1999 fleet, i.e., of accommodating their customers’ need monitored. The need to turn off approximately September 1, 1998. To to carry rear facing infant restraints in passenger-side air bags by means of a help ensure that these devices are some vehicles without rear seats or with manual cutoff switch or deactivation introduced expeditiously, the agency rear seats that are too small to will cease when smart air bags are plans to publish shortly a separate accommodate these devices, NHTSA introduced. SNPRM to propose performance has decided to extend the current option NHTSA concludes that the objective requirements for smart air bags and to to September 1, 2000. While there is of allowing air bags to be turned off in propose a phase-in schedule for some uncertainty as to how long the appropriate circumstances can best and requiring these devices. option needs to be extended, the agency most quickly be met by permitting In the meantime, and after believes the record shows that the motor vehicle dealers and repair considering the comments, NHTSA has vehicle manufacturers should be able to businesses to deactivate driver and decided to extend until September 1, implement some type of smart air bag passenger-side air bags upon the request 2000, the time period during which for these vehicles by that time. of vehicle owners without expanding vehicle manufacturers are permitted the cutoff switch option to cover under Standard No. 208 to offer manual 2. Types of Vehicles for Which Manual additional types of vehicles. As cutoff switches for the passenger-side Cutoff Switch Option Should be indicated above, the agency is issuing a air bag for vehicles without rear seats or Available separate NPRM on the subject of with rear seats that are too small to As discussed above, while NHTSA deactivation. Allowing deactivation accommodate rear facing infant seats. initially decided to permit manual would not only provide a means of The agency has decided not to expand cutoff switches to be offered only on turning off the air bags in vehicles not the option to additional vehicles. The vehicles without rear seats or with rear covered by the cutoff option, but also in reasons for the agency’s decision are seats that are too small to accommodate vehicles covered by the option, but not presented below. rear-facing child restraints, it proposed equipped with a cutoff switch. to expand the option to cover all For those situations in which there is 1. Time Period for Manual Cutoff vehicles. As summarized above, a a need to turn off an air bag, Switches variety of commenters urged that the deactivation is just as good a solution as The agency initially decided to place cutoff option be expanded to other a cutoff switch in some respects, and a time limit on the current option for vehicles, arguing that parents want to better in others. Deactivation is just as manual cutoff switches for passenger air place their children in the front seat and effective as a cutoff switch for enabling bags because it believed that better, that an expanded option would provide parents to eliminate the risk to their automatic solutions would soon be an interim solution to the problem of air children. Parents who need to use the available. The option was only available bag deaths until smart air bags are front passenger seat for transporting a for passenger cars manufactured before introduced and would provide time for child can have their passenger-side air September 1, 1997, and light trucks the orderly introduction of smart air bag deactivated. Deactivation also manufactured before September 1, 1998. bags. Proponents of wider availability of provides an answer to the concerns of A variety of circumstances have manual cutoff switches asserted that the some groups of drivers, e.g., short- changed since the agency issued its needs of vehicle owners for a means of statured drivers who sit very close to the current rule on manual cutoff switches turning air bags off could be met by steering wheel and drivers with tinnitus in May 1995. First, there is uncertainty such switches because they provide a or hyperacusis, while the agency concerning the extent to which smart air means of turning off air bags in conducts further studies. bags will be available by September 1, appropriate situations. Some Deactivation, accompanied by 1998. As indicated above, NHTSA is commenters argued that the agency appropriate labels, can provide as much encouraged that several suppliers should respond to those needs by visible assurance that an air bag has commenting on the August 1996 NPRM adopting a requirement that been deactivated as a cutoff switch can. indicated that smart bags can begin to be manufacturers install manual cutoff Under the agency’s proposal, a vehicle 804 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations owner would be able to readily minimizing, consistent with the safety deactivated, a person would have to determine if the air bag was off by of children and others, the number of air make a greater investment of time and means of the labels that the agency is bags that are turned off. The agency expense to have it reactivated. While proposing be placed on vehicles whose believes that the possibility of a net these disadvantages were considered by air bags have been deactivated. adverse effect on safety is less likely the agency in making its decision, the Finally, just like manual cutoff with deactivation given the expectation agency believes they are outweighed by switches, deactivation would solve the noted above that deactivation would be the factors discussed above. immediate problem and thus buy time sought primarily by persons with a NHTSA wishes to address the for the intelligent and thoughtful particular need. Moreover, the agency suggestion by some commenters that introduction of smart bags. By providing has proposed procedures that would infants with a special medical condition a means to eliminate the risk to ensure that owners who are can be placed in a car bed instead of a children, the agency and industry will contemplating deactivation of their air rear facing infant seat, and that a car bed have the opportunity to take appropriate bags are made aware of the can safely be used in front of an air bag. care in completing the development of circumstances in which deactivation Given the limited information that is and in introducing smart air bags. may be appropriate, based upon the available, NHTSA is not prepared to NHTSA believes that deactivation is comparison of the risks of turning the recommend placing a car bed in front of superior to widespread use of cutoff air bag off versus leaving it on. This an air bag. The agency did conduct a switches in a number of respects. First, would reduce the possibility of test in which the air bag deployed deactivation is a much speedier answer unnecessary or inappropriate turning off primarily over the top of a car bed, to the need to turn off air bags than of air bags, and should result in a better barely contacting the bed. However, expanding the option for manual cutoff net effect on safety. NHTSA used an infant dummy that was switches. Significant time would be Third, deactivation would be less not instrumented, and thus did not needed by vehicle manufacturers to do costly in terms of overall consumer obtain measurements of the potential for the designing and retooling necessary to costs than across-the-board provision of injury. The agency notes that there is no install cutoff switches in future vehicles manual cutoff switches. Air bags would available infant dummy of less than 10 for which such work has not already be deactivated only in those vehicles pounds weight that is instrumented to been done. More specifically, vehicle whose owners requested deactivation. make such measurements. The agency manufacturers have advised that As a result, costs would also be more does not know how hard the air bag development and installation of cutoff equitably distributed, since the costs impacted the bed, or what the effect the switches would take at least one year. In would be borne by those choosing to impact would have on a four, five or ten contrast, no redesigning or retooling is have their vehicles modified. pound infant, with or without a medical needed for deactivation. Indeed, Conversely, all new vehicle purchasers problem. Moreover, the agency does not deactivation would be available would have to pay for manual switches know the extent to which that particular immediately upon the issuance of a if they were universally installed. test was representative of current final rule. Moreover, deactivation is the NHTSA also believes that the early vehicle seats and air bags. Finally, only method for addressing vehicles introduction and availability of smart NHTSA notes that car beds cannot fit on already on the road, which are the bulk air bag technology could be aided by bucket seats. of the problem. The agency notes that allowing the vehicle manufacturers to even if it were to require or permit focus their attention and resources on B. Performance Requirements for cutoffs for future vehicles, it would still completing development of that Manual Cutoff Switches have to authorize deactivation for technology rather than spending Several commenters urged that, existing vehicles and those future additional resources on, and otherwise assuming manual cutoff switches are vehicles built before the switches could being distracted by, designing manual permitted, various changes should be be installed. cutoff switches for all vehicles. In made in the requirements for those Second, deactivation is a narrower addition, there are several other switches and accompanying indicator and more focused solution than a cut off considerations that argue against lights. Volvo stated that if manual cutoff switch requirement or than a cutoff diverting manufacturer efforts into switches are permitted, all modes of air switch option to which manufacturers expanding the availability of cutoffs. To bag activation should be indicated, i.e., responded by installing cutoff switches the extent that vehicle manufacturers air bag on vs. air bag off. That in all or most vehicles. Under that depower their air bags in the near future manufacturer also suggested that this scenario of nearly universal installation, pursuant to another NHTSA proposal, status indication might be accompanied cutoff switches would be provided the potential benefits of cutoff switches by symbols showing who is the without regard to need. By contrast, would be reduced. Further, the agency appropriate occupant in the seat for the deactivation would be sought primarily sees little point in pushing the vehicle indicated mode and who is not. Volvo just in those circumstances in which it manufacturers toward a technology that stated that manufacturers should be is needed. This more focused aspect of would so quickly be made obsolete by given full freedom in finding a suitable deactivation would reinforce the smart air bags. location for the air bag status indication. message that air bags are generally good, NHTSA recognizes that deactivation That company stated that it is desirable and that only in limited circumstances would have some disadvantages as that the indication be visible for all front is it appropriate to turn them off. compared to cutoff switches. One seat occupants, but a provision that For reasons discussed by a wide range disadvantage is that deactivation of an requires the indication be close to the of commenters, including auto makers, air bag for the benefit of one user of a cutoff switch is unnecessarily design consumer groups, insurance groups, and particular vehicle would make the air restrictive. Volvo also suggested that medical groups, there is a possibility bag unavailable for other users of that other options for the device used to that widespread availability of manual vehicle. By contrast, cutoff switches operate the cutoff switch, i.e., other than cutoff switches could easily do more could be used by the various different the ignition key, should be considered. harm than good, in terms of overall occupants of a vehicle to suit their own Nissan stated that if NHTSA expands effect on safety. NHTSA is seeking to needs with respect to air bag protection. the ability of manufacturers to install provide relief where needed while Further, once an air bag was manual air bag cutoff switches, the Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 805 agency should make changes to warning light which is separate from the solely upon the action of deactivating Standard No. 208’s current indicator air bag readiness indicator and which the passenger air bag via the cutoff light requirements. Nissan noted that would indicate that the air bag was switch. NHTSA is therefore making a the Standard currently specifies that if turned off. The light must be visible to change to accommodate Nissan’s a vehicle is equipped with a single both the driver and passenger. The suggestion. The change provides indicator for both a driver and passenger manufacturer must include information additional flexibility and does not air bag, and if the vehicle is equipped on the manual cutoff switch in the impose any new requirements. with a cutoff device, the readiness owner’s manual. indicator must monitor only the For a number of reasons, NHTSA is C. Effective Date readiness of the driver air bag when the reluctant to make any significant NHTSA is making today’s passenger air bag has been deactivated changes in the current performance amendments effective 30 days after by means of the cutoff device. Nissan requirements for manual cutoff publication in the Federal Register. The expressed concern that this requirement switches. First, the agency has already agency finds good cause for this means that the operability of the cutoff completed a rulemaking to determine effective date. The amendments will switch indicator, the cutoff switch, and what requirements should apply to ensure that vehicle manufacturers can the passenger air bag cannot be manual cutoff switches, and has no continue to have a means of diagnosed when that air bag is reason to believe that significant accommodating their customers’ need to deactivated by the cutoff switch. That changes are necessary. Second, manual carry rear facing infant seats in vehicles manufacturer requested that the current cutoff switches are now being provided without rear seats or with rear seats that requirements be amended to allow use in a number of vehicles, and consumers are too small for these devices. The of a system that continuously monitors, are becoming familiar with them. Some amendments do not impose any diagnoses and displays system status for kinds of changes in the requirements for additional requirements but instead all components, including the driver air manual cutoff switches could relieve a restriction. bag, passenger air bag, cutoff switch and potentially cause confusion. For the cutoff switch indicator, if the example, Standard No. 208 currently VI. Rulemaking Analyses and Notices readiness indicator does not illuminate requires that it be necessary to use A. Executive Order 12866 and DOT solely upon the action of deactivating manual means to reactivate the air bag Regulatory Policies and Procedures the passenger air bag via the cutoff after it has been deactivated by use of switch. the cutoff switch. Considerable NHTSA has considered the impact of Land Rover stated that if the confusion could result from a change in this rulemaking action under Executive opportunity to install cutoff switches is this requirement such that air bags in Order 12866 and the Department of expanded, additional rulemaking newer vehicles reactivated Transportation’s regulatory policies and should be conducted to specify the automatically after use of a cutoff procedures. This rulemaking document mode of operation including details switch, while air bags in older vehicles was reviewed by the Office of about whether and under what did not. Management and Budget under E.O. conditions the air bag should be While the agency is not adding 12866, ‘‘Regulatory Planning and automatically reactivated. additional performance requirements, it Review.’’ This action has been AAP stated that if NHTSA should notes that manufacturers can voluntarily determined to be ‘‘significant’’ under choose to permit wider use of the provide additional features, such as the Department of Transportation’s manual cutoff switch, then it audible signals or extra lights, as long as regulatory policies and procedures. The recommends that a visible, audible and the Standard’s specific requirements are action is considered significant because non-deactivatable warning signal be met. of the degree of public interest in this required to indicate that the air bag is NHTSA has concluded that there is subject. on or off. NSKC stated that if the agency merit to Nissan’s request for a change in NHTSA estimates the cost of a decides to require manual cutoff Standard No. 208’s current air bag voluntarily installed manual cutoff switches, it also becomes absolutely indicator light requirements. As switch at a little over five dollars. necessary to require some type of discussed above, the Standard currently A full discussion of costs and benefits warning light and warning sound in the specifies that if a vehicle is equipped can be found in the agency’s regulatory control panel of the dashboard which with a single indicator for both a driver evaluation for this rulemaking action, informs or reminds the driver that the and passenger air bag, and if the vehicle which is being placed in the docket. air bag has been deactivated. Autoliv is equipped with a cutoff device, the B. Regulatory Flexibility Act stated that it cannot be emphasized readiness indicator must monitor only enough that a clear indication of the the readiness of the driver air bag when NHTSA has considered the effects of passenger air bag mode to the driver is the passenger air bag has been this final rule under the Regulatory crucial to the safe use of the manual deactivated by means of the cutoff Flexibility Act. I hereby certify that it cutoff switch. Autoliv suggested that device. The purpose of this requirement will not have a significant economic this switch could be further improved was to ensure that drivers would not impact on a substantial number of small by alerting the driver about the miss a message that the driver air bag entities. The final rule primarily affects passenger bag mode (off or on) each was not functional, simply because the motor vehicle manufacturers. Almost all time the driver turns the ignition key passenger side bag was intentionally motor vehicle manufacturers would not on. deactivated. The agency agrees with qualify as small businesses. As discussed above, Standard No. 208 Nissan that this problem would not currently specifies a number of occur in a system that continuously C. National Environmental Policy Act requirements for manual cutoff monitors, diagnoses and displays NHTSA has analyzed this final rule switches. The manual cutoff switch system status for all components, for the purposes of the National must make it necessary to use an including the driver air bag, passenger Environmental Policy Act and ignition key to turn off the air bag and air bag, cutoff switch and the cutoff determined that it will not have any to turn on the air bag by manual means. switch indicator, so long as the significant impact on the human The manufacturer must also install a readiness indicator does not illuminate environment. 806 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

D. Executive Order 12612 (Federalism) In consideration of the foregoing, 49 seating position. If the vehicle is CFR Part 571 is amended as follows: equipped with a single readiness The agency has analyzed this final indicator for both a driver and passenger rule in accordance with the principles PART 571ÐFEDERAL MOTOR air bag, and if the vehicle is equipped and criteria set forth in Executive Order VEHICLE SAFETY STANDARDS with a cutoff device permitted by S4.5.4 12612. NHTSA has determined that this of this standard, the readiness indicator final rule does not have sufficient 1. The authority citation for Part 571 shall monitor the readiness of the driver federalism implications to warrant the of Title 49 continues to read as follows: air bag when the passenger air bag has preparation of a Federalism Assessment. Authority: 49 U.S.C. 322, 30111, 30115, been deactivated by means of the cutoff E. Civil Justice Reform 30117, and 30166; delegation of authority at device, and shall not illuminate solely 49 CFR 1.50. because the passenger air bag has been This final rule does not have any deactivated by the manual cutoff switch. retroactive effect. Under 49 U.S.C. § 571.208 [Amended] 2. Section 571.208 is amended by A list of the elements of the system 30103, whenever a Federal motor being monitored by the indicator shall vehicle safety standard is in effect, a revising S4.1.5.1(b), S4.5.2, and S4.5.4, to read as follows: be included with the information State may not adopt or maintain a safety furnished in accordance with S4.5.1 but standard applicable to the same aspect § 571.208 Standard No. 208, Occupant need not be included on the label. of performance which is not identical to crash protection. the Federal standard, except to the * * * * * * * * * * extent that the state requirement S4.5.4 Passenger Air Bag Manual imposes a higher level of performance S4.1.5.1 Front/angular automatic Cutoff Device. and applies only to vehicles procured protection system. Passenger cars, trucks, buses, and for the State’s use. 49 U.S.C. 30161 sets * * * * * multipurpose passenger vehicles forth a procedure for judicial review of (b) For the purposes of sections S4.1.5 manufactured before September 1, 2000 final rules establishing, amending or through S4.1.5.3 and S4.2.6 through may be equipped with a device that revoking Federal motor vehicle safety S4.2.6.2 of this standard, an inflatable deactivates the air bag installed at the standards. That section does not require restraint system means an air bag that is right front passenger position in the submission of a petition for activated in a crash. vehicle, if all the conditions in S4.5.4.1 reconsideration or other administrative * * * * * through S4.5.4.4 are satisfied. proceedings before parties may file suit S4.5.2 Readiness indicator. An * * * * * in court. occupant protection system that deploys Issued on December 26, 1996. in the event of a crash shall have a Donald C. Bischoff, List of Subjects in 49 CFR Part 571 monitoring system with a readiness Executive Director. Imports, Motor vehicle safety, Motor indicator. The indicator shall monitor [FR Doc. 96–33306 Filed 12–30–96; 11:00 vehicles, Rubber and rubber products, its own readiness and shall be clearly am] Tires. visible from the driver’s designated BILLING CODE 4910±59±P Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 807

DEPARTMENT OF TRANSPORTATION number of air bag fatalities, and make it B. Air Bags: Lives Saved, and Lives Lost. possible to design air bags so that they III. Search for Solutions. National Highway Traffic Safety save increased numbers of belted A. The Early Years. Administration occupants, it could also result in an B. The Last Five Years. even larger number of unbelted C. Recent Petitions for Rulemaking. 49 CFR Part 571 IV. Overview of Comprehensive NHTSA Plan occupants not being saved by air bags. for Addressing Problem. [Docket No. 74±14; Notice 108] Accordingly, the agency is requesting V. Depowering Air Bags comments on the appropriate duration RIN 2127±AG59 A. Results of NHTSA Test Program of such an amendment. If there are B. Effects of Depowering and Optimizing Federal Motor Vehicle Safety adverse safety tradeoffs, and smart air 1. Passenger Air Bags Standards; Occupant Crash Protection bags offer a way of preventing air bag 2. Driver Air Bags fatalities while not causing similar C. Alternative Proposals AGENCY: National Highway Traffic tradeoffs, it would be desirable to limit 1. Approach I—Temporary Change in Safety Administration (NHTSA), DOT. the duration of the amendment so that Unbelted Chest Acceleration Requirement. ACTION depowering is only an interim measure. : Notice of proposed rulemaking 2. Approach II—Temporary Replacement (NPRM). NHTSA currently contemplates that the of Unbelted Crash Test Requirement amended requirement would remain in with a Sled Test Protocol Incorporating SUMMARY: NHTSA is proposing to effect for both passenger and driver air a Standardized Crash Pulse. amend the agency’s occupant crash bags until smart air bags are installed 3. Request for Additional Information. protection standard to ensure that pursuant to a mandated phase-in D. Consideration of Other Alternatives. vehicle manufacturers can depower all schedule. Establishing that schedule E. Effective Date and Comment Period. air bags so that they inflate less and appropriate performance F. Relationship to Other Actions. aggressively. The agency is taking this requirements will be the subject of a VI. Response to AAMA and CFAS Petitions. action as part of its comprehensive separate rulemaking proceeding. VII. Granting of Petition to Consider Using efforts to reduce the fatalities and NHTSA is also announcing its 5th Percentile Female Dummy. injuries that current air bag designs are VIII. Rulemaking Analyses and Notices. granting of a petition by Anita Glass A. Executive Order 12866 and DOT causing in relatively low speed crashes Lindsey to commence a rulemaking to small, but growing numbers of Regulatory Policies and Procedures. proceeding to consider whether to B. Regulatory Flexibility Act. children, and occasionally to adult specify the use of a dummy representing C. National Environmental Policy Act. drivers. Taken together, these efforts a small-statured female in testing the D. Executive Order 12612 (Federalism). would affect all existing air bag performance of safety belts and air bags. E. Civil Justice Reform. vehicles, as well as those produced in DATES: Comments must be received by IX. Request for Comments. the next several model years. February 5, 1997. Appendix: Past Public Comments Related to Based on agency research and Depowering Air Bags. ADDRESSES: Comments should refer to analysis regarding the optimal range of the docket and notice number of this I. Background air bag ‘‘depowering,’’ the agency has notice and be submitted to: Docket tentatively concluded that an average In 1984, the Department of Section, Room 5109, National Highway depowering of 20 to 35 percent would Transportation issued a final rule Traffic Safety Administration, 400 reduce the risk of fatalities in low speed requiring the installation of automatic Seventh Street, SW, Washington, DC crashes, while substantially preserving protection (e.g., air bags, automatic 20590. (Docket Room hours are 9:30 the life saving capabilities of air bags in belts, passive interiors) in passenger a.m.–4 p.m., Monday through Friday.) higher speed crashes. The agency is cars. 49 Fed. Reg. 28962; July 17, 1984. considering the adoption of either, or FOR FURTHER INFORMATION CONTACT: For The Department took this step to both, of two different approaches that information about air bags and related increase the protection of vehicle would permit or facilitate, but not rulemakings: Visit the NHTSA web site occupants, especially unbelted ones. At require, such depowering of current air at http://www.nhtsa.dot.gov and select the time, only 12.5 percent of occupants bags. One approach would be to reduce ‘‘AIR BAGS: Information about air wore their safety belts, and only one the stringency of the chest acceleration bags.’’ state required all motorists to buckle up. For non-legal issues: Mr. Clarke requirement which an unbelted dummy In 1991, Congress mandated the Harper, Chief, Light Duty Vehicle must meet in a crash test at speeds up installation of air bags in both passenger Division, NPS–11, National Highway to 30 mph. The other approach was cars and LTV’s with a gross vehicle Traffic Safety Administration, 400 recently requested by the American weight rating (GVWR) of 8,500 pounds Seventh Street, SW, Washington, DC Automobile Manufacturers Association or less. (LTV’s generally include vans, 20590. Telephone: (202) 366–2264. Fax: in a letter superseding its earlier pickup trucks, buses, and sport utility (202) 366–4329. petition for rulemaking. It would vehicles with a gross vehicle weight For legal issues: J. Edward Glancy, replace the unbelted crash test rating of 10,000 pounds or less). The Office of Chief Counsel, NCC–20, requirement with a sled test protocol Intermodal Surface Transportation National Highway Traffic Safety incorporating a 125 millisecond Efficiency Act required that air bags be Administration, 400 Seventh Street, SW, standardized crash pulse. NHTSA is put in all new cars by the beginning of Washington, DC 20590. Telephone: seeking comments and information model year 1998 and in all new LTV’s (202) 366–2992. Fax: (202) 366–3820. concerning the relative desirability of by the beginning of model year 1999. these two approaches, including SUPPLEMENTARY INFORMATION: Much has changed since 1984, and supporting data from industry for the Table of Contents even since 1991. The cumulative sled test. The agency also seeks production of air bag cars and LTV’s I. Background. reached the 10,000,000 mark for driver comments on whether the same or A. How Air Bags Work. different requirements should apply to B. Circumstances of Air Bag Fatalities. air bag vehicles during model year 1992 the passenger and driver positions. II. The Safety Problem: Frontal Impacts and and for dual air bag vehicles during There is a possibility that while this Air Bags—Lives Saved, and Lives Lost. model year 1995. Air bags are now rulemaking would prevent a significant A. Frontal Impacts. standard equipment on most passenger 808 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules cars and LTV’s. As of the end of model To ensure that the air bag provides out very close to the steering wheel or year 1996, approximately 56 million air enough resistance to keep large as well dashboard or end up there. Most child bag vehicles have been produced for as small occupants from ‘‘bottoming fatalities attributed to an air bag fall into sale in the United States. 1 Safety belt out’’ the air bag and hitting the vehicle one of two groups: (1) infants riding in use has reached approximately 68 interior, the amount of gaseous pressure rear-facing infant seats, thus placing percent. 2 Forty-nine States and the within air bags must be carefully them very close to the air bag at the time District of Columbia require the use of modulated. This is done by controlling of deployment, or (2) older children safety belts, and all jurisdictions require both the rate at which gas is pumped riding forward-facing without any type the use of child safety seats. While into the air bag as well as the rate at of restraint, thus allowing them to slide males account for a sizable majority of which the gas is released from the air forward during pre-crash braking so that the nonusers of safety belts, females still bag through vents or the porosity of the they were too close to the air bag when account for 40 percent of the nonusers. 3 fabric. it deployed. A majority of the fatally- NHTSA estimates that air bags have An example from a non-automotive injured drivers were short-statured deployed more than 800,000 times in context will help to show the women who moved the driver’s seat crashes and have saved approximately importance of modulating the air forward. More than half of the fatally- 1,664 lives (164 passengers and 1,500 pressure in air bags. Vented air cushions injured drivers were not using any type drivers) as of November 1996. are sometimes used by stunt performers of restraint. Unfortunately, air bags also have fatally who jump or dive from a great height to II. The Safety Problem: Frontal Impacts injured at least 32 children, 1 adult absorb the energy of their fall. If the and Air Bags—Lives Saved, and Lives passenger, and 19 drivers in low vents don’t allow enough of the pressure Lost severity crashes in the United States. in the cushion to be released as the Apart from the nine fatally-injured performer hits it, the cushion will be too The number of air bag fatalities and infants (included in the figure of 32 rigid and will fail to absorb enough of the likelihood of those fatalities must be above), most of the fatally-injured the performer’s energy, causing injury. carefully compared to the likelihood of occupants were unbelted. Thus, while On the other hand, if the vents release other related events in evaluating the number of people being saved by air too much pressure, the cushion will solutions to the causes of those bags is growing annually, so is the much ‘‘bottom out,’’ thus allowing the fatalities. smaller, but significant number of performer to strike the ground, also A. Frontal Impacts people being fatally injured by air bags. causing injury. Frontal impacts are the number one A. How Air Bags Work B. Circumstances of Air Bag Fatalities fatality and injury-causing mode of When a vehicle has a frontal impact, Air bags need time, and space, to crash, resulting in 64 percent of all its occupants begin to move forward in inflate. The sudden release of energy by driver and right-front passenger response to pre-impact braking or the an inflating air bag can harm some front fatalities and 65 percent of all driver deceleration of the vehicle during the seat occupants, particularly if they are and right-front passenger AIS 2–5 impact. If unrestrained, front-seat too close to the air bag at the time of injuries. (AIS 2–5 stands for occupants will move forward in a deployment. Properly restrained Abbreviated Injury Scale levels of fraction of a second and hit the steering occupants of a vehicle seat moved back moderate to critical injuries.) The wheel, dashboard or windshield. To from the dashboard as far as possible, estimated fatality and injury totals for move into place in time to catch the and even most unrestrained teenagers 1994 are shown below. The injuries are occupants in moderate and high speed and adults, will meet the air bag after those for National Accident Sampling crashes, air bags must inflate very the initial, sudden release of energy. System-Crashworthiness Data System quickly—faster than the blink of an eye. However, some occupants either start (NASS–CDS) towaway accidents only. (See table below.)

1994 FATALITIES AND MODERATE TO SERIOUS INJURIES IN FRONTAL IMPACTS [Passenger Cars and Light Trucks]

Right front Drivers passengers Total

Fatalities ...... 13,437 3,814 17,251 Injuries ...... 124,484 30,299 154,783

Total ...... 4 137,921 5 34,113 172,034

4 The numbers of fatalities and injuries for drivers far exceed those for passengers in large measure because approximately 80 percent of front seat occupants are drivers. 5 The figures for right front passengers include the following figures for children under the age of 13: approximately 266 fatalities and 643 moderate to serious injuries.

1 Over 27,000,000 of those vehicles have both lowness of this rate reflects a number of factors, fatality but for belt use. The use rate in potentially driver and passenger air bags. including the belt use rate by motorists in general fatal crashes is slightly over 50 percent. 2 Belt use among fatally injured front seat and the effectiveness of belt use in preventing fatal 3 This figure is based on a September 1994 study occupants of cars and LTV’s is lower, injury. A more useful belt use rate is the rate among by Reinfurt et al. of belt use in North Carolina. approximately 37 percent, based on 1995 data from occupants involved in potentially fatal crashes. the Fatal Accident Reporting System (FARS). The Those crashes include all fatal crashes as well as all crashes in which there would have been a Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 809

B. Air Bags: Lives Saved, and Lives Lost and 164 passengers).6 Current air bags deployment of the passenger air bag could save an estimated slightly more resulted in fatal injuries to a child. The As the agency has confronted the than 3,000 lives each year in passenger agency has examined all air bag cases problem of low speed fatalities and cars and light trucks when all cars on with child fatalities in its Fatal Accident injuries from air bags, it has faced a the road are equipped with dual air Reporting System (FARS) and believes it serious dilemma. On the one hand, air bags. has identified all cases involving air bags have proven to be highly effective At the same time, air bags are actually bag-related fatalities. One adult in reducing fatalities, and are resulting causing fatalities in some situations, passenger has been fatally injured (a in substantial net benefits in terms of especially to children. As of November woman in her 90’s). On the driver side, lives saved. The agency estimates that, 30, 1996, NHTSA’s Special Crash 19 drivers 7 have been fatally injured in to date, air bags have saved 1,664 Investigation program had identified 32 drivers and passengers (1,500 drivers crashes in this country in which the this country. (See table below.)

AIR BAGS: CUMULATIVE LIVES SAVED AND FATALITIES CAUSED (1986±PRESENT) [Passenger Cars and Light Trucks]

Right front Drivers passengers Total

Lives saved ...... 1,500 164 1,664 Fatalities caused ...... 19 33 52

Net lives saved ...... 1,481 131 1,612

Passenger Fatalities. The annual shoulder belt behind them, and two improper use of safety belts in number of fatalities involving children were wearing a lap and shoulder belt at conjunction with pre-impact braking is steadily growing; all have occurred in the time of the crash. In addition, there resulted in their forward movement 1993 and later calendar years. As noted was a one-year-old child who was such that they were very close to the above, 32 children have been fatally fatally injured while riding in a child instrument panel and the air bag system injured to date. (See tables below.) seat that was not belted to the vehicle when the air bag deployed. Because of seat. (See table below.) It appears that the children most at this proximity, the children appear to Most children were either infants or have sustained fatal head or neck risk are infants in rear-facing infant children aged 4–7 years old. (See table restraints and children not using any injuries from the deploying passenger below.) air bag. type of restraint. All of the infant The crashes in which the children fatalities (9) involved infants in rear- were fatally injured involved pre-impact In addition to the 32 children who facing child seats. Most of the other braking, and occurred at relatively low have been fatally injured during children were not using any type of speeds. Infants in rear-facing child seats passenger air bag deployments, as noted safety restraint. Of those other children, are very close to the dashboard even above, one adult, a woman in her 90’s, 18 were unrestrained, two more were before pre-impact braking. As to almost sustained a fatal injury that appears to wearing only the lap belt with the all of the older children, the nonuse, or be due to an air bag deployment.

INFANT PASSENGER AIR BAG-RELATED FATALITIES (IN REAR-FACING INFANT SEATS) [By MY of Vehicle and CY of Fatality]

Total No. of infant No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 pas- produced w/ senger passenger air air bag bags fatalities

MY 89 ...... 78,000 MY 90 ...... 149,000 MY 91 ...... 44,000 MY 92 ...... 421,000 MY 93 ...... 1,352,000 MY 94 ...... 1 1 2 5,547,000 MY 95 ...... 2 4 6 8,936,000 MY 96 ...... 1 1 10,750,000

Total ...... 3 6 9 27,277,000

6 This estimate of gross savings is cumulative, 7 The figure of 19 is based on information that Studies of FARS data are underway to obtain a through November 1, 1996. The net savings would NHTSA has developed through NHTSA’s Special more precise figure. be 1,612. Crash Investigation program and is not a census. 810 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

CHILD (NON-INFANT) PASSENGER AIR BAG-RELATED FATALITIES [By MY of Vehicle and CY of Fatality]

Total No. of child (non-in- No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 fant) pas- w/passenger senger air bags air bag fatalities

MY 89 ...... 78,000 MY 90 ...... 149,000 MY 91 ...... 44,000 MY 92 ...... 421,000 MY 93 ...... 1 1 1 ...... 3 1,352,000 MY 94 ...... 3 1 1 5 5,547,000 MY 95 ...... 1 3 8 12 8,936,000 MY 96 ...... 3 3 10,750,000

Total ...... 1 5 5 12 23 27,277,000

AGE OF CHILDREN FATALLY INJURED IN AIR BAG DEPLOYMENTS

<1 1 2 3 4 5 6 7 8 9 10 11 12 13 Total

9 ...... 1 ...... 1 5 7 4 3 ...... 2 ...... 32

TYPE OF RESTRAINT USED BY CHIL- Driver Fatalities. As of November 15, fatality in the United States of a female DREN FATALLY INJURED BY AIR 1996, NHTSA’s Special Crash driver 5 feet 2 inches or shorter in an BAGS Investigation (SCI) program had air bag deployment occurred in identified 19 minor to moderate severity November 1995, 13 months ago. No. of crashes in which fatal injuries to the Proper belt use is important. Ten of Type of restraint used chil- driver were associated with the the 19 drivers were known to have been dren deployment of the driver air bag.9 The unrestrained at the time of the crash. Of data suggest that unrestrained small- None ...... 18 the six persons properly using both lap Lap belt only ...... 2 statured and/or older drivers are more at risk than other drivers from a driver air and shoulder belts, two appeared to be Lap and shoulder belt ...... 2 out of position (slumped over the wheel Rear-facing infant restraint attached bag. (See tables below.) The agency to vehicle seat ...... 9 notes that older drivers are more at risk due to medical conditions). (See tables Forward-facing child restraint at- than younger drivers under a wide range below.) tached to vehicle seat ...... of crash circumstances, regardless of Booster seat ...... type of restraint used. Other 8 ...... 1 NHTSA notes that these driver Total ...... 32 fatalities are very rare in comparison to the number of vehicles equipped with 8 One fatally injured child was reportedly strapped into a forward facing child seat, but driver air bags and to the number of the child seat was not attached to the vehicle drivers saved by air bags. Further, seat. NHTSA notes that the last reported

DRIVER AIR BAGS: FATALITIES AND LIVES SAVEDÐALL DRIVERS [Fatalities Shown by MY of Vehicle and CY of Fatality]

Driver air Drivers No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 bag fatali- saved by produced w/ ties air bag driver air bags

MY 89 ...... 1 ...... 1 ...... 500,000 MY 90 ...... 1 1 ...... 1 2 1 ...... 6 ...... 2,500,000 MY 91 ...... 2 2 1 ...... 1 ...... 6 ...... 2,867,000 MY 92 ...... 1 1 ...... 2 ...... 5,084,000 MY 93 ...... 7,597,000 MY 94 ...... 2 1 ...... 3 ...... 9,886,000 MY 95 ...... 1 1 ...... 13,686,000 MY 96 ...... 14,055,000

Total ...... 1 3 2 3 5 4 1 19 1,500 56,175,000

9 But see footnote 7 below concerning reported driver fatalities in Canada. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 811

DRIVER AIR BAG FATALITIESÐWOMEN (5′2′′ OR LESS) [By MY of Vehicle and CY of Fatality]

Total No. of driver air No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 bag fatali- produced w/ ties (women driver air bags 5′2′′ or less)

MY 89 ...... 1 ...... 1 500,000 MY 90 ...... 1 ...... 1 ...... 1 ...... 3 2,500,000 MY 91 ...... 1 1 ...... 1 ...... 3 2,867,000 MY 92 ...... 1 1 ...... 2 5,084,000 MY 93 ...... 7,597,000 MY 94 ...... 1 ...... 1 9,886,000 MY 95 ...... 13,686,000 MY 96 ...... 14,055,000

Total ...... 1 1 1 2 1 4 ...... 10 56,175,000

DRIVER AIR BAG FATALITIESÐOTHER ADULTS [By MY of Vehicle and CY of Fatality]

Total No. of driver air bag No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 fatalities produced w/ (other driver air bags adults)

MY 89 ...... 500,000 MY 90 ...... 1 ...... 2 ...... 3 2,500,000 MY 91 ...... 1 1 1 ...... 3 2,867,000 MY 92 ...... 5,084,000 MY 93 ...... 7,597,000 MY 94 ...... 2 ...... 2 9,886,000 MY 95 ...... 1 1 13,686,000 MY 96 ...... 14,055,000

Total ...... 2 1 1 4 ...... 1 9 56,175,000

AGE OF DRIVERS FATALLY INJURED IN AIR BAG DEPLOYMENTS

<20 20±29 30±39 40±49 50±59 60±69 70±79 >80 Total

1 ...... 1 4 4 2 1 6 ...... 19

TYPE OF RESTRAINT USED BY DRIVERS Comparison of Passenger and Driver Air 1992. The absence of fatalities in recent FATALLY INJURED IN AIR BAG DE- Bag Fatalities model year vehicles appears even more PLOYMENTS pronounced in the case of women 5 feet Several comparisons need to be 2 inches or shorter. Only one woman 5 drawn between the trends and patterns feet 2 inches or shorter has died in a Type of restraint used No. of drivers of child fatalities and the apparent post model year 1992 vehicle.10 Most trends and patterns of driver fatalities. fatalities of short-statured women None ...... 10 The annual number of child fatalities is occurred in model year 1990–1992 Belts misused ...... 1 clearly growing steadily as the number vehicles. (See tables below.) Lap and shoulder belt (Driver of deployments increases. The annual blacked out and slumped forward number of adult fatalities does not 10 NHTSA is aware of a number of fatalities in at time of crash due to medical appear to be growing. If anything, it Canada reportedly related to air bag deployment, condition) ...... 2 appears to be decreasing, based on but only two in recent times. One was a November Lap and shoulder belt ...... 4 currently identified fatalities. (See tables 1996 crash in Canada in which a 5 foot 3 inch Unknown ...... 2 below.) belted female driver was fatally injured in a model year 1996 Ford Ranger. In addition, there was a Total ...... 19 Most child fatalities (24 of 32) have November 1996 crash in which a 5 foot 2 inch occurred in model year 1994 and 1995 belted female driver was fatally injured in a model vehicles. In contrast, only 4 of the 19 year 1993 Lexus. These Canadian accidents are not driver fatalities have occurred in a included in the driver fatality figures cited in this vehicle manufactured after model year notice. (Similarly, lives saved by air bags outside the United States are not included in the savings.) 812 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

COMPARISON OF DRIVER AND CHILD AIR BAG-RELATED FATALITIES BY CALENDAR YEAR OF FATALITY

CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 Total

Drivers

Women (5′2′′ or less) ...... 1 1 1 2 1 4 ...... 10 Other adults ...... 2 1 1 4 ...... 1 9

Total ...... 1 3 2 3 5 4 1 19

Children

Children (non-infant) ...... 1 5 5 12 23 Infants ...... 3 6 9

Total ...... 1 5 8 18 32

COMPARISON OF DRIVER AND CHILD AIR BAG-RELATED FATALITIES BY MODEL YEAR OF FATALITY

MY 89 MY 90 MY 91 MY 92 MY 93 MY 94 MY 95 MY 96 Total

Drivers

Women (5′2′′ or less) ...... 1 3 3 2 ...... 1 ...... 10 Other adults ...... 3 3 ...... 2 1 ...... 9

Total ...... 1 6 6 2 ...... 3 1 ...... 19

Children

Non-infant Children ...... 3 5 11 4 23 Infants ...... 2 6 1 9

Total ...... 3 7 17 5 32

Potential Number of Persons Saved than driver air bags primarily because do not materialize, while the potential Versus the Potential Number Fatally the passenger seat is occupied much benefits of air bags are retained, to the Injured by Current Air Bags less frequently than the driver seat. If all maximum extent possible. Thus, the The dilemma faced by NHTSA, and passenger cars and light trucks had agency anticipates, e.g., that these other ultimately the public, is how to address current passenger air bags, the agency actions will result in proper use of the problem of low speed fatalities from estimates that 223 belted and 491 restraints by increased numbers of air bags while preserving their unbelted passengers aged 13 and above people and that the number of children substantial life-saving benefits. Based on would be saved annually, for a total of fatally injured would not be so high as analyses of real world data, NHTSA 714 lives. 128. However, the agency does not have estimates that if all passenger cars and However, this figure of 714 would be a basis for estimating the exact effect. light trucks on the road today had partially offset by air bag-related Further, NHTSA recognizes that to the current air bags, there would be more fatalities involving children 12 and extent that one countermeasure is than 3,000 lives saved each year, as under. If current rates of child fatalities effective, the potential benefits of compared to a no-air-bag fleet (assuming were experienced in an all-air-bag fleet, another countermeasure could be current belt use rates). More than two- 128 children would be fatally injured by reduced. The Preliminary Regulatory thirds of the persons saved would be air bags annually, again assuming no Evaluation (PRE) for this rulemaking persons not using any type of safety technological improvements, changes to gives an illustrative example of the belt. air bags, or behavioral changes by effect that labeling could have in On the driver side, 616 belted drivers vehicle operators (e.g., ensuring that any reducing the benefits of depowering if and 1,686 unbelted drivers would be children placed in the front seat the labeling were 10 percent effective in saved, for a total of 2,302 lives saved. properly use occupant restraints or, inducing more parents to place their This is a net figure, i.e., it accounts for preferably, placing children in the rear young children in the rear seat. (See the possibility of 25 drivers being fatally seat). The figure of 128 includes 90 page IV–54.) Likewise, a injured annually by an air bag. Given forward-facing children, most of whom countermeasure may reduce the that the average annual rate of driver would be unbelted, and 38 infants in potential disbenefits of another fatalities for the last five years appears rear-facing child restraints. countermeasure. To the extent that belt to be three, and that the annual rate NHTSA emphasizes that this and the use is increased, the potential does not appear to be increasing, the other rulemaking proceedings and disbenefits of depowering for unbelted projected figure of 25 may be somewhat related efforts are intended to ensure occupants would be reduced. NHTSA overstated. that risks of adverse side effects of air solicits suggestions for how it can The potential number of lives saved bags are reduced so that these attempt to quantify the interaction by passenger air bags is much smaller theoretically projected air bag fatalities between its various initiatives for Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 813 increasing belt use and decreasing the Projected Annual Lives Saved by and adverse side effects of air bags. Fatalities Due to Air Bags 11

PASSENGER CARS AND LIGHT TRUCKS

Right front Drivers passengers Total

Lives Saved ...... 2,327 714 3,041 Fatalities ...... 25 128 153

III. Search for Solutions NHTSA also requested comments on issue a notice of proposed rulemaking to Over the last five years, NHTSA has whether it should, as an alternative, set propose requirements to improve the taken a variety of steps to alert the a time limit on the provision permitting safety of drivers and passengers who are public to the dangers posed by air bags manual cutoff switches for passenger air extremely close to the air bag at the time to children and to explore measures for bags in order to assure the timely of deployment, based on the latest reducing and even eliminating those introduction of smart passenger air bags. International Standards Organization dangers. The steps taken in 1991–1995 Finally, the agency proposed to require (ISO) test practices. AAMA were recounted in an NPRM published rear-facing child seats to bear new, recommended the use of the Hybrid III by the agency on August 6, 1996. 61 enhanced warning labels. In a section in small female dummy in the driver Fed. Reg. 40784. the August 1996 NPRM titled ‘‘Future position and appropriate child dummy In the August 1996 NPRM, the agency Agency Considerations,’’ the agency in the passenger position. proposed several amendments to also provided a discussion of possible On September 1, 1996, Ms. Anita Standard No. 208, Occupant Crash technological changes to address the Glass Lindsey petitioned the agency to Protection, and Standard No. 213, Child forcefulness of air bag deployment, commence rulemaking to specify the Restraint Systems, to reduce the adverse ongoing agency efforts to evaluate the use of a test dummy representing a 5th effects of air bags, especially those on effects of such changes, and possible percentile female 12 in testing the children. The agency explained that future agency regulatory actions. performance of safety belts and air bags. eventually, either through market forces C. Recent Petitions for Rulemaking Currently, Standard No. 208 specifies or government regulation, it expects the use of only a 50th percentile male ‘‘smart’’ passenger air bags to be Two weeks before the agency test dummy. 13 published its NPRM, the Parents’ installed in passenger cars and light On September 17, 1996, the National trucks to mitigate these adverse effects. Coalition for Air Bag Warnings submitted a petition requesting the Transportation Safety Board (NTSB) NHTSA indicated that, for purposes of issued a number of safety the NPRM, it considered smart agency to commence a rulemaking proceeding to require that the following recommendations to NHTSA for passenger air bags to include any system reducing the problem of child fatalities that automatically prevents an air bag warning label be placed on dashboard of vehicles with passenger air bags: caused by air bags. These from injuring the two groups of children recommendations are as follows: that experience has shown to be at ‘‘WARNING: DO NOT SEAT CHILDREN IN 1. Immediately evaluate passenger air special risk from air bags: infants in THE FRONT PASSENGER SEAT. AIR BAG bags based on all available sources, rear-facing child seats, and children DEPLOYMENT CAN CAUSE SERIOUS including NHTSA’s recent crash testing, who are out-of-position (because they INJURY OR DEATH TO CHILDREN.’’ and then publicize the findings and are unbelted or improperly belted) when After the agency’s publication of the modify performance and testing the air bag deploys. August 1996 NPRM, the American NHTSA proposed that vehicles Automobile Manufacturers Association requirements, as appropriate, based on lacking smart passenger air bags would (AAMA) submitted a petition for the findings of the evaluation. be required to have new, attention- rulemaking requesting that NHTSA 2. Immediately revise Federal Motor getting warning labels and permitted to immediately announce, by means of a Vehicle Safety Standard 208, Occupant have a manual cutoff switch for the ‘‘direct final rule,’’ an amendment to Crash Protection, to establish passenger air bag. By limiting the Standard No. 208 to replace the current performance requirements for passenger labeling requirement to vehicles without 30 mph unrestrained dummy barrier air bags based on testing procedures that smart passenger air bags, NHTSA hoped crash test requirement with a sled test reflect actual accident environments, to encourage the introduction of the protocol incorporating a 143 including pre-impact braking, out-of- next generation of air bags as soon as millisecond standardized crash pulse. position child occupants (belted and possible. NHTSA proposed to define The petitioner contended that the unbelted), properly positioned belted smart air bags broadly to give standard’s current requirement ‘‘directly child occupants, and with the seat track manufacturers flexibility in making dictates the level of the air bag’s inflator in the forward-most position. design choices. The agency requested power and it is the level of inflator 3. Evaluate the effect of higher comments concerning whether it should power that unnecessarily increases the deployment thresholds for passenger air require installation of smart air bags risk of injury to vehicle occupants bags in combination with the and, if so, on what date such a during air bag deployment.’’ AAMA also recommended changes in air bag requirement should become effective. requested that the agency separately performance certification testing, and

11 This projection is based on the assumption that the other agency actions described in the Overview 13 A 50th percentile Hybrid III dummy has a all passenger cars and light trucks on the road have and Summary section above. standing height of 5 feet, 8 inches and a weight of driver and passenger air bags. It does not take into 12 A 5th percentile Hybrid III dummy has a 172 pounds. consideration the impact of this proposal or any of standing height of 5 feet and a weight of 110 pounds. 814 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules then modify the deployment thresholds IV. Overview of Comprehensive pursuant to a mandated phase-in based on the findings of the evaluation. NHTSA Plan for Addressing Problem schedule, which will be the subject of 4. Establish a timetable to implement NHTSA is implementing a a separate rulemaking proceeding. intelligent air bag technology that will comprehensive plan of rulemaking and Finally, comments are sought on moderate or prevent the air bag from other actions (e.g., primary enforcement whether the same or different deployment if full deployment would of State safety belt use laws) addressing requirements should apply to the pose an injury hazard to a belted or the adverse effects of air bags. As part passenger and driver positions. unbelted occupant in the right front of that plan, NHTSA is issuing three The other rulemaking actions seating position, such as a child who is separate, but related, notices today. addressing the adverse side effects of air seated too close to the instrument panel, Each notice is intended to ensure that bags are as follows: a child who moves forward because of some or all of the risks are reduced, and • Based on the August 1996 NPRM, pre-impact braking, or a child who is benefits retained, to the maximum the agency issued on November 22, restrained in a rear-facing child restraint extent possible. They provide 1996, a final rule amending Standards system. immediate and/or interim solutions to No. 208 and No. 213 to require the problem. A later notice, a proposal improved labeling on new vehicles and 5. Determine the feasibility of to require smart air bags, would provide child restraints to better ensure that applying technical solutions to vehicles a permanent solution. drivers and other occupants are aware of not covered by NHTSA’s proposed In this notice, NHTSA is proposing to the dangers posed by passenger air bags rulemaking of August 1, 1996, to temporarily amend the agency’s to children. The labeling places prevent air bag-induced injuries to occupant crash protection standard to particular emphasis on placing rear- children in the passenger position. help reduce the fatalities and injuries facing infant restraints in the rear seats On November 8, 1996, the Center for that current air bags are causing in of vehicles with operational passenger Auto Safety (CFAS) petitioned the relatively low speed crashes to small, air bags. 61 FR 60206; November 27, agency to amend Standard No. 208 to but growing numbers of children, and 1996. The new labels are required on specify that a vehicle’s air bags must not occasionally to adults. Based on agency vehicles not equipped with smart deploy in a crash if the vehicle’s change research and analysis regarding the passenger air bags beginning February of velocity is less than 12 mph. CFAS optimal range of air bag depowering, the 25, 1997, and on child restraints noted that many of the crashes resulting agency has tentatively concluded that beginning May 27, 1997. in air bag fatalities, especially those of an average depowering of 20 to 35 • Based on the same NPRM, the children, involved very low changes in percent would reduce the risk of agency is issuing a final rule extending vehicle velocity. CFAS also petitioned fatalities in low speed crashes, while until September 1, 2000, a provision in the agency to institute investigations of substantially preserving the life-saving Standard No. 208 permitting vehicle several vehicle models for alleged capabilities of air bags in higher speed manufacturers to offer manual cutoff defects related to air bag deployment. crashes. switches for the passenger air bag for On November 13, 1996, the AAMA The agency is considering the new vehicles without rear seats or with submitted a letter that modified the adoption of either, or both, of two rear seats that are too small to proposal in its August 1996 petition for different approaches that would permit accommodate rear-facing infant rulemaking. In place of the 143 or facilitate an approximate 20 to 35 restraints. percent average depowering of current millisecond standardized crash pulse, • The agency also is issuing an NPRM air bags. One approach would be to AAMA requested a sled test protocol proposing to permit motor vehicle temporarily reduce the stringency of the incorporating a 125 millisecond chest acceleration requirement that an dealers and repair businesses to standardized crash pulse. unbelted dummy must meet in a crash deactivate, upon the request of Finally, on November 20, 1996, CFAS test at speeds up to 30 mph. The other consumers, driver and passenger air and Public Citizen petitioned the agency approach would be to temporarily adopt bags that do not meet the agency’s to begin rulemaking to require dual the AAMA’s modified proposal for a criteria for smart air bags. Final action inflation air bags. These bags would sled test protocol incorporating a 125 is expected in early 1997. • inflate more slowly, and thus less millisecond standardized crash pulse. In addition to these actions, NHTSA aggressively, than current air bags in NHTSA is seeking comments and will issue a separate supplemental low-speed crashes. In higher-speed information concerning the relative NPRM (SNPRM) to require a phasing-in crashes, they would inflate at the same desirability of these two approaches, of smart air bags, beginning on rate as current air bags. The petitioners including supporting data from industry September 1, 1998, and to establish assert that their proposal is the best with respect to the sled test. It is also performance requirements for those air solution in the near future and is requesting comments on the appropriate bags. The proposal will be issued in superior to depowering, since duration of such a temporary early 1997. depowering involves ‘‘some trade-off in amendment. NHTSA anticipates that it The next two tables summarize the safety protection and will not add would remain in effect for both the rulemaking actions included in the significant protection for unrestrained passenger and driver seating positions agency’s comprehensive program to children.’’ until smart air bags are installed address these air bag problems: Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 815

ACTIONS ADDRESSING PROBLEMS ASSOCIATED WITH PASSENGER AIR BAGS

Vehicles produced in next several model Vehicles produced Existing vehicles years thereafter

Passenger Labels. New, attention-getting labels fo- Labels. Final rule requiring new, attention- Smart air bags. NPRM proposing to air bags. cusing on dangers of air bags to chil- getting labels focusing on dangers of air phase in requirement for smart air dren, to be mailed by vehicle manufac- bags to children, in vehicles whose pas- bags. turers to owners of existing air bag ve- senger air bag doesn't qualify as a hicles. smart air bag, and on child seats. Deactivation. Proposal to allow deactiva- Cutoff switches. Final rule extending until tion of passenger air bag that doesn't Sept. 1, 2000, provision allowing cutoff have cutoff switch and doesn't qualify switch for vehicles (a) which lack a as a smart air bag. back seat that can accommodate rear- facing infant seats, and (b) whose passenger air bag doesn't qualify as a smart air bag. Deactivation. Proposal to allow deactivation of passenger air bag that doesn't have cutoff switch and doesn't qualify as a smart air bag. Depowering. Proposal to temporarily allow depowering of passenger air bags that don't qualify as smart air bags. Driver air Labeling. New, attention-getting labels Labeling. Final rule requiring new labels Smart air bags. NPRM proposing to bags. urging all occupants to use their safety urging all occupants to use their safety phase in requirement for smart air belts and sit as far back as possible to belts and sit as far back as possible. bags. be mailed by vehicle manufacturers to owners of existing air bag vehicles. Deactivation. Proposal to allow deactiva- Deactivation. Proposal to allow deactivation of driver air bags. tion of driver air bags that don't qualify as smart air bags. Depowering. Proposal to temporarily allow depowering of driver air bags that don't qualify as smart air bags.

In addition to these actions, the A 1995 NHTSA analysis of FARS data by 13 and 17 percentage points, agency is participating with automobile on restraint use among fatally injured respectively. motor vehicle occupants from 1983 to manufacturers, air bag suppliers, V. Depowering Air Bags insurance companies and safety 1994 indicates that primary enforcement organizations in a coalition effort to is the most important aspect of a safety A. Results of NHTSA Test Program address the adverse effects of air bags by belt use law affecting the rate of safety belt use. For virtually all states with a To determine whether current air bags increasing the use of safety belts and can be depowered to a degree that child seats. Substantial benefits could primary enforcement law, statistically significant increases associated with the makes a significant contribution to be obtained from achieving higher safety reducing the risk of serious or fatal belt use rates. If the safety belt use rate presence of such a law were detected using several different methods. The injury to occupants, especially children, were 75 percent in potentially fatal without substantial loss of protection for crashes instead of the current level of analysis suggests that the increase in use rates attributable to the enactment of a teenagers and adults, the agency 52.6 percent, an additional 4,000 lives initiated the research testing and would be saved annually. use law can be estimated to be (on the average) at least 25 percentage points, analysis program discussed in the The coalition has a three-point while the additional increase August 1996 NPRM. NHTSA explained: program that seeks to educate the public attributable to primary enforcement of The agency has initiated a research about safety belt and child seat use, the law is at least 15 additional testing and analysis program * * * at work with state and local officials to percentage points. These increases in the Vehicle Research and Test Center, improve enforcement of safety belt and safety belt use translate into an the agency’s in-house laboratory in child seat use laws and seek the estimated 12.6 percent decrease in Ohio. The program’s objectives are to: enactment of ‘‘primary’’ safety belt use fatalities in a state that enacts a safety • Assess the performance of air bag laws. In States with ‘‘secondary’’ safety belt use law, and an additional 5.9 systems in current production vehicles belt use laws, law enforcement officials percent decline in fatalities in a state in particular crash conditions, including are hampered in their ability to enforce that authorizes primary enforcement of the effects on out-of-position children. the requirement to use safety belts the law. • Assess the level of improvement because their inability to stop and ticket State data support these findings. On possible in out-of-position performance motorists for the sole reason of the average, states with a primary safety belt from changes to existing air bag motorists’ failure to use their safety law have usage rates that are 10–15 components, including downloaded air belts. A motorist may be ticketed by an percentage points higher than states bags, as well as newly developed pre- official for such failure only if the with secondary laws. In California and production systems. official has a separate basis for stopping Louisiana, states which recently • Provide visibility for air bag-related the motorist, such as the violation of a upgraded their laws to allow for primary technology, thus promoting the rapid separate traffic law. enforcement, safety belt usage increased adoption of newer technologies that will 816 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules help solve the out-of-position occupant conducted these tests using modified so aggressive that they could, if injury problem. versions of recommended test optimized, be depowered by more than The immediate focus of the program procedures formally adopted and issued 35 percent without substantial losses in is on the passenger out-of-position in early 1996 by the ISO for evaluating adult benefits.) problem as related to children. Several child restraint system interactions (ISO The reductions in injury measures vehicle models have been selected TR 14645) and out-of-position vehicle achieved by depowering an average of based upon field accident investigations occupant interactions (ISO TR 10982) 20–35 percent would contribute and air bag design characteristics. Both with deploying air bags. For the significantly to solving the problem domestic and foreign vehicles are passenger air bags, the agency created by overly aggressive air bags.17 included in the selection. The test conducted various tests using out-of- While this average level of depowering conditions include four different child position three-year-old and six-year-old would not eliminate all of the risk of positions similar to those recommended child dummies and normally- serious injury to all persons currently at by ISO [International Standards positioned, belted and unbelted 50th risk, it would eliminate much of the Organization], and represent worst case percentile male dummies.15 For the risk. The agency’s other rulemaking occurrences. These tests will provide driver air bags, the agency conducted actions would reduce the residual risk. ‘‘baseline’’ performance of air bag various tests using out-of-position 5th As noted above, the tested air bags systems when a child is an out-of- percentile female dummies and were depowered, but not optimized. position occupant. normally-positioned, belted and Had they been optimized, the injury NHTSA is inviting vehicle unbelted 50th percentile male dummies. measures for belted passengers would manufacturers and air bag and The agency also used computer-assisted likely have decreased even more and component suppliers to provide state-of- mathematical modeling in an attempt to those for belted drivers would likely the-art air bag systems. Systems that assess the effects of depowering on the have improved. Thus, they would have show significant improvements over forces experienced by occupants in air offered increased safety for belted baseline performance for out-of-position bag deployments. occupants.18 The results of the agency’s analysis of children will also be tested with adult- Summary of Effects of Depowering on sized dummies in full-scale crash this testing, as well as other available information, are included in the PRE. Air Bag-Related Fatalities for Particular conditions required in Federal At-Risk Occupant Groups standards. Portions of the PRE are summarized The test program will also address below. The ability of depowering to prevent air bag fatalities to occupants would other aspects of air bag safety following B. Effects of Depowering and Optimizing the out-of-position child study. These vary depending on a number of factors, include out-of-position driver tests, Overview. The agency’s testing and especially the location and belt use of vehicle crash sensor testing, and testing other available information 16 indicated the occupant. As shown in testing by of advanced air bag systems. The out-of- that depowering by an average of 20 to the agency of passenger air bags, the position driver testing will focus on 35 percent substantially reduced injury forces exerted by a deploying air bag small-sized female occupants who are measures for persons close to the air generally decrease as a function of sometimes injured due to the close bag, especially out-of-position children, increasing distance from the air bag proximity to the steering-wheel air bag while producing only small increases in module. Although the surface of an system. Testing will continue into fiscal injury measures for adult dummies. In expanding air bag in its initial moments year 1997. the agency’s testing, depowering more of inflation is potentially lethal, it (61 FR 40784, at 40799; August 6, 1996.) than 35 percent resulted in more rapidly changes within inches into an NHTSA has now tested the substantial increases in adult dummy injury-preventing and life-saving surface depowered air bags solicited from the injury measures with a large additional as it inflates and moves away from its vehicle manufacturers. The air bags had reduction in out-of-position child storage location. Thus, the farther away been depowered through the removal of dummy injury measures for only the an occupant is from an air bag as it starts certain amounts of propellant. While more aggressive air bags. Thus, it to inflate, the better off that occupant some of the air bags were depowered up appears that depowering at levels more will be. While this is true for depowered to 60 percent, most of them were than an average of 35 percent could as well as current air bags, depowering depowered an average of approximately result in losing a significant portion of can significantly reduce the size of the 20 to 35 percent. However, their design the benefits being provided by air bags zone within which serious injury is (e.g., folding patterns and venting) had without a commensurate reduction in possible or likely. not been optimized for the reduced child injury risk. (However, it is Passengers. The at-risk groups are levels of power. As noted below, the possible that some of today’s air bags are infants and young children. Properly agency believes optimization of the belted, forward-facing children who are tested air bags would have significantly 15 NHTSA did not conduct tests to determine the on a vehicle seat moved all the way effects of the depowered air bags on an infant back, should be at essentially no risk enhanced their performance. dummy (i.e., nine-month-old dummy) in rear- NHTSA tested baseline air bags (i.e., facing child restraints because the design of the from a deploying, depowered air bag, air bags of current design) and depowered bags would have precluded obtaining depowered air bags on the passenger meaningful measurements of those effects. Since all 17 The actual amount that the air bag in each side in three different vehicles, and on of the vehicles had top-mounted air bags (i.e., on specific vehicle model would need to be depowered top of the dashboard), the air bags would have to achieve these benefits would vary depending on 14 the driver side in one vehicle. NHTSA tended to deploy above the child restraints instead the aggressivity of its air bag system. The least of directly impacting them. This assessment aggressive air bags might need less than 20 to 35 14 The passenger air bag testing began in February appears consistent with the near total absence of percent depowering, while the most aggressive ones 1996. The testing of passenger air bags to estimate top-mounted air bags from the list of air bags might need more, as much as 60 percent. the effects of depowering was completed in involved in the fatal injury of infants. None of the 18 The agency’s belief that depowered air bags September. However, the testing of advanced nine air bags was mid-mounted. will provide increased benefits to real world passenger air bag designs and test conditions 16 Among the other items of information were the occupants compared to current air bags is based in continues. Testing of driver air bags was conducted results of testing performed by AAMA using out-of- part on actual crash data regarding the performance from May to September of this year. More tests of position dummies representing a six-year-old child, of air bags in an Australian passenger car, the driver air bags are planned for the future. a 5th percentile female and a 50th percentile male. Holden Commodore, which is described below. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 817 even if they are leaning forward while bag fleet for passenger cars and LTV’s. representing older children could not be belted. Moderately out-of position, The PRE estimates that 39 of the used to estimate potential benefits of forward-facing children would receive projected 90 fatalities could be depowering for infants. The agency has substantial benefits. Severely out-of- prevented by depowering air bags by an not made a specific, quantified estimate position, completely unbelted forward- average of 20 to 35 percent. This because of its roughness and therefore facing children would receive some includes all of the lap and shoulder its questionable value. benefits. Given their proximity to the air belted children who might otherwise be bag, infants in rear-facing child fatally injured and most of the Teenage and Adult Passengers. restraints would likely receive only moderately out-of-position children.21 Depowering air bags to an average of 20 small, unquantifiable benefits from With the additional depowering to 35 percent would likely benefit belted depowered air bags.19 possible under the generic sled teenage and adult passengers on Drivers. To the extent that there is an alternative,22 up to 83 of the projected balance, but could necessitate foregoing at-risk group, it is short-statured 90 fatalities could be prevented since the opportunity to save some unbelted women. Short, belted drivers on a more of the severely out-of-position teenage and adult passengers.23 These vehicle seat moved as far back as their children could be benefited. Thus, estimates are based on chest g measures stature permits would receive depowering would make it safe, from because, as noted in the PRE, chest g’s substantial benefits, particularly with the standpoint of the air bag, to place a are the most important measure for respect to neck injuries. They are not child in the front seat when necessary, assessing the effects on teenagers and likely to move as far forward as assuming that the child was properly adults, since chest g’s appear to have a unbelted drivers during pre-crash restrained in a vehicle seat that was stronger relationship to fatality risk than braking and during the initial stages of moved all the way back. The agency HIC. Further, the HIC increases due to a crash. Benefits for unbelted drivers on emphasizes that, even in the absence of depowering in this range were not that a vehicle seat moved all the way an air bag, the rear seat is a significantly significant. forward would depend on the drivers’ safer place for children to ride than the proximity to the air bag at the time of front seat. Belted Teenage and Adult Passengers. deployment. If they are at least two or Rear-Facing Children (Infants). Based The agency’s PRE assumes a 2.4 g three inches away at the time of on HIC reductions achieved in testing decrease in chest g’s for belted deployment, they should receive some the effects of depowered air bags on passengers under the 80 g alternative, benefits from depowering with respect three- and six-year-old dummies, the using an air bag that had been to chest and head injuries. Depowering agency believes that depowering could depowered but not optimized. This should help all drivers with respect to prevent the death of some of the 38 assumption was based on test results arm injuries. projected fatalities of infants. However, showing a 2.4 g decrease in chest g’s, Overall Effects of Depowering. The for reasons explained below, the agency although mathematical modeling PRE estimates the potential overall cannot quantify those savings. predicted almost no change for belted effects of depowering on all forward- As noted above, the agency did not passengers. Under the generic sled test facing children, teenage and adult perform any testing of depowered air alternative, a decrease of 1.9 chest g’s is occupants under the two alternative bags with infants in rear-facing infant assumed, based on mathematical proposals, the 80 g alternative and the seats. Thus, the agency does not have modeling. Both decreases would result generic sled test alternative. Both any baseline versus depowered air bag in saving additional lives compared to proposals would produce a mixture of data for rear-facing child restraints to benefits and disbenefits, with the estimate the potential benefits of current air bag designs. benefits primarily accruing to children depowering. However, HIC data from As noted above, NHTSA believes that and belted teenage and adult occupants, the testing of severely out-of-position a greater decrease in chest g’s, and and the disbenefits primarily accruing three- and six-year-old children indicate therefore a greater increase in life-saving to unbelted teenage and adult that HIC was substantially reduced by potential, would have occurred had the occupants. depowering, but not typically below the air bags not only been depowered, but The magnitude of the benefits and assumed infant injury reference value of also optimized for the new power level. disbenefits are estimated in the PRE by 500 HIC. HIC data are relevant because The depowered air bags tested by two different methods. Method One the primary cause of rear-facing infant NHTSA were not optimized in ways includes only fatalities, while Method fatalities in air bag deployments has that would likely have reduced the Two includes fatalities and serious been skull fractures. Since it is not chest g’s even more. For example, the injuries. The results of Method One, possible at this time to make air bags were not optimized with respect which produces slightly smaller upper appropriate adjustments to reflect to their venting rates. end values for lives saved and for greater susceptibility of infants to fatal foregone savings of lives, are discussed head injury, the HIC data for dummies The agency believes that it is unlikely below. that the vehicle manufacturers would 21 depower their air bags without also 1. Passenger Air Bags These estimated savings are based on the significant reductions in neck injury criteria values optimizing them. NHTSA believes that Child Passengers. Older, Forward- observed in all three tested vehicles. These values are the most important ones for estimating fatality the manufacturers would, out of Facing Children. Depowering could risk, since neck injury has been the typical fatal reasonable prudence, do both. prevent a significant number of the 90 injury mechanism for these children. This is significant because real world annual fatalities projected above for 22 As reflected below in the discussion of the forward-facing children 20 in an all air alternative proposals, it is assumed in the PRE that data from Australia regarding the the depowering of any air bags more than 35 performance of depowered driver air 19 As the agency has emphasized in numerous percent is achievable only under the second bags optimized for belted occupants contexts, infants in rear-facing child restraints alternative proposal (i.e., AAMA’s generic sled should NEVER be placed in the front seat of a pulse) since it appears that HIC or other injury suggests that depowering and vehicle with an operational passenger air bag. criteria could not be met under the first alternative 20 As noted above, the age range of the forward- proposal (80 g limit on chest g’s in the unbelted 30 23 As noted below, the occupants can essentially facing children fatally injured during air bag mph test) with air bag systems depowered eliminate the risk to them by the simple act of deployments is one to nine years old. significantly above 35 percent. buckling their safety belts. 818 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules optimizing current U.S. air bags could vehicle industry for introduction of the seeks comment from AAMA on how it significantly increase the effectiveness depowered air bags. As noted below, calculated those figures. of air bags for belted occupants and lead AAMA projected that its members could Further, to the extent that increased to large savings of lives. Those data, begin introducing depowered air bags numbers of people use their safety belts, drawn from crashes involving Holden within 6–9 months and complete the the potential losses in savings of passenger cars,24 indicate that air bags process across their fleets within a year unbelted passengers would not with lap/shoulder belts reduced AIS 2+ after those first introductions. NHTSA materialize. While increasing safety belt injuries to drivers by 39 percent solicits comments as to what effect, if use would reduce the benefits of compared to lap/shoulder belts alone. any, efforts to optimize these air bags depowering, by reducing the size of By comparison, current U.S. air bags prior to their introduction might have some groups (i.e., unbelted children and have an AIS 2+ effectiveness of 22 on the schedule for their introduction. drivers) vulnerable to air bag fatalities, percent when lap and shoulder belts are Comment is also sought whether there would be very large increases in worn. According to the PRE: adoption of the sled test suggested by the number of people saved by occupant The air bag systems in the Commodore are AAMA would enable vehicle restraints of one type or another. As designed to deploy as unaggressively as manufacturers to accelerate the noted above, if the safety belt use rate possible while still providing the necessary introduction of optimized and were 75 percent in potentially fatal protection to occupants of different size, depowered air bags. The agency also crashes instead of the current level of weight and sex who will be potentially involved in a variety of collisions. Great requests comments on what effects, if 52.6 percent, an additional 4,000 lives efforts have been taken in the development any, the optimization of air bag would be saved annually. NHTSA plans of the inflators and cushions to ensure they performance for the benefit of belted to work vigorously with the States to present as little risk as possible to occupants occupants would have on air bag increase safety belt use through public during inflation. Since the air bags have been effectiveness for unbelted occupants. education and authorizing primary designed to operate in conjunction with the Finally, comment is sought on the enforcement of safety belt use laws. safety belts, they are only required to Holden data and the reasonableness of Safety Tradeoffs. NHTSA has decelerate the occupant’s head and upper the assumption in the PRE that carefully considered the potential torso, as the primary load path is through the tradeoffs implicit in depowering belts. This is fundamentally different from effectiveness of U.S. air bags in reducing many other air bag designs, especially those belted fatalities could be raised passenger air bags. Given the wide range used to protect unrestrained occupants. substantially in the next several years of the above estimates concerning Systems optimized to protect unrestrained through depowering and optimizing. unbelted passengers, the agency occupants typically utilize high-performance Unbelted Teenage and Adult believes that the net effect of inflators in conjunction with cushions with Passengers. Depowering could depowering on safety could be positive. low venting rates. This combination ensures necessitate foregoing the opportunity to However, even if the net effect were that the air bags are sufficiently stiff to save a significant number of unbelted negative, the agency believes that the decelerate unbelted occupants. teenagers and adults. The PRE estimates opportunity to save a significant number (Page V–1) that, as a result of a significant increase of children who would otherwise be If such increased effectiveness could in chest g’s associated with depowering fatally injured by air bags justifies be obtained for belted passengers, it by an average of 20 to 35 percent under foregoing the opportunity to save some would offset a significant portion of the the 80 g alternative, there could be a unbelted passengers. There are several potential adverse impact of depowering reduction of between 86 and 280 reasons for this policy choice. estimated below on unbelted unbelted passengers who would have First, it is not acceptable that a safety passengers. As discussed in the PRE, otherwise been saved by current air device cause a significant number of current NHTSA analyses indicate that bags. This reduction reflects an assumed fatalities in circumstances in which fatal air bags in this country are 8.5 percent average increase of 11 g’s in the chest g’s or serious injuries would not otherwise effective in reducing belted fatalities. If for unbelted passengers as a result of occur. In making this statement, the the relationship in overall effectiveness depowering, but not optimizing air bags. agency draws a distinction between air of the Holden bag to the U.S. air bags This assumption was based on limited bags which are fatally injuring young for AIS 2+ injuries were the same for test results showing an 11 g increase in children in low speed crashes in which fatalities, the effectiveness of U.S. air chest g’s at 30 mph. Mathematical the other vehicle occupants are bags for preventing fatalities to belted modeling predicted a slightly lower uninjured, and other safety devices occupants could be as high as 15 increase. With greater depowering which may on occasion unavoidably percent. If depowering and optimizing under the generic sled test alternative, it substitute one type of injury for another U.S. air bags increased their was assumed that chest g’s would type that would occur in their absence effectiveness to that level, large savings increase by 22 g’s, based on sled tests (safety belts are a good example).25 in the lives of belted occupants could and mathematical modeling. That Those fatalities are particularly result. increase would result in a potential loss unacceptable in light of the agency’s The agency seeks comments, on a of savings of 115 to 336 unbelted analysis showing that depowering air model-by-model basis, if possible, from passengers. bags can significantly reduce the the vehicle manufacturers on what It should be noted, however, that number of children being fatally injured specific optimization measures they AAMA does not anticipate such losses. by air bags. would adopt and on whether such AAMA provided an estimate of the Second, it is also particularly optimization could be accomplished effects of depowering, based on NASS unacceptable that the vehicle occupants and incorporated in production air bags data, a number of analytic assumptions, being fatally injured are young children, within the time frame projected by the and sled/barrier test results. That and that the number of those deaths is organization estimates the potential 24 The Holden passenger cars have depowered air savings of 30 to 200 small adults per 25 In severe collisions, safety belts can seriously bags that have a ‘‘no-fire’’ threshold of 12.4 mph year due to increased effectiveness of bruise the chest of an occupant or even cause rib and an ‘‘always-fire’’ threshold of 17.4 mph. While fractures. However, the restraining force of the belt thresholds vary for U.S. air bags, a typical one has passenger and driver air bags for those would also likely prevent even more serious chest a ‘‘no-fire’’ threshold of 9 mph and an ‘‘always-fire’’ persons and the potential loss of up to or head injury from the occupant’s striking the threshold of 14 mph. eight large adults annually. The agency interior components of the vehicle. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 819 steadily growing. In confronting the permits, would benefit substantially Based on that increase, the PRE possibility of inevitable short-term from depowering. Belted drivers, in estimates a possible loss in savings of 9 safety tradeoffs between young children general, should benefit as well since to 41 unbelted drivers. Under the and unbelted occupants over 12 years of depowering appears to allow a better generic sled test alternative, the PRE age, the agency believes that greater ‘‘tuning’’ of the combined safety belt-air assumed a 10 g increase based on weight must be placed on protecting bag system for belted occupants. modeling. That increase suggests a young children. NHTSA has always Unbelted, out-of-position short drivers resulting loss of 221 to 650 unbelted given a high priority to protecting could receive some benefit as well. As drivers. children and accordingly has applied a result, there would be some reduction As noted above, there is reason to these different cost-benefit in the projected figure of 25 driver believe that these losses might not considerations to its rulemaking fatalities per year. occur. AAMA estimates the potential affecting children. The agency’s Belted Drivers. Depowering alone savings of 30 to 200 small adults per activities related to school bus safety increased the chest g’s for belted drivers year due to increased effectiveness of standards are an example of this policy. in NHTSA’s vehicle testing. Although passenger and driver air bags for those A major reason for giving priority to the tests showed a 7 g increase at 35 persons and the potential loss of up to protecting young children is that they mpg, there appears to be no logical eight large adults annually. Further, to are less mature than teenagers and reason for such an increase. In the same the extent that increased numbers of adults and thus less able to exercise test, chest g’s decreased for the belted people use their safety belts, the independent judgment, assess the risks passenger dummy. Further, modeling potential losses in savings of unbelted and take action to improve their safety. suggested only a marginal increase of 2 passengers would not materialize. The young children are more dependent g. The PRE assumes a 2 g increase for NHTSA plans to work vigorously with on the judgment and actions of other belted drivers under the 80 g alternative. the States to increase safety belt use persons. The oldest of the 32 children Under the generic sled test alternative, through public education and who have been fatally injured by an air chest g’s go up or down at different authorizing primary enforcement of bag was nine years old, and most of the speeds with the net result that there safety belt use laws. children have been much younger. would be no change in overall fatalities Arm Injuries. The agency believes that Nineteen were four to seven years old for depowered, but not optimized, air depowering would lead to a significant and nine were infants. Conversely, the bags. reduction in driver arm injuries unbelted teenagers and adults who As in the case of passenger air bags associated with air bag deployments. might not be saved as a result of and belted passengers, the agency Compared to MY 1994 vehicles, depowering can take action on their believes that the data concerning the air depowering air bags by an average of 20 own to protect themselves by simply bags in the Australian Holden passenger to 30 percent could reduce AIS 2–3 arm buckling their safety belts as required by car show that optimizing as well as injuries from 25,006 to 16,254, a the laws of 49 States and the District of depowering air driver bags would reduction of about 8,800 injuries. Columbia. produce a more favorable result for Safety Tradeoffs. NHTSA has Notwithstanding the justifications for belted drivers than the depowered air carefully considered the potential making the safety tradeoffs, NHTSA is bags tested by NHTSA. Since most of tradeoffs implicit in depowering driver concerned about them. It is because of the Holden data related to driver air air bags. Despite the wide range of the the possibility of disbenefits, especially bags instead of passenger air bags, the above estimates concerning unbelted for unbelted occupants, that the agency agency has good reason to be even more drivers, the agency believes that the net is proposing to make only a temporary confident about the implications of the safety effect of depowering passenger air change in Standard No. 208 to permit or Holden data for belted drivers in this bags could be positive instead of facilitate the depowering of air bags. country. With optimization, the agency negative. Even if the net effect were The agency will shortly issue a proposal believes that, instead of an increase in negative, the agency believes that the to require a phase-in of smart air bags. chest g’s under the 80 g alternative or no opportunity to avoid causing fatal Requiring smart air bags would not only change under the generic sled test injuries to some drivers justifies enable the agency to make depowering alternative, a decrease is likely. If foregoing the opportunity to save more a temporary measure, but would also depowering and optimizing U.S. driver unbelted drivers. The reasons for this ensure that the problem of adverse air bags increased their effectiveness to policy choice are similar to those for effects from air bags is fully addressed, as much as 15 percent, the savings depowering passenger air bags. and that air bags achieve their full safety would be 471 drivers. First, the principle of not potential for protecting a wide variety of Unbelted Drivers. Depowering by an affirmatively causing harm when harm vehicle occupants over an appropriate average of 20 to 35 percent under the 80 would not otherwise occur applies to all range of vehicle speeds. g alternative appears to slightly increase vehicle occupants. While it is probably the chest g’s of unbelted drivers. It is unavoidable that some safety devices 2. Driver Air Bags believed that the energy absorbing may on occasion substitute one type of Analysis of the net effect of steering column is the reason that chest injury for another type that would occur depowering driver air bags is more g’s do not increase in proportion to the in their absence, it is not acceptable that difficult and therefore less precise amount of depowering. In vehicle tests safety devices cause a significant largely because the agency has with depowered air bags, chest g’s number of fatalities in circumstances in conducted fewer tests of depowered increased by 2 g at 30 mph, but which fatal or serious injury would not driver air bags and because the test decreased by almost 3 g’s at 35 mph. otherwise occur. results for the unbelted drivers are a The results of modeling were mixed Second, the drivers who might lose mixture of small increases and also, but consistent with the vehicle test benefits as a result of depowering are decreases in chest g’s. Nevertheless, the results. Modeling predicted a slight unbelted drivers. They can protect agency believes that depowering driver increase at 30 mph and decrease at 35 themselves by taking the simple step of air bags would enhance safety. As noted mph. Since there was an increase at buckling their safety belts as required by above, belted short drivers who move some speeds, the PRE assumes a 2 g the laws of 49 States and the District of their seat as far back as their stature increase under the 80 g alternative. Columbia. 820 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

Nevertheless, as noted above, due to g’s rising by only 2 or 3 g’s for belted Therefore, an 80 g requirement for the possibility of adverse safety and unbelted drivers. Available NHTSA occupants protected by air bags appears tradeoffs, NHTSA is seeking to limit the modeling shows variable results (some to be at least as protective as a 60 g duration of the tradeoffs by proposing to chest g’s going up and others down), but requirement for belted occupants. make only a temporary change in all were well within the standard at 30 The agency notes that amending the Standard No. 208 to permit or facilitate mph. The agency believes that energy standard to allow chest accelerations of the depowering of air bags. The agency’s absorbing steering columns explain why 80 g’s does not mean that chest g planned proposal to require smart air the driver air bag can be depowered measurements in crash tests would bags would not only enable the agency without significantly affecting chest g’s. necessarily rise to that level. The to make depowering a temporary However, the agency conducted only agency’s test data suggest that while a measure should the adverse tradeoffs limited testing and did not conduct any change to 80 g’s would be sufficient to actually materialize, but would also angle tests. The agency requests permit or facilitate 20 to 35 percent ensure that the problem of adverse comments, including data, concerning downloading, air bags with effects from air bags is fully addressed, how depowering driver air bags by progressively higher levels of and that air bags achieve their full safety various percentages would affect the downloading (beyond 20 to 35 percent) potential. manufacturers’ ability to certify are likely to exceed Standard No. 208’s compliance with Standard No. 208. head injury criterion before they exceed C. Alternative Proposals The agency is proposing the adoption the 80 g requirement. The preceding sections of this notice of either, or both of two potential NHTSA also notes that the PRE’s discuss the benefits of depowering changes as alternative temporary estimates of safety impacts for the 80 g passenger and driver air bags by various amendments to Standard No. 208: either alternative do not assume an increase to amounts, and the net effects on safety. increasing the current chest acceleration 80 g’s, or to any particular level below While the agency recognizes that limit to 80 g’s, or replacing the unbelted 80 g’s. The estimates are instead based depowering air bags may result in some crash test requirement with a sled test on the agency’s analysis of the effects of adverse safety tradeoffs, primarily to protocol incorporating a standardized depowering air bags by 20 to 35 percent. unbelted teenage and adult occupants, it crash pulse. If the agency were to adopt The agency’s analysis assumes, based believes that depowering represents a both of these changes, a manufacturer on limited vehicle testing, that chest g’s desirable temporary means of could select either alternative at its would rise by an average of addressing the problem of fatalities and option. However, a manufacturer could approximately 11 g’s for the unbelted injuries from air bags. not mix the two options, i.e., the 80 g 50th percentile male. Since compliance Having tentatively decided that chest acceleration limit would not apply data show that chest g’s for this test depowering of air bags is desirable, it is in the case of the generic sled test. currently average about 43 g’s, the necessary for the agency to determine A discussion of each of the two assumed 11 g increase means that the whether a regulatory change is needed alternative approaches being proposed average would increase to about 54 g’s to permit this action and, if so, what the by the agency is presented in the next for the 50th percentile male dummy. most appropriate change would be. two sections. NHTSA intends for any regulatory Manufacturers have asserted that a change to Standard No. 208 to permit or regulatory change is needed because if 1. Approach I—Temporary Change in facilitate quick depowering of air bags. air bags were depowered to an Unbelted Chest Acceleration In order to reduce the leadtime for appropriate extent, manufacturers Requirement depowered air bags, the agency is would be unable to certify that all of NHTSA believes that the simplest proposing, as part of its 80 g proposal, their vehicles comply with Standard No. regulatory change would be to amend to establish a special two-year 208’s unbelted test requirements. the requirement which appears to be the enforcement policy for Standard No. As discussed in the PRE, the agency’s factor limiting the vehicle 208’s unbelted test requirements. testing shows that an average 20 to 35 manufacturers’ ability to depower The agency recognizes that, under percent depowering of passenger air current air bags by 20 to 35 percent. ordinary circumstances, manufacturers bags would result in chest g’s for some This points to reducing the stringency of making air bag design changes typically vehicles approaching or slightly the unbelted chest acceleration conduct extensive testing to ensure that exceeding Standard No. 208’s 60 g limit requirement. The agency is proposing to a vehicle will continue to meet the for the unbelted test. This indicates that increase the current limit from 60 g’s to standard’s performance requirements at a regulatory change would be needed to 80 g’s. However, the agency is any particular level. They do so despite permit this level of depowering for these requesting comments on both higher the existence of various provisions of vehicles. The agency’s limited data and lower values, and could select a Standard No. 208 that provide that ‘‘a suggest that the standard’s other different value for the final rule. vehicle shall not be deemed to be in requirements would not preclude this This alternative has other advantages noncompliance with this standard if its level of depowering, although the 1000 in addition to its simplicity. Occupant manufacturer establishes that it did not HIC limit would prevent significantly protection would continue to be have reason to know in the exercise of higher levels of depowering. measured in full-scale vehicle tests, due care that such vehicle is not in NHTSA does not have data protection in impacts at a range of conformity with the requirement of this concerning whether a regulatory change angles would be ensured, and the other standard.’’ See, e.g., S4.1.5.3. would be needed to permit 20 to 35 injury criteria would not change. The While NHTSA generally considers percent depowering of driver air bags, agency notes that recent biomechanical some degree of testing to be necessary but is requesting commenters to provide data generated for NHTSA suggests that, to satisfy this ‘‘due care’’ requirement, such data. As discussed in the PRE, with respect to potential chest injuries, under the proposed two-year policy, the when driver air bags depowered to that the human tolerance to acceleration is agency would consider engineering extent were tested by NHTSA at 30 higher for air bags than for belts, analyses indicating that a vehicle will mph, unbelted chest g’s increased from because the air bag delivers a more pass the unbelted test requirements with 49 to 51. Ford modeling for driver air broadly distributed, uniform loading to a depowered air bag as sufficient during bags shows similar results, with chest the chest than does a safety belt. that period to establish that the vehicle’s Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 821 manufacturer exercised due care to substantially in different types of (HIC, chest and femur loads) in a test ensure that the vehicle conforms with crashes, e.g., if the vehicle crashes into using the pulse. AAMA indicated that a the requirement, even in the absence of a rigid stone wall vs. a stack of hay. vehicle could not meet appropriate neck confirming crash testing. Of course, the Similarly, vehicles with different injury assessment reference values agency would retain the right to enforce designs typically experience (IARV’s) in a test using the pulse the requirements of the standard if the substantially different crash pulses in without an air bag. noncompliance was due to quality the same kind of crash, depending on NHTSA notes that the revised AAMA control deficiencies or other such things as the stiffness of the recommended crash pulse is similar to manufacturing problems. This policy vehicle structure and amount of crush that experienced by a large car in a would be reflected in an appendix to the space. Large cars typically have Standard No. 208 test, but milder than standard. relatively mild crash pulses, while small that experienced by a typical small car, cars and utility vehicles typically have utility vehicle, or light truck. The PRE 2. Approach II—Temporary more severe crash pulses. provides additional information about Replacement of Unbelted Crash Test Under AAMA’s recommended Requirement With a Sled Test Protocol crash pulses. amendment, the same crash pulse In December 1996, NHTSA conducted Incorporating a Standardized Crash would be used for all vehicles. The several tests of a 1993 Taurus according Pulse petitioner argued that the standard’s to the revised sled test protocol In August 1996, AAMA submitted a current test protocol ‘‘directly dictates recommended by AAMA, i.e., 125 msec, petition for rulemaking requesting, the level of the air bag’s inflator power 17.1 g. The agency repeated the same among other things, an immediate and it is the level of inflator power that test it had conducted with the earlier amendment to the requirements for unnecessarily increases the risk of pulse, i.e., a no-air-bag test with testing the ability of air bags to protect injury to vehicle occupants during air unbelted 50th percentile male dummies. unbelted occupants. The current bag deployment.’’ AAMA asserted that However, NHTSA also measured forces requirement measures occupant its recommended test protocol would on the neck so that it could make protection in a full scale crash test in allow for lower powered inflators to be calculations relative to IARV’s. The which a vehicle, equipped with test introduced into the market as quickly as agency also conducted tests with dummies at the outside front seating possible while maintaining air bag baseline and depowered air bags, and positions, is crashed into a barrier. protection for all occupants. with fifth percentile female dummies. Specified injury criteria, measured on In its August 1996 petition, AAMA NHTSA was still reviewing data the test dummies, must be met in barrier provided the parameters for its calculations for this new test series as crashes at speeds up to 30 mph, and a recommended pulse along with a this notice was being completed. The range of angles up to 30 degrees off- suggested mathematical formula, called agency expects to place the data in the center. a sine pulse. The sine pulse suggested docket at, or shortly after, the time this AAMA requested that this crash test by AAMA is described by the notice is published. NHTSA requests Π requirement be replaced with a sled test mathematical function: A=15 sin ( t/ comments on what conclusions should protocol. Under that protocol, all of a 143) Gs. be drawn from the data and on how the vehicle, or a portion of the vehicle After examining the sled test protocol results of the tests should be factored representing the interior, would be initially advocated by AAMA, NHTSA into the agency’s final decision mounted on a sled. The sled would be concluded that the standardized sled concerning this proposal. decelerated from 30 mph according to a pulse suggested in the petition is There are potential advantages and standard formula, called a crash pulse. representative of a very soft, or benign disadvantages to the approach of using There would not be an angle test, only crash. Indeed, the agency wondered a standardized crash pulse a direct frontal test. whether the pulse were so benign that representative of a large car as a NHTSA notes that sled tests can be a vehicle could meet the requirements temporary means of addressing air bag used by researchers to simulate what for protecting an unbelted dummy fatalities to children. The approach will happen to occupants in real world without an air bag. provides maximum flexibility to crashes. The crash pulse for a given sled To answer this question, NHTSA manufacturers in addressing these test is a major determinant of the tested a 1993 Taurus according to the fatalities. In its 1984 rulemaking stringency of the test, and how sled test protocol recommended by establishing the automatic protection representative the test is of how a AAMA, i.e., the 143 millisecond (msec) requirements that were in effect until particular vehicle will perform in sled pulse (15 g peak). The vehicle did the implementation of ISTEA, NHTSA particular kinds of real world crashes. not have a passenger air bag. Although recognized that technical problems To explain further, the term ‘‘crash the vehicle had a driver air bag, it was existed in designing air bags that would pulse’’ is defined as the acceleration- deactivated so that it would not deploy. not pose a danger to unrestrained small time history of the occupant Although protected by neither safety children in small cars. Because the compartment of a vehicle during a belts nor air bags, neither of the crash pulse of small cars is much more crash. This is typically represented in dummies had responses that exceeded severe than that of large cars, more terms of g’s of acceleration plotted the injury criteria specified in Standard aggressive air bags are needed to meet against time in milliseconds (1/1000 No. 208. the standard’s injury criteria. The In its November 13, 1996 letter, second). Generally speaking, the agency stated: occupant undergoes greater forces due AAMA suggested that the agency use a to secondary collisions with the vehicle more severe crash pulse, 125 msec., Manufacturers claim that little interior and restraint systems if the which corresponds to 17.1 g. AAMA development work has been done with air also argued that the agency should bags for small (e.g., subcompact or smaller) crash pulse g’s are higher at the peak, or cars and that a particular problem in these the duration of the crash pulse is consider injury measurements for the vehicles is how to protect small children, shorter, which would lead to higher neck in evaluating the crash pulse, who are not properly restrained, from the overall average g levels. rather than focusing solely on whether more rapidly deploying air cushion in such The crash pulse experienced by a vehicles without air bags could pass the vehicles. The Department believes that this particular vehicle will obviously differ current Standard No. 208 injury criteria problem can be mitigated and that technical 822 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules solutions are available, as described in the currently experience a severe crash AAMA’s petition. NHTSA notes that the FRIA. However, the lack of experience in this pulse in the current Standard No. 208 proposed procedure specifies that the area, as well as the lack of experience for test. While this maximizes manufacturer vehicle, or ‘‘a sufficient portion of the some companies in any form of air bag flexibility in addressing the fatalities to vehicle to be representative of the development, make the Department reluctant to mandate across-the-board air bags. 49 Fed. children, it also raises the possibility of vehicle structure,’’ is mounted on the Reg. 29001, July 17, 1984; See July 11, 1984 greater adverse safety tradeoffs, sled. The agency requests comments on FRIA, pp. III–7 to 11. especially to unbelted teenage and adult the practicality of conducting sled tests occupants. with whole vehicles, and on whether The AAMA recommended sled test In the context of a temporary the quoted language can be made more approach would essentially permit the amendment to Standard No. 208, objective. auto manufacturers to use air bags for however, the agency believes it is NHTSA notes that AAMA included in small cars and other vehicles with important to distinguish between what its initial petition both a recommended severe crash pulses (e.g., utility vehicles the manufacturers might technically be crash pulse and specified corridors for and trucks) that are similar to the ones permitted to do and the actions they that pulse. The agency believes that it is they use for large cars. This would would actually take in response to a necessary to specify corridors in eliminate some of the problems that regulatory change. Because of the addition to a specific pulse, because it exist in designing air bags for these substantial differences among current is generally not possible to duplicate vehicles that are not aggressive to air bags, it is likely that very different exact pulses. Manufacturers would be children, i.e., the risk of aggressivity levels of depowering are needed for required to certify that their vehicles would be normalized for all vehicles. different air bags in order to comply with the standard’s performance Another advantage of a sled test significantly reduce the risk of child requirements for all tests within the approach is that it reduces the time and fatalities. For some air bags, 10 percent specified corridors. The agency notes cost of doing certification testing, since depowering may be necessary; for that AAMA has not provided corridors sled tests are less destructive of the others, 60 percent depowering may be for its revised crash pulse, and has vehicle. Further, many more sled tests necessary. written to AAMA requesting it to can be conducted in the same time Because the same standards apply to provide a figure showing the period, since the motor vehicle industry all vehicles, it is possible that any mathematical equation for the revised and its suppliers have substantially regulatory change that would permit 60 pulse, a graph of the pulse and corridors greater capacity to conduct sled tests percent depowering of the most for the pulse. This information will be than barrier tests. aggressive air bags would permit greater docketed as soon as possible after it is The primary disadvantage of using a than optimal depowering of other air received by the agency. While the standardized crash pulse representative bags. That does not mean, however, that proposed regulatory text specifies only of a large car is that the test will be less manufacturers would depower all air a specific crash pulse and not the representative of actual performance for bags to the maximum extent permitted corridors for that test, the agency small cars and other vehicles with by the amendment. Instead, the agency expects to include such corridors in the severe crash pulses, i.e., the test anticipates that the manufacturers final rule. measures only air bag performance and would only depower particular air bags not total vehicle performance. The to the extent needed to address the child 3. Request for Additional Information approach also eliminates the effect of fatality problem, and preserve unbelted In order to help it reach a final angle test requirements, which ensure occupant protection to the maximum decision, the agency is requesting protection in frontal impacts that occur extent possible. additional information in several areas. at a range of angles rather than purely As part of proposing the AAMA First, the agency is requesting head-on. However, given that recent recommended sled test approach, the additional information and data to help NHTSA analyses indicate that current agency is proposing to add neck injury it refine its estimates of the potential fatality reducing benefits of air bags criteria for the 50th percentile male benefits and net effects on safety that drop off rapidly as crashes diverge from dummy. As indicated above, AAMA would be likely to result from direct ‘‘head-on’’ collisions, deleting the argued that the agency should consider depowering. As discussed above, the requirement for meeting injury criteria injury measurements for the neck in estimates presented in the PRE and in a 30 degree test might not evaluating the crash pulse. The source summarized above are necessarily based substantially degrade the ‘‘real world’’ of the proposed neck criteria is on very limited data. The agency benefits of air bags in such crash ‘‘Anthropomorphic Dummies for Crash requests commenters to address the configurations. (‘‘Fatality Reduction by and Escape Systems,’’ AGARD analyses presented in the PRE, Air Bags, Analyses of Accident Data Conference Proceedings of NATO, July including what conclusions should be through early 1996,’’ August 1996 1996, AGARD–AR–330. A copy of the drawn from the various test data, NHTSA Technical Report, DOT HS 808 relevant pages is being placed in the modeling data, Holden study, and other 470) NHTSA requests comments on this docket. The agency notes that GM uses information presented in that issue. the same neck criteria for its IARVs. evaluation, concerning the effect of As a practical matter, the AAMA Data provided by AAMA indicate that, depowering on fatalities and injuries. recommended sled test approach in general, all of these neck criteria The agency also requests commenters to appears to permit more depowering could not be met without an air bag. provide additional relevant information, than the 80 g approach. Under the 80 g The proposed neck injury criteria including test data, real world studies, approach, Standard No. 208’s HIC represent peak values for very short and engineering analyses. requirement appears to preclude duration loading. Much lower loads can Second, the agency recognizes that depowering much beyond the 20 to 35 be tolerated for longer duration loading. there are significant uncertainties percent range. The agency does not Time dependency criteria may need to associated with the analyses of the know how much depowering would be be specified. The agency solicits available data and the resulting permitted by the AAMA approach, but comments on this subject. estimates of benefits and disbenefits. If, believes it could be considerably greater The agency is proposing a test contrary to the agency’s expectation and than 35 percent, at least for vehicles that procedure similar to that presented in best judgment, this rulemaking were to Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 823 result in a large net loss of life, would Regulatory Action #2—80 g’s + delete various vehicle types to address those taking action (through the adoption of angle barrier fatalities and injuries. As discussed the proposed amendment) to save the passenger cars—43% earlier in this notice, there are children and short adult drivers being trucks—41% substantial differences between the fatally injured by air bags still be the total—42% passenger and driver air bag problems. correct policy choice? While the annual number of child Leadtime to implement—6 to 9 fatalities is very small but growing Third, the agency is seeking comment months to 3 years on the sled pulse test recently steadily, the annual number of adult recommended by AAMA. The agency Regulatory Action #3—80 g’s + delete fatalities does not appear to be growing. has written to AAMA requesting angle barrier + 15 msec HIC While the agency is aware of 18 children who have been fatally injured information on why AAMA selected the passenger cars—48% particular recommended pulse, the trucks—57% by air bags this year, it is aware of only amount of depowering that would be total—53% one driver who has been fatally injured permitted for various vehicle types, how by an air bag in the United States during Leadtime to implement—6 to 9 the same period. This apparent nearly those changes would translate into 30 months to 3 years mph barrier test results, and specific total absence of driver fatalities has manufacturer plans (on a model-by- Regulatory Action #4—125 msec occurred despite the greater than two-to- model basis, if possible) concerning the Generic Sled Test one ratio of vehicles with driver air bags to vehicles with passenger air bags and amount of depowering that would occur 100% of total fleet—leadtime to the four-to-one ratio of drivers to front if that alternative is adopted in the final implement—6 to 9 months, complete seat passengers. (As noted above, rule. This information will be docketed within 2 years. however, the agency’s figures for driver as soon as possible after it is received by Based on compliance data and its fatalities are not the result of a census.) the agency. The agency also requests limited testing of depowered air bags, Moreover, while most child fatalities specific estimates on the overall impacts the agency believes that an 80 g on safety, for children, belted and have occurred in very recent model year requirement would permit vehicles, the agency is aware of only unbelted passengers, and belted and manufacturers to depower essentially all unbelted drivers. one woman 5 feet 2 inches or less who of their vehicles by 20 to 35 percent, has died in a post model year 1992 Fourth, NHTSA requests specific while AAMA estimates that only 31 vehicle. Finally, the ratio of lives saved analysis comparing the potential percent of vehicles could be depowered by air bags to persons fatally injured is benefits and net effects on safety of the ‘‘to a level needed to provide very different for driver air bags than two proposed alternatives. The agency meaningful benefit.’’ passenger air bags. Driver air bags are notes that, in a November 13, 1996 One reason for the difference in the estimated to have saved 1500 lives, as submission, AAMA provided estimates assessment of the sufficiency of the 80 compared to 19 persons fatally injured. concerning its members’ ability to g requirement is that the manufacturers Passenger air bags are estimated to have depower air bags under various contemplate depowering more than 20– saved 164 lives, as compared to 32 alternative amendments to Standard No. 35 percent in the case of the more persons fatally injured. 208. AAMA stated that, for purposes of aggressive air bags. As discussed earlier There are also considerable its analysis, depowering was defined as in this notice, the agency’s testing differences between the size and basic reducing the force produced by air bags indicates that a considerably higher designs of driver and passenger air bags, to a level which is estimated to reduce level of depowering might be needed for and the mechanisms by which drivers the risk of air bag related fatalities to a some vehicles to significantly reduce and children are likely to become too 5th percentile unbelted female and the chance of fatality to out-of-position close to the air bag. As discussed earlier unbelted child as close to zero as children. in this notice, unrestrained or possible, while still meeting all belted NHTSA has not conducted angle tests improperly restrained children are occupant injury criteria. According to with depowered air bags, so another likely to be propelled up against the air AAMA, this generally corresponds to a reason for the difference might be that bag before deployment as a result of pre- 25 to 35 percent average reduction in Standard No. 208’s current angle test crash braking, and children in rear- total inflator output and peak mass flow. requirement could be a limiting factor facing infant restraints are positioned AAMA provided the following chart: even with an 80 g requirement. with their heads up against the air bags. The agency requests the individual Since drivers have their feet on the AAMA Estimates for Air Bag manufacturers to provide specific Depowering brake and/or accelerator pedals and/or analysis, on a model-by-model basis, if floor and are holding the steering wheel, The percentage of air bag systems that possible, comparing the amount of they are not likely to be propelled could be depowered noted below is depowering that would be permitted by forward as a result of pre-crash braking based on engineering judgment of an increase in the chest acceleration to the extent that children are. Pre- AAMA members relative to the ability limit alone to that which would be braking and crash forces will, however, to depower the current air bag design to permitted by the AAMA generic sled cause drivers to move toward the air a level needed to provide meaningful pulse test, and describing the reasons bag. Drivers who sit very close to the benefit. for any differences in these two levels steering wheel are at greater risk of of depowering. NHTSA has already # being too close to the air bag at the time Regulatory Action 1—Raise Chest requested this information from AAMA of deployment, especially if they are Criterion to 80 g’s and will docket it as soon as possible unrestrained. passenger cars—36% after it is received by the agency. Because driver air bags have been Fifth, NHTSA is requesting additional trucks—27% produced in large numbers for several information concerning the extent of the years longer than passenger air bags, the total—31% existing problem of driver fatalities and vehicle manufacturers have had time in Leadtime to implement—6 to 9 injuries from air bags, and the amount a number of instances to redesign driver months to 4 years of depowering that would be needed for air bags to incorporate a number of 824 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules countermeasures that reduce the risk to fatalities as child fatalities, because it among fatally injured vehicle occupants out-of-position occupants. In deciding does not have the resources to is less than 40 percent. Since smart air whether to adopt its proposal to reduce investigate every adult fatality that bags may soon be available that adjust the stringency of Standard No. 208 as it occurs in a vehicle with an air bag. air bag deployment levels based on belt applies to driver air bags, the agency Therefore, there may be driver fatalities use or nonuse, the possible need to will therefore take care that it is that the agency is not aware of. NHTSA amend the unbelted test requirements assessing both current and expected air is especially interested in knowing may be relatively short-lived. NHTSA bag designs. about fatalities that have occurred over will consider the issue of the unbelted By way of illustration, General Motors the past three years, especially test requirements in the context of its commented in December 1995 that it involving late-model vehicles. forthcoming rulemaking on smart air has introduced a number of air bag NHTSA also requests comments on bags. If it appears that such smart air system features that according to its test the extent to which depowering of bags will not be available in the near results should reduce the risk of current air bags would address driver air term, the agency will also consider inflation induced injury. These features bag fatalities, and on the extent of the whether there might be a percentage of include minimized inflator output and associated safety tradeoffs. Finally, the belt use at which the agency should bag size, module cover tear seam agency requests comments and data examine changing the unbelted test geometry, low break-out force module concerning the extent of the need to requirements and whether any cover, bag fold, and recessed air bag change Standard No. 208 to permit legislative amendments might be module. General Motors also stated that various levels of depowering, and on the necessary for that purpose. it was in the process of introducing air alternatives of raising the standard’s The agency is also not proposing to bag systems that include a number of chest g limit and/or adopting the AAMA reduce the unbelted test speed to 25 features that can help to further reduce recommended generic sled pulse test. mph. While this approach was the inflation-induced loads to which an In view of the potentially substantial advocated in the past by Ford, Ford has occupant can be subjected. These disbenefits associated with depowering now reached consensus with the other features (which repeat some of the driver air bags, the agency requests members of AAMA on the approach of comment about the advisability of earlier ones listed by that company) replacing the unbelted crash test limiting the proposed amendment to include recessed air bag modules, new requirement with a sled test protocol passenger air bags only. The agency bag folds, improved air bag module tear incorporating a standardized crash requests specific information about the seam geometries, low break-out force air pulse. In addition, the agency believes cost and leadtime implications of bag module covers, minimized bag that the proposed approaches are excluding driver air bags from the volumes, low output inflators, and air preferable to reducing the test speed amendment as well as the effects it bag venting technologies. because they would allow a more rapid NHTSA is also aware that other would have on reducing the magnitude introduction of depowered air bags. companies have also redesigned driver of the apparent disbenefits associated air bags in ways that should reduce air with depowering driver air bags. In Given the possibility that amending bag aggressivity. Agency testing of making that request, NHTSA recognizes Standard No. 208 to permit significant several new designs shows a substantial that considerable depowering of driver depowering might lead to a reduction in reduction in the risk to out-of-position air bags is already possible under the the lives saved by air bags, NHTSA has occupants, especially with respect to current standard. assessed other available approaches to chest injury, measured as V*C. the air bag safety problem in terms of However, the agency also tested some D. Consideration of Other Alternatives their relative timeliness, effectiveness driver air bags that showed a substantial In developing this proposal, NHTSA and net effect on safety. The results of reduction in some injury reference considered an array of regulatory and such a comparative assessment are values and increases in others. nonregulatory (e.g., education) relevant to deciding whether there is a NHTSA requests information on the approaches that would address the air need to reduce stringency of the potential which current driver air bags bag safety problem. standard and, if so, for how long. The have for creating adverse side effects. Other regulatory approaches to agency has considered the following Among other things, the agency requests facilitate depowering that have been alternatives in addition to depowering. vehicle manufacturers to provide advocated by the industry include (There is some overlap between the detailed information, on a model-by- dropping the unbelted test altogether, or alternatives; for example, smart air bags model basis, if possible, concerning all requiring that the unbelted requirements may incorporate some design features relevant design changes they have be met at speeds up to 25 mph instead that could also be used individually.) made, or expect to make, in their of 30 mph. Behavior-Related Actions Only. One vehicles that may have reduced, or will NHTSA is not proposing to drop the possibility would be for NHTSA to reduce, the risk of injury or fatality to unbelted test altogether. A number of focus entirely on behavior-related drivers from air bags. This would vehicle manufacturers have argued that actions, such as public information include changes in air bag designs, the inclusion of unbelted test efforts, encouraging the States to including deployment threshold requirements in Standard No. 208 improve and enforce their safety belt changes, and changes in related vehicle should be reconsidered in light of the and child restraint use laws, requiring components. This information will help fact that belt use has increased from 14 improved warning labels, and the agency assess the potential of percent in 1983 to around 68 percent permitting or requiring passenger adverse side effects associated with today. The agency recognizes that, at manual cut-off switches (a technological model year 1997 vehicles, as opposed to some point, belt use might rise to a change which would also require the potential associated with model year point at which retention of the unbelted behavioral changes to be effective) in all 1990–92 vehicles. test requirements might no longer be vehicles. Behavioral changes are The agency also requests information appropriate. The agency notes that belt especially relevant to the problem of on the number of driver air bag fatalities use in Australia is over 95 percent, and child fatalities caused by air bags, since that have occurred to date. NHTSA does averages 93 percent in Canada. these fatalities can be prevented by not have as much information on driver However, as noted above, the belt use behavioral means, e.g., ensuring that Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 825 children always buckle up and that they occupants (even unrestrained examination of the child fatalities that sit in the back seat whenever possible. occupants) is small.26 have occurred to date shows why such NHTSA is actively pursuing efforts to As indicated above, CFAS and Public an increase might be effective. bring about behavioral changes. The Citizen requested in their petition that, Of the 32 crashes in which for vehicles without dual stage inflators, deployment of the passenger air bag agency’s efforts include its public a minimum ‘‘trigger speed’’ of 10 mph caused a child fatality, NHTSA has, to education campaigns, addressed at barrier equivalent velocity (BEV) be set date, analyzed the severity of 24 of those length in the August 1996 NPRM and beginning with the 1998 model year for crashes. The estimated change in other Federal Register notices, and the passenger cars and 1999 for light trucks. velocity (delta V) was 20 mph or less in agency’s final rule (issued November 22, The CFAS petition submitted a few days 23 cases, 15 mph or less in 20 cases, and 1996) amending Standards No. 208 and earlier had suggested a 12 mph 10 mph or less in eight cases. For the No. 213 to require improved labeling to minimum deployment threshold. remaining case in the group of 23, delta provide better assurance that drivers Mercedes Benz suggested in its V was estimated at 20–25 mph. For an and other occupants are aware of the comment on the August 1996 NPRM the additional four cases, the agency did not dangers posed by air bags to children. possibility of using thresholds as high as estimate crash severity but did a damage As discussed above, NHTSA is a part 18 mph regardless of belt use, as a short- estimate. Damage severity was low in of a coalition including automobile term means of addressing the problem three cases and moderate in the fourth. manufacturers, air bag suppliers, of low speed fatalities to children.27 The remaining four cases out of the 32 insurance companies and safety NTSB recommended that the agency crashes are still under investigation. organizations working to improve safety evaluate the effect of higher deployment These data suggest that a moderate belt use by a variety of means, including thresholds for passenger air bags in increase in threshold could make a education efforts, urging the States to combination with certain recommended significant contribution to reducing adopt primary enforcement safety belt changes in air bag performance child fatalities due to air bags. use laws, and improving enforcement of certification testing, and then modify NHTSA recognizes that there are seat belt and child seat use laws. To the the deployment thresholds based on the many highly complex issues involved in extent that these efforts are successful, findings of the evaluation. The Holden selecting thresholds, including leadtime belt use rates should increase. air bag, in addition to being designed to issues and safety tradeoffs. The agency deploy less aggressively, has recognizes that the use of a higher The agency’s rulemaking concerning significantly higher thresholds than threshold, in combination with the manual cutoff switches for passenger air typical U.S. air bags. As noted above, mechanical crash severity sensors used bags also represents a way of reducing Holden bags have a ‘‘no-fire’’ threshold by some vehicle manufacturers, could air bag fatalities by behavioral means. of 12.4 mph and an ‘‘always-fire’’ delay the signal to inflate and thus The switches provide drivers, in threshold of 17.4 mph. While thresholds provide less time for the air bag to vehicles lacking a back seat large vary for U.S. air bags, a representative deploy, and possibly necessitate even enough to accommodate a rear-facing one has a ‘‘no-fire’’ threshold of 9 mph more aggressive air bag deployments. infant seat, with a means of ensuring and an ‘‘always-fire’’ threshold of 14 NHTSA believes this problem could be that their young children, particularly mph.28 addressed by adding an additional infants, would not be harmed by the air NHTSA stated in its August 1996 mechanical sensor, but that would bag. NPRM that it is interested in whether involve a hardware change and require However, while behavioral changes increasing the minimum vehicle speed additional leadtime. The agency are an important part of the efforts to at which an air bag deploys, and believes that the leadtime to achieve reduce low speed fatalities due to air possibly having different deployment universal usage of electronic sensors bags, it is not realistic to expect that thresholds for the unbelted and belted would be at least two years. For vehicles those efforts will fully solve the conditions, may be an effective way to which already have electronic sensors, problem. This is illustrated by the reduce air bag-induced injuries. An there would be a shorter leadtime for number of drivers who continue to drive increasing thresholds. without safety belts and the number of 26 As part of a comprehensive rulemaking on Additional tradeoffs involve the children who remain unrestrained, automatic restraints (then called ‘‘passive possibility of increased non-fatal restraints’’), in 1970 NHTSA proposed to require injuries. Auto manufacturers have stated despite decades of efforts to encourage that air bags not deploy when the vehicle impacts people to wear safety belts and use child a fixed barrier at any velocity less than 15 miles per that selection of thresholds is typically restraints, and the existence of laws hour, at any angle. 35 Fed. Reg. 16937, at 16938; based on their analysis of the crash requiring such use in most states. November 3, 1970. However, after considering severity at which serious facial, head, opposing comments from vehicle manufacturers, and brain injuries may occur. However, Accordingly, it is also necessary for the the agency did not adopt this requirement because agency to pursue technological changes. it determined that it was preferable to allow the agency believes that current steering manufacturers freedom in the design of their assembly designs might permit Higher Deployment Thresholds—i.e., protective systems at all speeds. 36 Fed. Reg. 4600, thresholds to be increased without Increasing the Vehicle Speed at Which at 4602; March 10, 1971. affecting the risk of facial fractures. Air Bags Deploy. NHTSA has also 27 That company currently uses a threshold of 12 NHTSA believes that manufacturers considered whether vehicle mph for unbelted occupants and 18 mph for belted occupants. If no occupant is present, the air bag could significantly increase deployment manufacturers should be required to does not deploy, regardless of the speed. thresholds and still comply with the increase the minimum vehicle speed at 28 The agency notes that regardless of what current requirements of Standard No. which air bags deploy, and possibly nominal design threshold is selected by a 208, although the agency does not have have different deployment thresholds manufacturer, some deployments will occur at speeds below that nominal value, and some air bags specific information concerning how for the unbelted and belted conditions, will not deploy at speeds slightly above that value. high. Standard No. 208 does not specify as a short-term solution for reducing air- The range of delta V’s at which a particular air bag a threshold requirement but does bag-induced fatalities and injuries. This may either deploy or not deploy is dependent on require vehicles to pass crash test would lessen the number of a number of factors, including manufacturer efforts to fine-tune the deployment decision to reflect requirements at speeds up to 30 mph. deployments at low speed where the different crash conditions with the same delta V, The agency believes that most, and possibility of serious injury for and variability inherent in air bag designs. perhaps all current vehicles could 826 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules probably pass the unbelted crash test design that can affect aggressivity. thresholds, but it appears that it would requirements without air bags at speeds Variables related to air bag design take at least two years to switch from as high as 16 mph. Therefore, for include air bag volume, fold patterns, mechanical to electronic sensors. manufacturers with the capability of tethering, venting, mass/material, shape Second, there are various alternatives increasing thresholds quickly, the and size of air bag module opening, and that may be superior to depowering, i.e., necessity of meeting the injury criteria module location and deployment path. alternatives that result in equal or at speeds below the higher thresholds Related vehicle design variables include greater benefits without raising the does not appear to be an impediment. such things as recessing the inflator/air possibility of adverse safety tradeoffs, The agency requests comments on bag in the steering wheel assembly or in but whose leadtime is longer than that whether this belief is correct. the dash, pedal adjusters, and safety belt of depowering. Therefore, while NHTSA notes that mandating a pretensioners. The agency notes that depowering appears to be an minimum deployment threshold would Holden safety belt systems use webbing appropriate short-term approach, there be design-restrictive and could clamps, which help reduce the payout is no need for permanently changing the undermine the development of two- and spooling of the webbing. In its Standard to enable manufacturers to stage systems that could deploy ‘‘softer’’ August 2, 1996 comment, CFAS cited fully address the adverse side effects of air bags at lower speeds. many of these variables (as well as ones air bags. The agency requests commenters to discussed above in connection with its NHTSA also believes it is important provide analysis comparing the petitions) in arguing that other means of to emphasize that a change in Standard benefits/disbenefits and leadtime for reducing air bag aggressivity should be No. 208 is not required to permit increasing deployment thresholds used before manufacturers resort to manufacturers to implement these other versus depowering. decreasing the inflation rates. alternatives. 29 The agency expects to Dual Stage Inflators. Public Citizen NHTSA agrees that there are many ultimately require smart air bags and CFAS petitioned for the agency to variables besides inflator power which through rulemaking. In the meantime, amend Standard No. 208 to require dual affect air bag aggressivity, including the agency is not endorsing depowering stage inflation air bags beginning with many cited by CFAS. Many of these over other solutions. Instead, the agency the 1999 model year. The petitioners changes already are being made. is proposing a regulatory change to add stated that dual inflation bags offer the However, any currently unplanned depowering to the alternatives available best solution in the near future, as they changes relating to these other variables to the vehicle manufacturers to address neither surrender protection for adults would generally require unanticipated this problem on a short-term basis. To in high-speed crashes, nor sacrifice low- hardware changes, which would take the extent that manufacturers can speed crash protection for children. The longer to implement than depowering. implement superior alternatives for petitioners asserted that inflator The agency believes that hardware some vehicles, the agency would deployment and trigger speeds can be changes require leadtimes of at least two encourage them to do so. adjusted now without waiting until the years. In addition, the agency does not Some commenters, including Takata, 21st century for smart air bags that use have information showing that these infrared or sonic sensors to determine expressed concern that a reduction in types of changes would be as effective Standard No. 208’s performance whether there is an out-of-position as depowering in addressing child occupant. requirements may delay the fatalities. introduction of superior alternatives. NHTSA notes that the leadtime for Smart Air Bags. NHTSA has similarly NHTSA does not believe a short-term implementing dual stage inflators is considered how quickly manufacturers longer than for depowering. As could begin installation of smart air 29 indicated above, manufacturers can All of these various other alternatives, i.e., dual bags. As discussed above, the vehicle level inflators, smart air bags, higher deployment begin introducing depowered air bags in manufacturers have indicated that they thresholds, and the replacement of mechanical six to nine months and potentially plan to introduce these devices as soon sensors by electronic ones, are permitted by the complete their introduction of as they become available. Several existing provisions of Standard No. 208. The depowered air bags by a year later. suppliers commenting on the August Standard already provides considerable design Based on comments from suppliers, the 1996 NPRM indicated that smart air flexibility for manufacturers. The Standard’s earliest that dual stage inflators could bags can begin to be phased in automatic protection requirements are performance begin to be implemented is for model beginning with the model year 1999 requirements and do not specify the design of an air bag. Instead, vehicles must meet specified injury year 1999, i.e., September 1998. fleet, i.e., approximately September 1, criteria, including criteria for the head and chest, While the leadtime is longer, it 1998. measured on properly positioned test dummies, appears that dual stage inflators could Tentative Conclusions about during a barrier crash test, at speeds up to 30 mph. provide essentially all of the benefits Alternatives. As the agency considers While the Standard requires air bags to provide associated with depowering, without technological alternatives to address the protection for properly positioned occupants raising the same possibility of safety adverse side effects of air bags, several (belted and unbelted) in relatively severe crashes, tradeoffs. This is because such designs things seem evident. First, for many and very fast air bags may be necessary to provide would in essence provide a vehicles, depowering has a shorter such protection, the standard does not require the ‘‘depowered’’ air bag for low to leadtime than any of the other same speed of deployment in the presence of out- of- position occupants, or even any deployment at moderate speed crashes (and possibly alternatives. While manufacturers can all. Instead, the standard makes possible the use of all belted crashes), and a fully powered begin introducing depowered air bag dual or multiple level inflator systems and air bag to provide protection to unbelted vehicles in six to nine months and automatic cut-off devices for out-of-position occupants in higher speed crashes. The potentially complete the depowering of occupants and rear-facing infant restraints. agency notes that dual stage inflators the air bags in their vehicles within Concepts such as dual level inflator systems and might qualify as smart air bags. about a year after they begin devices that sense occupant position and measure Other Air Bag-Related Changes, Not introduction, dual level inflators and occupant size or weight are not new, and were cited Including Smart Bags. In its November other smart air bags cannot begin to be by the agency in its 1984 rulemaking. NHTSA also notes that Standard No. 208 does not specify a 1995 request for comments, the agency phased in until at least September 1, vehicle speed at which air bags must deploy, and requested comments on many variables 1998. The agency has less information that thresholds could be raised substantially for in air bag design and related vehicle on the leadtime for raising deployment most current vehicles without creating a Standard No. 208 compliance problem. Therefore, regulatory changes are not needed to permit manufacturers to implement these solutions. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 827 temporary amendment would result in on this proposal. The agency also VI. Response to AAMA and CFAS such a delay. Instead, such an requests the vehicle manufacturers to Petitions amendment would provide maximum provide their latest timetables for This notice constitutes a granting of flexibility to the vehicle manufacturers implementing measures that will enable AAMA’s petition for rulemaking. The to address the problem, while they work them not only to solve the problem of agency is proposing the AAMA sled test on better solutions. Moreover, the the adverse side effects of air bags, but as one of the alternative amendments in agency’s forthcoming proposal for smart also to meet the current unbelted this rulemaking. The agency will air bags will seek to ensure that air bags requirements of Standard No. 208, i.e., consider AAMA’s request for reach their full fatality and injury 60 g chest acceleration, 1000 HIC, etc. rulemaking concerning out-of-position reducing potential. With respect to Advocates’ occupants in the context of the NHTSA recognizes, however, that its recommendation that the agency not anticipated SNPRM concerning smart proposal to permit or facilitate predicate major regulatory changes on air bags. depowering of air bags is on a faster anything less than clear and convincing The agency is addressing the request track than the rulemaking to require evidence that a modification will of Public Citizen and CFAS concerning smart air bags. Under the agency’s improve safety, NHTSA agrees that deployment thresholds in the context of rulemaking schedule, it plans to issue a caution should be exercised in making this rulemaking. Accordingly, it final rule concerning depowering before considers them to have been granted to a final rule to require smart air bags. a regulatory change. This is why the agency initiated its test program to the extent that this notice analyzes and Given that NHTSA contemplates discusses thresholds and subjects that permitting depowering until smart bags evaluate various issues related to material to public comment. are introduced, the question arises of addressing the problem of low speed air how the agency should limit the bag fatalities and injuries, including the VII. Granting of Petition for Use of 5th duration of the temporary amendment potential safety benefits and trade-offs Percentile Female Dummy associated with depowering air bags. for depowering. One approach would be NHTSA has decided to grant a to specify a several year duration and NHTSA also believes, however, that it has a duty to act to address this petition submitted by Anita Glass revisit the issue in the context of the Lindsey on September 1, 1996, to rulemaking on smart air bags. NHTSA problem, and promote the long term interests of safety, even in the presence amend Standard No. 208 to specify use requests comments on this issue. of the 5th percentile female test dummy The agency notes that Public Citizen of the possibility of short-term tradeoffs and inevitable remaining uncertainties in testing vehicles for compliance with and CFAS requested that the agency the standard’s air bag requirements. The require dual stage inflators quickly about the various approaches and alternatives. purpose of the amendment would be to rather than wait for more advanced provide greater assurance of the safety smart air bags. The agency believes E. Effective Date and Comment Period of short-statured women. The agency there is a consensus that smart air bags notes that the existing 5th percentile are needed to fully address the problem The proposed amendment might be female dummy may need further of child fatalities. The ‘‘first’’ stage of a major and thus subject to Congressional refinement before it is suitable as a dual stage inflator would be similar to review under the provisions in Title 5 device for measuring air bag depowered air bags in reducing but not of the United States Code concerning performance. Further, the simple eliminating the possibility of serious Congressional review of agency addition of this dummy to the standard injury or fatality to an out-of-position rulemaking. If the amendment is major, would not likely have a significant child. In its August 1996 proposal, the agency requests comments on effect on air bag design or performance. NHTSA noted that if it does decide to whether the amendment should be To have such an effect, the addition require smart passenger air bags, its make effective immediately upon leadtime decision would have to take would have to be coupled with the publication because it addresses an adoption of neck injury criteria. into consideration the differing urgent safety problem, most particularly leadtimes for the various kinds of smart Currently, there are no neck injury the death of young children. The criteria for the 50th percentile male bags under development, and the fact proposed amendment would permit or that the longest leadtimes will be those dummy used in air bag testing, although facilitate the immediate depowering of proposed criteria are included in this for the more advanced smart bags air bags, thereby helping to reduce child potentially offering the greatest net notice. fatalities from air bags. The proposed The agency contemplates initiating a benefits. The agency also noted that, as amendment would not impose any new a practical matter, the longer the time new rulemaking proceeding in the requirements, but instead would future to propose the adoption of the 5th needed to develop and implement the provide additional flexibility to most advanced smart bags, the greater percentile female dummy and to specify manufacturers in addressing this injury criteria, including neck injury the need would be to implement interim problem. designs that would protect children criteria, suitable for that dummy. Given the importance of enabling automatically. VIII. Rulemaking Analyses and Notices These same types of considerations manufacturers to address this urgent are relevant to the Public Citizen/CFAS safety problem quickly, NHTSA is A. Executive Order 12866 and DOT request. If the ultimate result is for the providing a shortened comment period Regulatory Policies and Procedures vehicle manufacturers to add smart air of 30 days. NHTSA has considered the impact of bags to their fleets, the agency believes F. Relationship to Other Actions this rulemaking action under Executive that the quickest and most efficient way Order 12866 and the Department of of accomplishing this task would be to NHTSA invites commenters to Transportation’s regulatory policies and go directly to smart air bags, which may address whether and how any of the procedures. This rulemaking document include dual stage inflators. other actions being taken by the agency was reviewed by the Office of NHTSA requests commenters to to address adverse effects of air bags Management and Budget under E.O. address how the agency should consider should affect its decision concerning 12866, ‘‘Regulatory Planning and this factor in reaching a final decision this proposal. Review.’’ This action has been 828 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules determined to be ‘‘significant’’ under approximately 15 and a half million reconsideration or other administrative the Department of Transportation’s passenger cars and light trucks per year. proceedings before parties may file suit regulatory policies and procedures. The NHTSA does not believe small in court. action is considered significant because businesses manufacture even 0.1 IX. Request for Comments of the degree of public interest in this percent of total U.S. passenger car and subject. light truck production per year. Interested persons are invited to The proposed amendments would not For air bag manufacturers, NHTSA submit comments on this proposal. It is impose any new requirements or costs, does not believe that there are any small requested but not required that 10 but instead permit or facilitate manufacturers of air bags. A separate copies be submitted. approximately 20 to 35 percent subsidiary (of a large business) set up to All comments must not exceed 15 depowering of current passenger air manufacture air bags would not be pages in length (49 CFR 553.21). bags. Any cost difference between considered a small business because of Necessary attachments may be baseline and depowered air bags would SBA’s affiliation rule under 13 CFR appended to these submissions without be negligible. § 121.103. regard to the 15-page limit. This A full discussion of costs and benefits C. National Environmental Policy Act limitation is intended to encourage can be found in the agency’s regulatory commenters to detail their primary evaluation for this rulemaking action, NHTSA has analyzed this proposed arguments in a concise fashion. which is being placed in the docket. amendment for the purposes of the If a commenter wishes to submit National Environmental Policy Act and B. Regulatory Flexibility Act certain information under a claim of determined that it would not have any confidentiality, three copies of the NHTSA has considered the effects of significant impact on the quality of the complete submission, including the this rulemaking action under the human environment. purportedly confidential business Regulatory Flexibility Act (5 U.S.C. information, should be submitted to the § 601 et seq.) I hereby certify that the D. Executive Order 12612 (Federalism) Chief Counsel, NHTSA, at the street proposed amendment would not have a and Unfunded Mandates Act address given above, and seven copies significant economic impact on a The agency has analyzed this from which the purportedly confidential substantial number of small entities. proposed amendment in accordance information has been deleted should be NHTSA notes that the cost of new with the principles and criteria set forth submitted to the NHTSA Docket passenger cars or light trucks would not in Executive Order 12612. NHTSA has Section. A request for confidentiality be affected by the proposed amendment. determined that the proposed should be accompanied by a cover letter The following is NHTSA’s statement amendment does not have sufficient setting forth the information specified in providing the factual basis for the federalism implications to warrant the the agency’s confidential business certification (5 U.S.C. § 605(b). The preparation of a Federalism Assessment. information regulation. 49 CFR Part 512. proposed amendment would primarily In proposing this amendment to affect passenger car and light truck permit or facilitate depowering, the All comments received by NHTSA manufacturers and manufacturers of air agency notes, for the purposes of the before the close of business on the bags. The Small Business Unfunded Mandates Act, that is comment closing date indicated above Administration’s regulations at 13 CFR pursuing the least cost alternative. As will be considered, and will be available Part 121 define a small business, in part, noted above, any cost difference for examination in the docket at the as a business entity ‘‘which operates between current and depowered air bags above address both before and after that primarily within the United States.’’ (13 is expected to be negligible. This date. To the extent possible, comments CFR § 121.105(a)). alternative was tentatively selected by filed after the closing date will also be SBA’s size standards are organized NHTSA because depowering would considered. Comments received too late according to Standard Industrial prevent many of the air bag related for consideration in regard to this action Classification codes (SIC). SIC Code fatalities that have been occurring and will be considered as suggestions for 3711 ‘‘Motor Vehicles and Passenger Car can be implemented more quickly than further rulemaking action. Comments Bodies’’ has a small business size the other alternatives. Further, will be available for inspection in the standard of 1,000 employees or fewer. depowering is the measure that industry docket. The NHTSA will continue to file SIC Code 3714 ‘‘Motor Vehicle Parts and itself has been recommending as a relevant information as it becomes Accessories’’ has a small business size means for preventing those fatalities. available in the docket after the closing standard of 750 employees or fewer. date, and recommends that interested E. Civil Justice Reform NHTSA believes air bag manufacturers persons continue to examine the docket would fall under SIC Code 3714. This proposed amendment would not for new material. For passenger car and light truck have any retroactive effect. Under 49 Those persons desiring to be notified manufacturers, NHTSA estimates there U.S.C. 30103, whenever a Federal motor upon receipt of their comments in the are at most five small manufacturers of vehicle safety standard is in effect, a rules docket should enclose a self- passenger cars in the U.S. Because each State may not adopt or maintain a safety addressed, stamped postcard in the manufacturer serves a niche market, standard applicable to the same aspect envelope with their comments. Upon often specializing in replicas of of performance which is not identical to receiving the comments, the docket ‘‘classic’’ cars, production for each the Federal standard, except to the supervisor will return the postcard by manufacturer is fewer than 100 cars per extent that the state requirement mail. year. Thus, there are at most five imposes a higher level of performance List of Subjects in 49 CFR Part 571 hundred cars manufactured per year by and applies only to vehicles procured U.S. small businesses. for the State’s use. 49 U.S.C. 30161 sets Imports, Motor vehicle safety, Motor In contrast, in 1996, there are forth a procedure for judicial review of vehicles, Rubber and rubber products, approximately nine large manufacturers final rules establishing, amending or Tires. manufacturing passenger cars and light revoking Federal motor vehicle safety In consideration of the foregoing, trucks in the U.S. Total U.S. standards. That section does not require NHTSA proposes to amend 49 CFR Part manufacturing production per year is submission of a petition for 571 as follows: Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 829

PART 571ÐFEDERAL MOTOR analyses indicating that a vehicle will 6. Section 571.208 would be amended VEHICLE SAFETY STANDARDS pass the unbelted test requirements with by adding S13 through S13.2 to read as an air bag as sufficient to establish that follows: 1. The authority citation for Part 571 the vehicle’s manufacturer exercised S13 Alternative unbelted test for of Title 49 would continue to read as due care to ensure that the vehicle vehicles manufactured before [date follows: conforms with the requirement, even in would be selected for final rule]. Authority: 49 U.S.C. 322, 30111, 30115, the absence of confirming crash testing. S13.1 HYGE Sled—Crash 30117, and 30166; delegation of authority at Simulation Test. Applying the 49 CFR 1.50. Amendment to Regulatory Text That Would Become Effective September 1, appropriate conditions of S8, mount the Alternative One 1997 vehicle, or a sufficient portion of the vehicle to be representative of the Amendments to Regulatory Text That is 4. Section 571.208 would be amended vehicle structure, on a dynamic test Currently in Effect by revising S6.3 to read as follows: platform at the manufacturer’s design 2. Section 571.208 would be amended attitude, so that the longitudinal center by revising S6.1.3 and S6.2.3 to read as § 571.208 Standard No. 208, Occupant line of the vehicle is parallel to the crash protection. follows: direction of the test platform travel and * * * * * so that movement between the base of § 571.208 Standard No. 208, Occupant crash protection. S6.3 The resultant acceleration the vehicle and the test platform is calculated from the output of the prevented. The test platform is * * * * * thoracic instrumentation shown in instrumented with an accelerometer and S6.1.3 The resultant acceleration at drawing 78051–218, revision R data processing system having a the center of gravity of the upper thorax incorporated by reference in part 572, frequency response of 60 Hz channel shall not exceed 60 g’s, except for subpart E of this chapter shall not class as specified in SAE Recommended intervals whose cumulative duration is exceed 60 g’s, except for intervals whose Practice J211 (MAR 95), not more than 3 milliseconds. However, cumulative duration is not more than 3 ‘‘Instrumentation for Impact Tests.’’ The for vehicles manufactured after [date 30 milliseconds. However, for vehicles accelerometer sensitive axis is parallel days after publication of final rule in the manufactured after [date 30 days after to the direction of test platform travel. FEDERAL REGISTER] and before [date publication of final rule in the The test is conducted at any velocity would be selected for final rule], the FEDERAL REGISTER] and before [date change up to and including 30 mph acceleration limit is 80 g’s, instead of 60 would be selected for final rule], this with acceleration of the test platform g’s. acceleration limit is 80 g’s, instead of 60 shown by the curve in Figure 6. An * * * * * g’s. inflatable restraint is to be activated at S6.2.3 The resultant acceleration ± * * * * * 25 2 ms after initiation of the calculated from the output of the acceleration shown in Figure 6. The test thoracic instrumentation shown in Alternative Two dummy specified in S8.1.8, placed in drawing 78051–218, revision R each front outboard designated seating 5. Section 571.208 would be amended incorporated by reference in part 572, position as specified in S11, shall meet by revising S3 to read as follows: subpart E of this chapter shall not the injury criteria of S6.1, S6.2, S6.3, exceed 60 g’s, except for intervals whose S3. Application. This standard S6.4 and S6.5 of this standard. cumulative duration is not more than 3 applies to passenger cars, multipurpose 13.2 Neck injury criteria. A vehicle milliseconds. However, for vehicles passenger vehicles, trucks, and buses. In certified to this alternative test manufactured after [date 30 days after addition, S9., Pressure vessels and requirement shall, in addition to publication of final rule in the explosive devices, applies to vessels meeting the criteria specified in S13.1, FEDERAL REGISTER] and before [date designed to contain a pressurized fluid shall meet the following injury criteria would be selected for final rule], this or gas, and to explosive devices, for use for the neck in the unbelted sled test: acceleration limit is 80 g’s, instead of 60 in the above types of motor vehicles as (a) Flexion Bending Moment—190 g’s. part of a system designed to provide Nm. SAE Class 600. protection to occupants in the event of * * * * * (b) Extension Bending Moment—57 a crash. Notwithstanding any language 3. Section 571.208 would be amended Nm. SAE Class 600. to the contrary, any vehicle by adding Appendix A at the end of the (c) Axial Tension—3300 peak N. SAE manufactured after [date 30 days after section to read as follows: Class 1000. publication of final rule in the Appendix A to § 571.208, Standard No. FEDERAL REGISTER] and before [date (d) Axial Compression—4000 peak N. 208 would be selected for final rule] that is SAE Class 1000. For vehicles manufactured after [date subject to a dynamic crash test (e) Fore-and-Aft Shear—3100 peak N. 30 days after publication of final rule in requirement conducted with unbelted SAE Class 1000. the FEDERAL REGISTER] and before dummies may meet the requirements 7. Section 571.208 would be amended [date would be selected for final rule], specified in S13 instead of the by adding Figure 6 to read as follows: NHTSA will consider engineering applicable unbelted requirement. BILLING CODE 4910±59±P 830 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

BILLING CODE 4910±59±C Toyota), an air bag supplier (Autoliv injuries. Ford said such a change might L. Robert Shelton, Development AB), and IIHS, expressed permit reductions in air bag Associate Administrator for Safety support for Ford’s recommendation. aggressivity, but to a much less Performance Standards. These commenters stated that this significant extent than under its Appendix—Past Public Comments change would allow a reduction of recommendation. Chrysler stated that it Related to Depowering Air Bags approximately 30 percent in the kinetic could not comment on an 80 g limit energy required in the air bag system, because it had no data to analyze the Note: This appendix will not appear in the and that lower kinetic energy in the air effects of such a change. Code of Federal Regulations. bag would lower the risk of air bag- In a presentation to the agency and While NHTSA has not issued a induced injuries to vehicle occupants. supplemental comment submitted after specific proposal concerning GM commented that it agreed with the comment closing date, GM depowering air bags, it did request the theory of the Ford recommendation suggested an alternative regulatory comments on this subject in both the and said that it was ‘‘directionally change that it argued would be effective November 1995 request for comments correct.’’ However, GM said that it has at reducing air bag-induced injuries. GM and the August 1996 NPRM. This not been shown that a reduction in the suggested keeping the unbelted testing section provides a summary of unbelted test speed to 25 mph would speed at 30 mph, but adopting a crash comments relating to depowering (or allow manufacturers to reduce the pulse to ‘‘better reflect’’ the crash pulse downloading) air bags, including kinetic energy in air bag systems enough in real world crashes and using a sled comments recommending alternative to influence the actual frequency of air test for unbelted testing. This concept short-term approaches. The agency bag-induced injuries to vehicle ultimately became the basis of the notes that the views expressed on the occupants. Nissan went further, saying petition for rulemaking submitted by November 1995 request for comments that it would not anticipate any major AAMA in August 1996. may in some instances be dated, since changes in air bag deployment No manufacturer argued that considerable research has been specifications because of a reduction in depowering air bags would totally solve conducted in this area since then. the unbelted test speed from 30 to 25 the adverse effects associated with mph. Nissan suggested that the unbelted children. In commenting on the A. November 1995 Request for test speed would have to be reduced to November 1995 request for comments, Comments 20 mph to reduce the risk of air bag- GM provided the results of a depowered A number of commenters addressed induced injuries in the real world. air bag inflator study. Based on that the issue of depowering air bags, BMW enthusiastically supported the study, GM concluded that depowered primarily in the context of either a concept of raising Standard No. 208’s inflators are ‘‘directionally correct,’’ but recommendation that Ford made to chest g limit, but suggested that the that deactivation is needed to meet reduce the test speed for Standard No. limit be raised to 75 g’s. If this were injury assessment reference values for 208’s unbelted test from 30 mph to 25 done, BMW said it would attempt to passengers who are at or near the mph, or the possibility of raising the recertify all of its vehicles with less instrument panel. This was said to be limit on chest g’s from 60 to 80. The aggressive air bags within one year. particularly true for children, because of agency specifically requested comments GM said an 80 g limit would not their lower injury tolerance. on the possibility of such an increase. A appear likely to permit any appreciable Not all commenters believed that number of commenters, including many reduction in inflator output, so GM Standard No. 208 should be changed. vehicle manufacturers (Chrysler, Ford, doubted it would reduce significantly Takata Corporation (Takata), an air bag BMW, Volkswagen, Porsche, and the potential for air bag-induced manufacturer, argued that restraint Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 831 system technology that has recently B. August 1996 NPRM produce a sufficient reduction in the become available, combined with As discussed above, subsequent to the risks to children to jeopardize the further improvements that are agency’s publication of the August 1996 proven life saving benefits of air bags in scheduled to be available within the NPRM, but before the comment closing high speed crashes. next 24 months (i.e., by approximately date, AAMA submitted a petition for The Insurance Institute for Highway the beginning of 1998), will significantly rulemaking concerning depowering air Safety (IIHS) stated that although reduce air bag injuries without the need bags. AAMA requested that NHTSA changes in the unbelted test for any changes to Standard No. 208. immediately announce, by means of a requirements in Standard No. 208 alone Takata stated that it is concerned that ‘‘direct final rule,’’ an amendment to will not eliminate all the air bag related the process of developing improved Standard No. 208 to replace the current fatalities, less aggressive inflators have technology to eliminate air bag injuries 30 mph unrestrained dummy barrier the potential to reduce the risk for will be delayed if Standard No. 208 is crash test requirement with a ‘‘standard infants and children as well as for changed in response to the present 30 mph unrestrained dummy sled test’’ adults. That organization stated that as concerns. requirement. The petitioner contended other air bag technology evolves to Advocates opposed reducing that the standard’s current requirement permit variable levels of protection Standard No. 208’s unbelted test speed. ‘‘directly dictates the level of the air based on crash severity and occupant That organization claimed that there are bag’s inflator power and it is the level characteristics, it will be possible to several flaws in the Ford of inflator power that unnecessarily further enhance protection for unbelted recommendation. According to increases the risk of injury to vehicle occupants over a wide range of crash Advocates, altering the inflation rate of occupants during air bag deployment.’’ severities. IIHS stated that, in the air bags may only address a portion of AAMA and each of its member meantime, the first and immediate step the problem, may not make any companies cited the AAMA petition in NHTSA could take would be to make difference at all, or may even create their comments on the August 1996 appropriate changes to Standard No. other safety concerns. Advocates also NPRM and urged that the agency 208 that would allow manufacturers to stated that the Ford recommendation is favorably respond to the petition. reduce the energy in current air bag based entirely on static computer The Association of International systems. modeling that is limited to a single Automobile Manufacturers (AIAM) The National Association of variable, air bag inflator rise rates, and stated that until smart air bag systems Independent Insurers (NAII) stated that that the recommendation is modeled on are available and become widespread in it believes changing the unbelted test only an adult driver. Advocates stated the fleet, it believes that Standard No. requirements in Standard No. 208 to that NHTSA should be reluctant to 208 should be changed to modify or permit less aggressive inflators should predicate major regulatory changes on eliminate the 30 mph unbelted occupant be a central part of NHTSA’s efforts to anything less than clear and convincing protection requirement so that air bags encourage smart systems, and cited evidence that a modification will could be made less aggressive. That concerns expressed by IIHS. improve safety. organization stated that not only would [FR Doc. 96–33307 Filed 12–30–96; 11:00 Center for Auto Safety (CFAS) this allow less aggressive air bags with am] submitted a comment in August 1996 less risk to out-of-position occupants, BILLING CODE 4910±59±P expressing a variety of concerns about but also it would allow manufacturers to the Ford recommendation, and arguing provide better occupant protection for that other means of reducing air bag belted occupants through such things as 49 CFR Part 595 aggressivity should be used before a combination of depowered air bags [Docket No. 74±14; Notice 107] manufacturers resort to decreasing the and other restraint system inflation rates. CFAS also stated that enhancements. AIAM stated that RIN 2127±AG61 initial analysis of the limited data unbelted occupants would still have the Air Bag Deactivation available strongly suggests that if benefits of air bag protection and a NHTSA does anything, it should set a lowered risk of out-of-position injury in AGENCY: National Highway Traffic minimum threshold speed below which many frontal crashes. Safety Administration (NHTSA), DOT. an air bag should not deploy. Honda stated that it believes the ACTION: Notice of proposed rulemaking. Mercedes Benz suggested that, as a passenger air bag system in its vehicles short-term solution, the agency consider is presently one of the least aggressive SUMMARY: As part of its efforts to higher deployment thresholds, as well relative to the air bags on other cars in address the problem of the adverse as the use of weight sensors (a type of North America. That company stated, effects of current air bag designs on smart air bag) for passenger air bags. however, that still lower inflator output children and certain adults, NHTSA is Mercedes noted that it currently uses a is necessary to ensure reduction of the issuing this proposal to make it possible 12 mph delta V threshold for unbelted aggressiveness of the passenger air bag. for vehicle owners to have their air bags occupants, and an 18 mph delta V Honda stated that if Standard No. 208 deactivated by vehicle dealers and threshold for belted occupants. That were amended to eliminate unbelted repair businesses. company indicated that it could use the testing or to reduce the crash test speed, Specifically, the agency is proposing 18 mph delta V threshold for all inflator output could be adjusted to allow dealers and repair businesses, occupants. Mercedes asserted, however, accordingly, reducing the risk of air bag upon written authorization of a vehicle that this would not currently be induced injury to out-of position or owner, to deactivate either the permitted by Standard No. 208. 1 unbelted occupants. passenger-side air bag, the driver-side Takata stated again that it strongly air bag, or both. Dealers and repair 1 Mercedes did not explain the basis for this urges NHTSA not to tamper with the 30 businesses are statutorily prohibited assertion. The Standard does not expressly prohibit mph unbelted barrier test as a short- from making Federally required safety such a threshold. Further, with appropriate interior design, including energy absorbing materials, it term expedient to reduce the risk of air equipment inoperative, but NHTSA may should be possible to meet the Standard’s bag injuries to children. That company exempt them from the prohibition in performance criteria. stated that it does not believe this would appropriate circumstances. In order to 832 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules qualify for the exemption, the dealer or VI. Granting of exemptions from State safety number of air bags in vehicles and repair business would be required to belt use laws for medical and improved technology. For persons aged provide the owner with a NHTSA psychological reasons 13 and older, passenger-side air bags information sheet describing the VII. NHTSA’s use of prosecutorial discretion have saved a net of 164 lives to date. with respect to air bag deactivation circumstances in which deactivation VIII. Proposal to permit deactivation The number, if any, of passengers aged may be appropriate, based upon the IX. Effective date less than 13 saved by air bags is comparison of the risks in those X. Regulatory analyses and notices unknown. What is known is the loss of circumstances of turning the air bag off XI. Comments 32 children. Thus, the net figure for versus leaving it on. The authorization passengers of all ages could be as low would contain a statement that the I. Background as 133. owner has received and read that sheet. While air bags are providing This disparity between driver and The agency is proposing to require that significant overall safety benefits, passenger air bags in the number of lives warning labels be installed as a NHTSA is very concerned that current saved is due in part to the fact that there condition of deactivation. designs have adverse effects in some are approximately twice as many Deactivating an air bag would not be situations. This notice proposes one of vehicles with driver air bags as there are permitted if the vehicle were equipped several actions that the agency is taking vehicles with passenger air bags. with a manual cutoff switch for the air to mitigate these effects. Passenger-side air bags have only been bag, or if the air bag were a ‘‘smart’’ air To address those effects, the agency widely available since the 1994 model bag, i.e., one capable of either shutting published in the Federal Register (61 year. Further, the driver seat is occupied off in appropriate circumstances or FR 40784) a notice of proposed more frequently than the front passenger controlling its deployment so as to rulemaking (NPRM) on August 6, 1996 position. protect against injuring a wide range of to amend Standard No. 208, Occupant As of November 30, 1996, however, occupants. Crash Protection, and Standard No. 213, 32 children have been killed as the Child Restraint Systems. result of air bag deployment in low DATES: Comments must be received by The NPRM proposed several speed collisions. Nine of these children February 5, 1997. Comments should amendments to reduce the adverse refer to the docket and notice number of were in rear-facing infant restraints. The effects of air bags, especially those on number of deaths is steadily climbing. this notice and be submitted to: Docket children. Section, Room 5109, National Highway Ten of the 32 died in calendar year 1995 The agency explained that eventually, and another 18 have died so far in Traffic Safety Administration, 400 either through market forces or Seventh Street, SW, Washington, DC calendar year 1996. Additionally, eight government regulation, it expects that children are known to have been 20590 (Docket Room hours are 9:30 ‘‘smart’’ passenger-side air bags will be a.m.– 4 p.m., Monday through Friday.) seriously injured as a result of air bag installed in passenger cars and light deployment, five of whom were in rear- FOR FURTHER INFORMATION CONTACT: For trucks to mitigate these adverse effects. facing infant restraints. One adult information about air bags and related NHTSA proposed that vehicles lacking passenger, a woman in her 90’s, has rulemaking: Visit the NHTSA web site smart passenger-side air bags would be been killed by an air bag. at http://www.nhtsa.dot.gov and click required to have new, attention-getting Fewer drivers than passengers have on the icon ‘‘AIR BAGS–Information warning labels and be permitted to have been killed by air bags despite the fact about air bags.’’ a manual cutoff switch for the that there are approximately twice as For non-legal issues: Mr. Clarke passenger-side air bag. Currently, only many vehicles with driver air bags as Harper, Chief, Light Duty Vehicle vehicles lacking a rear seat large enough there are with both driver and passenger Division, NPS–11, National Highway to accommodate a rear-facing infant air bags. The agency has verified the Traffic Safety Administration, 400 restraint are permitted to have such a deaths of 19 drivers as the result of air Seventh Street, SW, Washington, DC switch. The agency also requested bag deployments in low to moderate 20590. Telephone: (202) 366–2264. Fax: comments concerning whether it should speed collisions. Of these, 10 were (202) 366–4329. require installation of smart air bags women 5′2′′ or under, five were taller and, if so, on what date such a For legal issues: Ms. Rebecca women, and four were men, all of them requirement should become effective. MacPherson, Office of Chief Counsel, at least 5′9′′. One instance of a placental NHTSA also requested comments on NCC–20, National Highway Traffic abruption, leading to stillbirth, has been whether it should, as an alternative, set Safety Administration, 400 Seventh reported; injuries to the pregnant a time limit on the provision permitting Street, SW, Washington, DC 20590. woman were minor. Of the 19 adults manual cutoff switches in order to Telephone: (202) 366–2992. Fax: (202) killed by air bags, seven were age 64 or assure the timely introduction of smart 366–3820. above. The agency notes that older air bags. Finally, the agency proposed to drivers are more at risk than the average SUPPLEMENTARY INFORMATION: require rear-facing child seats to bear adult under most circumstances, Table of Contents new, enhanced warning labels. regardless of type of restraint used. Over I. Background II. Scope of Problem half the fatalities (10 out of 19) were in II. Scope of problem calendar years 1994 and 1995. Only two A. Deaths and injuries A. Deaths and Injuries drivers are known to have been killed as B. Public concerns regarding those deaths Based on data available as of a result of air bag deployment in 1996. and injuries November 1, 1996, NHTSA estimates Most of the driver fatalities occurred in C. Other health issues that driver-side air bags have saved a net vehicles manufactured in model years III. Overview of other agency responses to of 1,481 lives (1,500 drivers saved, 1990 and 1991. Only four drivers have problem IV. Statutory prohibition against deactivating minus 19 driver deaths caused by air been killed in vehicles manufactured air bags; statutory authorization for bags), with 826 of those lives saved in after model year 1992. The absence of exemption from prohibition 1995 and 1996 alone. The dramatic any upward trend in driver fatalities V. Suggestions by public concerning air bag increase in lives saved in the last two contrasts sharply with the growth in the deactivation years is due both to the increased number of child fatalities. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 833

For a more detailed discussion of the percent across the fleet. NHTSA (I)f selling the vehicle, to inform the new air bag deaths, and for tables that expects, in the near future, to issue owner of the current state of the front facilitate identifying the patterns separate supplemental notice of passenger airbag and to hand over all associated with the occurrence of those proposed rulemaking (SNPRM) relevant documentation. deaths, see Appendix A of this notice. proposing performance requirements for BMW’s comments may be found at smart air bags and a phase-in schedule Docket 74–14, Notice 100, item 40. B. Public Concerns Regarding Those for requiring installation of those In its comment, Volvo stated that Deaths and Injuries devices. (i)n Europe, due to consumer requests, NHTSA emphasizes that the vast IV. Statutory Prohibition Against most manufacturers have developed new car majority of people, both drivers and retail service procedures for deactivation and passengers, are much safer with an air Deactivating Air Bags; Statutory reactivating of passenger side air bags. This bag than without. Nevertheless, the Authorization for Exemption From is usually accompanied by clearly visible current number of deaths and serious Prohibition labels stating if any measures have been injuries attributed to air bag deployment Manufacturers, distributors, dealers 1 taken to change the air bag readiness status. in low speed crashes is disturbing. and motor vehicle repair businesses 2 Letters are sent to customers, at regular There are particular concerns about are prohibited by 49 U.S.C. § 30122 from intervals, to remind them of the system status. Letters are also sent to new vehicle small children, short-statured women, knowingly making inoperative any part owners, when the car is sold, to inform them pregnant women, and elderly of a device or element of design of this. individuals. In the aggregate, this group installed on or in a motor vehicle in constitutes a significant percentage of compliance with an applicable Federal Volvo’s comments may be found at the total U.S. population. Motor Vehicle Safety Standard. The Docket 74–14, Notice 100, item 22. statute, however, allows the agency to On October 28, 1996, Ms. DeeAnn C. Other Health Concerns prescribe regulations to exempt a person DePaul of Tacoma, Washington, filed a A large number of arm injuries have from the ‘‘make inoperative’’ provision petition for rulemaking to provide an also been attributed to air bag if such an exemption is consistent with exemption under 49 U.S.C. 30122 deployment, both in low speed and safety concerns. allowing motor vehicle dealers and higher speed crashes. Additionally, repair businesses to respond to requests Suggestions by Public Concerning Air numerous individuals have contacted by vehicle owners to have their driver- Bag Deactivation the agency regarding their concerns that side air bag deactivated. This notice a preexisting medical condition, such as In response to the August 1996 grants that petition. a degenerative bone disease or hearing NPRM, BMW and Volvo recommended VI. Granting of Exemptions From State problem, could be aggravated by air bag that the agency develop procedures Safety Belt Use Laws for Medical and deployment. The agency has no real- similar to those being used in Europe for Psychological Reasons world data on how air bags aggravate temporarily deactivating air bags. State safety belt use laws present a preexisting medical conditions. According to BMW, fairly analogous problem of III. Overview of Other Agency (i)n Europe, a BMW dealer is allowed to accommodating people with special temporarily deactivate the passenger air bag Responses to Problem for individuals who may have a special need problems that may make occupant On November 27, 1996, a separate or normally transport children after advising restraint use inappropriate. Virtually all final rule was published in the Federal them of the benefits of air bags and approval States have provisions in their safety Register (61 F.R. 60206) amending forms are signed. belt use laws for granting medical Standard No. 208 and Standard No. 213 BMW attached to its comment copies of exemptions to persons who obtain a to require improved labeling to better the approval forms and the warning statement from their physician ensure that drivers and other occupants label (‘‘Front passenger airbag certifying their patient’s medical are aware of the dangers posed by air deactivated’’) that is placed in the condition and stating why safety belt bags to children who occupy the front vehicle to indicate that the air bag has use by their patient is inappropriate. seat. The agency is also issuing a final been deactivated. The ‘‘formal Some States also provide for exemptions rule extending, until September 1, 2000, obligation concerning deactivation of based on psychological reasons. the permission granted to manufacturers front passenger airbag’’ form states that VII. NHTSA’s Use of Prosecutorial to install manual cutoff switches for the the owner of the vehicle is obliged Discretion With Respect to Air Bag passenger-side air bag for vehicles (N)ot to modify the airbag system in any Deactivation without rear seats or with rear seats that way or alter/remove the warning label, In 76 instances to date, the agency has are too small to accommodate rear- (T)o ensure that every front passenger in exercised its prosecutorial discretion facing infant seats. the above vehicle is aware that the front NHTSA has decided to terminate passenger airbag has been deactivated, with respect to requests to deactivate an rulemaking on that part of the August (T)o have the front passenger airbag air bag. Eighteen of the cases involved reactivated by an authorized BMW service children. NHTSA told vehicle owners 1996 NPRM that would have permitted station and all air bag vehicles to be equipped with whose vehicle lacked a back seat in which to carry an infant or who needed manual cutoff switches. This decision to 1 Section 30102 defines ‘‘dealer’’ as ‘‘a person terminate is based on the agency’s belief to monitor closely a child with a special selling and distributing new motor vehicles or medical condition 3 that the agency that informed deactivation is an option motor vehicle equipment primarily to purchasers that is easier and quicker to implement that in good faith purchase the vehicles or would not regard the temporary equipment other than for resale.’’ deactivation of the passenger-side air and that would not divert 2 Section 30122(a) defines ‘‘motor vehicle repair manufacturing resources from smart air bag by a dealer or repair business as business’’ as ‘‘a person holding itself out to the grounds for an enforcement proceeding. bag technology. public to repair for compensation a motor vehicle Today NHTSA is also issuing an or motor vehicle equipment.’’ NHTSA has 3 NPRM proposing to amend Standard interpreted this term to include businesses that The majority of medical conditions were related service vehicles with which there is nothing wrong to apnea, although exemptions have also been No. 208 to permit or facilitate by adding features or components to or otherwise granted for children in wheelchairs, and children depowering of air bags by 20 to 35 customizing those vehicles. with a tendency to spit up and choke. 834 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

The agency urged that the air bag be American Academy of Pediatrics away from the vehicle seat back and sit reactivated when the circumstances indicated in its comments on the on or near the front edge of the vehicle necessitating its deactivation ceased to agency’s August 6, 1996 NPRM (61 F.R. seat. An activated air bag would create exist. Additional requests, based on 40784) regarding the adverse effects of an added safety risk in these situations. medical conditions or the absence of a air bags that cases involving medical In issuing this proposal, NHTSA does rear seat, are pending. conditions are relatively few in number. not wish to encourage parents to place Similarly, in the other instances, the The National Association of Pediatric children in the front seat. Regardless of agency told owners that if their Nurse Associates & Practitioners whether a vehicle is equipped with a physicians concluded that the risks estimated that as many as 20,000 passenger air bag, the rear seat is the associated with their medical condition children under the age of 5, as well as safest place for a child to sit. However, and the deployment of their driver-side 5,000 infants, require some type of the agency believes it is necessary in air bag exceeded the risks to their safety medical technology assistance, but did establishing safety requirements to take from the air bag’s not deploying, not suggest how many of these children into account how people behave in the NHTSA would not regard deactivation have conditions requiring them to be real world. of the air bag as grounds for an carried in the front seat. In still other enforcement proceeding.4 There are a cases, parents may need to transport a NHTSA anticipates that depowering large number of pending requests from number of children greater than the air bags will be the first step in reducing women of small stature and a smaller number of rear seats in their vehicles. the risk of air bag injuries in future number from adults with various Parents may also permit children older vehicles. A depowered air bag is medical conditions. than infants to ride in the front seat intended to ensure the safety of The volume of these requests for because the children strongly desire to restrained children in the front seat, but deactivation, and the variety of concerns do so. even a depowered air bag could present underlying them, necessitate a NHTSA believes that, in the situations a risk to an infant in a rear-facing infant rulemaking response, as opposed to involving infants in the front seat, seat or to an unrestrained child who is individual, case-by-case resolution. deactivation would provide parents a thrown onto the dash as the result of pre-crash braking. Deactivation would VIII. Proposal To Permit Deactivation means of ensuring that their children would not be harmed by the air bag. thus continue to be permitted with NHTSA has tentatively decided to Rear facing infant seats can never be depowered air bags. exempt dealers and motor vehicle repair placed in front of an activated passenger However, the purpose of smart air bag businesses conditionally from the air bag without creating a risk of serious technology is to eliminate the risks of ‘‘make inoperative’’ prohibition so that injury or death. deployment from passenger-side air they can deactivate either or both the Deactivation is more problematical bags by either preventing them from driver- and passenger-side air bags at with respect to older children. Most of deploying at all or deploying them the request of a vehicle owner. the children who were older than safely in situations in which children Passenger Air Bag Deactivation infants and were killed by air bags were would otherwise be at risk. Accordingly, not using any type of occupant While NHTSA expects that smart the agency proposes that deactivation of restraint.5 Most of the rest were using passenger-side air bags will, within a passenger-side air bag would not be only a lap belt. Moreover, the agency several model years, offer a means for permitted if the air bag were equipped believes that some properly positioned significantly reducing or eliminating the with a cutoff switch or met the criteria and restrained children will benefit risk of adverse side effects to children established by the agency for smart air from an air bag in some types of crashes. from air bags, the agency believes that, bags. Nevertheless, the agency recognizes that in the interim, steps need to be taken to While some adult passengers may be not all older children are properly minimize the possibility that air bags at risk from air bag deployment, NHTSA restrained and that particularly children will harm children. Fortunately, in the emphasizes that it is aware of only one not using any restraint at all or using vast majority of cases, this can easily be adult passenger, a woman in her 90’s, only a lap belt are at some risk of being accomplished by placing children in the who has been killed by an air bag. killed by an air bag. Further, there have back seat. This is the safest place for Additionally, since most vehicles are been two instances in which a child children, regardless of whether a vehicle now equipped with a bucket seat or using a lap and shoulder belt was killed, has a passenger air bag. split-bench seat for the front passenger, However, some vehicles either do not and three reports of serious injuries to a passenger in that seat would not have have rear seats or have rear seats too children using lap and shoulder belts. to position the seat all the way forward, small to accommodate rear-facing infant NHTSA also realizes that parents may as some short-statured drivers must in seats. In addition, NHTSA believes it is find it is difficult to keep their children order to drive, and would thus usually necessary to recognize that in a variety properly positioned and restrained, e.g., be able to keep the seat far away from of circumstances and for a variety of some children may tend to remove their the dashboard. This should eliminate reasons, parents sometimes need to shoulder belt and/or move forward potential risks in such vehicles and the place children in the front seat of need for deactivating the passenger-side 5 For situations in which there is no option other vehicles that have back seats. In some than to place children in the front seat (not air bag for reasons relating solely to cases, such as situations involving including infants in rear facing infant seats who can stature. The distance of an adult infants with a special medical never safely be put in the front seat in front of an passenger from the dashboard would condition, there may be a need for air bag), NHTSA recommends the following: (1) The likely be sufficient even in the case of child should be properly restrained. This means, placing an infant in the front seat. The depending on the size of the child, a forward-facing a passenger sitting on a bench seat in a child seat, a booster seat plus a lap/shoulder belt, vehicle being driven by a person of 4 Some waivers were granted, without the or a lap/shoulder belt alone (for larger children); (2) short stature. To reenforce the need for submission of a physician’s statement, based upon The seat should be pushed all the way back, to a safe distance, the new warning labels either the unique characteristics of the medical maximize the distance between the child and the condition involved or the existence of physician’s air bag; (3) The child should be sitting with his/her stress the importance of sitting back statements attached to the deactivation requests of back against the seat back, and with any extra slack from the air bag and wearing safety other individuals with the same medical condition. removed from the safety belt. belts. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 835

Driver Air Bag Deactivation Appendix B of this notice) concerning five years a copy or other record of each For the reasons stated in the ‘‘Scope the circumstances in which deactivation authorization form received pursuant to of problem’’ section above, NHTSA sees may be appropriate, based upon the this regulation. considerably less need for deactivation comparison of risks in those NHTSA requests comments about the of driver-side air bags and anticipates circumstances of turning the air bag off appropriateness of these requirements. that most drivers would keep their air versus leaving it on. NHTSA anticipates Among the specific issues are the bags fully operable. The total number of that it will conduct rulemaking to following: deaths attributed to driver-side air bags update the sheet from time to time, as —In the rulemaking on cutoff switches, is less than two percent of the total additional data concerning air bag the agency estimated that there would performance are received and analyzed. number of lives saved, i.e., 19 deaths be more benefits than losses if the • Obtains from the vehicle owner a versus 1500 lives saved. The decline in misuse rate were less than 7 percent. signed, written authorization on the Since a seat with a deactivated air bag adult air bag deaths in the last several form attached as Appendix C of this years is believed to reflect the may sometimes be occupied by a notice, identifying the vehicle by make person who would benefit from the technological improvements that have and model, by model year, by VIN been made in driver air bags. air bag, is there a percentage of such number, and the seating position(s) of occupancy that would result in the Nevertheless, some current driver- the deactivated air bag(s). Such side air bags pose risks to some drivers, losses from deactivation outweighing authorization shall include an the benefits? particularly if they are so short-statured affirmation by the vehicle owner that he that they must sit very near the steering —Should deactivation of air bags be or she was given and has read a copy allowed at the owner’s option in all wheel. For this reason, the agency is of the NHTSA information sheet prior to proposing to permit deactivation of the cases or should deactivation be signing the authorization. limited to situations in which death driver side air bag in any existing • For each deactivated air bag, places or serious injury might be reasonably vehicle and in any future model year labels on both sides of the sun visor expected to occur? For example, vehicle that is not equipped with a above the air bag. smart driver-side air bag. The agency The label visible when the sun visor should deactivation of passenger-side will analyze future data concerning is in a stowed (up) position shall state: air bags be allowed only in cases in trends in driver air bag deaths and the which the vehicle owner needs to WARNING overall effects of deactivation on driver carry young children in the front seat? safety and determine at a later date Air Bag has been deactivated Should deactivation of driver-side air See other side whether it is appropriate to limit the bags be allowed only in cases in deactivation permission to vehicles The label visible when the sun visor which the vehicle owner or other manufactured before a specific date. As is in a down position shall state: driver of the vehicle has an acute noted above, data for the last several WARNING: (Insert ‘‘The passenger-side air medical condition, is of short stature, years indicate a decline in driver air bag bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air or is elderly? Would the deaths. If, as expected, depowered air bags’’) of this vehicle has(have) been administrative details involved in bags are found to reduce air-bag related deactivated. To reactivate, contact an establishing and implementing these deaths and injuries even further, authorized dealer or a qualified motor limitations overly complicate the vehicle repair business. NHTSA might consider limiting availability of deactivation? deactivation to vehicles that have not both visor labels shall have the word —If it becomes permissible to deactivate been depowered. ‘‘WARNING’’ in black lettering on a air bags, with the result an air bag The agency acknowledges that yellow background. could be turned off permanently, another category of driver might also • For each deactivated air bag, places should the agency permit lesser benefit from deactivation. NHTSA a permanent label on the adjacent door measures as well, such as a cutoff tentatively concludes that permitting jamb. switch that the vehicle owner could deactivation would be the best policy The label shall state: have installed to turn off air bags for those drivers whose medical or WARNING: (Insert ‘‘The passenger-side air temporarily? In a final rule issued in physical condition would make them bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air today’s Federal Register, the agency particularly vulnerable to air bag- bags’’) of this vehicle has(have) been has decided that cutoff switches induced injury. The proposal would deactivated. should not be permitted in new enable these persons to have their air The label shall have the word vehicles other than in those that do bags deactivated promptly, without ‘‘WARNING’’ in black lettering on a not have a rear seat large enough to having to petition the agency. By yellow background and shall also carry a rear-facing infant seat. Would creating a general permission for contain the name and address of the permitting a retrofit cutoff switch in deactivation, the proposal would also dealer or repair business that all vehicles conflict with the decision assure dealers and repair businesses that deactivated the air bag(s). not to allow cutoff switches in new they would not be violating the law if • Marks in the vehicle owner’s or vehicles generally? (NHTSA is not they deactivated an air bag. service manual (if available) the aware that any retrofit cutoff switches Specifics of proposal. The specifics of following warning: have been produced.) Should there be the proposal are as follows: WARNING: (Insert ‘‘The passenger-side air any limitations on the methods of The proposed exemption from the bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air deactivating air bags? For example, ‘‘make inoperative’’ prohibition is a bags’’) of this vehicle has(have) been should there be a requirement that the conditional one. A dealer or repair deactivated. To reactivate, contact an deactivation be performed in a business would be permitted to authorized dealer or a qualified mechanic. manner that facilitates reactivation? deactivate an air bag only if the dealer • Sends a copy of the signed, written —The agency solicits comments on the or repair business: authorization form to the manufacturer information contained in Appendix • Provides the vehicle owner with the of the vehicle. A. Is the information consistent with most recent edition of the NHTSA Each motor vehicle manufacturer information available to information sheet (copy attached as shall retain for a period of not less than manufacturers, insurance companies, 836 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

and others with knowledge about air on the visor label equal the area of the one bag operational. Comments are bag safety? new air bag warning label required by requested as to the prevalence of —The agency requests comments about the final rule published on November designs that would result in the the information sheet presented in 27, 1996? Should it be required to be deactivation of both air bags. Appendix B. The purpose of the sheet affixed over the labels required by However, as discussed above, the is to give vehicle owners a concise that final rule? Should a different area agency is dealing with an extraordinary description of the benefits and risks be specified for labels to be placed on situation. While air bags are providing associated with air bags, to guide vehicles manufactured with the significant overall benefits, they are also them in deciding whether they should smaller air bag warning labels causing an unacceptable risk in limited disconnect their air bags. Is the formerly required? circumstances. NHTSA believes it is information presented in a useful —Should the vehicle manufacturers be appropriate to propose a solution that way? Should more information be required to follow the practice, addresses that risk. provided, such as information from described by Volvo, of sending As noted above, NHTSA anticipates Appendix A, to help place the risk in periodic reminders to vehicle owners that the proposed exemption from the context? Should there be a more that one or both of their air bags are make inoperative prohibition would explicit focus on particular practices, deactivated and notifying new owners affect the vehicles produced in only the such as the carpooling of young after title to the affected vehicles model years before smart air bags are children? What distance should be changes? Is the proposed 5-year available. Driver-side air bag specified for a driver to sit back from period for record retention the deactivation would be permitted only the air bag? Should any information appropriate period? for existing vehicles and vehicles that be omitted? —Should dealers and repair businesses do not meet the criteria for smart air —The agency solicits comments on the be required to retain a copy or other bags. The agency may consider further contents of the authorization form record of the vehicle owner’s signed restricting the permission to deactivate attached as Appendix C. Use of the authorization statement? If so, for driver-side air bags by excluding form would be required for the dealer what period of time? vehicles with depowered air bags. or repair business that deactivates the Deactivation of a passenger-side air bag air bag. The form will be published Additional considerations. NHTSA would be permitted in any vehicle and sent to new and used vehicle recognizes that there are potential safety whose passenger-side air bag was dealers through their trade tradeoffs associated with air bag neither equipped with a cutoff switch associations. Trade associations, trade deactivation. The agency emphasizes nor met the criteria for smart air bags. publications and the Internet will be that only in limited instances would air This would allow vehicle owners who used to make the form available to bag deactivation be, on balance, in the either face potential risk from others, but it may be difficult to best interests of a driver or passenger. deployment themselves or who ensure that the forms are available Given the number of air bag deaths to regularly transport other increased-risk when needed. What additional date, the chance of a teenager or adult individuals to deactivate one or both air measures should be taken to ensure being killed by an air bag is significantly bags. the availability of the forms? Should less than the chance of being involved NHTSA strongly recommends that air the form state, as proposed, that the in a crash in which an air bag would bag deactivation be undertaken only in vehicle owner is willing to allow reduce such a person’s injuries, whether instances in which the vehicle owner labels to be installed? Should the form the individual is belted or unbelted. believes that the air bag poses an provide an express statement that the Moreover, while a fully restrained, unreasonable and significant risk given person signing it owns the vehicle forward-facing child can be killed by an that individual’s particular and is not a lessee? Alternatively, air bag, the deaths of only two fully circumstances. However, given the should a lessee be allowed to sign for restrained, forward-facing children have administrative complexity and time that an owner? Should the form require been confirmed as having been caused would be associated with reviewing signature by all co-owners? Would the by an air bag. individual applications, the agency is form protect the dealer or repair Regardless of the manner of proposing to allow any person to choose business from liability if the absence deactivation, deactivation will cause the to deactivate, without having to of an air bag is subsequently alleged air bag readiness indicator (most demonstrate any particular need. to be the cause of an occupant’s vehicles use a single indicator for both Since deactivation totally disables the injuries? Should a more explicit air bags) to come on, indicating that one air bag, thereby eliminating any safety release of liability be added? If so, air bag or the other is not operational. benefit for vehicle occupants not at risk how should it be worded? If the passenger air bag is deactivated of serious injury due to air bag —In a vehicle in which only the and the driver-side air bag subsequently deployment, deactivation should be passenger-side air bag is deactivated, malfunctioned, the indicator would not sought only if no other option is should labels be placed on the provide any separate indication of that available. The agency urges all owners driver’s sun visor as well as the malfunction. The agency invites who choose to deactivate their air bag to passenger’s sun visor? Such comments on whether the readiness reactivate the air bag once the perceived additional labels might be helpful to indicator should be required to remain need for deactivation has abated. a driver who is unfamiliar with the functional. vehicle or to a subsequent purchaser NHTSA also notes that it may be IX. Effective Date of the vehicle. difficult in some vehicles to deactivate The agency tentatively concludes that —While NHTSA has not proposed the one air bag without deactivating the there is good cause to make the size of the message area or the other air bag as well. This could occur proposed regulation effective lettering height, it requests comments if one fuse or wire controls both bags. immediately upon publication of a final on whether it should specify the Under these circumstances, deactivation rule. In view of the need expressed by message area or lettering height and, of one bag might unnecessarily cause vehicle owners for deactivation, it if so, what sizes would be the deactivation of the other bag even appears that there is a need for appropriate. Should the message area when the owner might prefer to keep immediate relief. Further, the regulation Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 837 would be voluntary, since it would the proposal as a final rule, it would time for reviewing instructions, permit deactivations, not require them. discuss the costs in a Final Regulatory searching existing data sources, The agency requests comment as to the Evaluation for this rulemaking. gathering and maintaining the data appropriateness of an immediate needed, and completing and reviewing B. Regulatory Flexibility Act effective date. the collection of information. NHTSA has considered the effects of Title: Authorization to deactivate an X. Rulemaking Analyses and Notices this proposed rulemaking action under air bag. A. Executive Order 12866 and DOT the Regulatory Flexibility Act. I hereby OMB Number: Regulatory Policies and Procedures certify that it would not have a Need for Information: The significant economic impact on a authorization would be required before NHTSA has considered the impact of substantial number of small entities. a motor vehicle dealer or repair business this rulemaking action under Executive While some dealers and repair could deactivate an air bag. Order 12866 and the Department of businesses would be considered small Proposed Use of Information: The Transportation’s regulatory policies and entities, the proposed requirements authorization would establish that a procedures. This rulemaking document would not impose any mandatory vehicle owner was fully informed of the was reviewed by the Office of significant economic impact. consequences of disconnecting an air Management and Budget under E.O. bag and would protect the motor vehicle 12866, ‘‘Regulatory Planning and C. National Environmental Policy Act or repair business from liability for any Review.’’ This action has been NHTSA has analyzed this proposal for injuries occurring as the result of determined to be ‘‘significant’’ under the purposes of the National deactivation. The label on the vehicle the Department of Transportation’s Environmental Policy Act and would serve to inform subsequent regulatory policies and procedures, determined that a final rule adopting owners that an air bag had been because of the degree of public interest this proposal would not have any deactivated. The motor vehicle in this subject. significant impact on the quality of the manufacturers would retain the This action would not be human environment. authorization forms to help identify economically significant. It would not vehicles with deactivated air bags. require a motor vehicle manufacturer, D. Executive Order 12612 (Federalism) Frequency: As often as a motor dealer or repair business to take any The agency has analyzed this vehicle owner requests to have an air action or bear any costs except in proposal in accordance with the bag deactivated. instances in which a dealer or repair principles and criteria set forth in Burden Estimate: Deactivation would business agreed to deactivate an air bag. Executive Order 12612. NHTSA has affect motor vehicle owners, dealers, In such an instance, there would be determined that this proposal does not repair businesses, and manufacturers, costs associated with such an action per have sufficient federalism implications but it is wholly voluntary. It is difficult se as well as labeling. The agency to warrant the preparation of a to estimate the number of deactivations estimates that deactivation would Federalism Assessment. that will be performed or the resulting typically require less than one-half hour burden. As of December 1996, the of shop time, at the prevailing local E. Civil Justice Reform agency has received approximately rates of between $30 and $50 per hour. This proposed rule would not have 1,000 explicit requests for deactivation. Similar costs would be incurred upon any retroactive effect. Under 49 U.S.C. As an initial number, the agency is reactivation of an air bag. There is no 30103, whenever a Federal motor estimating that dealers will receive more reliable way to estimate the total vehicle safety standard is in effect, a than 1,000 completed authorization number of deactivations that may be State may not adopt or maintain a safety forms annually under this procedure. performed as the result of the proposed standard applicable to the same aspect Respondents: It is not known how regulation, but the agency expects that of performance which is not identical to many vehicle owners would be it would be more than a thousand. The the Federal standard, except to the expected to request air bag deactivation, agency requests comments on this extent that the state requirement but the agency is estimating that more estimate, as well as any estimates of the imposes a higher level of performance than 1,000 would request and execute potential safety tradeoffs of deactivating and applies only to vehicles procured the form annually. There are the air bag for a seating position that for the State’s use. 49 U.S.C. 30161 sets approximately 20 thousand new motor may be occupied by a person who forth a procedure for judicial review of vehicle dealers, approximately 30 would have benefited from the air bag. final rules establishing, amending or thousand used car dealers and several Based on the Final Regulatory revoking Federal motor vehicle safety hundred thousand motor vehicle repair Evaluation for the agency’s final rule standards. That section does not require businesses. Any of these businesses requiring new, enhanced warning labels submission of a petition for would be required to obtain an relating to air bags, the labels proposed reconsideration or other of a petition for authorization from a vehicle owner by this notice would cost between 15 reconsideration or other administrative before deactivating an air bag. Assuming and 25 cents per vehicle. In addition, proceedings before parties may file suit that some businesses would be called on motor vehicle manufacturers would in court. to deactivate air bags by more than one have some minor recordkeeping vehicle owner, the number of businesses F. Paperwork Reduction Act expenses. that would be called upon to deactivate In view of the preceding analysis and This notice contains information would be somewhat smaller than the the analysis in the regulatory evaluation collections that are subject to review by number of owners. on labels, the agency regards the costs the Office of management and Budget Form(s): A label and authorization associated with deactivation to be so under the Paperwork Reduction Act of form are described in this notice. minimal that a full regulatory evaluation 1995 (P.L. 104–13). The title, Average burden hours per respondent: for this notice is not warranted. The description, and respondent description NHTSA estimates that the average time agency requests comments about the of the information collections are shown required to read the information about anticipated costs associated with this below with an estimate of the annual air bag safety and to read and execute proposal. If the agency decides to adopt burden. Included in the estimate is the the authorization form would be 838 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules approximately 30 minutes. The time limitation is intended to encourage § 595.1 Scope. required for the dealers to affix the commenters to detail their primary This part establishes conditions under labels, file the authorization forms, and arguments in a concise fashion. which air bags may be deactivated and send a copy to the manufacture would If a commenter wishes to submit associated recordkeeping requirements. be minimal, as would the time required certain information under a claim of § 595.2 Purpose. for the manufacturers to receive and file confidentiality, three copies of the the forms. complete submission, including the The purpose of this part is to provide Individuals and organizations may purportedly confidential business an exemption from the ‘‘make submit comments on the information information, should be submitted to the inoperable’’ provision of 49 U.S.C. collection requirements by [insert date Chief Counsel, NHTSA, at the street 30122 and permit motor vehicle dealers 30 days after publication in the Federal address given above, and seven copies and motor vehicle repair businesses to Register] and should direct them to the from which the purportedly confidential respond to consumer requests to docket for this proceeding and the information has been deleted should be deactivate driver and passenger air bags. Office of Management and Budget, New submitted to the NHTSA Docket § 595.3 Applicability. Executive Office Building, Room 10202, Section. A request for confidentiality This part applies to motor vehicle Washington, DC 20503, Attention: Desk should be accompanied by a cover letter Officer for DOT/OST. Persons are not manufacturers, dealers and motor setting forth the information specified in vehicle repair businesses. required to respond to a collection of the agency’s confidential business information unless it displays a information regulation. 49 CFR Part 512. § 595.4 Definitions. currently valid OMB control number. All comments received by NHTSA Statutory terms. The term motor XI. Comments before the close of business on the vehicle repair business is defined in 49 comment closing date indicated above U.S.C. 30122(a) as ‘‘a person holding NHTSA is providing an abbreviated for the proposal will be considered, and itself out to the public to repair for comment period of 30 days, given the compensation a motor vehicle or motor significant public attention given to the will be available for examination in the vehicle equipment.’’ This term includes adverse effects of air bags. Moreover, docket at the above address both before businesses that service vehicles without while it is addressing improved and after that date. To the extent malfunctioning or broken parts or labeling, extension of time for manual possible, comments filed after the systems by adding features or cutoff switches, and depowering of air closing date will also be considered. components to or otherwise customizing bags in separate notices, they are related Comments received too late for those vehicles. The terms manufacturer actions addressing the same problem. consideration in regard to the final rule and dealer, defined in 49 U.S.C. The anticipated SNPRM on smart bags will be considered as suggestions for 30102(a), are used in accordance with is also related. Only the actions on further rulemaking action. Comments on their statutory meaning. labeling and the extension of time for the proposal will be available for inspection in the docket. The NHTSA manual cutoff switches have reached § 595.5 Requirements. the final rule stage; the others are still will continue to file relevant information as it becomes available in (a) A dealer or motor vehicle repair at the proposal stage. Commenters are business may deactivate a passenger- invited to address the relationships the docket after the closing date, and recommends that interested persons side air bag if that air bag: between these actions, e.g., the extent to (1) Does not have a manual cutoff which one action affects the need for, continue to examine the docket for new material. switch, or the potential benefits of or cost (2) Does not meet the criteria in S4.5.5 Those persons desiring to be notified effectiveness of, another action. of § 571.208 of this chapter for a smart upon receipt of their comments in the Commenters are also invited to air bag. address alternatives not addressed by rulemaking docket should enclose a (b) A dealer or motor vehicle repair these actions. The agency requests that self-addressed, stamped postcard in the business may deactivate a driver-side air commenters favoring other alternatives envelope with their comments. Upon bag if that air bag does not meet the specifically provide a comparison of receiving the comments, the docket criteria in S4.5.5 of § 571.208 of this costs, benefits and leadtime. supervisor will return the postcard by chapter for a smart air bag. As indicated above, the agency mail. (c) A dealer or motor vehicle repair anticipates publishing in the near future List of Subjects in 49 CFR Part 595 business that deactivates an air bag a separate SNPRM to propose pursuant to paragraph (a) or (b) of this performance requirements for smart air Imports, Motor vehicle safety, Motor section shall meet all of the conditions bags and to propose a phase-in schedule vehicles. specified in paragraph (d) of this for requiring these devices. Since that In consideration of the foregoing, section. rulemaking action may not be NHTSA proposes to amend chapter V of (d) A dealer or motor vehicle repair completed until after this action on Title 49 CFR of the Code of Federal business may deactivate a driver-side or deactivation, NHTSA requests Regulations as follows: passenger-side air bag subject to the comments on how to address the 1. Part 595 would be added to read as condition that the dealer or repair definition of smart air bag in the final follows: business: rule for deactivation. (1) Shall provide the vehicle owner Interested persons are invited to PART 595ÐAIR BAG DEACTIVATION with the most current NHTSA submit comments on this proposal. It is 595.1 Scope. information sheet concerning the requested but not required that 10 595.2 Purpose. circumstances in which deactivation copies be submitted. 595.3 Applicability. may be appropriate, based upon the All comments must not exceed 15 595.4 Definitions. comparison of risks in those pages in length (49 CFR 553.21). 595.5 Requirements. circumstances of turning the air bag off Necessary attachments may be Authority: 49 U.S.C. 322, 30111, 30115, versus leaving it on. appended to these submissions without 30117, 30122 and 30166; delegation of (2) Shall obtain from the vehicle regard to the 15-page limit. This authority at 49 CFR 1.50. owner a signed, written authorization Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 839 identifying the vehicle by make and (iii) Both visor labels shall have the (e) Each motor vehicle manufacturer model, by model year, by VIN number, word ‘‘WARNING’’ in black lettering on shall retain, for a period of not less than and the seating position(s) of the a yellow background. five years, a copy of each authorization deactivated air bag(s). Such (4) Shall, for each deactivated air bag, form received pursuant to this section. authorization shall include an place a permanent label on the adjacent L. Robert Shelton, door jamb. The label shall state: affirmation by the owner that he or she Associate Administrator for Safety was given and has read a copy of the WARNING: (Insert ‘‘The passenger-side air Performance Standards. NHTSA information sheet prior to bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air Note: These appendices will not appear in signing the authorization. bags’’) of this vehicle has (have) been deactivated. the code of Federal Regulations. (3) Shall, for each deactivated air bag, place labels on both sides of the sun The label shall have the word Appendix A—The Safety Problem: visor above that air bag. ‘‘WARNING’’ in black lettering on a Frontal Impacts, Air Bag Saves and Air yellow background and shall also Bag Fatalities (i) The label visible when the sun contain the name and address of the visor is in a stowed (up) position shall dealer or repair business that Frontal impacts. Frontal impacts are state: deactivated the air bag(s). the number one fatality and injury WARNING (5) Shall mark in the vehicle owner’s causing mode of crash, resulting in 64 Air Bag has been deactivated or service manual (if available) the percent of all driver and right-front See other side following warning: passenger fatalities and 65 percent of all driver and right-front passenger AIS 2– (ii) The label visible when the sun WARNING: (Insert ‘‘The passenger-side air bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air 5 injuries. (AIS 2–5 stands for visor is in a down position shall state: bags’’) of this vehicle has (have) been Abbreviated Injury Scale levels of WARNING: (Insert ‘‘The passenger-side air deactivated. To reactivate, contact an moderate to critical injuries.) The bag,’’ ‘‘The driver-side air bag’’ or ‘‘Both air authorized dealer or a qualified motor estimated fatality and injury totals for bags’’) of this vehicle has(have) been vehicle repair business. 1994 are shown below: The injuries are deactivated. To reactivate, contact an (6) Shall send a copy of the signed, those for National Accident Sampling authorized dealer or a qualified motor written authorization form to the System-Crashworthiness Data System vehicle repair business. manufacturer of the vehicle. (NASS–CDS) toaway accidents only.

1994 FATALITIES AND MODERATE TO SERIOUS INJURIES IN FRONTAL IMPACTS [Passenger Cars and Light Trucks]

Right front Drivers passengers Total

Fatalities ...... 13,437 3,814 17,251 Injuries ...... 124,484 30,299 154,783

Total ...... 137,921 34,113 172,034

B. Air Bag Saves and Fatalities in substantial net benefits in terms of especially to children. As of November lives saved. The agency estimates that, 15, 1996, NHTSA’s Special Crash As the agency has confronted the Investigation program has identified 31 problem of low speed fatalities and to date, air bags have saved driver and crashes in which the deployment of the injuries from air bags, it has faced a passenger 1,664 lives (1,500 drivers and 1 passenger-side air bag resulted in fatal serious dilemma. On the one hand, air 164 passengers). injuries to a child. One adult passenger bags have proven to be highly effective At the same time, air bags are actually and 19 drivers have also been fatally in reducing fatalities, and are resulting causing fatalities in some situations, injured.

AIR BAG SAVES AND FATALITIES 1986ÐPRESENT [Passenger Cars and Light Trucks]

Right front Drivers passengers Total

Air Bag Saves ...... 1,500 164 1,664 Air Bag Fatalities ...... 19 32 52

Passenger Fatalities. The fatalities 18 were unrestrained, two more were were either infants or between the ages involving children have occurred in wearing only the lap belt with the of 4–7. See the tables below. 1993 and later calendar years. Nine of shoulder belt behind them, and two the fatalities involved infants in rear- were wearing a lap and shoulder belt at facing child seats. Of the other children, the time of the crash. Most children

1 This estimate of gross savings is cumulative, through November 1, 1996. The net savings would be 1,614. 840 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

INFANT PASSENGER-SIDE AIR BAG RELATED FATALITIES (IN REAR FACING INFANT SEATS) [By MY of Vehicle and CY of Death]

Total No. of infant pas- No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 senger- w/passenger- side air side air bags bag fatalities

MY 89 ...... 78,000 MY 90 ...... 149,00 MY 91 ...... 44,000 MY 92 ...... 421,000 MY 93 ...... 1,352,000 MY 94 ...... 1 1 2 5,547,000 MY 95 ...... 2 4 6 8,936,000 MY 96 ...... 1 1 10,750,000

Total ...... 3 6 9 27,277,000

CHILD (NON-INFANT) PASSENGER-SIDE AIR BAG RELATED FATALITIES [By MY of Vehicle and CY of Death]

Total No. of child (non-infant) pas- No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 senger- w/passenger- side air side air bags bag fatalities

MY 89 ...... 78,000 MY 90 ...... 149,000 MY 91 ...... 44,000 MY 92 ...... 421,000 MY 93 ...... 1 1 1 ...... 3 1,352,000 MY 94 ...... 3 1 1 5 5,547,000 MY 95 ...... 1 3 7 11 8,936,000 MY 96 ...... 3 3 10,750,000

Total ...... 1 5 5 11 22 27,277,000

AGE OF CHILDREN FATALLY INJURED IN AIR BAG DEPLOYMENTS

<1 1 2 3 4 5 6 7 8 9 10 11 12 13 Total

9 ...... 1 5 7 4 3 ...... 2 ...... 31

TYPE OF RESTRAINT USED BY CHIL- impact braking resulted in the forward Investigation program had identified 19 DREN FATALLY INJURED BY AIR movement of the children such that they minor to moderate severity crashes in BAGS were close to the instrument panel and which fatal injuries to the driver were the air bag system at the time of the air associated with the deployment of the No. of bag deployment. Because of this driver-side air bag. The data suggest that Type of restraint used chil- proximity, the children appear to have unrestrained small statured and/or older dren sustained fatal head or neck injuries drivers are more at risk than other from the deploying passenger-side air drivers from a driver air bag. (See tables None ...... 18 below.) The agency notes that older Lap belt only ...... 2 bag. The agency has examined all air Lap and shoulder belt ...... 2 bag cases with child fatalities in its Fatal drivers are more at risk than younger Unknown ...... Accident Reporting System (FARS) and drivers under a wide range of crash Rear-facing infant restraint ...... 9 believes it has identified all cases circumstances, regardless of type of Forward-facing child restraint ...... involving fatalities. restraint used. Booster seat ...... In addition to the 31 children who NHTSA notes that these driver have been fatally injured during fatalities are very rare in comparison to Total ...... 31 passenger-side air bag deployments, one the number of vehicles equipped with adult, a 98 year old woman, sustained driver air bags and to the number of These cases involved pre-impact a fatal injury under similar air bag drivers saved by air bags. Further, braking, and were relatively low speed deployment circumstances. NHTSA notes that the last reported crashes. The nonuse, or improper use of Driver Fatalities. As of November 15, death of a female driver 5 feet 2 inches safety belts in conjunction with pre- 1996, NHTSA’s Special Crash Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 841 in November 1995, 12 months ago. unrestrained at the time of the crash. In position (slumped over the wheel). (See Proper belt use is important. Ten of the addition, two appeared to be out-of- tables below.) 19 drivers appear to have been

DRIVER AIR BAGS: FATALITIES AND LIVES SAVED [Fatalities Shown by MY of Vehicle and CY of Fatality]

Driver air Drivers No. of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY bag fatali- saved by produced w/ 96 ties air bag driver air bags

MY 89 ...... 1 ...... 1 ...... 500,000 MY 90 ...... 1 1 ...... 1 2 1 ...... 6 ...... 2,500,000 MY 91 ...... 2 2 1 ...... 1 ...... 6 ...... 2,867,000 MY 92 ...... 1 1 ...... 2 ...... 5,084,000 MY 93 ...... 7,595,000 MY 94 ...... 2 1 ...... 3 ...... 9,890,000 MY 95 ...... 1 1 ...... 13,690,000 MY 96 ...... 0 ...... 14,321,000

Total ...... 0 1 3 2 3 5 4 1 19 1,500 56,447,000

DRIVER AIR BAG FATALITIESÐWOMEN (5′2′′ or Less) [By MY of Vehicle and CY of Fatality]

Total # of driver air bag fatali- # of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 ties produced w/ (women driver air bags 5′2′′ or less)

MY 89 ...... 1 ...... 1 500,000 MY 90 ...... 1 ...... 1 ...... 1 ...... 3 2,500,000 MY 91 ...... 1 1 ...... 1 ...... 3 2,867,000 MY 92 ...... 1 1 ...... 2 5,084,000 MY 93 ...... 7,595,000 MY 94 ...... 1 ...... 1 9,890,000 MY 95 ...... 13,690,000 MY 96 ...... 14,321,000

Total ...... 1 1 1 2 1 4 ...... 10 56,447,000

DRIVER AIR BAG FATALITIESÐOTHER ADULTS [By MY of Vehicle and CY of Fatality]

Total # of driver air # bag fatali- of vehicles CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 ties produced w/ (other driver air bags adults)

MY 89 ...... 5,00,000 MY 90 ...... 1 ...... 2 ...... 3 2,500,000 MY 91 ...... 1 1 1 ...... 3 2,867,000 MY 92 ...... 5,084,000 MY 93 ...... 7,595,000 MY 94 ...... 2 ...... 2 9,890,000 MY 95 ...... 1 1 13,690,000 MY 96 ...... 14,321,000

Total ...... 2 1 1 4 ...... 1 9 56,447,000

AGE OF DRIVERS FATALLY INJURED IN AIR BAG DEPLOYMENTS

<20 20±29 30±39 40±49 50±59 60±69 70±79 >80 Total

1 ...... 1 4 4 2 1 6 ...... 19 842 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules

TYPE OF RESTRAINT USED BY DRIVERS FATALLY INJURED IN AIR BAG DEPLOYMENTS

No. of Type of restraint used drivers

None ...... 10 Belts misused ...... 1 Lap and shoulder belt (Driver blacked out and slumped forward at time of crash due to medical condition.) ...... 2 Lap and shoulder belt ...... 4 Unknown ...... 2

Total ...... 19

Comparison of passenger and driver air bag fatalities. Several comparisons between the data for child fatalities and driver fatalities need to be drawn. The annual number of child fatalities is very small, but growing steadily. The number of adult fatalities is not growing. Most child fatalities have occurred in very recent model year vehicles, model year 1994 and 1995 vehicles. In contrast, only one woman 5 feet 2 inches or less has died in post model year 1992 vehicles. Most fatalities of those women occurred in model year 1990–1992 vehicles. (See tables below.)

DRIVER AIR BAG FATALITIES BY CALENDAR YEAR OF DEATH

CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 Total

Women (5′2′′ or less) ...... 1 1 1 2 1 4 ...... 10 Other adults ...... 2 1 1 4 ...... 1 9

Total ...... 1 3 2 3 5 4 1 15

CHILD AIR BAG FATALITIES BY CALENDAR YEAR OF DEATH

CY 89 CY 90 CY 91 CY 92 CY 93 CY 94 CY 95 CY 96 Total

Children (non-infant) ...... 1 5 5 11 22 Infants ...... 3 6 9

Total ...... 1 5 8 17 31

DRIVERS AIR BAG FATALITIES BY MODEL YEAR OF VEHICLE

MY 89 MY 90 MY 91 MY 92 MY 93 MY 94 MY 95 MY 96 Total

Women (5′2′′ or less) ...... 1 3 3 2 ...... 1 ...... 10 Other adults ...... 3 3 ...... 2 1 ...... 9

Total ...... 1 6 6 2 ...... 3 1 ...... 19

CHILDREN AIR BAG FATALITIES BY MODEL YEAR OF VEHICLE

MY 89 MY 90 MY 91 MY 92 MY 93 MY 94 MY 95 MY 96 Total

Children (noninfant) ...... 3 5 11 3 22 Infants ...... 2 6 1 9

Total ...... 3 7 17 4 31

Potential Number of Persons Saved or side, 616 belted drivers and 1,686 bags, the agency estimates that 223 Fatally Injured by Current Air Bags. The unbelted drivers would be saved, for a belted and 491 unbelted passengers dilemma faced by NHTSA, and total of 2,302 lives saved. This is a net aged 13 and above would be saved ultimately the public, is how to address figure, i.e., it accounts for the possibility annually, for a total of 714 lives saved. the problem of low speed fatalities from of some drivers being fatally injured by However, this 714 figure would be air bags while preserving their the air bag. partially offset by fatalities caused by substantial life-saving benefits. Based on The potential number of lives saved the air bag to children 12 and under. If analyses of real world data, NHTSA by passenger-side air bags is much current rates of child fatalities were estimates that if all passenger cars and smaller than driver-side air bags experienced in an all-airbag fleet, 128 light trucks on the road today had primarily because the passenger seat is children would be fatally injured by air current air bags, there would be more occupied much less frequently than the bags annually, again assuming no than 3,000 lives saved each year, as driver’s seat, and because children ride technological improvements, changes to compared to a no-air-bag fleet (assuming there. If all passenger cars and light air bags, or behavioral changes by current belt use rates). On the driver trucks had current passenger-side air vehicle operators (e.g., ensuring that any Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules 843 children placed in the front seat crash and limits the forward movement of the the air bag. Some persons with medical properly use occupant restraints or, occupant’s head and upper body. The air bag disabilities that require assistive appliances preferably, placing children in the rear prevents the occupant’s head and upper body such as tracheotomy tubes also need to pay seat). The figure of 128 includes 90 from striking the windshield or dashboard. particular attention to their distance from the The latest studies indicate that occupants air bag. If you are uncertain whether a forward-facing children, most of whom protected by safety belts and air bags are 50 medical condition poses a risk, you should would be unbelted, and 38 infants in percent less likely than unrestrained consult your doctor. rear-facing child restraints. occupants to suffer fatal or serious injury in The Passenger Air Bag NHTSA emphasizes that this and the a crash. Most of the air bag related deaths have other rulemaking proceedings and The Risks related educational efforts are intended occurred in the last three years, as passenger The air bag’s speed is also the source of its air bags began to enter the fleet in large to ensure that risks of adverse effects of risk. The air bag is not a soft, pillowy numbers. Of the children killed, 9 were air bags are reduced so that the cushion. If an occupant is too close to the air riding in rear-facing infant seats and 18 were theoretically projected air bag fatalities bag when it begins to inflate, the bag can riding unrestrained in the front seat. Two never materialize, while the potential impact the chest or head of the occupant children were restrained by a lap belt only benefits of air bags are retained, to the with great force. If the occupant is extremely and two (one a small four-year-old) were maximum extent possible. close to the air bag when it inflates, the restrained by a lap and shoulder belt. injuries can be serious or fatal. As of In addition to the children, the death of Appendix B—Information Concerning Air November 1996, the government has verified one adult passenger, a women in her 90’s, Bag Deactivation reports of 19 drivers and 33 passengers, 32 has been verified as air bag related. This information sheet contains basic of them children under 10 years old, who Considering Whether To Disconnect the information about air bag benefits and risks. have been killed by air bags. Passenger Air Bag It is up to date as of November 30, 1996. If The Driver Air Bag you need more information you may call the If the vehicle is to be used to carry adults Auto Safety Hotline at (800) 424–9393 or Of the 19 drivers fatally injured since 1990, only, there is no reason to consider visit the vehicle safety home page at only five were wearing their safety belts and disconnecting the air bag. The air bags are www.nhtsa.dot.gov. two of these had lost consciousness before proving to be effective for adult passengers. the crash and were slumped over the wheel With the exception of a woman in her 90’s, Air Bags—What They Are and What They Do when the air bag deployed. Ten were short no adult passenger is known to have been An air bag is a fabric bag that is stored women (5’2’’ or less), 9 of whom were killed by an air bag. In all but the rarest within the hub of the steering wheel or in the driving vehicles made in 1992 or earlier circumstances, an adult passenger would be dashboard on the passenger’s side of a model years. Most of the women drivers were able to position the seat far enough away vehicle. It is attached to a metal housing that 64 or older. During this same period, in from the dash to obtain the benefit of the air contains the inflator for the air bag. When contrast, air bags saved hundreds of short bag without the risks. Even in the case of crash sensors in the front of the vehicle women from serious or fatal injuries. vehicles with bench seats operated by small detect a crash, they trigger the inflator, The risk appears greater for unbelted drivers, the passenger seat would be far rapidly inflating the air bag. drivers and for smaller and older drivers, enough from the air bag to give a belted The bag must inflate very quickly, in the particularly those who must be very close to passenger adequate distance from the air bag. blink of an eye, if it is to inflate in time to the steering wheel in order to reach the If the vehicle is used to transport children protect a vehicle occupant from striking the pedals. The risk can be significantly reduced under twelve, the government’s steering wheel, dashboard, or windshield. If by wearing the safety belt, sitting as far back recommendation is that they should ride in it inflates fully before the occupant moves as access to the pedals permits, and the rear seat wherever possible. Placing into it, it enables the occupant to stop including the seat back away from the children in the rear seat will completely gradually. Gradual stops are safer than steering wheel. eliminate any risk from the air bag and make sudden stops. Since the air bag also spreads deactivation unnecessary. If for any reason the crash forces over a large area of the body, Considereing Whether To Disconnect the you must carry a child (other than an infant) it is very effective in reducing deaths and Driver Air Bag in the front seat, make sure that the child is injuries in frontal crashes. For most drivers, reasonable measures securely buckled in a restraint appropriate The Requirement for Air Bags (moving the seat rearward, inclining the seat for the child’s size and age, move the seat back, adjusting a telescoping steering wheel back as far as possible, and make sure that By law, driver and passenger air bags must toward the dashboard) can provide an the child sits back against the seat.1 Although be installed in 95 percent of passenger cars adequate distance between the driver and the there are no verified reports of fatal injuries in model year 1997 and 100 percent in model steering wheel. The government has not to belted children who were sitting back in year 1998. They must be installed in 80 evaluated devices such as pedal blocks or the seat at the moment of impact, parents percent of light trucks in model year 1998 extenders that enable short drivers to move should be aware that there may still be a risk and in all light trucks in model year 1999. back from the steering wheel. Before to a restrained child, since children tend to The manufacturers are already installing considering such a device as an alternative to move around (adjusting the radio, reaching them in virtually 100 percent of passenger deactivating an air bag, a driver should for a soda, etc.) even when they are cars and most light trucks. carefully evaluate the device’s ease of use restrained. Parents should decide whether to By November 1996, approximately 53 and safety. Information about them can be deactivate the air bag in the light of this million passenger cars and light trucks were obtained form the National Mobility Dealers information. equipped with air bags. Of these vehicles, Association at 1–800–833–0427. Under NO circumstances should an infant about 24 million had both driver and If a driver takes all reasonable measures be carried on the front seat in a rear-facing passenger air bags. but cannot get further than about [ ] inches infant seat unless the air bag is deactivated. The Benefits from the air bag when wearing his or her In a rear-facing seat, an infant’s head would As of November 1996, the government safety belt, it is possible that pre-crash estimates that more than 1500 drivers and braking or the forces of a crash could move 1 Depending on the size and age of the child, the 164 passengers have been saved by air bags. the driver too close to the inflating bag. In appropriate restraint could be a forward-facing This number is rapidly increasing as more that case, the driver might want to consider child safety seat (for children from approximately vehicles equipped with air bags enter the disconnecting the air bag. one to four years, or 20 to 40 pounds), a booster seat fleet. Taking all crashes together, the air bag Other factors that bear on disconnection plus a lap/shoulder belt (for children older than include the driver’s age and physical four or more than 40 pounds), or a lap/shoulder belt is reducing fatal injuries by 11 percent for alone (for children who are large enough to wear drivers and 13 percent for adult passengers. condition. Older drivers are at greater risk of the shoulder belt comfortably across the shoulder The greatest protection comes from using injury in a crash, with or without an air bag, and to secure the lap belt across their pelvis, and safety belts with air bags. The safety belt and may want to consider this fact if they are who have legs long enough to dangle over the front keeps an occupant’s hips in place during a also unable to sit more than [ ] inches from of the seat when their backs are on the seat back). 844 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Proposed Rules be very close to the inflating air bag. The risk provide better protection than safety belts (State in which vehicle is registered) of serious or fatal injury is very high. If it is alone. lllllllllllllllllllll not feasible to carry an infant in the rear seat, # Appendix Authorization To Deactivate an (Registration ) either because the vehicle lacks a rear seat or llllllllll because of a medical condition that requires Air Bag fl I authorize lllllllllllllllllllll constant attention, the air bag should be fl I, llllllllll, deactivated. Do not attempt to turn a rear- (Name of motor vehicle dealer or repair (Vehicle Owner’s Name) business) facing infant seat around or carry an infant the owner of the following vehicle: under 20 pounds in any forward-facing seat. lllllllllllllllllllll (Address of dealer or repair business) How To Disconnect an Air Bag (Make (e.g., Chevrolet) to modify the vehicle identified above in the Deactivating an air bag can be dangerous. lllllllllllllllllllll following way: It should not be attempted by anyone but a (Model (e.g., Lumina)) In the appropriate box(es) below, initial qualified mechanic. Although Federal lllllllllllllllllllll which air bag or bags you want deactivated. b Deactivate my driver air bag regulations now permit dealers and motor (Model year) vehicle repair businesses to disconnect air b Deactivate my passenger air bag lllllllllllllllllllll bags, NHTSA strongly discourages disabling fl I make this authorization with the except in special circumstances, since air (Vehicle Identification Number) following acknowledgments and bags use with safety belts almost always lllllllllllllllllllll understandings:

Owner must initial each box Owner acknowledgments and understandings below

Information sheet. I acknowledge that the dealer or repair business identified above has given me a copy of an air bag information sheet prepared by the National Highway Traffic Safety Administration and that I have read the sheet. Loss of protection. I understand that a deactivated air bag will not deploy and thus will not provide protection in the event of motor vehicle collision. Attaching of labels. I understand that the dealer or repair business identified above is required by law to install labels on the sun visor and door jamb for each air bag that is deactivated pursuant to this authorization. I understand that the labels are intended to alert present and future owners and users that one or both air bags are deactivated. I will allow the dealer or repair business to attach the labels and ensure that they remain in place as long as the air bag(s) remain(s) deactivated. Waiver of claims. I acknowledge that, by authorizing the deactivation of an air bag in my vehicle, I waive any claim or cause of action that I may have against the dealer or repair business because the air bag has been deactivated.

lllllllllllllllllllll lllllllllllllllllllll (date) (Signature of vehicle owner) [FR Doc. 96–33305 Filed 12–30–96; 11:00 am] BILLING CODE 4910±59±P federal register January 6,1997 Monday Rule (Circular, PublicDebtSeriesNo.1±93); Treasury Bills,Notes,andBonds Sale andIssueofMarketableBook-Entry 31 CFRPart356 Fiscal Service Treasury Department ofthe Part III 845 846 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

DEPARTMENT OF THE TREASURY whose principal value will be adjusted until maturity. Interest payments for a for inflation as measured by the United particular security will be determined Fiscal Service States Government. The Department by multiplying the inflation-adjusted believes the issuance of these new principal by one-half of the stated rate 31 CFR Part 356 inflation-indexed securities will reduce of interest on each semiannual interest interest costs to the Treasury over the payment date. Sale and Issue of Marketable Book- long term and will broaden the types of Inflation-indexed notes will be issued Entry Treasury Bills, Notes, and Bonds debt instruments available to investors with maturities of at least one year but (Department of the Treasury Circular, in U.S. financial markets. not more than ten years. Inflation- Public Debt Series No. 1±93) As explained in more detail below, indexed bonds, when offered, will be AGENCY: Bureau of the Public Debt, after considering the comments issued with maturities of more than ten Fiscal Service, Department of the provided, Treasury has determined that years. The inflation-indexed securities Treasury. the structure of the inflation-indexed will be sold at discount, par, or securities will remain unchanged from premium and will pay interest ACTION: Final rule. its description in the proposed rule. The semiannually. The auctions for SUMMARY: The Department of the securities will be based, with some inflation-indexed securities will be Treasury (‘‘Department’’ or ‘‘Treasury’’) modifications, on the model of the Real conducted as single-price auctions in is publishing in final form an Return Bonds currently issued by the which competitive bidders will bid in amendment to 31 CFR Part 356 Government of Canada. The principal of terms of a desired real yield (yield prior (Uniform Offering Circular for the Sale the security will be adjusted for changes to inflation adjustment), expressed as a and Issue of Marketable Book-Entry in the level of inflation. Semiannual percentage with three decimals, e.g., Treasury Bills, Notes, and Bonds). This interest payments will be made based 3.230%. The interest rate established as amendment makes changes necessary to on a constant rate of interest determined a result of the auction will generally be accommodate the public offering of new at auction. The index for measuring the set at one-eighth of one percent Treasury inflation-indexed securities by inflation rate for these securities will be increments that produce the price the Department. In addition, the the non-seasonally adjusted U.S. City closest to, but not above, par when amendment makes certain technical Average All Items Consumer Price Index evaluated at the highest real yield at clarifications and conforming changes. for All Urban Consumers (‘‘CPI’’ or which bids were accepted. The offering The proposed rule was published for ‘‘CPI–U’’) published monthly by the announcement issued by the public comment on September 27, 1996. Bureau of Labor Statistics of the U.S. Department for each new inflation- Department of Labor. indexed security will contain the EFFECTIVE DATE: January 6, 1997. Further, the Department has specific details for that offering. ADDRESS: This rule has been made announced its intention to begin The inflation-indexed securities will available for downloading from the auctioning inflation-indexed securities be eligible for the STRIPS program Bureau of the Public Debt web site at the in January 1997 and quarterly thereafter. (Separate Trading of Registered Interest following address: The first auction will be of 10-year and Principal of Securities) immediately www.publicdebt.treas.gov. inflation-indexed notes. Specific terms upon their issuance by the Treasury. FOR FURTHER INFORMATION CONTACT: Ken and conditions of each issue, including The securities will also be eligible to Papaj (Director), Lee Grandy, Chuck the auction date, issue date, and public serve as collateral for Treasury programs Andreatta or Kurt Eidemiller offering amount, will be announced (e.g., Treasury Tax and Loan accounts). (Government Securities Specialists), prior to each auction. Over time, the Anyone interested in the use of Bureau of the Public Debt, Government Department expects to offer additional inflation-indexed securities for such Securities Regulations Staff, (202) 219– maturities of inflation-indexed collateral purposes should contact the 3632. securities, such as 30-year bonds or Department’s Office of the Fiscal shorter-term notes. The Department Assistant Secretary for more SUPPLEMENTARY INFORMATION: expects to offer the first additional information. The Department also I. Background maturity later in 1997. intends to make components stripped The inflation-adjusted principal value 31 CFR Part 356, also referred to as from these securities eligible for of the securities can be obtained for any the uniform offering circular, sets out collateral at a later date. The date by multiplying the stated value at the terms and conditions for the sale Department will notify the public of issuance, or par amount, by the index and issuance by the Department of the their eligibility when the valuation of ratio applicable to that date. The index Treasury to the public of marketable the stripped components for collateral ratio is the reference CPI applicable to Treasury bills, notes, and bonds. The purposes has been determined. a particular valuation date divided by uniform offering circular, in conjunction the reference CPI applicable to the II. Comments Received in Response to with offering announcements, original issue date. The inflation the Proposed Rule represents a comprehensive statement of 1 adjustment to the principal will not be The Department published for public those terms and conditions. payable until maturity, when the comment a proposed amendment to the The Department has decided to offer securities will be redeemed at the uniform offering circular on September a new type of security, referred to as a 3 2 greater of their inflation-adjusted 27, 1996, which laid out the proposed Treasury inflation-indexed security, principal amount or par amount. The structure, design, terms, and conditions securities will be issued with a stated of the new inflation-indexed security. 1 The uniform offering circular was published as a final rule on January 5, 1993 (58 FR 412). rate of interest that remains constant The closing date for comments was Amendments to the circular were published on October 28, 1996. A few minor June 3, 1994 (59 FR 28773), March 15, 1995 (60 FR inflation-indexed bonds in order to give the typographical and technical errors in 13906), July 16, 1996 (61 FR 37007), August 23, Department the flexibility to issue both types of the proposed rule text and formulas 1996 (61 FR 43626), and October 22, 1996 (61 FR securities in the future. However, the Department 54908). initially plans to offer only one maturity, a 10-year were subsequently corrected and 2 This Part is being revised to accommodate note. Inflation-indexed securities were referred to as offerings of both inflation-indexed notes and inflation-protection securities in the proposed rule. 3 61 FR 50924 (September 27, 1996). Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 847 changed in a correction notice liquid market because of the lack of inflation index, adopting a current published on October 4, 1996.4 fungibility of the inflation-indexed auction technique and making the In developing the proposed rule, the stripped components. The commenter securities eligible for stripping), the Department took into consideration the proposed and described an inflation- commenter stressed its concern and numerous comments, suggestions, and indexed ‘‘strip that would be entirely belief ‘‘that there are a number of market recommendations that were received in fungible with other inflation-protection practice, regulatory, operational and response to two Advance Notices of strips.’’ Under the commenter’s technical issues which must be resolved Proposed Rulemakings; 5 at more than proposal, the inflation-indexed in order to foster a smooth and orderly 30 meetings attended by more than 800 securities would be stripped into pieces auction and efficient secondary market investors, dealers and interested parties of equal ‘‘real’’ value. The commenter for the new securities in January.’’ To in nine cities world-wide; and at a indicated that its approach to creating this end, ‘‘firms will have to make public symposium sponsored by the fungible STRIPS would require that significant changes to their internal Treasury relax its requirement that Department. The Department believes trading, trade processing, settlement, STRIPS be sold in $1,000 increments. that this extensive discussion with, and risk management, accounting, regulatory participation by, market participants in Two of the remaining commenters confined their comments to taxation and tax reporting systems, among the design of the inflation-indexed others, leaving market participants little security was extremely useful in issues. One of these commenters time to build, test, and implement such developing a new investment product expressed its belief that inflation- internal systems changes before trading that will have wide acceptance and indexed securities would be a great in the new securities commences in broad market appeal. success, but that the inflation The Department received eight letters adjustment to the principal should be January.’’ The commenter indicated that from seven commenters in response to treated as a capital gain or as taxable it previously advised Treasury that its the proposed rule.6 The letters, listed income at either redemption or sale by members would need approximately six chronologically in order of date the investor. The other commenter months from publication of the final received, were submitted by Apex recommended that, before inflation- rules to prepare for trading, clearance Investment Associates, Inc.; Reed Smith indexed securities are offered to the and settlement of the new securities. Shaw & McClay; Wrightson Associates; public, Treasury should ask Congress to The letter highlighted the L. Napoleon Cooper (two letters); Robert provide statutory authority to exclude commenter’s specific concerns, which L. Elgin; HSBC Securities, Inc.; and PSA the inflation adjustment from taxation. included: (1) The timing of the planned The commenter said that, without such The Bond Market Trade Association.7 first issue; (2) a preference to have more an exclusion, taxable investors would Two commenters proposed an time to program systems based on the receive less than full inflation entirely different security structure. One final rules and more time to study the of these commenters submitted a protection. One commenter specifically Boskin Commission’s Report proposal that would allow for a new addressed the subject of reopenings of (methodology for calculating the CPI series of federal debt, and would result the security as stated in the proposed which was released on December 4); (3) in a substantially different structure. rule. In its letter, the commenter stated the lack of fungibility of stripped The other commenter proposed a its belief that it is extremely important interest components and its potential structure for, and suggested features to to reopen inflation-indexed securities to affect on liquidity, and the need to be incorporated in, a non-marketable, consolidate issues, especially since devise a viable method to create floating rate, inflation-indexed savings stripped coupons from different fungible strips; and (4) the need for a bond. A third commenter expressed inflation-indexed securities will not be market convention for the appropriate support for the process of involving interchangeable. The commenter factor or formula, preferably to be market participants in the design and indicated that rules in the tax code provided by Treasury, for valuing implementation of these securities, and restrict reopenings of conventional stripped interest components. stated, ‘‘as far as the securities bonds that might otherwise be desirable, themselves are concerned, there is little The letter recommended that Treasury and stated that this may also be true for should: (1) Provide a monthly or nothing we would care to ask be inflation-indexed securities. The changed.’’ It was this commenter’s view, publication of reference CPI numbers for commenter offered two alternatives to at least the preceding three months as however, that the stripped securities as resolve this ‘‘original-issue-discount’’ or well as a monthly publication of daily designed would not provide for a very ‘‘OID’’ problem. One alternative would index ratios; (2) maintain a permanent be to relax the OID restrictions for 4 61 FR 51851 (October 4, 1996). and public record of all reference CPI inflation-indexed securities. A second 5 61 FR 25164 (May 20, 1996) and 61 FR 38127 alternative would be to make an numbers ever used to provide for a (July 23, 1996). single reference source; (3) clarify in the 6 The comment letters are available to the public adjustment to the current single-price for inspection and downloading on the Internet, at auction procedures so that the coupon final rules that, in the event of any the address provided earlier in this rule, and for rate would be rounded up instead of discrepancies between CPI numbers inspection and copying at the Treasury Department down. As a result, the initial price published by the Bureau of Labor Library, Room 5030, Main Treasury Building, 1500 Statistics of the U.S. Department of Pennsylvania Avenue NW., Washington, DC. 20220. would always be at or above par, 7 See letters from Alexander A. Lothan, President, causing the new security to be issued Labor and the Treasury, those published Apex Investment Associates, Inc. (September 26, further above the OID limit and thus by Treasury will take precedence; (4) 1996); William Morris, Reed Smith Shaw & McClay making it easier to reopen. clarify in the final rules the payment of (September 27, 1996); Louis Crandall, Wrightson the minimum guarantee; (5) add to the Associates (October 21, 1996); L. Napoleon Cooper Another letter, submitted by an (October 23 and November 12, 1996); Robert L. industry trade association, had the final rules hypothetical examples and Elgin (October 25, 1996); Robert D. Sbarra, Chief following comments. While expressing sample calculations; and (6) with other Operating Officer-Fixed Income, HSBC Securities, support for particular design details of regulators, provide formal guidance as Inc. (October 25, 1996); Edwin F. Payne, Chairman, to how the securities are required to be PSA Government and Federal Agency Division, the security (e.g., modelling the PSA The Bond Market Trade Association securities on Canada’s Real Return valued, recorded and reported under (November 6, 1996). Bonds, selecting the CPI–U as the different regulatory regimes. 848 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

III. Changes from the Proposed Rule amounts due at settlement may include stripped interest components from inflation adjustments. The proposed inflation-indexed securities. However, A. General rule also added a new paragraph (c) to we are not yet in a position to adopt a After taking into consideration the provide that the payment amount for methodology that would permit comments received, the Department is awarded securities will be the fungibility. We have decided to proceed adopting as a final rule this amendment settlement amount, as that term is with the STRIPS program as described to the uniform offering circular setting defined in § 356.2. The substance of in the proposed rule and will continue out the terms, conditions and features of these two provisions remains to work on making interest components Treasury inflation-indexed securities. unchanged in the final rule. However, in fungible in a manner that is The final rule adopts the proposed rule the final rule, new paragraph (c) has operationally feasible. We believe that without significant changes. A summary been redesignated as paragraph (d) to this approach is preferable to not having of the main features of the final rule that reflect a recent amendment to the the securities strippable at the time they remain unchanged from the proposed uniform offering circular authorizing are first offered. rule are: (1) The inflation-indexed payment by electronic means,10 which F. Section 356.32 Taxation securities will be structured similarly to was effective after publication of the the Real Return Bonds issued by the proposed rule. No change has been made to this Government of Canada; (2) the interest section from the proposed rule. D. Section 356.30 Payment of rate, which is set at auction, will remain However, readers should note that they Principal and Interest on Notes and fixed throughout the life of the security are directed in paragraph (b) to the Bonds while the principal amount of the relevant Internal Revenue Service (IRS) security will be adjusted for inflation, Proposed paragraph 356.30(b) has regulations for further information about and interest payments will be based on been modified in accordance with one the tax treatment, and reporting, of the inflation-adjusted principal at the commenter’s suggestion that the inflation-indexed securities. The IRS time the interest is paid; (3) the non- Department make clear in this section rules are expected to be publicly seasonally adjusted CPI–U will be the its obligation to pay at maturity the available and published in the Federal inflation index; (4) the auction process greater of the inflation-adjusted Register at the same time as this final will use a single-price auction method principal amount or par amount. rule is published, or shortly thereafter. The IRS regulations will be issued that is the same as that currently used E. Section 356.31 STRIPS for two-year and five-year Treasury under §§ 1275(d) and 1286 of the notes; and (5) inflation-indexed No substantive changes have been Internal Revenue Code. securities will be eligible immediately made in this section from the proposed In the meantime, prospective rule, which permits inflation-indexed for stripping into their principal and investors are advised to refer to IRS securities to be stripped into separate interest components. Notice 96–51 published in the Internal The proposed changes in §§ 356.2; principal and interest components. Revenue Bulletin 1996–42 (October 15, 356.3; 356.5; 356.10; 356.12; 356.13; Unlike the conventional STRIPS 1996) for information regarding taxation 356.20; 356.32; Appendix B, Section I, program in which interest components of inflation-indexed securities and the Paragraphs A and C; Appendix B, having the same payment/maturity date stripped components of such securities. Section II; Appendices C and D; and are fungible (i.e., have the same CUSIP Additionally, in September, Treasury Exhibit A, Section IV are being adopted number), interest components stripped issued a statement providing an as originally proposed. Readers should from different inflation-indexed explanation of the federal income tax refer to the preamble of the proposed securities will not be fungible even if treatment for these securities and their rule 8 for a description of the above they have the same payment/maturity stripped components. Readers provisions being adopted in this final date. interested in receiving a copy of this Some commenters have maintained rule. statement should call the Department’s that the creation of fungible stripped Office of Public Affairs automated B. Section 356.17 Responsibility for interest components is essential to facsimile system at 202–622–2040 and Payment provide sufficient liquidity in the request Document No. 1290. The proposed rule, in paragraphs market for these components. One The Department also wishes to 356.17 (a) and (b), contained minor commenter provided an alternative respond to the concern expressed by conforming clarifications to reflect that method that would achieve fungibility one of the commenters regarding rules bidders submitting payment with their for inflation-indexed interest in the tax code that could limit tender may have to include, in addition components. This method was Treasury’s ability to reopen issues of to announced accrued interest, an supported by a second commenter. The inflation-indexed securities. We note inflation-adjustment amount with their Department understands these concerns that the IRS regulations will permit payment. The wording in paragraphs (a) and strongly supports the development reopenings of inflation-indexed and (b) has been modified from the of an active, liquid market for inflation- securities without regard to the OID proposed rule to reflect a recent indexed securities, including their rules, provided that the reopenings amendment to the offering circular, stripped components. Making the occur not more than one year after the which added payment by authorized securities attractive to a broad investor original securities were first issued to electronic means as a payment option.9 base and ensuring the development of a the public. liquid market have been two of C. Section 356.25 Payment for Treasury’s primary objectives G. Appendix B, Section I, Paragraph B Awarded Securities throughout the securities’ design and In the proposed rule, Treasury stated In the proposed rule, a conforming development. The Department is that it did not intend to publish the change was made to paragraph evaluating alternative methodologies, index ratio for use by market 356.25(a)(2) to state that additional including the recommendation participants. However, in the preamble, mentioned above, for creating fungible the Department specifically asked for 8 See supra note 3. comments on whether a monthly 9 61 FR 54908 (October 22, 1996). 10 Id. publication of the daily index ratios or Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 849 reference CPIs would be useful to aggregated to construct component price and by elaborating on the definitions of market participants. One of the indices for these items (aggregation of two other variables. commenters strongly urged that item sub-strata); (3) the method for I. Other Issues Treasury publish both the reference CPI combining these component price numbers for at least the three preceding indices to obtain the comprehensive, One commenter raised a number of months and the daily index ratios on a all-items CPI (aggregation of item strata); issues pertaining to the regulatory month-to-month basis. Treasury will and (4) the procedures for incorporating treatment of inflation-indexed support this request. Although new goods into the index and making securities, which are outside the scope Appendix B has been revised by adjustments for quality changes in of the uniform offering circular deleting the language from the proposed existing goods. regulations. Specifically, the commenter rule and is now silent with respect to Technical changes to the CPI questioned how these securities are to publication of the daily index ratios, previously made or announced by BLS be valued, recorded and reported under Treasury intends to provide monthly the include introducing probability various regulatory regimes for purposes daily reference CPI numbers and the sampling to select the precise items for such as large position reporting, daily index ratios on a pilot basis for which prices are collected and the determining regulatory capital and one year. This information will be stores in which collection takes place, margin amounts, and broker-dealer available through such means as a and changing the way in which price reporting. The Treasury has given monthly press release, the Internet, and movements of major components, such informal, general guidance on some of automated facsimile systems. as shelter costs for homeowners in the these issues as they pertain to the After a year, the Department will early 1980s and medical care costs Government Securities Act (GSA) determine whether there is still a need beginning in 1997, are measured. regulations, 17 CFR Chapter IV, (e.g., for this information to be provided by The Advisory Commission to Study large position reporting, capital and Treasury. It is our understanding that the Consumer Price Index (the Boskin haircut treatment, recordkeeping and most market participants will Commission) made a number of financial reporting), and will respond to incorporate the formulas for calculating recommendations to improve the additional questions as they arise. The the reference CPIs and index ratios into calculation of changes in the cost of Treasury is also considering issuing an their trading or other automated living. Some of these recommendations interpretation of the GSA regulations to systems. Additionally, it is reasonable to were directed to BLS and were designed provide formal clarification and expect that the major electronic to improve the calculation of the guidance on regulatory issues within the financial service providers (e.g., monthly CPI. These recommendations, scope of its authority. Additionally, Bloomberg, Telerate, Reuters) will if and to the extent implemented by Treasury has been coordinating and provide this information, or BLS, would constitute technical changes consulting with other regulators, such as substantially similar information, to rather than fundamental changes. staff of the Securities and Exchange The Boskin Commission also their subscribers. Further, Treasury will Commission, the Board of Governors of recommended construction of an annual maintain an archival record of the the Federal Reserve System, and the reference CPIs and the daily index ratios measure of the cost of living as a Federal Reserve Bank of New York, to throughout the life of each inflation- supplement to the monthly CPI. address the various regulatory issues indexed security. This information will Development and use of such a raised by the commenter and to foster be readily available to market supplement, by itself, would not change consistent regulatory treatment where participants. the monthly CPI itself. While the Boskin possible and appropriate. In addition to the publication of Commission did not suggest that such a reference CPIs and index ratios, the measure replace the CPI, a decision by The commenter also raised concerns Treasury will provide monthly the non- BLS to replace, rather than supplement, that a number of questions remain seasonally adjusted CPI for each of the the current monthly CPI with an annual unanswered regarding market practice, prior three months. measure of consumer prices, would trading, accounting and operational Changes have been made to the constitute a fundamental change. issues related to the new securities. paragraph that addresses index In addition, if the Secretary While these issues are also outside the contingencies. Language has been determines that the CPI is altered by scope of both the uniform offering revised to clarify Treasury’s course of legislation or Executive Order in a circular rules and Treasury’s authority action if the CPI is: Discontinued, or in manner that is materially adverse to the under the GSA, Treasury appreciates the the judgment of the Secretary, either interests of an investor in the security, need for consistent and widely accepted fundamentally altered in a manner the Secretary would propose an trading practices and industry materially adverse to the interests of an alternative index. conventions for quoting, pricing, and investor in the security or altered by A minor, technical change has also valuing inflation-indexed securities. legislation or Executive Order in a been made to clarify Treasury’s Treasury strongly supports and manner materially adverse to the intention in the situation where the CPI encourages industry efforts, including interests of an investor in the security. for a particular month is not reported by the formation of the PSA Inflation Bond A change to the CPI would be the last day of the following month. In Trading Practices Task Force, to develop considered fundamental if it affected the such a situation, the last CPI that has trading and market practice character of the CPI. Technical changes been reported (including any revision of conventions. We are confident the made by the Bureau of Labor Statistics a previously reported CPI number) will industry will be successful in this effort (BLS) to the CPI to improve its accuracy be used to calculate CPI numbers for and we will continue to provide as a measure of the cost of living would months for which the CPI has not been guidance as needed. not be considered fundamental changes. reported by such day. IV. Procedural Requirements Technical changes include, but are not limited to, changes in: (1) The specific H. Appendix B, Section III This final rule does not meet the items (e.g., apples or major appliances) Minor, technical changes have been criteria for a ‘‘significant regulatory to be priced for the index; (2) the way made to certain formulas and examples action’’ pursuant to Executive Order individual price quotations are by adding a definition of one variable, 12866. 850 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

Although this rule was issued in that represents interest income bonds. (See Appendix B for methods proposed form to secure the benefit of attributed to the period prior to the date and examples of interest calculations on public comment, the notice and public of issue. (See Appendix B, Section I, notes and bonds.) comment procedures requirements of Paragraph C.) * * * * * the Administrative Procedure Act are * * * * * Multiple-price auction means an inapplicable, pursuant to 5 U.S.C. Book-entry security means a security auction in which each successful 553(a)(2). the issuance and maintenance of which competitive bidder pays the price As no notice of proposed rulemaking are represented by an accounting entry equivalent to the yield or rate that it bid. was required, the provisions of the or electronic record and not by a * * * * * Regulatory Flexibility Act (5 U.S.C. 601, certificate. Treasury book-entry Par amount means the stated value of et seq.) do not apply. securities may generally be held in a security at original issuance. There is no new collection of either TRADES or in TREASURY information contained in this rule, and, * * * * * DIRECT. (See § 356.3.) Real yield means, for an inflation- therefore, the Paperwork Reduction Act Business day means any day other indexed security, the yield based on the does not apply. The collections of than a Saturday, Sunday, or other day payment stream in constant dollars, i.e., information of 31 CFR Part 356 have on which the Federal Reserve Banks are before adjustment by the index ratio. been previously approved by the Office not open for business. Reference CPI (Ref CPI) means, for an of Management and Budget under * * * * * inflation-indexed security, the index section 3507(d) of the Paperwork Consumer Price Index (CPI) means the number applicable to a given date. (See Reduction Act of 1995 (44 U.S.C. monthly non-seasonally adjusted U.S. Appendix B, Section I, Paragraph B.) Chapter 35) under control number City Average All Items Consumer Price 1535–0112. Under this Act, an agency * * * * * Index for All Urban Consumers, Settlement amount means the par may not conduct or sponsor, and a published by the Bureau of Labor amount of securities awarded less any person is not required to respond to, a Statistics of the Department of Labor. discount amount and plus any premium collection of information unless it (See Appendix D.) amount and/or any accrued interest. For displays a valid OMB control number. * * * * * inflation-indexed securities, the List of Subjects in 31 CFR Part 356 Customer means a bidder on whose settlement amount also includes any Bonds, Federal Reserve System, behalf a depository institution or dealer inflation adjustment when such Government securities, Securities. has been directed to submit or forward securities are reopened or when the a competitive or noncompetitive bid for dated date is different from the issue Dated: December 30, 1996. a specified amount of securities in a date. Donald V. Hammond, specific auction. Only depository * * * * * Deputy Fiscal Assistant Secretary. institutions and dealers may submit or STRIPS (Separate Trading of For the reasons set forth in the forward bids for customers, whether Registered Interest and Principal of preamble, 31 CFR Chapter II, directly to a Federal Reserve Bank or the Securities) means the Department’s Subchapter B, Part 356, is amended as Bureau of the Public Debt, or through an program under which eligible securities follows: intermediary depository institution or are authorized to be separated into dealer. principal and interest components, and PART 356ÐSALE AND ISSUE OF Daily interest decimal means, for a transferred separately. These MARKETABLE BOOK-ENTRY fixed-principal security, the interest components are maintained in book- TREASURY BILLS, NOTES, AND factor attributable to one day of an entry accounts, and transferred, in BONDS (DEPARTMENT OF THE interest payment period per $1,000 par TRADES. amount. TREASURY CIRCULAR, PUBLIC DEBT * * * * * SERIES NO. 1±93) * * * * * Yield, also referred to as ‘‘yield to Index means the Consumer Price 1. The authority citation for part 356 maturity,’’ means the annualized rate of Index, which is used as the basis for continues to read as follows: return to maturity on a fixed-principal making adjustments to principal security expressed as a percentage. For Authority: 5 U.S.C. 301; 31 U.S.C. 3102, et amounts of inflation-indexed securities. an inflation-indexed security, yield seq.; 12 U.S.C. 391. (See Appendix D.) means the real yield. (See Appendix B.) 2. Section 356.2 is amended by Index ratio means, for any particular 3. Section 356.3 is amended by revising the definitions of ‘‘Accrued date and any particular inflation- revising the introductory paragraph and interest,’’ ‘‘Book-entry security,’’ indexed security, the Reference CPI the heading of paragraph (a) and ‘‘Customer,’’ ‘‘Interest rate,’’ ‘‘Multiple- applicable to such date divided by the removing footnote 1; adding three price auction,’’ ‘‘Par amount,’’ Reference CPI applicable to the original sentences at the end of paragraph (a); ‘‘Settlement amount,’’ ‘‘STRIPS,’’ and issue date (or dated date, when the and adding a second sentence at the end ‘‘Yield;’’ and adding in alphabetical dated date is different from the original of paragraph (b), to read as follows: order the definitions of ‘‘Business day,’’ issue date). (See Appendix B, Section I, ‘‘Consumer Price Index,’’ ‘‘Daily interest Paragraph B.) § 356.3 Book-entry securities and decimal,’’ ‘‘Index,’’ ‘‘Index ratio,’’ Inflation-adjusted principal means, systems. ‘‘Inflation-adjusted principal,’’ ‘‘Real for an inflation-indexed security, the Securities issued subject to this Part yield,’’ and ‘‘Reference CPI’’ to read as value of the security derived by shall be held and transferred in either of follows: multiplying the par amount by the the two book-entry securities systems— applicable index ratio as described in TRADES or TREASURY DIRECT— § 356.2 Definitions. Appendix B, Section I, Paragraph B. described in this section. Securities are * * * * * Interest rate means the annual maintained and transferred, to the Accrued interest means an amount percentage rate of interest paid on the extent authorized in 31 CFR part 357, in payable to the Department for such part par amount or the inflation-adjusted these two book-entry systems at their of the next semiannual interest payment principal of a specific issue of notes or par amount, e.g., for inflation-indexed Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 851 securities, adjustments for inflation will issued with a stated rate of interest to be and (ii); and adding new paragraph not be included in this amount. applied to the par amount, have interest (c)(1)(iii) to read as follows: Securities may be transferred from one payable semiannually, and are system to the other in accordance with redeemed at their par amount at § 356.12 Noncompetitive and competitive bidding. Treasury regulations governing book- maturity. They are sold at discount, par, entry Treasury bills, notes, and bonds. or premium, depending upon the (a) General. All bids, including bids See Department of the Treasury auction results. They have maturities of for reopenings, must state the par Circular, Public Debt Series No. 2–86, as at least one year, but not more than ten amount of securities bid for and must amended (31 CFR Part 357). years. equal or exceed the minimum bid (a) Treasury/Reserve Automated Debt (2) Treasury inflation-indexed notes. amount stated in the offering Entry System (TRADES). * * * For Treasury inflation-indexed notes are announcement. * ** accounts maintained in TRADES, issued with a stated rate of interest to be (b) * * * Treasury discharges its payment applied to the inflation-adjusted (2) Additional restrictions. A bidder obligations when payment is credited to principal on each interest payment date, may not bid noncompetitively for its the applicable account maintained at a have interest payable semiannually, and own account if, in the security being Federal Reserve Bank or payment is are redeemed at maturity at their auctioned, it holds or has held a made in accordance with the inflation-adjusted principal, or at their position in when-issued trading or in instructions of the person or entity par amount, whichever is greater. They futures or forward contracts at any time maintaining such account. Further, are sold at discount, par, or premium, between the date of the offering neither Treasury nor the Federal depending upon the auction results. announcement and the designated Reserve Banks have any obligations to, They have maturities of at least one closing time for the receipt of nor will they recognize any claims of, year, but not more than ten years. (See competitive tenders. * ** Appendix B for price and interest (c) * * * any person or entity that does not have (1) * * * an account at a Federal Reserve Bank. In payment calculations and Appendix C for Investment Considerations.) (i) Treasury bills. A competitive bid addition, neither Treasury nor the must show the discount rate bid, Federal Reserve Banks will recognize (c) Treasury bonds. (1) Treasury fixed-principal bonds. expressed with two decimals, e.g., 3.10. the claims of any person or entity with Fractions may not be used. respect to any accounts not maintained Treasury fixed-principal bonds are issued with a stated rate of interest to be (ii) Treasury fixed-principal at a Federal Reserve Bank. securities. A competitive bid must show (b) * * * In TREASURY DIRECT, applied to the par amount, have interest payable semiannually, and are the yield bid, expressed with three Treasury discharges its payment decimals, e.g., 4.170. Fractions may not obligations when payment is made to a redeemed at their par amount at maturity. They are sold at discount, par, be used. depository institution for credit to the (iii) Treasury inflation-indexed account specified by the owner of the or premium, depending upon the auction results. They typically have securities. A competitive bid must show security, or when payment is made in the real yield bid, expressed with three accordance with the instructions of the maturities of more than ten years. (2) Treasury inflation-indexed bonds. decimals, e.g., 3.070. Fractions may not owner of the security. Treasury inflation-indexed bonds are be used. * * * * * issued with a stated rate of interest to be * * * * * 4. Section 356.5 is amended by applied to the inflation-adjusted 7. Section 356.13 is amended by revising the introductory text and principal on each interest payment date, revising paragraph (a) to read as follows: paragraphs (b) and (c) to read as follows: have interest payable semiannually, and § 356.13 Net long position. § 356.5 Description of securities. are redeemed at maturity at their inflation-adjusted principal, or at their (a) Reporting net long positions. When Securities offered pursuant to this bidding competitively, a bidder must Part are offered exclusively in book- par amount, whichever is greater. They are sold at discount, par, or premium, report the amount of its net long entry form and are direct obligations of position when the total of all of its bids the United States, issued under Chapter depending upon the auction results. They typically have maturities of more in an auction plus the bidder’s net long 31 of Title 31 of the United States Code. position in the security being auctioned The securities are subject to the terms than ten years. (See Appendix B for price and interest payment calculations equals or exceeds the net long position and conditions set forth in this Part, reporting threshold amount. The including the appendices, as well as the and Appendix C for Investment Considerations.) threshold amount for any particular regulations governing book-entry security will be as stated in the offering Treasury bills, notes, and bonds (31 CFR 5. Section 356.10 is amended by adding a sentence at the end of the announcement for that security. (See Part 357), and the offering § 356.10.) That amount will be $2 announcements, all to the extent paragraph, before the parenthetical last sentence, to read as follows: billion for bills, notes, and bonds unless applicable. When the Department issues otherwise stated in the offering additional securities with the same § 356.10 Offering announcement. announcement. For example, the net CUSIP number as outstanding ** * Accordingly, bidders should long position reporting threshold securities, all securities with the same read the applicable offering amount may be less than $2 billion for CUSIP number are considered the same announcement in conjunction with this smaller security offerings, e.g., certain security. Part. * * * inflation-indexed securities or cash * * * * * 6. Section 356.12 is amended by management bills. If the bidder either (b) Treasury notes. revising the first sentence of paragraph has no position or has a net short 1 (1) Treasury fixed-principal notes. (a); revising paragraphs (b)(2), (c)(1)(i) position and the total of all of its bids Treasury fixed-principal notes are equals or exceeds the threshold amount, fixed-principal bonds are referred to as ‘‘notes’’ and e.g., $2 billion, a net long position of 1 The term ‘‘fixed-principal’’ is used in this Part ‘‘bonds’’ in official Treasury publications, such as to distinguish such securities from ‘‘inflation- offering announcements and auction results press zero must be reported. * ** indexed’’ securities. Fixed-principal notes and releases, as well as in auction systems. * * * * * 852 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

8. Section 356.17 is amended by (d) Amount of payment for awarded above, the par amount of the note or revising the last sentence in the securities. The payment amount for bond must be in an amount that, based introductory paragraph and the awarded securities will be the on its interest rate, would produce a introductory text of paragraphs (a) and settlement amount as defined in § 356.2. semiannual interest payment, before (b) to read as follows: (See formulas in Appendix B.) adjustment for inflation, in a multiple of 11. Section 356.30 is amended by $1,000. * * * § 356.17 Responsibility for payment. redesignating the text of the current (c) Principal components stripped ** * The specific requirements, section as (a), adding a heading of from fixed-principal securities. outlined in this section, depend on ‘‘General’’ and revising the last sentence Principal components stripped from whether awarded securities will be in newly redesignated paragraph (a), fixed-principal securities are delivered in TREASURY DIRECT or and adding paragraph (b) to read as maintained in accounts, and transferred, TRADES. follows: in TRADES at their par amount. The (a) TREASURY DIRECT. For securities principal components have a CUSIP to be held in TREASURY DIRECT, § 356.30 Payment of principal and interest number that is different from the CUSIP payment of the par amount and on notes and bonds. number of the fully-constituted announced accrued interest and/or (a) General. ** * In the event any (unstripped) security. inflation adjustment, if any, must be principal or interest payment date is not (d) Interest components stripped from submitted with the tender unless other a business day, the amount is payable fixed-principal securities. Interest provisions have been made, such as (without additional interest) on the next components stripped from fixed- payment by an authorized electronic business day. principal securities are maintained in means providing for immediately (b) Treasury inflation-indexed accounts, and transferred, in TRADES at available funds or by charge to the funds securities. At maturity, the inflation- their original payment value, which is account of a depository institution. adjusted principal will be paid, unless derived by applying the semiannual * * * * * the inflation-adjusted principal is less interest rate to the par amount. When an (b) TRADES. For securities to be held than the par amount of the security, in interest component is created, the in TRADES, payment of the par amount which case an additional amount will interest payment date becomes the and announced accrued interest and/or be paid at maturity so that the maturity date for the component. All inflation adjustment, if any, must be additional amount plus the inflation- such components with the same submitted with the tender unless other adjusted principal equals the par maturity date have the same CUSIP provisions have been made, such as amount. If a security has been stripped, number, regardless of the underlying payment by an authorized electronic any such additional amount will be paid security from which the interest means providing for immediately at maturity to holders of principal payments were stripped. All interest components have CUSIP numbers that available funds or by charge to the funds components only. Regardless of whether are different from the CUSIP number of account of a depository institution. or not an additional amount is paid, the final interest payment will be based on any fully-constituted security and any * * * * * the inflation-adjusted principal at principal component. 9. Section 356.20 is amended by maturity. (e) Principal components stripped revising the introductory text of 12. Section 356.31 is amended by from inflation-indexed securities. paragraph (c) and adding a sentence to revising paragraph (a) and the first Principal components stripped from the end of paragraph (c)(2) to read as sentence of paragraph (b), redesignating inflation-indexed securities are follows: paragraphs (c) and (d) as paragraphs (g) maintained in accounts, and transferred, § 356.20 Determination of auction awards. and (h) respectively, adding new in TRADES at their par amount. At paragraphs (c) through (f), adding a maturity, the holder will receive the * * * * * third and fourth sentence to newly inflation-adjusted principal value or the (c) Determining purchase prices for redesignated paragraph (g) and revising par amount, whichever is greater. (See awarded securities. Price calculations newly redesignated paragraph (h) to § 356.30.) Principal components have a will be rounded to three decimal places read as follows: CUSIP number that is different from the on the basis of price per hundred, e.g., CUSIP number of the fully-constituted 99.954. (See Appendix B.) § 356.31 STRIPS. security. * * * * * (a) General. A note or bond may be (f) Interest components stripped from (2) * * * For inflation-indexed designated in the offering inflation-indexed securities. Interest securities, the price of such securities announcement as eligible for the components stripped from inflation- will be the price equivalent to the STRIPS program. At the option of the indexed securities are maintained in highest real yield at which bids were holder, and generally at any time from accounts, and transferred, in TRADES at accepted. its issue date until its call or maturity, their original payment value, which is 10. Section 356.25 is amended by any such security may be ‘‘stripped,’’ derived by applying the semiannual revising the last sentence in paragraph i.e., divided into separate principal and interest rate to the par amount. When an (a)(2), and adding paragraph (d) to read interest components. A short or long interest component is created, the as follows: first interest payment and all interest interest payment date becomes the payments within a callable period are maturity date for the component. Each § 356.25 Payment for awarded securities. not eligible to be stripped from the such component has a unique CUSIP * * * * * principal component. The CUSIP number that is different from the CUSIP (a) * * * numbers and payment dates for the number of any interest components (2) * * * Such additional amount principal and interest components are stripped from different securities, even may be due if the auction calculations provided in the offering announcement if the components have the same result in a premium or if accrued if not previously announced. maturity date. All interest components interest and/or inflation adjustment is (b) Minimum par amounts required have CUSIP numbers that are different due. for STRIPS. For a note or bond to be from the CUSIP number of any fully- * * * * * stripped into the components described constituted security and any principal Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 853 component. At maturity, the payment to components stripped from another Under section 3124 of Title 31, United the holder will be derived by applying inflation-indexed security. States Code, the securities are exempt the semiannual interest rate to the (h) Applicable regulations. Unless from taxation by a State or political inflation-adjusted principal of the otherwise provided in this Part, notes subdivision of a State, except for State underlying security. and bonds stripped into their STRIPS estate or inheritance taxes and other (g) Reconstituting a security. *** components are governed by Subparts exceptions as provided in that section. Interest components stripped from A, B and D of Part 357 of this title. (b) Treasury inflation-indexed inflation-indexed securities are different 13. Section 356.32 is revised to read securities. Special federal income tax from interest components stripped from as follows: rules for inflation-indexed securities, fixed-principal securities and, accordingly, are not interchangeable for § 356.32 Taxation. and principal and interest components reconstitution purposes. Interest (a) General. Securities issued under stripped from such securities, are set components stripped from one inflation- this Part are subject to all applicable forth in Internal Revenue Service indexed security are not interchangeable taxes imposed under the Internal regulations. for reconstitution purposes with interest Revenue Code of 1986, or successor. BILLING CODE 4810±39±W 854 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 855 856 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 857 858 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 859 860 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 861 862 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 863 864 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 865 866 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 867 868 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 869 870 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 871 872 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

BILLING CODE 4810±39±C Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 873

18. Part 356 is amended by adding that have occurred in the past are not Exhibit A to Part 356—Sample new Appendixes C and D to read as necessarily indicative of changes that may Announcements of Treasury Offerings to the follows: occur in the future. Public The calculation of the index ratio * * * * * Appendix C To Part 356—Investment incorporates an approximate three-month lag, Considerations which may have an impact on the trading IV. Treasury Inflation-Indexed Note Announcement I. Inflation-Indexed Securities price of the securities, particularly during periods of significant, rapid changes in the * * * * * A. Principal and Interest Variability index. IV. TREASURY INFLATION-INDEXED An investment in securities with principal The CPI is reported by the Bureau of Labor NOTE ANNOUNCEMENT or interest determined by reference to an Statistics, a bureau within the Department of inflation index involves factors not Labor. The Bureau of Labor Statistics Embargoed Until 2:30 P.M., October 2, 20XX associated with an investment in a fixed- operates independently of the Treasury and, CONTACT: Office of Financing, 202/219– principal security. Such factors may include, therefore, Treasury has no control over the 3350 without limitation, the possibility that the determination, calculation, or publication of Treasury to Auction $5,500 Million of 10- inflation index may be subject to significant the index. For a discussion of how the CPI Year Inflation-Indexed Notes changes, that changes in the index may or will be applied in various situations, see may not correlate to changes in interest rates The Treasury will auction $5,500 million generally or with changes in other indices, Appendix B, Section I, Paragraph B. In of 10-year inflation-indexed notes to raise that the resulting interest may be greater or addition, for a discussion of actions that cash. In addition, there is $7,906 million of less than that payable on other securities of Treasury would take in the event the CPI is: publicly-held securities maturing October 15, similar maturities, and that, in the event of discontinued; in the judgment of the 20XX. sustained deflation, the amount of the Secretary, fundamentally altered in a manner In addition to the public holdings, Federal semiannual interest payments, the inflation- materially adverse to the interests of an Reserve Banks hold $327 million of the adjusted principal of the security, and the investor in the security; or, in the judgment maturing securities for their own accounts, value of stripped components, will decrease. of the Secretary, altered by legislation or which may be exchanged for additional However, if at maturity the inflation-adjusted Executive Order in a manner materially amounts of the new securities. principal is less than a security’s par amount, adverse to the interests of an investor in the The maturing securities held by the public an additional amount will be paid at maturity security, see Appendix B, Section I, include $584 million held by Federal Reserve so that the additional amount plus the Paragraph B.4. Banks as agents for foreign and international inflation-adjusted principal equals the par monetary authorities. Amounts bid for these amount. Regardless of whether or not such an Appendix D to Part 356—Description of the accounts by Federal Reserve Banks will be additional amount is paid, interest payments Consumer Price Index added to the offering. will always be based on the inflation- The Consumer Price Index (‘‘CPI’’) for The auction will be conducted in the adjusted principal as of the interest payment purposes of inflation-indexed securities is single-price auction format. All competitive date. If a security has been stripped, any such the non-seasonally adjusted U.S. City and noncompetitive awards will be at the additional amount will be paid at maturity to Average All Items Consumer Price Index for highest yield of accepted competitive holders of principal components only. (See All Urban Consumers, published monthly by tenders. § 356.30.) the Bureau of Labor Statistics of the Tenders will be received at Federal Reserve Banks and Branches and at the Bureau of the B. Trading in the Secondary Market Department of Labor. The CPI is a measure of the average change in consumer prices Public Debt, Washington, D.C. This offering The Treasury securities market is the over time in a fixed market basket of goods of Treasury securities is governed by the largest and most liquid securities market in terms and conditions set forth in the Uniform and services, including food, clothing, the world. While Treasury expects that there Offering Circular (31 CFR Part 356) for the shelter, fuels, transportation, charges for will be an active secondary market for sale and issue by the Treasury to the public doctors’ and dentists’ services, and drugs. inflation-indexed securities, that market of marketable Treasury bills, notes, and In calculating the index, price changes for initially may not be as active or liquid as the bonds. secondary market for Treasury fixed- the various items are averaged together with Details about the new security are given in principal securities. In addition, as a new weights that represent their importance in the attached offering highlights. product, inflation-indexed securities may not the spending of urban households in the be as widely traded or as well understood as United States. The contents of the market Highlights of Treasury Offering to the Public Treasury fixed-principal securities. Lesser basket of goods and services and the weights of 10-Year Inflation-Indexed Notes to be Issued October 15, 20XX liquidity and fewer market participants may assigned to the various items are updated result in larger spreads between bid and periodically to take into account changes in October 2, 20XX asked prices for inflation-indexed securities consumer expenditure patterns. Offering Amount: $5,500 million. than the bid-asked spreads for fixed-principal The CPI is expressed in relative terms in Description of Offering: securities with the same time to maturity. relation to a time base reference period for Term and type of security: 10-year inflation- Larger bid-asked spreads normally result in which the level is set at 100. For example, indexed notes higher transaction costs and/or lower overall if the CPI for the 1982–84 reference period Series—D–20XX returns. The liquidity of an inflation-indexed is 100.0, an increase of 16.5 percent from that CUSIP number—912XXX XX X security may be enhanced over time as period would be shown as 116.5. The CPI for Auction date—October 9, 20XX Treasury issues additional amounts or more a particular month is released and published Issue date—October 15, 20XX entities participate in the market. during the following month. From time to Dated date—October 15, 20XX C. Tax Considerations time, the CPI is rebased to a more recent base Maturity date—October 15, 20XX Interest Rate—Determined based on the Treasury inflation-indexed securities and reference period. The base reference period for a particular inflation-indexed security highest accepted bid the stripped interest and principal Real yield—Determined at auction components of these securities are subject to will be provided on the offering Interest payment dates: April 15 and specific tax rules provided by Treasury announcement for that security. October 15. regulations issued under sections 1275(d) Further details about the CPI may be and 1286 of the Internal Revenue Code of obtained by contacting the Bureau of Labor Minimum bid amount—$1,000 1986, as amended. Statistics. Multiples—$1,000 19. Exhibit A to Part 356 is amended by Accrued interest payable by investor: D. Indexing Issues adding a new Section IV to the list of section None. While the CPI measures changes in prices titles and to the text of Exhibit A to read as Premium or discount: Determined at for goods and services, movements in the CPI follows: auction. 874 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

STRIPS Information: April 15, 20XX—XX X Maximum Recognized Bid at a Single Minimum amount required—Determined at October 15, 20XX—XX X Yield—35% of public offering. auction April 15, 20XX—XX X Maximum Award—35% of public offering. Corpus CUSIP number—912XXX XX X October 15, 20XX—XX X Receipt of Tenders: STRIPS Information: April 15, 20XX—XX X Noncompetitive tenders: Prior to 12:00 noon Due dates and CUSIP numbers for October 15, 20XX—XX X Eastern Daylight Saving time on auction additional TINTs: 912XXX. Submission of Bids: day. April 15, 20XX—XX X Competitive tenders: Prior to 1:00 p.m. October 15, 20XX—XX X Noncompetitive bids:—Will be accepted in full up to $5,000,000 at the highest Eastern Daylight Saving time on auction April 15, 20XX—XX X day. October 15, 20XX—XX X accepted yield. Payment Terms: Full payment with tender April 15, 20XX—XX X Competitive bids: October 15, 20XX—XX X (1) Must be expressed as a real yield with or by charge to a funds account at a Federal April 15, 20XX—XX X three decimals, e.g., 3.120%. Reserve Bank on issue date. October 15, 20XX—XX X (2) Net long position for each bidder must be Indexing Information: April 15, 20XX—XX X reported when the sum of the total bid CPI Base Reference Period:—19XX–XX October 15, 20XX—XX X amount, at all yields, and the net long Ref CPI 10/15/20XX:—XXX.XXXXX lll April 15, 20XX—XX X position is $ billion or greater. [FR Doc. 96–33396 Filed 12–31–96; 10:08 am] October 15, 20XX—XX X (3) Net long position must be determined as April 15, 20XX—XX X of one half-hour prior to the closing time BILLING CODE 4810±39±W October 15, 20XX—XX X for receipt of competitive tenders. federal register January 6,1997 Monday Research; RequestforProposals;Notice Special ResearchGrantsProgram,Potato and ExtensionService Cooperative StateResearch,Education, Agriculture Department of Part IV 875 876 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

DEPARTMENT OF AGRICULTURE (1) Administrator means the C. Eligibility Administrator of the Cooperative State Proposals may be submitted by State Cooperative State Research, Research, Education, and Extension agricultural experiment stations, land- Education, and Extension Service Service (CSREES) and any other officer grant colleges and universities, research or employee of the Department to whom Request for Proposals (RFP): Special foundations established by land-grant the authority involved may be colleges and universities, colleges and Research Grants Program, Potato delegated. Research universities receiving funds under the (2) Authorized departmental officer Act of October 10, 1962 (16 U.S.C. 582a AGENCY: Cooperative State Research, means the Secretary or any employee of et seq.), and accredited schools or Education, and Extension Service, the Department who has the authority to colleges of veterinary medicine. The USDA. issue or modify grant instruments on proposals must be directly related to ACTION: Notice. behalf of the Secretary. potato varietal development/testing. (3) Authorized organizational Although an applicant and a proposal SUMMARY: The Cooperative State representative means the president, may be considered eligible based on the Research, Education, and Extension chief executive officer or functional eligibility requirements, there are factors Service announces the availability of equivalent of the applicant organization which may exclude an applicant or a grant funds and requests proposals for or the official, designated by the proposal from receiving Federal the Special Research Grants Program, president, chief executive officer or financial and nonfinancial assistance Potato Research. The Agriculture, Rural functional equivalent of the applicant and benefits under this program (e.g., Development, Food and Drug organization, who has the authority to debarred or suspended individual, it is Administration, and Related Agencies commit the resources of the determined that an applicant is not Appropriations Act of 1997 (Public Law organization. responsible based on submitted 104–180) appropriated funds for special (4) Budget period means the interval organizational management grants for agricultural research (7 U.S.C. of time (usually 12 months) into which information). 450i(c)). The Special Research Grants the project period is divided for Program intends to use $1,134,612 of budgetary and reporting purposes. Part II—Program Description (5) Department or USDA means the this appropriation to support potato A. Purpose of the Program research that focuses on varietal United States Department of development/testing. Agriculture. Proposals are invited for competitive This notice sets out the objectives for (6) Grantee means the entity grant awards under the Special Research these projects, the eligibility criteria for designated in the grant award document Grants Program, Potato Research for projects and applicants, the application as the responsible legal entity to which Fiscal Year 1997. The purpose of this procedures, and the set of instructions a grant is awarded. grant program is to support potato needed to apply for a Potato Research (7) Peer review panel means a group research that focuses on varietal Project grant. To obtain application of experts qualified by training and development/testing. As used herein, forms, please contact the Proposal experience in particular fields to give varietal development/testing is research Services Unit, Grants Management expert advice on the scientific and using traditional and biotechnological Branch; Office of Extramural Programs; technical merit of grant applications in genetics to develop improved potato USDA/CSREES at (202) 401–5048. such fields, who evaluate eligible variety(s). Aspects of evaluation, When calling the Proposal Services proposals submitted to this program in screening and testing must support or Unit, please indicate that you are their personal area(s) of expertise. compliment the development of requesting forms for the Special (8) Principal Investigator means the improved varieties. This program is Research Grants Program, Potato single individual designated by the administered by the Cooperative State Research. grantee in the grant application and Research, Education, and Extension DATES: Applications must be received approved by the Secretary who is Service (CSREES) of USDA. responsible for the direction and on or before February 7, 1997. Proposals B. Available Funds and Award management of the project. Note that a received after February 7, 1997, will not Limitations be considered for funding. proposal may have multiple secondary Funds will be awarded on a FOR FURTHER INFORMATION CONTACT: co-principal investigators but only one competitive basis to support regional Dr. James Parochetti, Cooperative State principal investigator. research projects that are composed of Research, Education, and Extension (9) Prior approval means written potato research that focuses on varietal Service, U.S. Department of Agriculture, approval evidencing prior consent by an development/testing. The total amount STOP 2220, Washington, D.C. 20250– authorized departmental officer as of funds available in Fiscal Year 1997 2220; telephone (202) 401–4354; defined in (2) above. for support of this program is Internet: [email protected]. (10) Project means the particular activity within the scope of the program approximately $41,134,612. Each SUPPLEMENTARY INFORMATION: supported by a grant award. proposal submitted in Fiscal Year 1997 Part I—General Information (11) Project period means the total shall request funding for a period not to length of time that is approved by the exceed a period of one year. Funding for A. Legislative Authority Administrator for conducting the additional years will depend upon the The authority for this program is research project, as stated in the award availability of funds and progress contained in section 2(c)(1)(B) of the Act document and modifications thereto, if toward objectives. Fiscal Year 1997 of August 4, 1965, Pub. L. No. 89–106, any, during which Federal sponsorship awardees would need to recompete in as amended (7 U.S.C. 405i(c)(1)(B)). begins and ends. future years for additional funding. (12) Secretary means the Secretary of Under this program, and subject to the B. Definitions Agriculture and any other officer or availability of funds, the Secretary may For the purpose of awarding grants employee of the Department to whom make grant awards available for up to under this program, the following the authority involved may be five years, for the support of research definitions are applicable: delegated. projects to further the program. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 877

In addition, pursuant to Section principal investigator or co-principal 7. Other Possible Sponsors (Block 22). 716(b) of the Agriculture, Rural investigator whose signature does not List the names or acronyms of all other Development, Food and Drug appear on Form CSREES–661 will not public or private sponsors including Administration, and Related Agencies be listed on any resulting grant award. other agencies within USDA and other Appropriations Act, 1997, Pub. L. No. Complete both signature blocks located programs funded by CSREES to whom 104–180, in the case of any equipment at the bottom of the ‘‘Application for your application has been or might be or products that may be authorized to be Funding’’ form. sent. In the event you decide to send purchased with funds provided under Form CSREES–661 serves as a source your application to another organization this program, entities receiving such document for the CSREES grant or agency at a later date, you must funds are encouraged to use such funds database; it is therefore important that it inform the identified CSREES program to purchase only American-made be completed accurately. The following manager as soon as practicable. equipment or products. items are highlighted as having a high Submitting your proposal to other Part III—How to Obtain Application potential for errors or potential sponsors will not prejudice its Materials misinterpretations: review by CSREES; however, duplicate 1. Title of Project (Block 6). The title support for the same project will not be Copies of this solicitation and the of the project must be brief (80-character provided. Application Kit may be obtained by maximum), yet represent the major B. Table of Contents writing to the address or calling the thrust of the effort being proposed. telephone number which follows: Project titles are read by a variety of For consistency and ease of locating Proposal Services Unit, Grants nonscientific people; therefore, highly information, each proposal submitted Management Branch; Office of technical words or phraseology should should contain a Table of Contents. Extramural Programs; Cooperative State be avoided where possible. In addition, C. Objectives Research, Education, and Extension introductory phrases such as Service; U.S. Department of Agriculture; ‘‘investigation of ’’ or ‘‘research on’’ Clear, concise, complete, and logically STOP 2245; Washington DC 20250– should not be used. arranged statement(s) of the specific 2245; Telephone: (202) 401–5048. When 2. Program to Which You Are aims of the proposed effort must be contacting the Proposal Services Unit, Applying (Block 7). ‘‘Special Research included in all proposals. For renewal please indicate that you are requesting Grants Program, Potato Research’’ applications, a restatement of the forms for the Special Research Grants should be inserted in this block. You objectives outlined in the active grant Program, Potato Research. may ignore the reference to a Federal also should be provided. These materials may also be requested Register announcement. via Internet by sending a message with D. Progress Report 3. Program Area and Number (Block your name, mailing address (not e-mail) If the proposal is a renewal of an 8). The name of the program area, and phone number to [email protected] existing project supported under the ‘‘Potato Research,’’ should be inserted in which states that you want a copy of the same program, include a clearly this block. You should ignore references application materials for the Fiscal Year identified summary progress report to the program number and the Federal 1997 Special Research Grants Program, describing the results to date. The Register announcement. Potato Research. The materials will then progress report should contain the 4. Type of Award Request (Block 13). be mailed to you (not e-mailed) as following information: If the project being proposed is a quickly as possible. 1. A comparison of actual renewal of a grant that has been accomplishments with the goals Part IV—Content of a Proposal supported under the same program established for the active grant; All applications should be typed on during the previous five fiscal years, it 2. The reasons for slippage if 1 is important that you show the latest 8 ⁄2′′x11′′ white paper, single-spaced, established goals were not met; and on one side of the page only. It grant number assigned to the project by 3. Other pertinent information, would be helpful if the name of the CSREES. including, when appropriate, cost submitting institution were typed at the 5. Principal Investigator(s) (Block 15). analysis and explanation of cost top of each page for easy identification The designation of excessive numbers of overruns or unexpectedly high unit in the event the proposal becomes co-principal investigators creates costs. disassembled while being reviewed. All problems during final review and award proposals must contain the following processes. Listing multiple co-principal E. Procedures forms and narrative information to assist investigators, beyond those required for The procedures or methodology to be CSREES personnel during the review genuine collaboration, is therefore applied to the proposed effort should be and award processes: discouraged. explicitly stated. This section should 6. Type of Performing Organization include but not necessarily be limited A. ‘‘Application for Funding’’ (Form (Block 18). A check should be placed in to: CSREES–661) the box beside the type of organization 1. A description of the proposed Each copy of each grant proposal which actually will carry out the effort. investigations and/or experiments in the must contain an ‘‘Application for For example, if the proposal is being sequence in which it is planned to carry Funding.’’ One copy of the application, submitted by an 1862 Land-Grant them out; preferably the original, must contain the institution but the work will be 2. Techniques to be employed, pen-and-ink signature(s) of the performed in a department, laboratory, including their feasibility; proposing principal investigator(s)/ or other organizational unit of an 3. Kinds of results expected; project director(s) and the endorsement agricultural experiment station, box 4. Means by which data will be of the authorized organizational ‘‘03’’ should be checked. If portions of analyzed or interpreted; representative who possesses the the effort are to be performed in several 5. Pitfalls which might be necessary authority to commit the departments, check the box that applies encountered; and organization’s time and other relevant to the individual listed as PI/PD #1 in 6. Limitations to proposed resources to the project. Any proposed Block 15.a. procedures. 878 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

F. Justification K. Project Timetable If you expect to enter into This section should include in-depth The proposal should outline all subcontractual arrangements, please information on the following, when important phases as a function of time, note that the provisions contained in 7 applicable: year by year, for the entire project, CFR Part 3019, USDA Uniform 1. Estimates of the magnitude of the including periods beyond the grant Administrative Requirements for Grants problem and its relevance to ongoing funding period. and Agreements with Institutions of State-Federal food and agricultural Higher Education, Hospitals, and Other research programs; L. Personnel Support Non-Profit Organizations, and the 2. Importance of starting the work All senior personnel who are general provisions contained in 7 CFR during the current fiscal year, and expected to be involved in the effort Part 3015.205, USDA Uniform Federal 3. Reasons for having the work must be clearly identified. For each Assistance Regulations, flow down to performed by the proposing institution. person, the following should be subrecipients. In addition, required included: clauses from 7 CFR Part 3019 Sections G. Cooperation and Institutional Units 40–48 (‘‘Procurement Standards’’) and Involved 1. An estimate of the time commitment involved; Appendix A (‘‘Contract Provisions’’) Cooperative and multi-state 2. Vitae of the principal should be included in final contractual applications are encouraged. Identify investigator(s), senior associate(s), and documents, and it is necessary for the each institutional unit contributing to other professional personnel. This subawardee to make a certification the project. Identify each state in a section should include vitae of all key relating to debarment/suspension. This multiple-state proposal and designate persons who are expected to work on latter requirement is explained further the lead state. When appropriate, the the project, whether or not CSREES under subsection ‘‘Q’’ of these project should be coordinated with the funds are sought for their support. The guidelines. efforts of other state and/or national vitae should be limited to two (2) pages N. ‘‘Budget’’ (Form CSREES–55) programs. Clearly define the roles and each in length, excluding publications Each proposal must contain a detailed responsibilities of each institutional listings; and budget for up to 12 months of support. unit of the project team, if applicable. 3. A chronological listing of the most Funds may be requested under any of representative publications during the H. Literature Review the categories listed on the budget form, past five years. This listing must be A summary of pertinent publications provided that the item or service for provided for each professional project with emphasis on their relationship to which support is sought is allowable member for whom a vita appears. the effort being proposed should be under the enabling legislation and the Authors should be listed in the same provided and should include all applicable Federal cost principles and order as they appear on each paper important and recent publications from can be identified as necessary and cited, along with the title and complete other institutions, as well as those from reasonable for the successful conduct of reference as these usually appear in the applicant institution. The citations the project. themselves should be accurate, journals. The following guidelines should be complete, and written in an acceptable M. Collaborative and/or Subcontractual used in developing your proposal journal format. Arrangements budget(s): 1. Salaries and Wages. Salaries and I. Current Work If it will be necessary to enter into wages are allowable charges and may be Current unpublished institutional formal consulting or collaborative requested for personnel who will be activities to date in the program area arrangements with other individuals or working on the project in proportion to under which the proposal is being organizations such arrangements should the time such personnel will devote to submitted should be described. be fully explained and justified. In the project. If salary funds are requested, addition, evidence should be provided J. Facilities and Equipment the number of Senior and Other that the collaborators involved have Personnel and the number of CSREES All facilities which are available for agreed to render these services. A letter Funded Work Months must be shown in use or assignment to the project during of intent from the individual or the spaces provided. Grant funds may the requested period of support should organization will satisfy this not be used to augment the total salary be reported and described briefly. Any requirement. For purposes of proposal or rate of salary of project personnel or potentially hazardous materials, development, informal day-to-day to reimburse them for time in addition procedures, situations, or activities, contacts between key project personnel to a regular full-time salary covering the whether or not directly related to a and outside experts are not considered same general period of employment. particular phase of the effort, must be to be collaborative arrangements and Salary funds requested must be explained fully, along with an outline of thus do not need to be detailed. consistent with the normal policies of precautions to be exercised. Examples All anticipated subcontractual the institution and with OMB Circular include work with toxic chemicals and arrangements also should be explained No. A–21, Cost Principles for experiments that may put human and justified in this section. A proposed Educational Institutions. Administrative subjects or animals at risk. statement of work and a budget for each and Clerical salaries are normally All items of major instrumentation arrangement involving the transfer of classified as indirect costs. (See Item 9. available for use or assignment to the substantive programmatic work or the below.) However, if requested under proposed project also should be providing of financial assistance to a A.2.e., they must be fully justified. itemized. In addition, items of third party must be provided. nonexpendable equipment needed to Agreements between departments or Note: In accordance with Section 1473 of conduct and bring the project to a other units of your own institution and the National Agricultural Research, Extension, and Teaching Policy Act of 1977 successful conclusion should be listed, minor arrangements with entities (91 Stat. 981), as amended, tuition remission including dollar amounts and, if funds outside of your institution (e.g., requests is not an allowable cost under Section are requested for their acquisition, for outside laboratory analyses) are 2(c)(1)(B) projects, and no funds will be justified. excluded from this requirement. approved for this purpose. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 879

2. Fringe Benefits. Funds may be 6. Publication Costs/Page Charges. be approved for the project. In addition requested for fringe benefit costs if the Anticipated costs of preparing and to any other situation that may exist usual accounting practices of your publishing results of the research being with regard to a particular project, it is institution provide that institutional proposed (including page charges, expected that some applications contributions to employee benefits necessary illustrations, and the cost of a submitted in response to these (social security, retirement, etc.) be reasonable number of coverless reprints) guidelines will include the following: treated as direct costs. Fringe benefit may be estimated and charged against 1. Recombinant DNA or RNA costs may be included only for those the grant. Research. As stated in 7 CFR Part personnel whose salaries are charged as 7. Computer (ADPE) Costs. 3015.205(b)(3), all key personnel a direct cost to the project. See OMB Reimbursement for the costs of using identified in the proposal and all Circular No. A–21, Cost Principles for specialized facilities (such as a endorsing officials of the proposing Educational Institutions, for further university- or department-controlled organization are required to comply guidance in this area. computer mainframe or data processing with the guidelines established by the 3. Nonexpendable Equipment. center) may be requested if such National Institutes of Health entitled, Nonexpendable equipment means services are required for completion of ‘‘Guidelines for Research Involving tangible nonexpendable personal the work. Recombinant DNA Molecules,’’ as property including exempt property 8. All Other Direct Costs. Anticipated revised. If your project proposes to use charged directly to the award having a direct project charges not included in recombinant DNA or RNA techniques, useful life of more than one year and an other budget categories must be the application must so indicate by acquisition cost of $5,000 or more per itemized with estimated costs and checking the ‘‘yes’’ box in Block 19 of unit. As such, items of necessary justified on a separate sheet of paper Form CSREES–661 (‘‘Application for instrumentation or other nonexpendable attached to Form CSREES–55. This Funding’’) and by completing Section A equipment should be listed individually applies to revised budgets, as the item(s) of Form CSREES–662. For applicable proposals recommended for funding, by description and estimated cost. This and dollar amount(s) may change. Institutional Biosafety Committee applies to revised budgets, as the Examples may include space rental at approval is required before CSREES equipment item(s) and amount(s) may remote locations, subcontractual costs, funds will be released. change. charges for consulting services, and fees for necessary laboratory analyses. You 2. Animal Care. Responsibility for the Note: No funds will be awarded for the are encouraged to consult the humane care and treatment of live purchase or installation of fixed equipment. ‘‘Instructions for Completing Form vertebrate animals used in any grant In addition, pursuant to Section CSREES–55, Budget,’’ of the project supported with funds provided 716(b) of Pub. L. No. 104–180 (the Application Kit for detailed guidance by CSREES rests with the performing Agriculture, Rural Development, Food relating to this budget category. organization. Where a project involves and Drug Administration, and Related 9. Indirect Costs. Pursuant to Section the use of living vertebrate animals for Agencies Appropriations Act, 1997), in 1473 of the National Agriculture experimental purposes, all key project the case of any equipment or product Research, Extension, and Teaching personnel and all endorsing officials of that may be authorized to be purchased Policy Act of 1977 (91 Stat. 981), the proposing organization are required with funds provided under this indirect costs are not allowable costs to comply with the applicable program, entities receiving such funds under Section 2(c)(1)(B) projects, and no provisions of the Animal Welfare Act of are encouraged to use such funds to funds will be approved for this purpose. 1996, as amended (7 U.S.C. 2131 et seq.) purchase only American-made Further, costs that are a part of an and the regulations promulgated thereunder by the Secretary in 9 CFR equipment or products. institution’s indirect cost pool (e.g., administrative or clerical salaries) may Parts 1, 2, 3, and 4 pertaining to the Note: For projects awarded under the care, handling, and treatment of these authority of Sec. 2(c)(1(B) of Pub. L. No. 89– not be reclassified as direct costs for the purpose of making them allowable. animals. If your project will involve 106, no funds will be awarded for the these animals or activities, you must renovation or refurbishment of research 10. Cost-sharing. Cost-sharing is spaces; the purchase or installation of fixed encouraged; however, cost-sharing is check the ‘‘yes’’ box in Block 20 of Form equipment in such spaces; or for the not required nor will it be a direct factor CSREES–661 and complete Section B of planning, repair, rehabilitation, acquisition, in the awarding of any grant. Form CSREES–662. In the event a or construction of a building or facility. project involving the use of live O. ‘‘Current and Pending Support’’ vertebrate animals results in a grant 4. Materials and Supplies. The types (Form CSREES–663) award, funds will be released only after of expendable materials and supplies All proposals must contain Form the Institutional Animal Care and Use which are required to carry out the CSREES–663 listing this proposal and Committee has approved the project. project should be indicated in general any other current or pending support to 3. Protection of Human Subjects. terms with estimated costs. which keep project personnel have Responsibility for safeguarding the 5. Travel. The type and extent of committed or are expected to commit rights and welfare of human subjects travel and its relationship to project portions of their time, whether or not used in any grant project supported objectives should be described briefly salary support for the person(s) involved with funds provided by CSREES rests and justified. If foreign travel is is included in the budget. This proposal with the performing organization. proposed, the country to be visited, the should be identified in the pending Guidance on this issue is contained in specific purpose of the travel, a brief section of this form. the National Research Act, Pub. L. No. itinerary, inclusive dates of travel, and 93–348, as amended, and implementing estimated cost must be provided for P. ‘‘Assurance Statement(s)’’ (Form regulations established by the each trip. Airfare allowances normally CSREES–662) Department under 7 CFR Part 1c. If you will not exceed round-trip jet economy A number of situations encountered propose to use human subjects for air accommodations. U.S. flag carriers in the conduct of projects require experimental purposes in your project, must be used when available. See 7 CFR special assurance, supporting you should check the ‘‘yes’’ box in Part 3015.205(b)(4) for further guidance. documentation, etc., before funding can Block 21 of Form CSREES–661 and 880 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices complete Section C of Form CSREES– (1) USDA Categorical Exclusions (7 CFR environmental grounds exists or if other 662. In the event a project involving 1b.3) extraordinary conditions or human subjects results in a grant award, (i) Policy development, planning and circumstances are present that may funds will be released only after the implementation which are related to cause such activity to have a significant appropriate Institutional Review Board routine activities such as personnel, environmental effect. has approved the project. organizational changes, or similar S. Additions to Project Description Q. Certifications administrative functions; Each project description is expected Note that by signing the Application (ii) Activities which deal solely with to be complete in itself. However, in for Funding form the applicant is the funding of programs, such as those instances in which the inclusion providing the required certifications set program budget proposals, of additional information is necessary, forth in 7 CFR Part 3017, as amended by disbursements, and transfer or the number of copies submitted should 61 FR 250, regarding Debarment and reprogramming of funds; match the number of copies of the Suspension and Drug-Free Workplace, (iii) Inventories, research activities, application requested in Part V(A) and 7 CFR Part 3018, regarding and studies, such as resource below. Each set of such materials must Lobbying. The certification forms are inventories and routine data collection be identified with the title of the project included in this application package for when such actions are clearly limited in and the name(s) of the principal informational purposes only. These context and intensity; investigator(s)/project director(s) as they forms should not be submitted with (iv) Educational and informational appear on the ‘‘Application for your proposal since by signing the Form programs and activities; Funding.’’ Examples of additional CSREES–661 your organization is (v) Civil and criminal law materials include photographs that do providing the required certifications. enforcement and investigative activities; not reproduce well, reprints, and other If the project will involve a (vi) Activities which are advisory and pertinent materials which are deemed to subcontractor or consultant, the consultative to other agencies and be unsuitable for inclusion in the body subcontractor/consultant should submit public and private entities; and of the proposal. a Form AD–1048 to the grantee (vii) Activities related to trade T. CRIS Forms AD–416 and AD–417 organization for retention in their representation and market development records. This form should not be activities abroad. In order to document research projects in the Current Research submitted to USDA. (2) CSREES Categorical Exclusions (7 Information System’s (CRIS) data base, CFR 3407.6(a)(2)) R. Compliance With the National CSREES requires the submission of the Environmental Policy Act Based on previous experience, the CRIS Forms AD–416 and AD–417 prior As outlined in 7 CFR Part 3407 following categories of CSREES actions to the release of grant funds. One (CSREE’s implementing regulations of are excluded because they have been completed copy of each form must be the National Environmental Policy Act found to have limited scope and submitted with the original pen-and-ink of 1969 (NEPA), as amended (42 U.S.C. intensity and to have no significant copy of the proposal. Fields 1, 19, 20, 4321 et seq.)), environmental data or individual or cumulative impacts on the 21, 28, 29, 30 and ‘‘Duration’’ should be documentation for the proposed project quality of the human environment: left blank, as these will be completed by is to be provided to CSREES in order to (i) The following categories of CSREES upon award. Appropriate assist CSREES in carrying out its research programs or projects of limited institutional signatures on Form AD– responsibilities under NEPA, which size and magnitude or with only short- 416 should be obtained prior to includes determining whether the term effects on the environment: submission to CSREES. CSREES will not project requires an Environmental (A) Research conducted within any release funds for the proposed award Assessment or an Environmental Impact laboratory, greenhouse, or other until the completed CRIS forms are Statement or whether it can be excluded contained facility where research received; therefore, prompt action on from this requirement on the basis of practices and safeguards prevent this requirement is essential for the several categorical exclusions. To assist environmental impacts; initiation of the project. (B) Surveys, inventories, and similar CSREES in this determination, the Part V—Submission of a Proposal applicant should review the categories studies that have limited context and defined for exclusion to ascertain minimal intensity in terms of changes in A. What to Submit whether the proposed project may fall the environment; and An original and three copies of each within one of the exclusions. (C) Testing outside of the laboratory, grant proposal must be submitted. Form CSREES–1234, ‘‘NEPA such as in small isolated field plots, Proposals should contain all requested Exclusions Form’’ (copy in Application which involves the routine use of information when submitted. Each Kit), indicating the applicant’s opinion familiar chemicals or biological proposal should be typed on 81⁄2′′x11′′ of whether or not the project falls within materials. white paper, single-spaced, and on one one or more categorical exclusions, (ii) Routine renovation, rehabilitation, side of the page only. Please note that along with supporting documentation, or revitalization of physical facilities, the text of the proposal should be must be included in the proposal. The including the acquisition and prepared using no type smaller than 12 information submitted in association installation of equipment, where such point font size and one-inch margins. with NEPA compliance should be activity is limited in scope and Staple each copy of the proposal in the identified in the Table of Contents as intensity. upper left-hand corner. Please do not ‘‘NEPA Considerations’’ and Form Even though the applicant considers bind copies of the proposal. CSREES–1234 and supporting that a proposed project may fall within documentation should be placed after a categorical exclusion, CSREES may B. Where and When To Submit the Form CSREES–661, ‘‘Application for determine that an Environmental Proposals must be received on or Funding,’’ in the proposal. Assessment or an Environmental Impact before February 7, 1997, and submitted The following Categorical Exclusions Statement is necessary for a proposed to the following mailing address: apply: project if substantial controversy on Proposal Services Unit, Grants Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 881

Management Branch, Office of 3. Revelance and importance of whom the Administrator has awarded a Extramural Programs, Cooperative State proposed research to solution of specific grant under this program; Research, Education, and Extension areas of inquiry—30 points. b. Title of Project; Service, U.S. Department of Agriculture, 4. Feasibility of attaining objectives; c. Name(s) and address(es) of STOP 2245, Washington, D.C. 20250– adequacy of professional training and principal investigator(s) chosen to direct 2245, Telephone (202) 401–5048. experience, facilities and equipment; and control approved activities; d. Grant identification number Note: Hand-delivered proposals or those the cooperation and involvement of delivered by overnight express service multiple institutions or states—50 assigned by the Department; should be brought to the following address: points. e. Project period, specifying the Proposal Services Unit, Grants Management amount of time the Department intends Branch; Office of Extramural Programs; Part VII—Supplementary Information to support the project without requiring CSREES/USDA; Room 303, Aerospace A. Access to Peer Review Information recompetition for funds; Center; 901 D Street, S.W.; Washington, D.C. f. Total amount of Departmental 20024. The telephone number is (202) 401– After final decisions have been financial assistance approved by the 5048. announced, CSREES will, upon request, Administrator during the project period; inform the principal investigator of the C. Acknowledgment of Proposals g. Legal authority(ies) under which reasons for its decision on a proposal. the grant is awarded; The receipt of all proposals will be B. Grant Awards h. Approved budget plan for acknowledged in writing and this categorizing project funds to accomplish acknowledgment will contain a 1. General: Within the limit of funds the stated purpose of the grant award; proposal identification number. Once available for such purpose, the awarding and your proposal has been assigned an official of CSREES shall make grants to i. Other information or provisions identification number, please cite that those responsible, eligible applicants deemed necessary by CSREES to carry number in future correspondence. whose proposals are judged most out its respective granting activities or meritorious in the announced program to accomplish the purpose of a Part VI—Selection Process and area and procedures set forth in this particular grant. Evaluation Criteria request for proposals. The date specified 4. Notice of Grant Award: The notice A. Selection Process by the Administrator as the effective of grant award, in the form of a letter, date of the grant shall be no later than will be prepared and will provide Applicants should submit fully September 30 of the Federal fiscal year pertinent instructions or information to developed proposals that meet all the in which the project is approved for the grantee that is not included in the requirements set forth in this request for support and funds are appropriated for grant award document. proposals. such purpose, unless otherwise 5. CSREES will award standard grants Each proposal will be evaluated in a permitted by law. It should be noted to carry out this program. A standard two-part process. First, each proposal that the project need not be initiated on grant is a funding mechanism whereby will be screened to ensure that it meets the grant effective date, but as soon CSREES agrees to support a specified the requirements as set forth in this thereafter as practicable so that project level of effort for a predetermined time request for proposals. Second, proposals goals may be attained within the funded period without any guarantee of that meet these requirements will be project period. All funds granted by additional support at a future date. technically evaluated by a review panel. CSREES under this request for proposals C. Use of Funds; Changes The individual panel members will be shall be expended solely for the purpose selected from among those persons for which the funds are granted in Unless otherwise stipulated in the recognized as specialists who are accordance with the approved terms and conditions of the grant award, uniquely qualified by training and application and budget, the terms and the following provisions apply: experience in their respective fields to conditions of the award, the applicable 1. Delegation of Fiscal Responsibility: render expert advice on the merit of the Federal cost principles, and the The grantee may not in whole or in part proposals being reviewed. The Department’s assistance regulations delegate or transfer to another person, individual views of the panel members (Parts 3015, 3018, and 3019 of 7 CFR). institution, or organization the 2. Organizational Management will be used to determine which responsibility for use or expenditure of Information: Specific management proposals should be recommended to grant funds. information relating to an applicant the Administrator (or his designee) for 2. Changes in Project Plans: shall be submitted on a one-time basis final funding decisions. a. The permissible changes by the as part of the responsibility grantee, principal investigator(s), or There is no commitment by USDA to determination prior to the award of a other key project personnel in the fund any particular proposal or to make grant if such information has not been approved research project grant shall be a specific number of awards. Care will provided previously under this or limited to changes in methodology, be taken to avoid actual and potential another program for which the techniques, or other aspects of the conflicts of interest among reviewers. sponsoring agency, CSREES, is project to expedite achievement of the Evaluations will be confidential to responsible. Copies of forms project’s approved goals. If the grantee USDA staff members, peer reviewers, recommended for use in fulfilling the and/or the principal investigator(s) are and the proposed principal requirements contained in this section uncertain as to whether a change investigator(s), to the extent permitted will be provided by the sponsoring complies with this provision, the by law. agency as part of the pre-award process. question must be referred to the B. Evaluation Criteria 3. Grant Award Document and Notice Authorized Departmental Officer for a of Grant Award: The grant award final determination. 1. Overall scientific and technical document shall include at a minimum b. Changes in approved goals, or quality of the proposal—10 points. the following: objectives, shall be requested by the 2. Scientific and technical quality of a. Legal name and address of grantee and approved in writing by the the approach—10 points. performing organization or institution to Authorized Departmental Officer prior 882 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices to effecting such changes. In no event 7 CFR Part 3—USDA implementation inventions made by employees of small shall requests for such changes be of OMB Circular No. A–129 regarding business firms and domestic nonprofit approved which are outside the scope of debt collection. organizations, including universities, in the original approved project. 7 CFR Part 15, subpart A—USDA Federally assisted programs c. Changes in approved project implementation of Title VI of the Civil (implementing regulations are contained leadership or the replacement or Rights Act of 1964, as amended. in 37 CFR Part 401). reassignment of other key project 7 CFR Part 3015—USDA Uniform E. Confidential Aspects of Proposals personnel shall be requested by the Federal Assistance Regulations, and Awards grantee and approved in writing by the implementing OMB directives (i.e., awarding official of CSREES prior to Circular Nos. A–21, and A–122) and When a proposal results in a grant, it effecting such changes. incorporating provisions of 31 U.S.C. becomes a part of the record of the d. Transfers of actual performance of 6301–6308 (formerly the Federal Grant Agency’s transactions, available to the the substantive programmatic work in and Cooperative Agreement Act of 1977, public upon specific request. whole or in part and provisions for Pub. L. No. 95–224), as well as general Information that the Secretary payment of funds, whether or not policy requirements applicable to determines to be of a privileged nature Federal funds are involved, shall be recipients of Departmental financial will be held in confidence to the extent requested by the grantee and approved assistance. permitted by law. Therefore, any in writing by the Authorized 7 CFR Part 3017, as amended by 61 information that the applicant wishes to Departmental Officer prior to effecting FR 250—USDA implementation of have considered as privileged should be such transfers. Governmentwide Debarment and clearly marked as such and sent in a e. Changes in Project Period: The Suspension (Nonprocurement) and separate statement, two copies of which project period may be extended by Governmentwide Requirements for should accompany the proposal. The CSREES without additional financial Drug-Free Workplace (Grants). original copy of a proposal that does not support, for such additional period(s) as 7 CFR Part 3018—USDA result in a grant will be retained by the the Authorized Departmental Officer implementation of New Restrictions on Agency for a period of one year. Other determines may be necessary to Lobbying. Imposes prohibitions and copies will be destroyed. Such a complete or fulfill the purposes of an requirements for disclosure and proposal will be released only with the approved project. Any extension of time certification related to lobbying on consent of the applicant or to the extent shall be conditioned upon prior request recipients of Federal contracts, grants, required by law. A proposal may be by the grantee and approval in writing cooperative agreements, and loans. withdrawn at any time prior to the final by the Authorized Departmental Officer, 7 CFR Part 3019—USDA action thereon. unless prescribed otherwise in the terms implementation of OMB Circular A– and conditions of a grant. 110, Uniform Administrative F. Regulatory Information f. Changes in Approved Budget: Requirements for Grants and For the reasons set forth in the final Changes in an approved budget must be Agreements With Institutions of Higher Rule-related Notice to 7 CFR 3015, requested by the grantee and approved Education, Hospitals, and Other subpart V (48 FR 29115, June 24, 1983), in writing by the authorized Nonprofit Organizations. this program is excluded from the scope departmental officer prior to instituting 7 CFR Part 3051—USDA of the Executive Order 12372 which such changes if the revision will involve implementation of OMB Circular No. A– requires intergovernmental consultation transfers or expenditures of amounts 133, Audits of Institutions of Higher with State and local officials. Under the requiring prior approval as set forth in Education and Other Nonprofit provisions of the Paperwork Reduction the applicable Federal costs principles, Institutions. Act of 1980 (44 U.S.C. 3504(h)), the Departmental regulations, or in the grant 7 CFR Part 3407—CSREES procedures collection of information requirements award. to implement the National contained in this Notice have been Environmental Policy Act of 1969, as D. Other Federal Statutes and approved under OMB Document No. amended. 0524–0022. Regulations That Apply 29 U.S.C. 794, section 504— Several other Federal statutes and Rehabilitation Act of 1973, and 7 CFR Done at Washington, D.C., this 30th day of regulations apply to grant proposals Part 15B (USDA implementation of December 1996. considered for review and to project statute), prohibiting discrimination Colien Hefferan, grants awarded under this program. based upon physical or mental handicap Associate Administrator, Cooperative State These include but are not limited to: in Federally assisted programs. Research, Education, and Extension Service. 7 CFR 1.1—USDA implementation of 35 U.S.C. 200 et seq.—Bayh-Dole Act, [FR Doc. 97–157 Filed 1–3–97; 8:45 am] the Freedom of Information Act. controlling allocation of rights to BILLING CODE 3410±22±M federal register January 6,1997 Monday Notice Management AlternativesResearch; Special ResearchGrantsProgram,Pest Agriculture Department of Part V 883 884 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

DEPARTMENT OF AGRICULTURE Authority review or to grants awarded under this The program is administered by the Program. These include, but are not Cooperative State Research, USDA Cooperative State Research, limited to: Education, and Extension Service Education, and Extension Service 7 CFR Part 3019—USDA Uniform Administrative Requirements for Special Research Grants Program, (CSREES). The authority is contained in Grants and Agreements with Pest Management Alternatives section 2(c)(1)(A) of the Act of August Institutions of Higher Education, Research; Fiscal Year 1997; 4, 1995, Pub. L. No. 89–106, as amended Hospitals, and Other Non-Profit Solicitation of Proposals (7 U.S.C. 450i(c)(1)(A)). Under this program, subject to the availability of Organizations implementing OMB AGENCY: Cooperative State Research, funds, the Secretary may make grants, Circular A–110; and Education, and Extension Service, for periods not to exceed five years, to 7 CFR Part 3051—Audits of Institutions USDA. State Agricultural Experiment Stations, of Higher Education and Other Nonprofit Institutions. ACTION: Notice all colleges and universities, other research institutions and organizations, This competitive grants program PURPOSE: Proposals of regional research Federal agencies, private organizations addresses the need for development of significance are invited for competitive or corporations, and individuals for the pest management alternatives to provide grant awards under the Special Research purpose of conducting research to for production of abundant and Grants Program-Pest Management facilitate or expand promising affordable food supplies, to increase the Alternatives Research (the program) for breakthroughs in areas of the food and availability of biological and cultural fiscal year (FY) 1997. This program agricultural sciences of importance to methods as pest management options, implements the Memorandum of the United States. and to meet the policy goals set forth in Understanding (MOU) between the U.S. Proposals from scientists affiliated sections 1439 and 1484 of the Food, Department of Agriculture (USDA) and with non-United States organizations Agriculture, Conservation and Trade the U.S. Environmental Protection are not eligible for funding nor are Act of 1990, Pub. L. No. 101–624. These Agency (USEPA) signed August 15, scientists who are directly or indirectly activities pertain to pesticides identified 1994, and amended April 18, 1996, engaged in the registration of pesticides for possible regulatory action under which establishes a coordinated for profit; however, their collaboration section 102 of the Food Quality framework for collaborative efforts to with funded projects is encouraged. Protection Act of 1996, Pub. L. 104–170, develop and implement activities that that amends the Federal Insecticide, will make alternative pest management Available Funding Fungicide and Rodenticide Act. materials available to agricultural Subject to the availability of funds, Funding Categories for Fiscal Year 1997 producers when regulatory action by the the amount available for support of this USEPA or voluntary cancellation by the program in FY 1997 is $1,516,865. The following priority areas have registrant results in the unavailability of Proposals should be for no more than a been identified by the USDA and certain agricultural pesticides or two-year period. USEPA through interaction with State pesticide uses. In this MOU, the USDA Puruant to Section 712 of Pub. L. No. Agricultural Experiment Station and USEPA agreed to: (1) cooperate in 104–180, the Agriculture, Rural research and extension faculty via the providing for agricultural pest Development, Food and Drug National Agricultural Pesticide Impact management that is conducted in the Administration, and Related Agencies Assessment Program and state and most environmentally-sound manner Appropriations Act, 1997 (‘‘1997 regional Integrated Pest Management possible, with sufficient pest Appropriations Act’’), CSREES may not (IPM) program. In addition, commodity management alternatives to reduce risks use funds available in FY 1997 to pay groups and producers of affected crops to human health and the environment, indirect cost on research grants awarded were involved in the identification of to reduce the incidence of pest competitively that exceed 14 percent of project areas. Needs were identified to resistance to pesticides and to ensure the total Federal funds provided under address replacement technologies for economical agricultural production, and each award. pesticides under current and potential (2) cooperate in establishing a process to In addition, pursuant to Section regulatory review or where pesticides conduct the research, technology 716(b) of the 1997 Appropriations Act, are unavailable due to voluntary transfer and registration activities in the case of any equipment or product cancellation by the registrant and for necessary to ensure adequate pest that may be authorized to be purchased which producers and other users do not management alternatives are available to with grant funds provided under this have effective alternatives or where meet important agricultural needs for program, entities are encouraged to use regulatory actions trigger pest resistance situations in which regulatory action such funds to purchase only American- problems that limit IPM options. would result in pest management made equipment or products. Replacements for methyl bromide are problems. The goal of this program is to not addressed by this request for develop alternatives for critical needs to Applicable Regulations proposals. The identified priority areas insure that farmers, foresters, ranchers, This Program is subject to the for FY 1997 projects are: and urban pest management specialists administrative provisions for the Note: Projects dealing with other crop and and other users have reliable methods of Special Research Grants Program found pest combinations will not be considered. managing pest problems. Emphasis is in 7 CFR Part 3400 (56 FR 58147, However, proposals may address the placed on current and potential loss of November 15, 1991), which set forth development of an IPM system that will select pesticides due to increased procedures to be followed when result in economic management of the worker and food safety and submitting grant proposals, rules targeted crop/pest combination. environmental concerns leading to governing the evaluation of proposals, Commodity Pests regulatory review and actions, and the the awarding of grants, and post-award loss of pest management practices due administration of such grants. Several Alfalfa ...... Aphids. to performance failures such as those other Federal statutes and regulations Apples ...... Mites. caused by genetic changes in pests. apply to grant proposals considered for Apricots ...... Mites. Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 885

Commodity Pests (7) Demonstrated growers’ 2. Appropriateness of the Budget—5 involvement in the identification of points Artichokes ...... Aphids. potential approaches to solutions and (An evaluation of appropriate and Blackberry/raspberry Pear psylla. the opportunity for public/private Rhizopus. detailed budget request and partnerships and matching resources collaborative funding to accomplish the Rust from grower or commodity groups. Cabbage ...... Thrips. proposed project; collaborative Mites. (8) An overview of the availability of arrangements clearly documented.) Carrot ...... Dodder. natural controls (biological, cultural, Mites. and host resistance) as solutions or 3. Problem Statement, Background and Fungal leaf diseases. partial solutions to the pest management Rationale—15 points Cole crops ...... Aphids. problem and compatibility with IPM or (Includes the evaluation of significant Collards ...... Alternaria. crop management systems. This reduction of risk to human health or the Anthracnose. Program will not support basic plant Cercospora. environment; no viable alternatives Cranberry ...... Mites. breeding or other tactics where presently exist; and significant potential Cruciferous greens .... Alternaria. significant progress toward losses would occur without the White rust. implementation cannot be alternative(s) being developed under Grape ...... Grape phlloxera. accomplished within two years. this proposal.) Black vine weevil. However, this program will support Leafy greens ...... Aphids. research on the incorporation of pest 4. Research, Education & Technology Leek/shallot ...... Alternaria. resistant cultivars into a production Transfer Plan—40 points Botrytis. system. Downy mildew. (In addition to the evaluation of a Lemon/tangerine ...... Pale color. (9) Where registrations of new detailed plan for research, education, Lettuce ...... Aphids. management options by state and and technology transfer and summary of Millet ...... Annual grasses. Federal agencies are required, the past research or extension activities that Peaches ...... Mites. proposal should describe the demonstrate the practicability of the Pecans ...... Yellow pecan aphid. collaborative actions being taken with proposed alternative(s), includes the Peppermint/spearmint Weeds. regulators which lead toward evaluation of whether the proposed Plums/prunes ...... Mites. registration and use of Good Laboratory solutions could rapidly be brought to Brown rot. Practices (GLP). bear on critical problems and Pumpkin ...... Pigweed. Nightshade. (10) Demonstrate appropriate budget registration consideration are addressed Radicchio ...... Aphids. and collaborative funding to accomplish where they are required for solution Rice ...... Rice water weevil. the proposed project. implementation.) Sorghum ...... Chinch bug. All projects that involve a new 5. Producer Involvement—15 points Broadleaf weeds. registration of a product or expanded Spinach ...... Fungal leaf diseases. labelling must be done in compliance (Evaluation includes growers’ Sugar cane ...... Weeds. with GLP Standards (40 CFR Part 160). involvement in the identification of Aphids. IR–4 coordinators are available in every potential approaches to solutions and Sweet potato ...... Weeds. state to advise or assist with GLP and the opportunity for public/private partnerships and matching resources The proposal should address: registration requirements. Projects from grower or commodity groups.) (1) Identification of the pest involving collaborative registration and management problem, estimation of funding are encouraged. 6. Professional Competence of the economic impact, and documentation of Proposal Evaluation Project Team—5 points the pest management problem and Proposals will be evaluated by the 7. Integration of Natural Control losses associated with the pest(s). Solutions—10 points (2) Analysis of the availability of Administrator of CSREES assisted by a options and their applicability as peer panel with IPM expertise. CSREES (Includes the evaluation of natural possible solutions including their seeks proposals which address the controls as partial or effective solutions compatibility with integrated following issues: (1) A significant to the pest management problems being management systems. reduction of risk of human health or the addressed and an analysis of the (3) Explicit documentation is needed environment that would result; (2) no durability of the proposed option and to qualify the project emphasizing current viable alternatives and the technologic and economic feasibility environmental issues, human safety, or documented significant potential losses; of the proposed solution.) resistance management concerns which (3) significant producer involvement; (4) Programmatic Contact make the present management options natural controls as partial or effective impractical. solutions to pest management problems; For additional information on the (4) A summary of past research or and (5) solutions capable of being Program, please contact; Dr. Michael extension activities that demonstrate the rapidly brought to bear on critical Fitzner, Cooperative State Research, practicability of the proposed problems. Registration considerations Education, and Extension Service, U.S. alternative(s). must be addressed when they are Department of Agriculture, STOP 2220, (5) A detailed plan for the research, required for solution implementation. Washington, D.C. 20250–2220; education and technology transfer to 1. Executive Summary—10 points Telephone: (202) 401–4939; Fax achieve the alternative development and Number: (202) 401–4888; E-mail field implementation with identified (An evaluation of how well the address: [email protected]. milestones. proposal summary can be understood by (6) An analysis of the durability of the a diverse audience of university How to Obtain Application Materials proposed option and the technologic personnel, producers, various public Copies of this solicitation, the and economic feasibility of the and private groups, budget staff and the administrative provisions for the proposed solution. general public.) Program (7 CFR Part 3400), and the 886 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Application Kit, which contains will not be listed on the grant document arrangements with other research required forms, certifications, and in the event an award is made. The title scientists, corporations, organizations, instructions for preparing and of the proposal must be brief (80- agencies, or entities, the applicant must submitting applications for funding, character maximum), yet represent the identify the collaborator(s) and provide may be obtained by contacting: Proposal major emphasis of the project. Because a full explanation of the nature of the Services Unit, Grants Management this title will be used to provide collaboration. Evidence (i.e., letters of Branch, Office of Extramural Programs, information to those who may not be intent) should be provided to assure Cooperative State Research, Education, familiar with the proposed project, peer reviewers that the collaborators and Extension Service, U.S. Department highly technical words or phraseology involved have agreed to render this of Agriculture, STOP 2245, Washington, should be avoided where possible. In service. In addition, the proposal must D.C. 20250–2245; Telephone: (202) 401– addition, phrases such as ‘‘investigation indicate whether or not such a 5048. When contacting the Proposal of’’ or ‘‘research on’’ should not be used. collaborative arrangement(s) has the Services Unit, please indicate that you (2) Executive Summary. Describe the potential for conflict(s) of interest. are requesting forms for the Special project in terms that can be understood (9) Personnel Support. To assist peer Research Grants Program, Pest by a diverse audience of university reviewers in assessing the competence Management Alternatives Research. personnel, producers, various public and experience of the proposed project Application materials may also be and private groups, budget staff, and the staff, key personnel who will be requested via Internet by sending a general public. This should be on a involved in the proposed project must message with your name, mailing separate page, no more than one page in be clearly identified. For each principal address (not e-mail) and telephone length and have the following format: investigator involved, and for all senior number to [email protected] that states Name(s) of principal investigator(s) and associates and other professional that you wish to receive a copy of the institutional affiliation, project title, key personnel who expect to work on the application materials for the FY 1997 words and project summary. A project, whether or not funds are sought Special Research Grants Program, Pest computer disc indicating the word for their support, the following should Management Alternatives Research. The processing program used and the file be included: materials will then be mailed to you name for the Executive Summary (i) An estimate of the time (not e-mailed) as quickly as possible. should be submitted with the original commitments necessary; copy of the proposal. (ii) Curriculum vitae. The curriculum Proposal Format (3) Problem Statement. Identify the vitae should be limited to a presentation Members of review committees and pest management problem addressed, its of academic and research credentials, the staff expect each project description significance and options for solution. e.g., educational, employment and to be complete in itself. The Define the production area addressed by professional history, and honors and administrative provisions governing the the proposed solution and the potential awards. Unless pertinent to the project, Special Research Grants Program, 7 CFR applicability to other production to personal status, or to the status of the Part 3400, set forth instructions for the regions. organization, meetings attended, preparation of grant proposals. The (4) Rationale and Significance. seminars given, or personal data such as following requirements deviate from Provide information on the basis and birth date, martial status, or community those contained in section 3400.4(c). rationale for the proposed project. activities should not be included. Each The following provisions of this Compatibility with current IPM and vitae shall be no more than two pages solicitation shall apply. crop production practices, technologic in length, excluding the publication Proposals submitted to the Program economic feasibility and potential lists. USDA reserves the option of not should address the described criteria. durability should be addressed. Explicit forwarding for further consideration a Each proposal should provide a detailed documentation is needed to qualify the proposal in which each vitae exceeds plan for the research, education and project emphasizing environmental the two-page limit; and technology transfer required to issues, human safety, or resistance (iii) Publication List(s). A implement the alternative solution in management concerns that make present chronological list of all publications in the field. Involvement of growers or management options impractical. referred journals during the past five other users in the project is essential (5) Research, Education and years, including those in press, must be and should be clearly identified. Technology Transfer Plan. Provide a provided for each professional project Proposals should adhere to the detailed plan with milestones member for whom a curriculum vitae is following format: items 3 through 6 identified. provided. Authors should be listed in should not exceed 12 single spaced/ (6) Producer Involvement. Provide the same order as they appear on each single-sided pages altogether, using no information on producer or other user paper cited, along with the title and type less than 12 point (10 cpi) font size involvement in identification of the complete reference as these items with one-inch margins. The pages proposed solution and involvement in usually appear in journals. should be numbered. implementing the proposed solution. (10) Budget. A detailed budget is (1) Application for Funding (Form (7) Facilities and Equipment. All required for each year of requested CSREES–661). All full proposals facilities and major items of equipment support. In addition, a summary budget submitted by eligible applicants should that are available for use or assignment is required detailing requested support contain an Application for Funding, to the proposed research project during for the overall project period. A copy of Form CSREES–661, which must be the requested period of support should the form which must be used for this signed by the proposed principal be described. In addition, items of purpose, Form CSREES–55, along with investigator(s) and endorsed by the nonexpendable equipment necessary to instructions for completion, is included cognizant Authorized Organizational conduct and successfully conclude the in the Application Kit and may be Representative who possesses the proposed project should be listed with reproduced as needed by applicants. necessary authority to commit the the amount for each item. Funds may be requested under any of applicant’s time and other relevant (8) Collaborative Arrangements. If the the categories listed, provided that the resources. Principal investigators who nature of the proposed project requires item or service for which support is do not sign the full proposal cover sheet collaboration or subcontractual requested may be identified as Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices 887 necessary for successful conduct of the by an Institutional Animal Care and Use materials should be submitted. Each set proposed project, is allowable under Committee. The Application Kit of such materials must be identified applicable Federal cost principles, and contains a form which is suitable for with the name of the submitting is not prohibited under any applicable such certification (Form CSREES–662). organization, and the name(s) of the Federal statute. However, the recovery (iii) Human subjects at risk. principal investigator(s). Information of indirect costs under this program may Responsibility for safeguarding the may not be appended to a proposal to not exceed the lesser of the grantee rights and welfare of human subjects circumvent page limitations prescribed institution’s official negotiated indirect used in any proposed project supported for the project description. Extraneous cost rate or the equivalent of 14 percent with grant funds provided by USDA materials will not be used during the of total Federal funds awarded. This rests with the performing entity. peer review process. Regulations have been issued by USDA limitation also applies to the recovery of (14) Organizational Management under 7 CFR Part 1c, Protection of indirect costs by any subawardee or Information. Specific management Human Subjects. In the event that a subcontractor, and should be reflected information relating to an applicant project involving human subjects at risk in the subrecipient budget. shall be submitted on a one-time basis is recommended for award, the Note: For projects awarded under the prior to the award of a grant for this applicant will be required to submit a authority of Sec. 2(c)(1)(A) of Pub. L. No. 89– Program if such information has not statement certifying that the project plan 106, no funds will be awarded for the been provided previously under this or renovation or refurbishment of research has been reviewed and approved by the another program for which the spaces; the purchase or installation of fixed Institutional Review Board at the sponsoring agency is responsible. USDA equipment in such spaces; or for the proposing organization or institution. will contact an applicant to request planning, repair, rehabilitation, acquisition, The Application Kit contains a form or construction of a building or facility. organizational management information which is suitable for such certification once a proposal has been recommended (11) Research Involving Special (Form CSREES–662). Considerations. A number of situations (12) Current and Pending Support. All for funding. encountered in the conduct of research proposals must list any other current Compliance With the National require special information and public or private research support Environmental Policy Act (NEPA) supporting documentation before (including in-house support) to which funding can be approved for the project. key personnel identified in the proposal As outlined in 7 CFR Part 3407 (the If any such situation is anticipated, the have committed portions of their time, CSREES regulations implementing proposal must so indicate. It is expected whether or not salary support for the NEPA), the environmental data or that a significant number of proposals person(s) involved is included in the documentation for any proposed project will involve the following: budget. Analogous information must be is to be provided to CSREES in order to (i) Recombinant DNA and RNA provided for any pending proposals that assist CSREES in carrying out its molecules. All key personnel identified are being considered by, or that will be responsibilities under NEPA. In some in a proposal and all endorsing officials submitted in the near future to, other cases, however, the preparation of of a proposed performing entity are possible sponsors, including other environmental data or documentation required to comply with the guidelines USDA programs or agencies. Concurrent may not be required. Certain categories established by the National Institutes of submission of identical or similar of actions are excluded from the Health entitled, ‘‘Guidelines for proposals to other possible sponsors requirements of NEPA. The USDA and Research Involving Recombinant DNA will not prejudice proposal review or CSREES exclusions are listed in 7 CFR Molecules,’’ as revised. The Application evaluation by the Administrator of 1b.3 and 7 CFR 3407.6, respectively. Kit contains a form which is suitable for CSREES for this purpose. However, a In order for CSREES to determine such certification of compliance (Form proposal that duplicates or overlaps whether any further action is needed CSREES–662). substantially with a proposal already with respect to NEPA (e.g., preparation (ii) Experimental vertebrate animal reviewed and funded (or that will be care. The responsibility for the humane of an environmental assessment (EA) or funded) by another organization or environmental impact statement (EIS)), care and treatment of any experimental agency will not be funded under this vertebrate animal, which has the pertinent information regarding the program. The Application Kit contains a possible environmental impacts of a meaning as ‘‘animal’’ in section 2(g) of form which is suitable for listing current the Animal Welfare Act of 1966, as proposed project is necessary; therefore, and pending support (Form CSREES– the National Environmental Policy Act amended (7 U.S.C. 2132(g)), used in any 663). project supported with grant funds rests Exclusions Form (Form CSREES–1234) with the performing organization. In Note: This proposal should be listed in the provided in the Application Kit must be this regard, all key personnel associated pending section of the form. included in the proposal indicating with any supported project and all (13) Additions to Project Description. whether the applicant is of the opinion endorsing officials of the proposed The Administrator of CSREES, the that the project falls within one or more performing entity are required to members of peer review groups, and the of the categorical exclusions. Form comply with the applicable provisions relevant program staff expect each CSREES–1234 should follow Form of the Animal Welfare Act of 1966, as project description to be complete while CSREES–661, Application for Funding, amended (7 U.S.C. 2131 et seq.) and the meeting the page limit established in in the proposal. regulations promulgated thereunder by this section (Proposal Format). Even though a project may fall within the Secretary of Agriculture in 9 CFR However, if the inclusion of additional the categorical exclusions, CSREES may Parts 1, 2, 3, and 4. information is necessary to ensure the determine that an EA or an EIS is The applicant must submit a equitable evaluation of the proposal necessary for an activity, if substantial statement certifying that the proposed (e.g., photographs that do not reproduce controversy on environmental grounds project is in compliance with the well, reprints, and other pertinent exists or if other extraordinary aforementioned regulations, and that the materials that are deemed to be conditions or circumstances are present proposed project is either under review unsuitable for inclusion in the text of that may cause such activity to have a by or has been reviewed and approved the proposal), then 14 copies of the significant environmental effect. 888 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Notices

Proposal Submission Agriculture, STOP 2245, Washington, Subpart V (48 FR 29115, June 24, 1983), D.C. 20250–2245, Telephone: (202) 401– What To Submit this Program is excluded from the scope 5048. of Executive Order No. 12372 which An original and 14 copies of a Proposals that are delivered by requires intergovernmental consultation proposal must be submitted. Each copy Express mail, a courier service, or by with State and local officials. Under the of each proposal must be stapled hand must be submitted to the following provisions of the Paperwork Reduction securely in the upper left-hand corner Action of 1980 (44 U.S.C. 3504(h)), the (DO NOT BIND). All copies of the address (note that the zip code differs collection of information requirements proposal must be submitted in one from that shown above): Proposal package. Services Unit, Grants Management contained in this Notice have been Branch, Office of Extramural Programs, approved under OMB Document No. Where and When To Submit Cooperative State Research, Education, 0524–0022. and Extension Service, U.S. Department Proposals must be received on or Done at Washington, D.C., on this 30th day of Agriculture, Room 303, Aerospace before February 26, 1997. Proposals sent of December 1996. Center, 901 D Street, SW, Washington, by First Class mail must be sent to the Colien Hefferan, following address: Proposal Services D.C. 20024; Telephone: (202) 401–5048. Associate Administrator, Cooperative State Unit, Grants Management Branch, Office Supplementary Information of Extramural Programs, Cooperative Research, Education, and Extension Service. State Research, Education, and For reasons set forth in the final rule- [FR Doc. 97–159 Filed 1–3–97; 8:45 am] Extension Service, U.S. Department of related Notice to 7 CFR Part 3015, BILLING CODE 3410±22±M i

Reader Aids Federal Register Vol. 62, No. 3 Monday, January 6, 1997

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 3 CFR 287...... 444 For additional information 523±5227 299...... 444 Presidential Documents Presidential Determinations: 316...... 444 No. 97±11A of Executive orders and proclamations 523±5227 318...... 444 December 6, 1996 ...... 299 329...... 444 The United States Government Manual 523±5227 Executive Orders: Other Services 12543 (Continued by 9 CFR Electronic and on-line services (voice) 523±4534 Notice of Jan. 2, 160...... 597 1997) ...... 587 Privacy Act Compilation 523±3187 161...... 597 12544 (Continued by 523±5229 TDD for the hearing impaired Notice of Jan. 2, 12 CFR 1997) ...... 587 932...... 4 ELECTRONIC BULLETIN BOARD 7 CFR Proposed Rules: Free Electronic Bulletin Board service for Public Law numbers, 202...... 56 300...... 593 213...... 62 Federal Register finding aids, and list of documents on public 319...... 593 inspection. 202±275±0920 1124...... 1 13 CFR FAX-ON-DEMAND Proposed Rules: 120...... 301 401...... 333 You may access our Fax-On-Demand service. You only need a fax 443...... 48 14 CFR machine and there is no charge for the service except for long 445...... 338 distance telephone charges the user may incur. The list of 39...10, 15, 302, 304, 307, 600, 457...... 48, 333 documents on public inspection and the daily Federal Register’s 602, 604 906...... 55 table of contents are available using this service. The document 71 ...... 309, 607, 608, 609 numbers are 7050-Public Inspection list and 7051-Table of 8 CFR 382...... 16 Contents list. The public inspection list will be updated Proposed Rules: Proposed Rules: immediately for documents filed on an emergency basis. 39...... 343 1...... 444 71 ...... 70, 347, 348 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 3...... 444 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 103...... 444 17 CFR public inspection may be viewed and copied in our office located 204...... 444 200...... 520 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 207...... 444 228...... 520 telephone number is: 301±713±6905 208...... 444 229...... 520 209...... 444 230...... 520 211...... 444 FEDERAL REGISTER PAGES AND DATES, JANUARY 240...... 520 212...... 444 242...... 520 1±300...... 2 213...... 444 301±592...... 3 214...... 444 18 CFR 216...... 444 593±888...... 6 37...... 610 217...... 444 221...... 444 20 CFR 223...... 444 232...... 444 416...... 309 233...... 444 Proposed Rules: 234...... 444 404...... 349, 352 235...... 444 416...... 352 236...... 444 21 CFR 237...... 444 238...... 444 529...... 611 239...... 444 579...... 611 240...... 444 Proposed Rules: 241...... 444 589...... 552 242...... 444 243...... 444 22 CFR 244...... 444 42...... 613 245...... 444 228...... 314 246...... 444 248...... 444 23 CFR 249...... 444 Proposed Rules: 251...... 444 655...... 691 252...... 444 253...... 444 26 CFR 274a...... 444 1 ...... 17, 361, 615 286...... 444 31...... 22 ii Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids

53...... 25 51...... 662 49 CFR 602...... 22 73...... 664 27...... 16 73...... 329 Proposed Rules: 232...... 278 1...... 71, 72, Proposed Rules: 571...... 798 77, 81, 694 22...... 696 53...... 84 26...... 696 Proposed Rules: 301...... 77 73 ...... 84, 372, 373, 538...... 375 602...... 81 571...... 807 48 CFR 595...... 831 28 CFR Ch. 1...... 224, 275 9...... 314 1 ...... 226, 233, 271 2...... 256 50 CFR 31 CFR 3...... 226, 233 17...... 665 354...... 621 4 ...... 226, 233, 257 229...... 33 356...... 846 5 ...... 261, 262, 271 259...... 330 357...... 26 6 ...... 233, 256, 262 285...... 331 8...... 233 622...... 689 32 CFR 9 ...... 226, 233, 266 11...... 262 Proposed Rules: 199...... 625 12 ...... 226, 233, 257, 262 300...... 382 813...... 631 13...... 262 600...... 700 818...... 631 14 ...... 226, 233, 261, 271 622...... 384, 720 844...... 631 15 ...... 226, 256, 257, 261 660...... 700 16...... 233, 257 678...... 724 39 CFR 17...... 261 679...... 85, 724 60...... 631, 638 19...... 226, 233 111...... 645 23...... 233 24...... 256 40 CFR 25 ...... 257, 261, 267, 268 52...... 646, 648 27...... 233, 261 81...... 648 29...... 233 Proposed Rules: 31 ...... 233, 257, 269 51...... 210 32...... 233 52...... 695 33...... 226, 270 89...... 200 36...... 233, 271 372...... 365, 366 37...... 226, 233 39...... 273 41 CFR 42...... 233, 274 43...... 226 101±38...... 322 45...... 233 42 CFR 46...... 257 47...... 233 413...... 26 49...... 233 52 ...... 226, 233, 257, 261, 273 46 CFR 53...... 226, 233 572...... 328 Proposed Rules: 225...... 374 47 CFR 231...... 374 24...... 653 242...... 374 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids iii

REMINDERS Local competition Restructuring costs/bonuses; The items in this list were provisions; motion for COMMENTS DUE NEXT comments due by 1-14- editorially compiled as an aid stay and notification of WEEK 97; published 11-15-96 to Federal Register users. court stay; published 1- Federal Acquisition Regulation 6-97 (FAR): Inclusion or exclusion from AGRICULTURE this list has no legal FEDERAL HOUSING DEPARTMENT Independent research and significance. FINANCE BOARD Animal and Plant Health development allowable Operations: Inspection Service cost criteria/bid and Regulatory waivers; proposal costs for Fiscal RULES GOING INTO Interstate transportation of Year 1996 and beyond; consideration procedure; animals and animal products EFFECT TODAY published 12-6-96 comments due by 1-13- (quarantine): 97; published 11-14-96 HEALTH AND HUMAN Brucellosis in cattle and AGRICULTURE SERVICES DEPARTMENT bison-- ENVIRONMENTAL DEPARTMENT PROTECTION AGENCY Food and Drug State and area Animal and Plant Health Administration classifications; Air pollutants, hazardous; Inspection Service national emission standards: Animal drugs, feeds, and comments due by 1-17- Plant-related quarantine, related products: 97; published 11-18-96 Secondary lead smelters, foreign: new and existing; New drug applications-- AGRICULTURE Fruits and vegetables; comments due by 1-13- Gentamicin sulfate DEPARTMENT importation; published 1-6- 97; published 12-12-96 intrauterine solution; Meat and meat products; 97 Air programs: published 1-6-97 export reporting; comments DEFENSE DEPARTMENT Outer Continental Shelf POSTAL SERVICE due by 1-13-97; published Air Force Department 11-14-96 regulations-- International Mail Manual: Claims and litigation: COMMERCE DEPARTMENT California; comments due Global Package Link-- by 1-15-97; published Distribution of literature and Export Administration Canada and United 12-16-96 protest and dissident Bureau Kingdom; published 1-6- activities; CFR part Air quality implementation 97 Export administration removed; published 1-6-97 regulations: plans; approval and Implementation; published promulgation; various Sales and services: Key escrow encryption 1-6-97 States: Copying, certifying, and equipment and software; Florida; comments due by searching records and STATE DEPARTMENT licensing; comments due 1-15-97; published 12-16- other documentary Visas; immigrant by 1-13-97; published 12- 96 material; fee schedule; documentation: 13-96 CFR part removed; Violence Againist Women COMMERCE DEPARTMENT Georgia; comments due by 1-13-97; published 12-13- published 1-6-97 Act; spouses and children National Oceanic and 96 Legal assistance program; self-petition for immediate Atmospheric Administration Idaho; comments due by 1- CFR part removed; relative and preference Fishery conservation and 17-97; published 12-18-96 published 1-6-97 classifications; management: classification symbols; Texas; comments due by 1- ENERGY DEPARTMENT Alaska; fisheries of published 1-6-97 13-97; published 12-13-96 National Environmental Policy Exclusive Economic Zone- Act implementing TRANSPORTATION - Pesticides; tolerances in food, procedures: DEPARTMENT Pacific halibut and red animal feeds, and raw agricultural commodities: Federal regulatory reform; Federal Aviation king crab; comments published 12-6-96 Administration due by 1-15-97; Propiconazole; comments Airworthiness directives: published 12-16-96 due by 1-13-97; published ENVIRONMENTAL 11-13-96 PROTECTION AGENCY Boeing; published 12-31-96 Northeastern United States fisheries-- Water pollution control: Air quality implementation Israel Aircraft Industries; Great Lakes System; water plans; approval and published 12-2-96 Atlantic mackerel, squid, quality guidance-- promulgation; various Class E airspace; published 1- and butterfish; States: 6-97 comments due by 1-14- Selenium criterion 97; published 11-15-96 maximum concentration; New York et al.; published TREASURY DEPARTMENT comments due by 1-15- 11-5-96 Summer flounder and Fiscal Service scup; comments due by 97; published 12-16-96 Clean Air Act: Book-entry securities: 1-13-97; published 12- FEDERAL State operating permits Student Loan Marketing 18-96 COMMUNICATIONS programs-- Association (Sallie Mae); COMMODITY FUTURES COMMISSION Idaho; published 12-6-96 conformity to TRADES TRADING COMMISSION Radio services, special: regulations; published 1-6- Water pollution; effluent Contract markets: Aviation services-- guidelines for point source 97 Contract market designation 112-118 MHz for categories: Marketable book-entry applications review and Differential Global Treasury bills, notes, and Pesticide chemicals; approval and exchange Positioning System bonds; sale and issue; formulation, packaging rules relating to contract (GPS) correction data uniform offering circular; and repackaging, and terms and conditions; and hand-held amendments; published 1-6- pretreatment standards; comments due by 1-16- transmitter use; 97 published 11-6-96 97; published 12-27-96 comments due by 1-15- FEDERAL TREASURY DEPARTMENT Contract market rule review 97; published 11-29-96 COMMUNICATIONS Internal Revenue Service procedures; comments Radio stations; table of COMMISSION Income taxes: due by 1-16-97; published assignments: Telecommunications Act of Inflation-indexed debt 12-17-96 Pennsylvania; comments 1996; implementation: instruments; published 1- DEFENSE DEPARTMENT due by 1-13-97; published Common carrier services-- 6-97 Acquisition regulations: 12-4-96 iv Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids

Texas; comments due by 1- [d,f][1,3,2], etc.; NATIONAL AERONAUTICS Schempp-Hirth; comments 13-97; published 12-2-96 comments due by 1-15- AND SPACE due by 1-17-97; published FEDERAL MARITIME 97; published 12-16-96 ADMINISTRATION 11-5-96 Federal Acquisition Regulation COMMISSION Food for human consumption: Special conditions-- (FAR): Maritime carriers in foreign Food additives-- Independent research and Gulfstream model G1159A commerce: Curdlan; comments due development allowable airplane; comments due by 1-15-97; published Conditions unfavorable to cost criteria/bid and by 1-13-97; published 12-16-96 shipping, actions to adjust proposal costs for Fiscal 12-13-96 or meet-- Human drugs and biological Year 1996 and beyond; United States/Japan trade; products: comments due by 1-13- Class E airspace; comments port restrictions and Postmarketing expedited 97; published 11-14-96 due by 1-13-97; published 11-19-96 requirements; comments adverse experience PERSONNEL MANAGEMENT due by 1-13-97; reporting requirements; OFFICE TRANSPORTATION published 11-13-96 increased frequency Retirement, health benefits, DEPARTMENT FEDERAL RETIREMENT reports revocation; and life insurance, Federal THRIFT INVESTMENT comments due by 1-13- employees: National Highway Traffic Safety Administration BOARD 97; published 10-28-96 Distirct of Columbia Thrift savings plan: Human drugs: Financial Control Motor vehicle safety Basic pay definition and Colloidal silver ingredients Authority; employee standards: or silver salts, products coverage as Federal Thrift Savings Plan loan Occupant crash protection-- program amendments; containing (OTC); not employees; comments comments due by 1-17- generally recognized as due by 1-14-97; published Smart air bags, vehicles 97; published 11-18-96 safe and effective; 11-15-96 without; warning labels, comments due by 1-13- SECURITIES AND manual cutoff switches, GENERAL SERVICES 97; published 10-15-96 EXCHANGE COMMISSION etc. reduction of ADMINISTRATION INTERIOR DEPARTMENT Electronic Data Gathering, dangerous impacts on Federal Acquisition Regulation Land Management Bureau Analysis, and Retrieval children; comments due (FAR): System (EDGAR): by 1-13-97; published Appeals and hearings Independent research and Submission of filings and 11-27-96 development allowable procedures; revisions; other documents; cost criteria/bid and comments due by 1-17-97; amendments; comments TREASURY DEPARTMENT published 11-13-96 proposal costs for Fiscal due by 1-13-97; published Alcohol, Tobacco and Year 1996 and beyond; Disposition; grants: 12-12-96 Firearms Bureau comments due by 1-13- Alaska; State grants; TRANSPORTATION Firearms: 97; published 11-14-96 comments due by 1-14- DEPARTMENT HEALTH AND HUMAN 97; published 11-15-96 Federal Aviation Commerce in explosives; SERVICES DEPARTMENT Forest management: Administration comments due by 1-13- Food and Drug Sustained-yield forest units; Airworthiness directives: 97; published 10-15-96 comments due by 1-14- AlliedSignal Inc.; comments Administration TREASURY DEPARTMENT Food additives: 97; published 11-15-96 due by 1-13-97; published 11-13-96 Adjuvants, production aids, LIBRARY OF CONGRESS Fiscal Service Bell; comments due by 1- and sanitizers-- Copyright Office, Library of 13-97; published 11-14-96 Treasury tax and loan Congress depositaries and payment of Sodim 2,2 '- Boeing; comments due by methylenebis(4,6-di-tert- Copyright office and 1-13-97; published 11-12- Federal taxes: butylphenyl)phosphate; procedures: 96 Electronic Federal Tax comments due by 1-15- Registration of claims-- Dornier; comments due by Payment System 97; published 12-16-96 ≥Best Edition≥ of 1-17-97; published 12-5- operation; financial Adjuvants, production aids, published copyrighted 96 institutions and Federal and sanitizers-- works; comments due Rolls-Royce plc; comments Reserve Banks; 2-[[2,4,8,10-tetrakis(1,1- by 1-14-97; published due by 1-13-97; published comments due by 1-13- dimethylethyl)dibenzo 12-3-96 11-13-96 97; published 11-21-96 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids v

CFR CHECKLIST Title Stock Number Price Revision Date 600–End ...... (869–028–00038–0) ...... 31.00 Jan. 1, 1996 This checklist, prepared by the Office of the Federal Register, is 13 ...... (869–028–00039–8) ...... 18.00 Mar. 1, 1996 published weekly. It is arranged in the order of CFR titles, stock 14 Parts: numbers, prices, and revision dates. 1–59 ...... (869–028–00040–1) ...... 34.00 Jan. 1, 1996 An asterisk (*) precedes each entry that has been issued since last 60–139 ...... (869–028–00041–0) ...... 30.00 Jan. 1, 1996 week and which is now available for sale at the Government Printing 140–199 ...... (869–028–00042–8) ...... 13.00 Jan. 1, 1996 Office. 200–1199 ...... (869–028–00043–6) ...... 23.00 Jan. 1, 1996 A ``●'' precedes each entry that is now available on-line through 1200–End ...... (869–028–00044–4) ...... 16.00 Jan. 1, 1996 the Government Printing Office's GPO Access service at http:// 15 Parts: www.access.gpo.gov/nara/cfr. For information about GPO Access 0–299 ...... (869–028–00045–2) ...... 16.00 Jan. 1, 1996 call 1-888-293-6498 (toll free). 300–799 ...... (869–028–00046–1) ...... 26.00 Jan. 1, 1996 A checklist of current CFR volumes comprising a complete CFR set, 800–End ...... (869–028–00047–9) ...... 18.00 Jan. 1, 1996 also appears in the latest issue of the LSA (List of CFR Sections 16 Parts: Affected), which is revised monthly. 0–149 ...... (869–028–00048–7) ...... 6.50 Jan. 1, 1996 The annual rate for subscription to all revised volumes is $883.00 150–999 ...... (869–028–00049–5) ...... 19.00 Jan. 1, 1996 domestic, $220.75 additional for foreign mailing. 1000–End ...... (869–028–00050–9) ...... 26.00 Jan. 1, 1996 Mail orders to the Superintendent of Documents, Attn: New Orders, 17 Parts: P.O. Box 371954, Pittsburgh, PA 15250±7954. All orders must be 1–199 ...... (869–028–00052–5) ...... 21.00 Apr. 1, 1996 accompanied by remittance (check, money order, GPO Deposit 200–239 ...... (869–028–00053–3) ...... 25.00 Apr. 1, 1996 Account, VISA, or Master Card). Charge orders may be telephoned 240–End ...... (869–028–00054–1) ...... 31.00 Apr. 1, 1996 to the GPO Order Desk, Monday through Friday, at (202) 512±1800 from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders 18 Parts: to (202) 512-2250. 1–149 ...... (869–028–00055–0) ...... 17.00 Apr. 1, 1996 150–279 ...... (869–028–00056–8) ...... 12.00 Apr. 1, 1996 Title Stock Number Price Revision Date 280–399 ...... (869–028–00057–6) ...... 13.00 Apr. 1, 1996 1, 2 (2 Reserved) ...... (869–028–00001–1) ...... $4.25 Feb. 1, 1996 400–End ...... (869–028–00058–4) ...... 11.00 Apr. 1, 1996 3 (1995 Compilation 19 Parts: and Parts 100 and 1–140 ...... (869–028–00059–2) ...... 26.00 Apr. 1, 1996 101) ...... (869–028–00002–9) ...... 22.00 1 Jan. 1, 1996 141–199 ...... (869–028–00060–6) ...... 23.00 Apr. 1, 1996 4 ...... (869–028–00003–7) ...... 5.50 Jan. 1, 1996 200–End ...... (869–028–00061–4) ...... 12.00 Apr. 1, 1996 5 Parts: 20 Parts: 1–399 ...... (869–028–00062–2) ...... 20.00 Apr. 1, 1996 1–699 ...... (869–028–00004–5) ...... 26.00 Jan. 1, 1996 ● 700–1199 ...... (869–028–00005–3) ...... 20.00 Jan. 1, 1996 400–499 ...... (869–028–00063–1) ...... 35.00 Apr. 1, 1996 1200–End, 6 (6 500–End ...... (869–028–00064–9) ...... 32.00 Apr. 1, 1996 Reserved) ...... (869–028–00006–1) ...... 25.00 Jan. 1, 1996 21 Parts: ●1–99 ...... (869–028–00065–7) ...... 16.00 Apr. 1, 1996 7 Parts: ● ...... 100–169 ...... (869–028–00066–5) ...... 22.00 Apr. 1, 1996 0–26 (869–028–00007–0) 22.00 Jan. 1, 1996 ● 27–45 ...... (869–028–00008–8) ...... 11.00 Jan. 1, 1996 170–199 ...... (869–028–00067–3) ...... 29.00 Apr. 1, 1996 ● 46–51 ...... (869–028–00009–6) ...... 13.00 Jan. 1, 1996 200–299 ...... (869–028–00068–1) ...... 7.00 Apr. 1, 1996 ● 52 ...... (869–028–00010–0) ...... 5.00 Jan. 1, 1996 300–499 ...... (869–028–00069–0) ...... 50.00 Apr. 1, 1996 ● 53–209 ...... (869–028–00011–8) ...... 17.00 Jan. 1, 1996 500–599 ...... (869–028–00070–3) ...... 28.00 Apr. 1, 1996 ● 210–299 ...... (869–028–00012–6) ...... 35.00 Jan. 1, 1996 600–799 ...... (869–028–00071–1) ...... 8.50 Apr. 1, 1996 ● 300–399 ...... (869–028–00013–4) ...... 17.00 Jan. 1, 1996 800–1299 ...... (869–028–00072–0) ...... 30.00 Apr. 1, 1996 ● 400–699 ...... (869–028–00014–2) ...... 22.00 Jan. 1, 1996 1300–End ...... (869–028–00073–8) ...... 14.00 Apr. 1, 1996 700–899 ...... (869–028–00015–1) ...... 25.00 Jan. 1, 1996 22 Parts: 900–999 ...... (869–028–00016–9) ...... 30.00 Jan. 1, 1996 1–299 ...... (869–028–00074–6) ...... 36.00 Apr. 1, 1996 1000–1199 ...... (869–028–00017–7) ...... 35.00 Jan. 1, 1996 300–End ...... (869–028–00075–4) ...... 24.00 Apr. 1, 1996 1200–1499 ...... (869–028–00018–5) ...... 29.00 Jan. 1, 1996 1500–1899 ...... (869–028–00019–3) ...... 41.00 Jan. 1, 1996 23 ...... (869–028–00076–2) ...... 21.00 Apr. 1, 1996 1900–1939 ...... (869–028–00020–7) ...... 16.00 Jan. 1, 1996 24 Parts: 1940–1949 ...... (869–028–00021–5) ...... 31.00 Jan. 1, 1996 0–199 ...... (869–028–00077–1) ...... 30.00 May 1, 1996 1950–1999 ...... (869–028–00022–3) ...... 39.00 Jan. 1, 1996 200–219 ...... (869–028–00078–9) ...... 14.00 May 1, 1996 2000–End ...... (869–028–00023–1) ...... 15.00 Jan. 1, 1996 220–499 ...... (869–028–00079–7) ...... 13.00 May 1, 1996 8 ...... (869–028–00024–0) ...... 23.00 Jan. 1, 1996 500–699 ...... (869–028–00080–1) ...... 14.00 May 1, 1996 700–899 ...... (869–028–00081–9) ...... 13.00 May 1, 1996 9 Parts: 900–1699 ...... (869–028–00082–7) ...... 21.00 May 1, 1996 1–199 ...... (869–028–00025–8) ...... 30.00 Jan. 1, 1996 1700–End ...... (869–028–00083–5) ...... 14.00 May 1, 1996 200–End ...... (869–028–00026–6) ...... 25.00 Jan. 1, 1996 25 ...... (869–028–00084–3) ...... 32.00 May 1, 1996 10 Parts: 0–50 ...... (869–028–00027–4) ...... 30.00 Jan. 1, 1996 26 Parts: 51–199 ...... (869–028–00028–2) ...... 24.00 Jan. 1, 1996 §§ 1.0-1–1.60 ...... (869–028–00085–1) ...... 21.00 Apr. 1, 1996 200–399 ...... (869–028–00029–1) ...... 5.00 Jan. 1, 1996 §§ 1.61–1.169 ...... (869–028–00086–0) ...... 34.00 Apr. 1, 1996 400–499 ...... (869–028–00030–4) ...... 21.00 Jan. 1, 1996 §§ 1.170–1.300 ...... (869–028–00087–8) ...... 24.00 Apr. 1, 1996 500–End ...... (869–028–00031–2) ...... 34.00 Jan. 1, 1996 §§ 1.301–1.400 ...... (869–028–00088–6) ...... 17.00 Apr. 1, 1996 §§ 1.401–1.440 ...... (869–028–00089–4) ...... 31.00 Apr. 1, 1996 11 ...... (869–028–00032–1) ...... 15.00 Jan. 1, 1996 §§ 1.441-1.500 ...... (869-028-00090-8) ...... 22.00 Apr. 1, 1996 12 Parts: §§ 1.501–1.640 ...... (869–028–00091–6) ...... 21.00 Apr. 1, 1996 1–199 ...... (869–028–00033–9) ...... 12.00 Jan. 1, 1996 §§ 1.641–1.850 ...... (869–028–00092–4) ...... 25.00 Apr. 1, 1996 200–219 ...... (869–028–00034–7) ...... 17.00 Jan. 1, 1996 §§ 1.851–1.907 ...... (869–028–00093–2) ...... 26.00 Apr. 1, 1996 220–299 ...... (869–028–00035–5) ...... 29.00 Jan. 1, 1996 §§ 1.908–1.1000 ...... (869–028–00094–1) ...... 26.00 Apr. 1, 1996 300–499 ...... (869–028–00036–3) ...... 21.00 Jan. 1, 1996 §§ 1.1001–1.1400 ...... (869–028–00095–9) ...... 26.00 Apr. 1, 1996 500–599 ...... (869–028–00037–1) ...... 20.00 Jan. 1, 1996 §§ 1.1401–End ...... (869–028–00096–7) ...... 35.00 Apr. 1, 1996 vi Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids

Title Stock Number Price Revision Date Title Stock Number Price Revision Date 2–29 ...... (869–028–00097–5) ...... 28.00 Apr. 1, 1996 ●136–149 ...... (869–028–00150–5) ...... 35.00 July 1, 1996 30–39 ...... (869–028–00098–3) ...... 20.00 Apr. 1, 1996 ●150–189 ...... (869–028–00151–3) ...... 33.00 July 1, 1996 40–49 ...... (869–028–00099–1) ...... 13.00 Apr. 1, 1996 ●190–259 ...... (869–028–00152–1) ...... 22.00 July 1, 1996 50–299 ...... (869–028–00100–9) ...... 14.00 Apr. 1, 1996 ●260–299 ...... (869–028–00153–0) ...... 53.00 July 1, 1996 300–499 ...... (869–028–00101–7) ...... 25.00 Apr. 1, 1996 ●300–399 ...... (869–028–00154–8) ...... 28.00 July 1, 1996 500–599 ...... (869–028–00102–5) ...... 6.00 4 Apr. 1, 1990 ●400–424 ...... (869–028–00155–6) ...... 33.00 July 1, 1996 600–End ...... (869–028–00103–3) ...... 8.00 Apr. 1, 1996 ●425–699 ...... (869–028–00156–4) ...... 38.00 July 1, 1996 ● 27 Parts: 700–789 ...... (869–028–00157–2) ...... 33.00 July 1, 1996 ● ...... 1–199 ...... (869–028–00104–1) ...... 44.00 Apr. 1, 1996 790–End (869–028–00158–7) 19.00 July 1, 1996 200–End ...... (869–028–00105–0) ...... 13.00 Apr. 1, 1996 41 Chapters: 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 28 Parts: ...... 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 ...... 1-42 (869–028–00106–8) 35.00 July 1, 1996 3–6 ...... 14.00 3 July 1, 1984 ...... 43-end (869-028-00107-6) 30.00 July 1, 1996 7 ...... 6.00 3 July 1, 1984 29 Parts: 8 ...... 4.50 3 July 1, 1984 0–99 ...... (869–028–00108–4) ...... 26.00 July 1, 1996 9 ...... 13.00 3 July 1, 1984 100–499 ...... (869–028–00109–2) ...... 12.00 July 1, 1996 10–17 ...... 9.50 3 July 1, 1984 500–899 ...... (869–028–00110–6) ...... 48.00 July 1, 1996 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 900–1899 ...... (869–028–00111–4) ...... 20.00 July 1, 1996 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 1900–1910 (§§ 1900 to 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 1910.999) ...... (869–028–00112–2) ...... 43.00 July 1, 1996 19–100 ...... 13.00 3 July 1, 1984 1910 (§§ 1910.1000 to 1–100 ...... (869–028–00159–9) ...... 12.00 July 1, 1996 end) ...... (869–028–00113–1) ...... 27.00 July 1, 1996 101 ...... (869–028–00160–2) ...... 36.00 July 1, 1996 1911–1925 ...... (869–028–00114–9) ...... 19.00 July 1, 1996 102–200 ...... (869–028–00161–1) ...... 17.00 July 1, 1996 1926 ...... (869–028–00115–7) ...... 30.00 July 1, 1996 201–End ...... (869–028–00162–9) ...... 17.00 July 1, 1996 1927–End ...... (869–028–00116–5) ...... 38.00 July 1, 1996 42 Parts: 30 Parts: ●1–399 ...... (869–026–00163–4) ...... 26.00 Oct. 1, 1995 1–199 ...... (869–028–00117–3) ...... 33.00 July 1, 1996 ●400–429 ...... (869–028–00164–5) ...... 34.00 Oct. 1, 1996 200–699 ...... (869–028–00118–1) ...... 26.00 July 1, 1996 430–End ...... (869–026–00165–1) ...... 39.00 Oct. 1, 1995 700–End ...... (869–028–00119–0) ...... 38.00 July 1, 1996 43 Parts: 31 Parts: ●1–999 ...... (869–028–00166–1) ...... 30.00 Oct. 1, 1996 0–199 ...... (869–028–00120–3) ...... 20.00 July 1, 1996 1000–3999 ...... (869–026–00167–7) ...... 31.00 Oct. 1, 1995 200–End ...... (869–028–00121–1) ...... 33.00 July 1, 1996 4000–End ...... (869–026–00168–5) ...... 15.00 Oct. 1, 1995 32 Parts: ●44 ...... (869–026–00169–3) ...... 24.00 Oct. 1, 1995 1–39, Vol. I ...... 15.00 2 July 1, 1984 45 Parts: 1–39, Vol. II ...... 19.00 2 July 1, 1984 ●1–199 ...... (869–028–00169–6) ...... 28.00 Oct. 1, 1996 1–39, Vol. III ...... 18.00 2 July 1, 1984 200–499 ...... (869–028–00170–0) ...... 14.00 6 Oct. 1, 1995 1–190 ...... (869–028–00122–0) ...... 42.00 July 1, 1996 ●500–1199 ...... (869–028–00171–8) ...... 30.00 Oct. 1, 1996 191–399 ...... (869–028–00123–8) ...... 50.00 July 1, 1996 1200–End ...... (869–026–00173–1) ...... 26.00 Oct. 1, 1995 400–629 ...... (869–028–00124–6) ...... 34.00 July 1, 1996 630–699 ...... (869–028–00125–4) ...... 14.00 5 July 1, 1991 46 Parts: 700–799 ...... (869–028–00126–2) ...... 28.00 July 1, 1996 ●1–40 ...... (869–026–00174–0) ...... 21.00 Oct. 1, 1995 800–End ...... (869–028–00127–1) ...... 28.00 July 1, 1996 41–69 ...... (869–026–00175–8) ...... 17.00 Oct. 1, 1995 ● 33 Parts: 70–89 ...... (869–026–00176–6) ...... 8.50 Oct. 1, 1995 ● ...... 1–124 ...... (869–028–00128–9) ...... 26.00 July 1, 1996 90–139 (869–026–00177–4) 15.00 Oct. 1, 1995 125–199 ...... (869–028–00129–7) ...... 35.00 July 1, 1996 140–155 ...... (869–026–00178–2) ...... 12.00 Oct. 1, 1995 200–End ...... (869–028–00130–1) ...... 32.00 July 1, 1996 156–165 ...... (869–026–00179–1) ...... 17.00 Oct. 1, 1995 ●166–199 ...... (869–026–00180–4) ...... 17.00 Oct. 1, 1995 34 Parts: ●200–499 ...... (869–028–00180–7) ...... 21.00 Oct. 1, 1996 1–299 ...... (869–028–00131–9) ...... 27.00 July 1, 1996 500–End ...... (869–026–00182–1) ...... 13.00 Oct. 1, 1995 300–399 ...... (869–028–00132–7) ...... 27.00 July 1, 1996 400–End ...... (869–028–00133–5) ...... 46.00 July 1, 1996 47 Parts: 0–19 ...... (869–026–00183–9) ...... 25.00 Oct. 1, 1995 35 ...... (869–028–00134–3) ...... 15.00 July 1, 1996 20–39 ...... (869–026–00184–7) ...... 21.00 Oct. 1, 1995 36 Parts 40–69 ...... (869–026–00185–5) ...... 14.00 Oct. 1, 1995 1–199 ...... (869–028–00135–1) ...... 20.00 July 1, 1996 70–79 ...... (869–026–00186–3) ...... 24.00 Oct. 1, 1995 200–End ...... (869–028–00136–0) ...... 48.00 July 1, 1996 80–End ...... (869–026–00187–1) ...... 30.00 Oct. 1, 1995 37 ...... (869–028–00137–8) ...... 24.00 July 1, 1996 48 Chapters: 1 (Parts 1–51) ...... (869–026–00188–0) ...... 39.00 Oct. 1, 1995 38 Parts: 1 (Parts 52–99) ...... (869–026–00189–8) ...... 24.00 Oct. 1, 1995 0–17 ...... (869–028–00138–6) ...... 34.00 July 1, 1996 2 (Parts 201–251) ...... (869–026–00190–1) ...... 17.00 Oct. 1, 1995 18–End ...... (869–028–00139–4) ...... 38.00 July 1, 1996 2 (Parts 252–299) ...... (869–026–00191–0) ...... 13.00 Oct. 1, 1995 39 ...... (869–028–00140–8) ...... 23.00 July 1, 1996 3–6 ...... (869–026–00192–8) ...... 23.00 Oct. 1, 1995 7–14 ...... (869–026–00193–6) ...... 28.00 Oct. 1, 1995 40 Parts: 15–28 ...... (869–028–00193–9) ...... 38.00 Oct. 1, 1996 ●1–51 ...... (869–028–00141–6) ...... 50.00 July 1, 1996 29–End ...... (869–026–00195–2) ...... 19.00 Oct. 1, 1995 ●52 ...... (869–028–00142–4) ...... 51.00 July 1, 1996 ●53–59 ...... (869–028–00143–2) ...... 14.00 July 1, 1996 49 Parts: 60 ...... (869-028-00144-1) ...... 47.00 July 1, 1996 1–99 ...... (869–026–00196–1) ...... 25.00 Oct. 1, 1995 ●61–71 ...... (869–028–00145–9) ...... 47.00 July 1, 1996 100–177 ...... (869–026–00197–9) ...... 34.00 Oct. 1, 1995 ●72–80 ...... (869–028–00146–7) ...... 34.00 July 1, 1996 178–199 ...... (869–026–00198–7) ...... 22.00 Oct. 1, 1995 ●81–85 ...... (869–028–00147–5) ...... 31.00 July 1, 1996 200–399 ...... (869–026–00199–5) ...... 30.00 Oct. 1, 1995 *86 ...... (869–028–00148–3) ...... 46.00 July 1, 1996 400–999 ...... (869–026–00200–2) ...... 40.00 Oct. 1, 1995 ●87-135 ...... (869–028–00149–1) ...... 35.00 July 1, 1996 1000–1199 ...... (869–026–00201–1) ...... 18.00 Oct. 1, 1995 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Reader Aids vii

Title Stock Number Price Revision Date 6 ●1200–End ...... (869–028–00201–3) ...... 15.00 Oct. 1, 1996 No amendments were promulgated during the period October 1, 1995 to September 30, 1996. The CFR volume issued October 1, 1995 should be retained. 50 Parts: 1–199 ...... (869–026–00203–7) ...... 26.00 Oct. 1, 1995 200–599 ...... (869–026–00204–5) ...... 22.00 Oct. 1, 1995 600–End ...... (869–026–00205–3) ...... 27.00 Oct. 1, 1995 CFR Index and Findings Aids ...... (869–028–00051–7) ...... 35.00 Jan. 1, 1996 Complete 1996 CFR set ...... 883.00 1996 Microfiche CFR Edition: Subscription (mailed as issued) ...... 264.00 1996 Individual copies ...... 1.00 1996 Complete set (one-time mailing) ...... 264.00 1995 Complete set (one-time mailing) ...... 244.00 1994 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period Apr. 1, 1990 to Mar. 31, 1996. The CFR volume issued April 1, 1990, should be retained. 5 No amendments to this volume were promulgated during the period July 1, 1991 to June 30, 1996. The CFR volume issued July 1, 1991, should be retained.