Pages 10789±11016 Vol. 60 2±28±95 No. 39 federal register February 28,1995 Tuesday issue. Dallas, TX,seeannouncementontheinsidecoverofthis For informationonbriefingsinWashington,DC,and Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 Administration on Aging Defense Logistics Agency See Aging Administration PROPOSED RULES Acquisition regulations: Aging Administration Economic Price Adjustment; contract clauses and NOTICES solicitation provisions, 10826–10828 White House Conference on Aging: Post-conference activities, 11008 Drug Enforcement Administration PROPOSED RULES Agricultural Marketing Service Records, reports, and exports of listed chemicals: RULES Methyl isobutyl ketone (MIBK), 10814–10815 Watermelon research and promotion plan, 10795–10801 Economic Development Administration Agriculture Department NOTICES See Agricultural Marketing Service Trade adjustment assistance eligibility determination See Animal and Plant Health Inspection Service petitions: Ball Variometers, Inc., et al., 10830–10831 Animal and Plant Health Inspection Service PROPOSED RULES Education Department Animal welfare: NOTICES Marine mammals— Postsecondary education: Swim-with-the-dolphin interactive programs, 10810 Borrower Defenses Regulations Negotiated Rulemaking NOTICES Advisory Committee— Environmental statements; availability, etc.: Establishment, 11004–11005 Genetically engineered organisms; field test permits— Arabidopsis thaliana plants, etc., 10829–10830 Employment and Training Administration Antitrust Division NOTICES NOTICES Nonimmigrant aliens employed as registered nurses; Competitive impact statements and proposed consent attestations by facilities; list, 10873–10877 judgments: Association of Retail Travel Agents, 10871–10873 Energy Department See Energy Efficiency and Renewable Energy Office Arms Control and Disarmament Agency See Federal Energy Regulatory Commission NOTICES See Hearings and Appeals Office, Energy Department Meetings: NOTICES Chemical Weapons Convention (CWC); chemical and Environmental restoration and waste management: related industry; seminars, 10830 Mixed radioactive and hazardous waste, site treatment plans; submission schedules; Federal Facility Coast Guard Compliance Act implementation, 10840–10841 PROPOSED RULES Drawbridge operations: Energy Efficiency and Renewable Energy Office Massachusetts, 10815–10819 PROPOSED RULES Energy conservation: Commerce Department Alternative fuel transportation program; implementation, See Economic Development Administration 10970–10995 See International Trade Administration See National Institute of Standards and Technology Environmental Protection Agency See National Oceanic and Atmospheric Administration PROPOSED RULES See National Telecommunications and Information Air pollution control; new motor vehicles and engines: Administration Small Non-Road Engines Emissions Control Negotiated Rulemaking Advisory Committee; meetings, 10819 Commodity Futures Trading Commission Air quality implementation plans; approval and NOTICES promulgation; various States: Meetings; Sunshine Act, 10897 California, 10819–10823 Illinois, 10823–10826 Defense Department NOTICES See Defense Logistics Agency Agency information collection activities under OMB NOTICES review, 10848 Agency information collection activities under OMB Meetings: review, 10839 Common sense initiative— Meetings: Petroleum refining sector, 10848–10849 Armed Forces Roles and Missions Commission, 10840 Ozone Transport Commission, 10849 IV Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Contents Superfund; response and remedial actions, proposed Federal Trade Commission settlements, etc.: NOTICES Metamora Landfill Site, MI, 10849 Prohibited trade practices: Toxic and hazardous substances control: Amerada Hess Corp. et al., 10860 Asbestos— Baby Furniture Plus Association, Inc., 10860–10861 National Directory of AHERA Accredited Courses; Bee-Sweet, Inc., et al., 10861 availability, 10850 Charter Medical Corp., 10861 Felson Builders, Inc., et al., 10861–10864 Executive Office of the President Good Samaritan Regional Medical Center medical staff, 10864 See Management and Budget Office New England Juvenile Retailers Association et al., 10864 See Presidential Documents Oerlikon-Buhrle Holding AG, 10864–10865 See Trade Representative, Office of United States Olsen Laboratories, Inc., et al., 10865 Federal Aviation Administration Fish and Wildlife Service RULES NOTICES Airworthiness directives: Marine mammals: Aerospatiale, 10805–10808 Polar bears in Alaska; habitat conservation strategy, Fokker, 10801–10803 10868–10869 Pratt & Whitney, 10803–10805 PROPOSED RULES Food and Drug Administration Airworthiness directives: NOTICES Textron Lycoming, 10811–10812 Organization, functions, and authority delegations: External Affairs Office, Public Affairs Office, 10865– 10866 Federal Communications Commission PROPOSED RULES Government Printing Office Radio stations; table of assignments: NOTICES Mississippi, 10826 Meetings: Online access to Federal Register and Congressional Federal Energy Regulatory Commission Record; demonstration, 10865 NOTICES Environmental statements; availability, etc.: Health and Human Services Department A.L.L. Natural Resources, Inc., 10841 See Aging Administration Citizens Utilities Companies, 10841 See Food and Drug Administration Indiana Michigan Power Co., 10841–10842 See National Institutes of Health Lake Casitas Municipal Water District, 10842 See Substance Abuse and Mental Health Services Applications, hearings, determinations, etc.: Administration East Tennessee Natural Gas Co., 10842 Hearings and Appeals Office, Energy Department Florida Gas Transmission Co., 10842 NOTICES Great Lakes Gas Transmission Co., 10843 Decisions and orders, 10845–10848 National Association of Regulatory Utility, 10843 NorAm Gas Transmission Co., 10843 Interior Department Northern Natural Gas Co., 10843 See Fish and Wildlife Service Pacific Gas Transmission Co., 10843–10844 See Land Management Bureau Panhandle Eastern Pipe Line Co., 10844 See National Park Service Texas Gas Transmission Corp., 10844 Transcontinental Gas Pipe Line Corp., 10844–10845 International Trade Administration Viking Gas Transmission Co., 10845 NOTICES Young Gas Storage Co., Ltd., 10845 Antidumping: Antifriction bearings (other than tapered roller bearings) Federal Maritime Commission and parts from— NOTICES France et al., 10900–10959 Ocean freight forwarders, marine terminal operations, and Italy, 10959–10967 passenger vessels: Japan and Germany, 10967–10968 Tariff cancellations, 10850–10858 Steel wire rope from— Mexico, 10831–10832 Federal Reserve System International Trade Commission NOTICES NOTICES Meetings: Meetings; Sunshine Act, 10898 Consumer Advisory Council, 10858 Applications, hearings, determinations, etc.: Interstate Commerce Commission Martin, Robert Lee, et al., 10858–10859 NOTICES New Era Bancorporation, Inc., 10859 Railroad operation, acquisition, construction, etc.: Ogle County Bancshares, 10859 WFEC Railroad Co., 10870–10871 Peoples Independent Bancshares, Inc., et al., 10859– Railroad services abandonment: 10860 Consolidated Rail Corp., 10871 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Contents V Justice Department National Telecommunications and Information See Antitrust Division Administration See Drug Enforcement Administration NOTICES Meetings: Labor Department Spectrum Planning and Policy Advisory Committee, See Employment and Training Administration 10839 See Pension and Welfare Benefits Administration National Transportation Safety Board NOTICES Land Management Bureau Meetings; Sunshine Act, 10897 NOTICES Resource management plans, etc.: Nuclear Regulatory Commission Medicine Lodge Resource Area, ID, 10867–10868 PROPOSED RULES Reactor site criteria: Legal Services Corporation Seismic and earthquake engineering criteria for nuclear RULES power plants; and Free Environment, Inc., et al.; Legal assistance eligibility; income levels, 10809 petition denied, 10810–10811 NOTICES Meetings; Sunshine Act, 10897–10898 Management and Budget Office Regulatory guides; issuance, availability, and withdrawal, NOTICES 10880–10881 Standard Occupational Classification; revision; comment Applications, hearings, determinations, etc.: request, 10998–11002 Entergy Operations, Inc. et al., 10881 National Archives and Records Administration Office of Management and Budget NOTICES See Management and Budget Office Meetings: Preservation Advisory Committee, 10879 Office of United States Trade Representative See Trade Representative, Office of United States National Institute of Standards and Technology Pension and Welfare Benefits Administration NOTICES NOTICES Information processing standards, Federal: Employee benefit plans; prohibited transaction exemptions: Record description records; data standards, 10832–10835 Sammons Enterprises, Inc. Employee Stock Ownership Meetings: Trust et al., 10877–10879 Advanced Technology Visiting Committee, 10835 Presidential Documents National Institutes of Health EXECUTIVE ORDERS NOTICES Committees; establishment, renewal, termination, etc. Meetings: Metro North Commuter Railroad labor dispute; creation Cochlear implants in adults and children; consensus of mediation board; amendment (EO 12952), 11011 development conference, 10866–10867 Government agencies and employees: Child support; actions to facilitate payment (EO 12953), National Oceanic and Atmospheric Administration 11013–11016 PROPOSED RULES Intelligence space-based reconnaissance systems; release of Marine sanctuaries: imagery to public (EO 12951), 10789–10790 Monterey Bay National Marine Sanctuary, CA— ADMINISTRATIVE ORDERS Shark attraction by chum or other means; restriction or Foreign Assistance Act of 1961 and Related Appropriation prohibition, 10812–10814 Legislation; delegation of authorities (Memorandum of NOTICES February 16, 1995), 10793 Environmental statements; availability, etc.: National Defense Authorization Act, Fiscal Year 1995; New Bedford, MA; harbor environment, 10835–10837 delegation of authority to Secretary of State Meetings: (Memorandum of February 15), 10791 Gulf of Mexico Fishery Management Council, 10837 Public Health Service Mid-Atlantic Fishery Management Council, 10837 North Pacific Fishery Management Council, 10838 See Food and Drug Administration Permits: See National Institutes of Health Experimental fishing, 10838–10839 See Substance Abuse and Mental Health Services Administration National Park Service Research and Special Programs Administration NOTICES NOTICES Meetings: Pipeline safety; waiver petitions: Indian Memorial Advisory Committee, 10869 Columbia Gulf Transmission Co., 10893 Pea Ridge National Military Park Advisory Team, 10869 Trail of Tears National Historic Trail Advisory Council, Securities and Exchange Commission 10869–10870 NOTICES National Register of Historic Places: Self-regulatory organizations; proposed rule changes: Pending nominations, 10870 Boston Stock Exchange, Inc., 10882–10884 VI Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Contents Chicago Board Options Exchange, Inc., 10884–10886 Veterans Affairs Department National Association of Securities Dealers, Inc., 10886– NOTICES 10887 Agency information collection activities under OMB Philadelphia Stock Exchange, Inc., 10887–10890 review: Applications, hearings, determinations, etc.: Authority to close loans on an automatic basis, State Street Fund for Foundations and Endowments, nonsupervised lenders; application, 10894 10890–10891 Deposit verification request, 10894–10895 Reinstatement application, 10895 Small Business Administration Statement of holder of servicer of veteran’s loan, 10895 NOTICES Status of loan account; foreclosure or other liquidation, Meetings; district and regional advisory councils: 10895–10896 Minnesota, 10891 Privacy Act: Applications, hearings, determinations, etc.: Computer matching programs, 10896 United Partners, Inc., 10891–10892 Substance Abuse and Mental Health Services Separate Parts In This Issue Administration NOTICES Part II Grants and cooperative agreements; availability, etc.: Mental health outreach to coal miners, farmers, and Department of Commerce, International Trade families, 10867 Administration, 10900–10968 Thrift Supervision Office Part III NOTICES Department of Energy, Energy Efficiency and Renewable Agency information collection activities under OMB Energy Office, 10970–10995 review, 10893–10894 Part IV Trade Representative, Office of United States Office of Management and Budget, 10998–11002 NOTICES Committees; establishment, renewal, termination, etc.: Part V World Trade Organization dispute settlement rosters of Department of Education, 11004–11005 panel candidates, 10881–10882 Part VI Transportation Department Department of Health and Human Services, Administration See Coast Guard on Aging, 11008 See Federal Aviation Administration See Research and Special Programs Administration Part VII NOTICES The President, 11011–11016 Aviation proceedings: Agreements filed; weekly receipts, 10892 Certificates of public convenience and necessity and Reader Aids foreign air carrier permits; weekly applications, 10892–10893 Additional information, including a list of public laws, telephone numbers, and finding aids, appears in the Reader Treasury Department Aids section at the end of this issue. See Thrift Supervision Office United States Information Agency Electronic Bulletin Board NOTICES Free Electronic Bulletin Board service for Public Law Art objects; importation for exhibition: numbers, Federal Register finding aids, and a list of Art and Empire: Treasures from Assyria in the British documents on public inspection is available on 202–275– Museum, 10894 1538 or 275–0920. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Contents VII CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 3 CFR Executive Orders: 12163 (See Memorandum of February 16, 1995) ...... 10793 12950 (Amended by EO 12952)...... 11011 12951...... 10789 12952...... 11011 12953...... 11013 Administrtative Orders: Memorandums: February 15, 1995 ...... 10791 February 16, 1995 ...... 10793 7 CFR 1210...... 10795 9 CFR Proposed Rules: 1...... 10810 3...... 10810 10 CFR Proposed Rules: 50...... 10810 52...... 10810 100...... 10810 490...... 10970 14 CFR 39 (4 documents) ...... 10801, 10803, 10805, 10807 Proposed Rules: 39...... 10811 15 CFR Proposed Rules: 944...... 10812 21 CFR Proposed Rules: 1310...... 10814 33 CFR Proposed Rules: 117 (2 documents) ...... 10815, 10817 40 CFR Proposed Rules: Ch. I ...... 10819 52 (2 documents) ...... 10819, 10823 45 CFR 1611...... 10809 47 CFR Proposed Rules: 73...... 10826 48 CFR Proposed Rules: 5416...... 10826 10789 Federal Register Presidential Documents Vol. 60, No. 39 Tuesday, February 28, 1995 Title 3— Executive Order 12951 of February 22, 1995 The President Release of Imagery Acquired by Space-Based National Intelligence Reconnaissance Systems By the authority vested in me as President by the Constitution and the laws of the United States of America and in order to release certain scientif- ically or environmentally useful imagery acquired by space-based national intelligence reconnaissance systems, consistent with the national security, it is hereby ordered as follows: Section 1. Public Release of Historical Intelligence Imagery. Imagery acquired by the space-based national intelligence reconnaissance systems known as the Corona, Argon, and Lanyard missions shall, within 18 months of the date of this order, be declassified and transferred to the National Archives and Records Administration with a copy sent to the United States Geological Survey of the Department of the Interior consistent with procedures approved by the Director of Central Intelligence and the Archivist of the United States. Upon transfer, such imagery shall be deemed declassified and shall be made available to the public. Sec. 2. Review for Future Public Release of Intelligence Imagery. (a) All information that meets the criteria in section 2(b) of this order shall be kept secret in the interests of national defense and foreign policy until deemed otherwise by the Director of Central Intelligence. In consultation with the Secretaries of State and Defense, the Director of Central Intelligence shall establish a comprehensive program for the periodic review of imagery from systems other than the Corona, Argon, and Lanyard missions, with the objective of making available to the public as much imagery as possible consistent with the interests of national defense and foreign policy. For imagery from obsolete broad-area film-return systems other than Corona, Argon, and Lanyard missions, this review shall be completed within 5 years of the date of this order. Review of imagery from any other system that the Director of Central Intelligence deems to be obsolete shall be accom- plished according to a timetable established by the Director of Central Intel- ligence. The Director of Central Intelligence shall report annually to the President on the implementation of this order. (b) The criteria referred to in section 2(a) of this order consist of the following: imagery acquired by a space-based national intelligence reconnais- sance system other than the Corona, Argon, and Lanyard missions. Sec. 3. General Provisions. (a) This order prescribes a comprehensive and exclusive system for the public release of imagery acquired by space-based national intelligence reconnaissance systems. This order is the exclusive Executive order governing the public release of imagery for purposes of section 552(b)(1) of the Freedom of Information Act. (b) Nothing contained in this order shall create any right or benefit, substantive or procedural, enforceable by any party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. 10790 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents Sec. 4. Definition. As used herein, ‘‘imagery’’ means the product acquired by space-based national intelligence reconnaissance systems that provides a likeness or representation of any natural or man-made feature or related objective or activities and satellite positional data acquired at the same time the likeness or representation was acquired. œ– THE WHITE HOUSE, February 22, 1995. [FR Doc. 95–5050 Filed 2-24-95; 2:13 pm] Billing code 3195–01–P Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents 10791 Presidential Documents Memorandum of February 15, 1995 Delegation of Responsibilities Under Section 1205(d) and 1207(c) of Title XII of Public Law 103–337 Memorandum for the Secretary of State [and] the Secretary of Defense By the authority vested in me by the Constitution and the laws of the United States of America, including section 301 of Title 3 of the United States Code, I hereby delegate to the Secretary of State the authorities and duties vested in the President under sections 1205(d) and 1207(c) of Title XII of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337), to be exercised in consultation with the Secretary of Defense. The Secretary of State is authorized and directed to publish this memoran- dum in the Federal Register. œ– THE WHITE HOUSE, Washington, February 15, 1995. [FR Doc. 95–5075 Filed 2–24–95; 4:04 pm] Billing code 4710–10–M Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents 10793 Presidential Documents Memorandum of February 16, 1995 Delegation of Certain Presidential Authorities Under the For- eign Assistance Act of 1961 and Related Appropriations Legislation Memorandum for the Secretary of State [and] the Administrator of the Agency for International Development By virtue of the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby delegate as follows certain authorities vested in the President: (A) the functions under section 607 of the Foreign Assistance Act of 1961, as amended (FAA), to the Secretary of State and to the Administrator of the Agency for International Development, respectively, for matters within their respective areas of responsibility; and (B) the functions in the first proviso under the heading ‘‘Population, Development Assistance,’’ contained in title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1995 (Public Law 103–306), and in comparable provisions in successor legislation, to the Secretary of State relating to those organizations and programs for which the Secretary of State has funding responsibility. The delegations of authority described in subparagraph (A) are in addition to other delegations of such authority to the International Development Cooperation Agency. The delegation of authority described above in subparagraph (B) shall be exercised in lieu of the delegation of the comparable authority to the Adminis- trator of the Agency for International Development by section 1–102(a)(7) of Executive Order No. 12163, as amended. Any reference in this memorandum to any Act, order, determination, or delegation of authority shall be deemed to be a reference to such Act, order, determination, or delegation of authority as amended from time to time. The functions delegated by this memorandum may be redelegated within the Department of State or the Agency for International Development, as appropriate. The Secretary of State is authorized and directed to publish this memoran- dum in the Federal Register. œ– THE WHITE HOUSE, Washington, February 16, 1995. [FR Doc. 95–5076 Filed 2–24–95; 4:05 pm] Billing code 4710–10–M 10795 Rules and Regulations Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 This section of the FEDERAL REGISTER The Department of Agriculture The changes in the Plan, rules and contains regulatory documents having general (Department) is issuing this rule in regulations, and rules of practice for applicability and legal effect, most of which conformance with Executive Order petitions reflect amendments to the Act. are keyed to and codified in the Code of 12866. The overall economic impact of these Federal Regulations, which is published under This rule has been reviewed under changes is not expected to be 50 titles pursuant to 44 U.S.C. 1510. Executive Order 12778, Civil Justice significant. Including all 50 States and The Code of Federal Regulations is sold by Reform. It is not intended to have the District of Columbia under the Plan the Superintendent of Documents. Prices of retroactive effect. This rule will not will have little impact. The producer new books are listed in the first FEDERAL preempt any State or local laws, exemption from assessments is being REGISTER issue of each week. regulations, or policies, unless they increased from 5 acres to 10 acres. This present an irreconcilable conflict with change will benefit small producers this rule. because it will increase the exemption DEPARTMENT OF AGRICULTURE The Act provides that administrative level, and small producers will not have proceedings must be exhausted before to pay the assessment. The eligibility Agricultural Marketing Service parties may file suit in court. Under criteria for determining if a person is a § 1650 of the Act, a person subject to the 7 CFR Part 1210 handler or a producer will not have any Plan may file a petition with the economic impact. The elimination of [FV±93±706FR-A] Secretary stating that the Plan or any refunds may have some impact on a provision of the Plan, or any obligation RIN 0581±AB21 small amount of producers and handlers imposed in connection with the Plan, is who are currently entitled to refunds. Watermelon Research and Promotion not in accordance with law and There will also be a new burden on Plan; Amendments to the Plan, Rules requesting a modification of the Plan or importers caused by the assessment of and Regulations, and Rules of Practice an exemption from the Plan. The imports, but importers are currently for Petitions petitioner is afforded the opportunity benefiting from the activities which for a hearing on the petition. After such promote watermelons without paying AGENCY: Agricultural Marketing Service, hearing, the Secretary will make a ruling assessments. The research and USDA. on the petition. The Act provides that promotion program is expected to ACTION: Final rule. the district courts of the United States continue to benefit producers, handlers, in any district in which a person who and importers subject to the Plan by SUMMARY: This final rule amends the is a petitioner resides or carries on expanding and maintaining new and Watermelon Research and Promotion business are vested with jurisdiction to existing markets. Accordingly, the Plan (Plan) to: eliminate the refund review the Secretary’s ruling on the Administrator of AMS has determined provision of the Plan; assess watermelon petition, if a complaint for that purpose that this rule will not have a significant importers and add importer member(s) is filed within 20 days after the date of economic impact on a substantial to the Plan; exempt from assessments the entry of the ruling. number of small entities. producers with less than 10 acres of Regulatory Flexibility Act watermelons rather than 5 acres and Paperwork Reduction importers of less than 150,000 pounds; Pursuant to requirements set forth in In accordance with the Paperwork cover all 50 States by the Plan; and the Regulatory Flexibility Act (RFA), the Reduction Act of 1980 [40 U.S.C. revise the criteria for determining the Administrator of the Agricultural Chapter 35], the information collection eligibility of producers to serve on the Marketing Service (AMS) has requirements contained in the Plan have Board. In addition, conforming changes considered the economic impact of this previously been approved by the Office would be made to the rules and rule on small entities. of Management and Budget (OMB) and regulations issued under the Plan and The purpose of the RFA is to fit assigned OMB number 0581–0093. the rules of practice for petitions. regulatory actions to the scale of business subject to such actions in order There will be a new reporting burden on EFFECTIVE DATE: February 28, 1995. that small businesses will not be unduly importers, but the burden has been FOR FURTHER INFORMATION CONTACT: or disproportionately burdened. already approved by the OMB and Sonia N. Jimenez, Research and There are approximately 750 assigned OMB control number 0581– Promotion Branch, Fruit and Vegetable watermelon handlers and 5,000 0093. This action adds no additional Division, AMS, USDA, P.O. Box 96456, watermelon producers in the United reporting burden. Room 2535–S, Washington, DC 20090– States who are subject to the Plan. There Background 6456; telephone (202) 720–9916. are approximately 140 importers of SUPPLEMENTARY INFORMATION: This final watermelons. Small agricultural service Under the Plan, the National rule amends the Watermelon Research firms are defined by the Small Business Watermelon Promotion Board (Board) and Promotion Plan [7 CFR part 1210], Administration [13 CFR 121.601] as administers a nationally coordinated hereinafter referred as the Plan. The those having annual receipts of less than program of research, development, Plan is effective under the Watermelon $5 million and small agricultural advertising, and promotion designed to Research and Promotion Act, as producers are defined as those having strengthen the watermelon’s position in amended by the Watermelon Research annual receipts of less than $500,000. the market place and to establish, and Promotion Improvement Act of The majority of watermelon handlers, maintain, and expand markets for 1993, [7 U.S.C. 4901–4916] hereinafter producers, and importers may be domestic watermelons. In the past, this referred as the Act. classified as small entities. program was financed by assessments 10796 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations on all producers, except those persons The voting period was from Service as a means of collecting engaged in the growing of less than five November 1 through November 30, assessments on imported products, and acres of watermelons, and handlers of 1994. Ballots were mailed to all known the Customs Service is agreeable to watermelons. The Plan specifies that eligible watermelon producers, collecting these watermelon handlers are responsible for collecting handlers, and importers on October 14, assessments. An agreement between the and submitting both the producer and 1994. USDA and the Customs Service will be handler assessments to the Board, Sonia N. Jimenez and Martha B. entered into to implement this action. In reporting their handling of watermelons, Ransom were designated as the order to make this change, this rule and maintaining records necessary to referendum agents of the Secretary of would amend section 1210.518 of the verify their reporting. Agriculture to conduct this referendum. Rules and Regulations. U.S. production of watermelons is The Procedure for the Conduct of The importer representation on the estimated through the use of U.S. Referenda in Connection with the Board will be proportionate to the shipment statistics. Shipments of U.S.- Watermelon Research and Promotion percentage of assessments paid by produced watermelons totaled about Plan were used to conduct the importers to the Board, except that at 1,895.6 million pounds in 1993, 7 referendum. least one representative of importers percent less than in 1992. Imports of The results of the referendum indicate will serve on the Board if importers are watermelons in 1993 totalled 343.5 that 61 percent of those who voted in subject to the Plan. This representation million pounds, an increase of 12 the referendum favor elimination of will enable importers to participate in percent. Therefore, domestic production refunds of assessments under the developing the Board’s programs, plans, is about six times as great as the volume program and that 81 percent of those and projects, and express their views of imports. who voted in the referendum favor and concerns on how Board funds are A referendum was conducted in 1989 assessing watermelon imports and used if imports are assessed under the to determine if majority of watermelon adding watermelon importers to the Plan. Importers will nominate growers and handlers favored the Board. individuals to serve as importer passage of an industry funded research A simple majority of votes was members on the Board, and as required and promotion program for required to approve each of the two for other members of the Board, two watermelons. The Plan was intended to changes. nominees would be submitted to the collect assessments for research and The amendments to the Act authorize Secretary for each vacancy. The Act promotion of watermelons. At that time, an assessment on watermelons imported requires the number of importers any individual not favoring the program into the United States and the addition members to be proportionate to the could request a refund of the of importer members to the Board. assessments paid by importers. It is assessments paid by that individual. Watermelon imports enter the country necessary to calculate the number of Procedures to request a refund of primarily during the winter season. initial importer members on the volume assessments were explained in the Plan. Imports of watermelons in 1993 totalled of imports because imports are not A proposed rule was published in the 343.5 million pounds. The assessment currently being assessed. There are Federal Register on April 14, 1994 [59 rate for imports will be the combined currently 14 producers and 14 handlers FR 17739]. That rule contained the total assessment rate paid by producers on the Board. This is the equivalent of proposed amendments to the Plan, rules and handlers of domestic watermelons. one domestic industry member for every and regulations, rules of practice for The current assessment rate for 67.7 million pounds of domestic petitions, and referendum procedures. producers is 2 cents per hundredweight production. Based on the average In order to have the referendum and for handlers is 2 cents per annual volume of imports during the procedures in place for the referendum, hundredweight. The combined last 3-year period (323.1 the Department decided to separately assessment rate for importers, therefore, hundredweight), four importers would make final the referendum procedures. will be 4 cents per hundredweight. be added to the current Board. In order A final rule was published in the Assessments will be paid at the time the to make this change, this rule would Federal Register on August 30, 1994 [59 watermelons enter the country. The amend sections 1210.320, 1210.321, and FR 44613] containing the referendum collection of assessments on imported 1210.401. procedures. A proposed rule containing watermelons will be expected to The Act provides for the elimination the proposed amendments to the Plan, generate an additional $137,400 per year of refunds of assessments after passed in rules and regulations, rules of practice in revenue to the Board. In order to the referendum. The refund provision for petitions, and ordering that a make these changes, this rule amends has been in effect since the beginning of referendum be conducted was sections 1210.305, 1210.320, 1210.321, the program. Refunds have been published separately on August 30, 1210.328, 1210.341, 1210.350, 1210.351, increasing every year from 9 percent in 1994 [59 FR 44646]. 1210.352, 1210.363, and 1210.364 of the 1990 to almost 29 percent in 1993. The The deadline for comments on the Plan; sections 1210.402 and 1210.405 of elimination of the refund provision from proposed amendments published on the nomination procedures; and the Plan is estimated to provide the April 14 was May 16, 1994. Twenty-one sections 1210.515, 1210.518, 1210.519, Board with additional $250,000 per year comments were received. The 1210.521, 1210.530, 1210.531, and for research and promotion activities. In comments were addressed in the rules 1210.532 of the rules and regulations. In order to make this change, this rule published on August 30, 1994. addition, a new section 1210.314 will be amends sections 1210.343 and A referendum was conducted in added to the Plan. 1210.520. November 1994 among watermelon To facilitate the collection of The Act increases the acreage for producers, handlers, and importers to assessments on imported watermelons, exempt producers from ‘‘less than 5 determine whether they favor: (1) the Secretary proposes that the Customs acres’’ to ‘‘less than 10 acres’’ of eliminating the provisions for Service of the Department of the watermelons. Importers of less than assessment refunds and (2) Treasury be designated as the collecting 150,000 pounds of watermelons per year implementing assessments on imported agency for assessments levied on such will be entitled to apply for a refund watermelons and adding importer imports. Other commodity research and which will be the producer equivalent member(s) to the Board. promotion programs utilize the Customs of the import assessments. The 150,000- Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10797 pound exemption level for importers is of the watermelons produced and PART 1210ÐWATERMELON the level determined to be equivalent to handled during the representative RESEARCH AND PROMOTION PLAN 10 acres of watermelons for domestic period by producers and handlers producers. In addition, the Act provides voting in the referendum, and by not 1. The authority citation for 7 CFR that the Board has the authority to less than a majority of the producers part 1210 continues to read as follows: establish rules for producers to certify and a majority of the handlers voting in Authority: 7 U.S.C. 4901–4916. whether they are exempt from the the referendum. The Act now specifies assessments. In order to make these that the determination of the results of SubpartÐRules of Practice Governing changes, this rule amends sections a referendum should be on the basis of Proceedings on Petitions To Modify or 1210.341, 1210.342, 1210.518, and a simple majority of the producers, To Be Exempted From Plans 1210.521. handlers, and importers voting in the § 1210.251 [Amended] The Act also increases applicability of referendum. In order to make this 2. In Section 1210.251, paragraph (a) the law from the 48 contiguous States to change, this rule amends section is amended by removing ‘‘;’’ and adding the 50 States and the District of 1210.363. in its place ‘‘, as amended;’’. Columbia. This amendment would Furthermore, section 1210.252 will be expand the Plan to cover producers, revised to correct a wording error made § 1210.252 [Amended] handlers, and importers in Hawaii, during the promulgation of the Plan and 3. In Section 1210.252, paragraph Alaska, and the District of Columbia. In section 1210.322 will be revised to (b)(3) is amended by removing the word order to make these changes, this rule delete obsolete language. ‘‘order’’ and adding in its place ‘‘Plan’’. amends section 1210.305 and would In addition, section 1210.325 will be add a new section 1210.315. changed to reflect a change in the SubpartÐWatermelon Research and Section 1647(f) of the Act permits number of Board members that Promotion Plan changes in the assessment rate through constitute a majority. This revision notice and comment rulemaking. No reflects the addition of importer § 1210.302 [Amended] change to the Plan is necessary to members to the Board. 4. Section 1210.302 is amended by implement this amendment to the Act Section 1210.505 will be amended to adding ‘‘, as amended’’ at the end of the because section 1210.341 of the Plan reflect the fact that the Department sentence. states that assessment rates shall be issues user fee bills to the Board 5. Section 1210.305 is revised to read fixed by the Secretary in accordance monthly rather than quarterly. as follows: with section 1647(f) of the Act. The Act provides that a producer is In addition, miscellaneous § 1210.305 Watermelon. eligible to serve on the Board as a conforming changes will be made to ‘‘Watermelon’’ means all varieties of representative of handlers (1) if a sections 1210.251, 1210.302, 1210.328, the Family Curcubitaceae; Genus and producer purchases watermelons from 1210.340, and 1210.362. Species; Citrullus Lanatus, popularly other producers in a combined total Minor changes are made in this final referred to as watermelon grown by volume that is equal to 25 percent or rule for the purpose of clarity. producers in the United States or more of the producer’s own production After consideration of all relevant imported into the United States. or (2) if the combined total volume of material presented, it is found that this watermelons handled by the producer regulation, as set forth herein, tends to § 1210.306 [Amended] from the producer’s own production effectuate the declared policy of the Act. 6. Section 1210.306 is amended by and purchases from other producer’s Pursuant to 5 U.S.C. 553, it is also removing the word ‘‘five’’ and adding in production is more than 50 percent of found and determined that good cause its place ‘‘10’’. the producer’s own production. This exists for not postponing the effective 7. A new § 1210.314 is added to read provision facilitates the eligibility of date of this action until 30 days after as follows: publication in the Federal Register producers and handlers to serve on the § 1210.314 Importer. Board as representatives of their specific because: (1) This rule amends the Plan ‘‘Importer’’ means any person who group. In order to make these changes, and the Rules and Regulations issued imports watermelons into the United this rule amends sections 1210.321, thereunder, in accordance with the States as a principal or as an agent, 1210.363, 1210.368, and 1210.402. provisions of the Act as amended by the The Act also provides that all future Watermelon Research and Promotion broker, or consignee for any person who promulgation and amendment referenda Improvement Act of 1993; (2) produces watermelons outside of the do not have to be conducted at watermelon producers, handlers, and United States for sale in the United Extension Service county offices. This importers voted in November 1994 to States. procedure proved to be expensive and implement two of the major changes; 8. A new section 1210.315 is added to difficult to administer. The Act now and (3) no useful purpose will be served read as follows: allows referenda to be conducted by in delaying the effective date until 30 § 1210.315 United States. days after publication of this final rule. mail ballot which reduces the costs ‘‘United States’’ means each of the Therefore, this final rule will be involved in conducting referenda and several States and the District of effective on the date of publication in facilitates a more timely tabulation of Columbia. the Federal Register. the results. In order to make this change, 9. Section 1210.320 is amended by this rule amends section 1210.363. List of Subjects in 7 CFR Part 1210 revising paragraph (a) and adding new In addition, the Act changes the Agricultural promotion, Agricultural paragraphs (d), (e), and (f) to read as criteria for determining the outcome of follows: referenda. The Act previously provided research, Market development, that the Plan should not be effective Reporting and recordkeeping § 1210.320 Establishment and unless approved by not less than two- requirements, Watermelons. membership. thirds of the producers and handlers For the reasons set forth in the (a) There is hereby established a voting in the referendum, or producers preamble, part 1210, chapter XI of title National Watermelon Promotion Board, and handlers of not less than two-thirds 7 is amended as follows: hereinafter called the ‘‘Board.’’ The 10798 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations Board shall be composed of producers, (1) A list of the vacancies and 11. Section 1210.322 is amended by handlers, importers, and one public qualifications as to producers and revising paragraphs (a), (b), and (d) to representative appointed by the handlers by district and to importers read as follows: Secretary. An equal number of producer nationally for which nominees may be and handler representatives shall be submitted. § 1210.322 Term of office. nominated by producers and handlers * * * * * (a) The term of office of Board pursuant to § 1210.321. The Board shall (4) The date, time, and location of any members shall be three years. also include one or more representatives next scheduled meeting of the Board, (b) Except in the case of mid-term of importers, who shall be nominated in national and State producer or handler vacancies, the term of office shall begin such manner as may be prescribed by associations, importers, and district on January 1, or such other date as may the Secretary. The public representative conventions, if any. be recommended by the Board and approved by the Secretary. shall be nominated by the Board * * * * * members in such manner as may be (d) Nominations for importers * * * * * prescribed by the Secretary. If positions that become vacant may be (d) No person shall serve more than producers, handlers, and importers fail made by mail ballot, nomination two successive terms of office. to select nominees for appointment to conventions, or by other means 12. Section 1210.325 is amended by the Board, the Secretary may appoint prescribed by the Secretary. The Board revising paragraph (a) to read as follows: persons on the basis of representation as shall provide notice of such vacancies provided in § 1210.324. If the Board § 1210.325 Procedure. and the nomination process to all (a) A simple majority of Board fails to adhere to procedures prescribed importers through press releases and by the Secretary for nominating a public members shall constitute a quorum and any other available means as well as any action of the Board shall require the representative, the Secretary shall direct mailing to known importers. All appoint such representative. concurring votes of a majority of those importers may participate in the present and voting. At assembled * * * * * nomination process: Provided, That a (d) Importer representation on the meetings all votes shall be cast in person who both imports and handles person. Board shall be proportionate to the watermelons may vote for importer percentage of assessments paid by members and serve as an importer * * * * * importers to the Board, except that at member if that person imports 50 least one representative of importers § 1210.328 [Amended] percent or more of the combined total 13. Section 1210.328 is amended by shall serve on the Board. volume of watermelons handled and (e) Not later than 5 years after the date removing in paragraphs (d) and (g) the imported by that person. word ‘‘collected’’ and adding in its that importers are subject to the Plan, (e) All producers and handlers within place ‘‘received’’; removing in and every 5 years thereafter, the the district may participate in the paragraphs (g), (i), and (m) the phrase Secretary shall evaluate the average convention: Provided, That a person ‘‘and handlers’’ and adding in its place annual percentage of assessments paid that produces and handles watermelons ‘‘, handlers, and importers’’; removing by importers during the 3-year period may vote for handler members only if in paragraph (k) the phrase ‘‘or handler’’ preceding the date of the evaluation and the producer purchased watermelons and adding in its place ‘‘, handler or adjust, to the extent practicable, the from other producers, in a combined importer’’; and removing in paragraph number of importer representatives on total volume that is equal to 25 percent (n) the word ‘‘handlers’’ and adding in the Board. or more of the producer’s own (f) The Board consists of 14 its place ‘‘handlers, importers,’’. production; or the combined total producers, 14 handlers, at least one volume of watermelon handled by the importer, and one public member § 1210.340 [Amended] producer from the producer’s own appointed by the Secretary. 14. Section 1210.340 is amended by 10. Section 1210.321 is amended by production and purchases from other removing in paragraph (b) the word redesignating paragraphs (a), (b), and (c) producer’s production is more than 50 ‘‘collected’’ and adding in its place as (b), (c), and (e) respectively; percent of the producer’s own ‘‘received’’. redesignating paragraph (d) as production; and provided further, That 15. Section 1210.341 is amended by paragraph (f); removing new paragraph if a producer or handler is engaged in revising paragraphs (a), and (b); (f)(1) and redesignating new paragraphs the production or handling of redesignating paragraphs (d) through (i) (f)(2) and (f)(3) as paragraphs (f)(1) and watermelons in more than one State or as (e) through (j); revising redesignated (f)(2); revising new paragraphs (b) district, the producer or handler shall paragraph (e); adding a new paragraph introductory text, (b)(1), (b)(4), (e), (f) participate within the State or district in (d); removing in redesignated introductory text, and (f)(1); removing in which the producer or handler so elects paragraphs (f) and (g) the word new paragraph (c) the word ‘‘positions’’ in writing to the Board and such ‘‘handler’’ wherever it appears and and adding in its place the phrase election shall remain controlling until adding in its place ‘‘handler or ‘‘producer and handler positions’’; and revoked in writing to the Board. importer’’; removing in redesignated (f) The district convention adding new paragraphs (a) and (d) to paragraph (h) the word ‘‘handlers’’ chairperson shall conduct the selection read as follows: wherever it appears and adding in its process for the nominees in accordance place ‘‘handlers and importers’’; and § 1210.321 Nominations and selection. with procedures to be adopted at each removing redesignated in paragraph (f) * * * * * such convention, subject to the letter ‘‘(d)’’ and adding in its place (a) There shall be two individuals requirements set in § 1210.321(e). ‘‘(e)’’ to read as follows: nominated for each vacant position. (1) No State in Districts 3, 4, 5, and (b) The Board shall issue a call for 7 as currently constituted shall have § 1210.341 Assessments. nominations by February first of each more than three producers and handlers (a) During the effective period of this year in which an election is to be held. representatives concurrently on the subpart, assessments shall be levied on The call shall include at a minimum, Board. all watermelons produced and first the following information: * * * * * handled in the United States and all Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10799 watermelons imported into the United the Secretary, for certifying whether a handlers, and importers voting in such States for consumption as human food. person meets the definition of a referendum who, during a No more than one assessment on a producer under section 1210.306. representative period determined by the producer, handler, or importer shall be Secretary, have been engaged in the made on any lot of watermelons. The § 1210.343 [Removed and Reserved] production, handling, or importing of handler shall be assessed an equal 17. Section 1210.343 is removed and watermelons and who produced, amount on a per unit basis as the reserved. handled, or imported more than 50 producer. If a person performs both 18. Section 1210.350 is amended by percent of the combined total of the producing and handling functions on redesignating paragraphs (a) through (d) volume of watermelons produced, any same lot of watermelons, both as (a) (1) through (4); designating the handled, or imported by those assessments shall be paid by such introductory paragraph as paragraph (a) producers, handlers, and importers person. In the case of an importer, the introductory text; and adding new voting in the referendum. For purposes assessment shall be equal to the paragraphs (b) and (c) to read as follows: of this section, the vote of a person who combined rate for domestic producers § 1210.350 Reports. both produces and handles watermelons and handlers and shall be paid by the will be counted as a handler vote if the * * * * * importer at the time of entry of the producer purchased watermelons from (b) Each importer of watermelons watermelons into the United States. other producers, in a combined total shall maintain a separate record that (b) Assessment rates shall be fixed by volume that is equal to 25 percent or includes a record of: the Secretary in accordance with section (1) the total quantity of watermelons more of the producer’s own production; 1647(f) of the Act. No assessments shall imported into the United States that are or the combined total volume of be levied on watermelons grown by included under the terms of this Plan; watermelon handled by the producer producers of less than 10 acres of (2) the total quantity of watermelons from the producer’s own production watermelons. that are exempt from the Plan; and and purchases from other producer’s * * * * * (3) such other information as may be production is more than 50 percent of (d) Each importer shall be responsible prescribed by the Board. the producer’s own production. for payment of the assessment to the (c) Each importer shall report to the Provided, That the vote of a person who Board on watermelons imported into the Board at such times and in such manner both imports and handles watermelons United States through the U.S. Customs as it may prescribe such information as will be counted as an importer vote if Service or in such other manner as may may be necessary for the Board to that person imports 50 percent or more be established by rules and regulations perform its duties under this part. of the combined total volume of approved by the Secretary. watermelons handled and imported by (e) Producer-handlers and handlers § 1210.351 [Amended] that person. Any such referendum shall shall pay assessments to the Board at 19. Section 1210.351 is amended by be conducted by mail ballot. removing the word ‘‘handler’’ and such time and in such manner as the § 1210.364 [Amended] Board, with the Secretary’s approval, adding in its place ‘‘handler and 23. Section 1210.364 is amended by directs, pursuant to regulations issued importer’’ and removing the word ‘‘two’’ removing in paragraph (d) the phrase under this part. Such regulations may and adding in its place ‘‘2’’. ‘‘and handlers’’ and adding in its place provide for different handlers or classes § 1210.352 [Amended] ‘‘, handlers and importers’’. of handlers and different handler 24. The subpart heading ‘‘Subpart— payment and reporting schedules to 20. Section 1210.352 is amended by removing in paragraph (a)(1) the word Procedures for Nominating Producer recognize differences in marketing and Handler Members to the National practices or procedures used in any ‘‘handlers’’ and adding in its place ‘‘handlers or importers’’. Watermelon Promotion Board’’ is State or production area. revised; and a new undesignated center * * * * * § 1210.362 [Amended] heading is added to read as follows: 16. Section 1210.342 is amended by 21. Section 1210.362 is amended by designating the existing text as removing the word ‘‘collected’’ and SubpartÐProcedures for Nominating paragraph (a) and adding new adding in its place ‘‘received’’; and Members to the National Watermelon paragraphs (b), (c), and (d) to read as removing the word ‘‘plan’’ and adding Promotion Board follows: in its place ‘‘Plan’’. 22. Section 1210.363 is amended by Producer and Handler Members § 1210.342 Exemption from assessment. revising paragraph (b) to read as follows: 25. In Section 1210.401, paragraph (b) * * * * * is revised to read as follows: (b) Importers of less than 150,000 § 1210.363 Suspension or termination. pounds of watermelons per year shall be * * * * * § 1210.401 District conventions. entitled to apply for a refund that is (b) The Secretary may conduct a * * * * * equal to the rate of assessment paid by referendum at any time and shall hold (b) District conventions are to be held domestic producers. a referendum on request of the Board or to nominate producers and handlers as (c) The Secretary may adjust the at least 10 percent of the combined total candidates for membership on the quantity of the weight exemption of the watermelon producers, handlers, National Watermelon Promotion Board. specified in paragraph (b) of this section and importers to determine if Each district, as defined in § 1210.501, on the recommendation of the Board watermelon producers, handlers, and is entitled to two producer and two after an opportunity for public notice importers favor termination or handler members on the Board. and comment to reflect significant suspension of this Plan. The Secretary * * * * * changes in the 5-year average yield per shall suspend or terminate this Plan at 26. Section 1210.402 is amended by acre of watermelons produced in the the end of the marketing year whenever revising paragraph (a); removing in United States. the Secretary determines that the paragraph (b) the phrase ‘‘or first (d) The Board shall have the authority suspension or termination is favored by handling’’ and adding in its place ‘‘, first to establish rules, with the approval of a majority of the watermelon producers, handling or importing’’; and removing 10800 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations in paragraph (b) the phrase ‘‘§ 1210.403’’ importer receiving the highest number (g) Any individual who both imports and adding in its place ‘‘§ 1210.403 and of votes for a vacancy shall be the first and handles watermelons will be § 1210.404’’ to read as follows: choice nominee, and the importer considered an importer if that person receiving the second highest number of imports 50 percent or more of the § 1210.402 Voter and board member nominee eligibility. votes shall be the second choice combined total volume of watermelons nominee submitted to the Secretary. handled and imported by that person. (a) All producers and handlers within (d) Any individual, group of a district may participate in their § 1210.503 [Redesignated as § 1210.405] individuals, partnership, corporation, district convention for the purpose of association, cooperative or any other 28. Section 1210.503 is redesignated nominating candidates for appointment entity which is engaged in the as § 1210.405, the first sentence of to the Board: Provided, That a producer production, first handling or importing paragraph (a) is revised, and a new who both produces and handles of watermelons is considered a person undesignated center heading is added to watermelons may vote for handler and as such is entitled to only one vote, read as follows: member nominees and serve as a except that such person may cast proxy handler member nominee only if the Public Member votes as provided in paragraph (e)(1) of producer purchased watermelons from § 1210.405 Public member nominations other producers, in a combined total this section. (e) Nomination Conventions. If and selection. volume that is equal to 25 percent or (a) The public member shall be more of the producer’s own production nominations are made by nomination conventions, the Board shall widely nominated by the other members of the or the combined total volume of Board. * * * watermelons handled by the producer publicize such conventions and provide from the producer’s own production importers and the Secretary at least 10 * * * * * days notice prior to each convention. and purchases from other producer’s SubpartÐRules and Regulations production is more than 50 percent of (1) Proxy voting by importers shall be the producer’s own production; and permitted at all conventions. Any § 1210.505 [Amended] Provided further, That if a producer or person wanting to cast proxy votes must 29. Section 1210.505 is amended by handler is engaged in the production or demonstrate authorization to do so. removing the word ‘‘quarterly’’ and handling of watermelons in more than Authority to cast a proxy vote on behalf adding in its place ‘‘monthly’’. one State or district, the producer or of another person shall be demonstrated 30. Section 1210.515 is amended by handler shall participate within the through documentation containing: revising paragraph (a); redesignating State or district in which the producer (i) The proxy voter’s name, address, paragraph (b) as (c); and adding a new or handler so elects in writing to the and telephone number; paragraph (b) to read as follows: Board and such election shall remain (ii) Signature and date signed; controlling until revoked in writing to (iii) A certification identifying the § 1210.515 Levy of assessments. the Board. For the purpose of proxy voter as an importer; and (a) An assessment of two cents per participation in initial nominating (iv) A statement identifying the hundredweight shall be levied on all conventions, such election shall be person being given authority by the watermelons produced for ultimate made in writing, at the address proxy voter to cast the proxy vote. consumption as human food, and an provided, to the Department official (2) The Board shall provide to the assessment of two cents per identified in the call for a district Secretary a typed copy of each hundredweight shall be levied on all convention. convention’s minutes and shall arrange watermelons first handled for ultimate * * * * * for completion of qualification consumption as human food. An 27. A new undesignated center statements and other specified assessment of four cents per heading and section 1210.404 are added information by each nominee and hundredweight shall be levied on all to read as follows: forward such to the Secretary within 14 watermelons imported into the United calendar days of completion of a States for ultimate consumption as Importer Members convention. human food at the time of entry in the § 1210.404 Importer member nomination (f) Mail balloting. If nominations are United States. and selection. conducted by mail ballot, the Board (b) The import assessment shall be (a) The Board shall include one or shall request importers to submit uniformly applied to imported more representatives of importers, who nominations of eligible importers. It is watermelons that are identified by the shall be appointed by the Secretary from the importer’s responsibility to prove numbers 0807.10.30007 and nominations submitted by watermelon the individual’s eligibility. After the 0807.10.40005 in the Harmonized Tariff importers. Importers’ representation on names of nominees are received, the Schedule of the United States or any the Board shall be proportionate to the Board shall print ballots and ask eligible other number used to identify fresh percentage of assessments paid by importers to vote to nominate their watermelons for consumption as human importers to the Board, except that at candidates. After the vote is received, food. The U.S. Customs Service (USCS) least one representative of importers the Board shall tabulate the results and will collect assessments on such shall serve on the Board if importers are shall send to the Department the watermelons at the time of entry and subject to the Plan. Nominations for nominees in order of preference. The will forward such assessment as per the importer positions that become vacant Board shall provide the Secretary with agreement between USCS and USDA. shall be made by importers at a report on the results, number of Any importer or agent who is exempt nomination conventions or by mail importers participating in the vote, and from payment of assessments may ballot. the volume of imports, and shall arrange submit the Board adequate proof of the (b) The initial nomination of importer for completion of qualification volume handled by such importer for members shall be made not later than 90 statements and other specified the exemption to be granted. days after the Plan is amended. information by each nominee and * * * * * (c) There shall be two individuals forward such to the Secretary within 14 31. Section 1210.518 is amended by nominated for each vacant position. The calendar days of receiving the ballots. revising paragraphs (a) and (b); Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10801 removing in paragraph (c)(1) the letter an amount equal to the amount paid by and importers and all information with ‘‘(e)’’ and adding in its place ‘‘(b) and domestic producers. respect to refunds of assessments made (e)’’ and removing the word ‘‘handler’’ (a) Application form. The Board shall to importers shall be kept confidential and adding in its place ‘‘handler and make available to all importers a refund in the manner and to the extent importer’’; removing in paragraph application form. provided for in § 1210.352. (b) Submission of refund application (c)(2)(viii) the word ‘‘five’’ and adding Dated: February 21, 1995. to the Board. The refund application in its place ‘‘10’’; and removing in Lon Hatamiya, paragraph (d)(1) the word ‘‘handler’’ form shall be submitted to the Board Administrator. wherever it appears and adding in its within 90 days of the last day of the year place ‘‘handler and importer’’ to read as the watermelons were actually [FR Doc. 95–4736 Filed 2–27–95; 8:45 am] follows: imported. The refund application form BILLING CODE 3410±02±P shall contain the following information: § 1210.518 Payment of assessments. (1) Importer’s name and address; (a) Time of payment. The assessment (2) Number of hundredweight of DEPARTMENT OF TRANSPORTATION on domestically produced watermelons watermelon on which refund is shall become due at the time the first requested; Federal Aviation Administration handler handles the watermelons for (3) Total amount to be refunded; non-exempt purposes. The assessment (4) Proof of payment as described 14 CFR Part 39 on imported watermelons shall become below; and due at the time of entry, or withdrawal, (5) Importer’s signature. [Docket No. 94±NM±128±AD; Amendment 39±9146; AD 95±03±09] into the United States. (c) Proof of payment of assessment. (b) Responsibility for payment. Evidence of payment of assessments satisfactory to the Board shall Airworthiness Directives; Fokker (1) The first handler is responsible for Model F28 Mark 0100 Series Airplanes payment of both the producer’s and the accompany the importer’s refund handler’s assessment. The handler may application. An importer must submit a AGENCY: Federal Aviation collect the producer’s assessment from copy of the importer’s report or a Administration, DOT. cancelled check. Evidence submitted the producer or deduct such producer’s ACTION: Final rule. assessment from the proceeds paid to with a refund application shall not be the producer on whose watermelons the returned to the applicant. SUMMARY: This amendment adopts a producer assessment is made. Any such (d) Payment of refund. Immediately new airworthiness directive (AD), collection or deduction of producer after receiving the properly executed applicable to all Fokker F28 Mark 0100 assessment shall be made not later than application for refund, the Board shall series airplanes, that requires inspecting the time when the first handler handles make remittance to the applicant. the teleflex cable of the landing gear to the watermelons. 34. Section 1210.521 is revised to read detect corrosion, moisture, or improper (2) The U.S. Customs Service shall as follows: greasing, and replacing discrepant collect assessments on imported teleflex cables with serviceable parts. § 1210.521 Reports of disposition of watermelons from importers and exempted watermelons. This amendment is prompted by reports forward such assessments under an of difficulties with the operation of the The Board may require reports by agreement between the U.S. Customs selector handle of the landing gear when handlers or importers on the handling/ Service and the U.S. Department of ‘‘gear down’’ is selected, due to importing and disposition of exempted Agriculture. Importers shall be improper greasing of the teleflex cable watermelons and/or on the handling of responsible for payment of assessments of the landing gear during production. watermelons for persons engaged in directly to the Board of any assessments The actions specified by this AD are growing less than 10 acres of due but not collected by the U.S. intended to prevent moisture from watermelons or in the case of importers, Customs Service at the time of entry, or accumulating on the teleflex cable, the importing of less than 150,000 withdrawal, on watermelons imported which could result in corrosion of the pounds per year. Authorized employees into the United States for human teleflex cable that could inhibit of the Board or the Secretary may consumption. operation of the selector handle of the inspect such books and records as are landing gear. * * * * * appropriate and necessary to verify the DATES: Effective March 30, 1995. § 1210.519 [Amended] reports on such disposition. The incorporation by reference of 32. Section 1210.519 is amended by § 1210.530 [Amended] certain publications listed in the removing in the introductory paragraph 35. Section 1210.530 is amended by regulations is approved by the Director the word ‘‘handler’’ and adding in its removing the word ‘‘handler’’ from the of the Federal Register as of March 30, place ‘‘handler and importer’’; by introductory text and adding in its place 1995. removing in paragraph (a) the word ‘‘handler and importer’’. ADDRESSES: The service information ‘‘handler’s’’ and adding in its place referenced in this AD may be obtained ‘‘handler’s and importer’s’’; and § 1210.531 [Amended] from Fokker Aircraft USA, Inc., 1199 removing the word ‘‘Watermelon’’ from 36. Section 1210.531 is amended by North Fairfax Street, Alexandria, the introductory paragraph and removing the word ‘‘handler’’ and Virginia 22314. This information may be paragraphs (a) and (b). adding in its place ‘‘handler and examined at the Federal Aviation 33. Section 1210.520 is revised to read importer’’. Administration (FAA), Transport as follows: 37. Section 1210.532 is revised to read Airplane Directorate, Rules Docket, as follows: § 1210.520 Refunds. 1601 Lind Avenue, SW., Renton, Each importer of less than 150,000 § 1210.532 Confidential books, records, Washington; or at the Office of the pounds of watermelons during any and reports. Federal Register, 800 North Capitol calendar year shall be entitled to apply All information obtained from the Street, NW., suite 700, Washington, DC. for a refund of the assessments paid in books, records, and reports of handlers FOR FURTHER INFORMATION CONTACT: 10802 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations Tim Dulin, Aerospace Engineer, $60 per work hour. The economic Adoption of the Amendment Standardization Branch, ANM–113, impact information, below, has been Accordingly, pursuant to the FAA, Transport Airplane Directorate, revised to reflect this increase in the authority delegated to me by the 1601 Lind Avenue, SW., Renton, specified hourly labor rate. Administrator, the Federal Aviation Washington 98055–4056; telephone After careful review of the available Administration amends part 39 of the (206) 227–2141; fax (206) 227–1320. data, including the comments noted Federal Aviation Regulations (14 CFR SUPPLEMENTARY INFORMATION: A above, the FAA has determined that air part 39) as follows: proposal to amend part 39 of the Federal safety and the public interest require the Aviation Regulations (14 CFR part 39) to adoption of the rule with the change PART 39ÐAIRWORTHINESS include an airworthiness directive (AD) previously described. The FAA has DIRECTIVES that is applicable to all Fokker Model determined that this change will neither 1. The authority citation for part 39 F28 Mark 0100 series airplanes was increase the economic burden on any continues to read as follows: published in the Federal Register on operator nor increase the scope of the October 18, 1994 (59 FR 52479). That AD. Authority: 49 U.S.C. App. 1354(a), 1421 action proposed to require removing the and 1423; 49 U.S.C. 106(g); and 14 CFR The FAA estimates that 119 airplanes 11.89. teleflex cable of the landing gear, part of U.S. registry will be affected by this number D76351–001, and inspecting it AD, that it will take approximately 10.9 § 39.13 [Amended] to detect corrosion, moisture, or work hours per airplane to accomplish 2. Section 39.13 is amended by improper greasing. If no discrepancies the required actions, and that the adding the following new airworthiness are detected, the cable would be average labor rate is $60 per work hour. directive: cleaned, greased, and reassembled. If Required parts will be supplied by the 95–03–09 Fokker: Amendment 39–9146. any discrepancy is detected, the cable manufacturer at no cost to the operators. Docket 94–NM–128–AD. would be replaced with a serviceable Based on these figures, the total cost Applicability: Model F28 Mark 0100 series part. impact of the AD on U.S. operators is airplanes; equipped with a teleflex cable of Interested persons have been afforded estimated to be $77,826, or $654 per the landing gear, having part number an opportunity to participate in the airplane. D76351–001; certificated in any category. making of this amendment. Due The total cost impact figure discussed Note 1: This AD applies to each airplane consideration has been given to the above is based on assumptions that no identified in the preceding applicability single comment received. operator has yet accomplished any of provision, regardless of whether it has been The commenter supports the modified, altered, or repaired in the area the requirements of this AD action, and proposed rule. subject to the requirements of this AD. For that no operator would accomplish As a result of recent communications airplanes that have been modified, altered, or those actions in the future if this AD with the Air Transport Association repaired so that the performance of the were not adopted. (ATA) of America, the FAA has learned requirements of this AD is affected, the The regulations adopted herein will owner/operator must use the authority that, in general, some operators may provided in paragraph (b) to request approval misunderstand the legal effect of AD’s not have substantial direct effects on the States, on the relationship between the from the FAA. This approval may address on airplanes that are identified in the either no action, if the current configuration applicability provision of the AD, but national government and the States, or eliminates the unsafe condition; or different that have been altered or repaired in the on the distribution of power and actions necessary to address the unsafe area addressed by the AD. The FAA responsibilities among the various condition described in this AD. Such a points out that all airplanes identified in levels of government. Therefore, in request should include an assessment of the the applicability provision of an AD are accordance with Executive Order 12612, effect of the changed configuration on the legally subject to the AD. If an airplane it is determined that this final rule does unsafe condition addressed by this AD. In no not have sufficient federalism case does the presence of any modification, has been altered or repaired in the alteration, or repair remove any airplane from affected area in such a way as to affect implications to warrant the preparation of a Federalism Assessment. the applicability of this AD. compliance with the AD, the owner or Compliance: Required as indicated, unless operator is required to obtain FAA For the reasons discussed above, I accomplished previously. approval for an alternative method of certify that this action (1) is not a To prevent moisture from accumulating on compliance with the AD, in accordance ‘‘significant regulatory action’’ under the teleflex cable, which could result in with the paragraph of each AD that Executive Order 12866; (2) is not a corrosion of the teleflex cable that could provides for such approvals. A note has ‘‘significant rule’’ under DOT inhibit operation of the selector handle of the been added to this final rule to clarify Regulatory Policies and Procedures (44 landing gear, accomplish the following: this requirement. FR 11034, February 26, 1979); and (3) (a) Within 4 months after the effective date Additionally, the applicability of the will not have a significant economic of this AD, remove the teleflex cable of the impact, positive or negative, on a landing gear, part number D76351–001, and final rule has been revised to clarify that perform an inspection of it to detect only airplanes equipped with a teleflex substantial number of small entities corrosion, moisture, or improper greasing, in cable of the landing gear, having part under the criteria of the Regulatory accordance with Fokker Service Bulletin number D76351–001, are applicable to Flexibility Act. A final evaluation has SBF100–32–071, dated June 22, 1993. the requirements of the AD. been prepared for this action and it is (1) If no discrepancies are found, prior to The FAA has recently reviewed the contained in the Rules Docket. A copy further flight, clean, grease, and reinstall the figures it has used over the past several of it may be obtained from the Rules teleflex cable, in accordance with the service years in calculating the economic Docket at the location provided under bulletin. impact of AD activity. In order to the caption ADDRESSES. (2) If any discrepancy is found, prior to further flight, replace the teleflex cable with account for various inflationary costs in List of Subjects in 14 CFR Part 39 a serviceable part in accordance with the the airline industry, the FAA has service bulletin. determined that it is necessary to Air transportation, Aircraft, Aviation (b) An alternative method of compliance or increase the labor rate used in these safety, Incorporation by reference, adjustment of the compliance time that calculations from $55 per work hour to Safety. provides an acceptable level of safety may be Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10803 used if approved by the Manager, inspections or FMPI. The actions inspections or FMPI. In telegraphic AD Standardization Branch, ANM–113, FAA, specified by this AD are intended to T89–05–52, reinspection of all CCOC’s Transport Airplane Directorate. Operators prevent rupture of the CCOC, which is required, including reinspection of shall submit their requests through an could result in fire, engine cowl release, those CCOC’s that exhibited minimal appropriate FAA Principal Maintenance Inspector, who may add comments and then or aircraft damage. ultrasonic indications during initial send it to the Manager, Standardization DATES: Effective March 30, 1995. inspection. The FAA has determined Branch, ANM–113. The incorporation by reference of analytically that CCOC’s that exhibit Note 2: Information concerning the certain publications listed in the maximum signal amplitudes of less than existence of approved alternative methods of regulations is approved by the Director 40 percent are not life limited at the compliance with this AD, if any, may be of the Federal Register as of March 30, defined weld area. Therefore, CCOC’s obtained from the Standardization Branch, 1995. that meet this signal criteria for two ANM–113. ADDRESSES: The service information consecutive ultrasonic inspections may (c) Special flight permits may be issued in referenced in this AD may be obtained be marked with a new P/N, provided the accordance with §§ 21.197 and 21.199 of the from Pratt & Whitney, 400 Main St., East second ultrasonic inspection is Federal Aviation Regulations (14 CFR 21.197 Hartford, CT 06108. This information accomplished at least 2,500 cycles in and 21.199) to operate the airplane to a may be examined at the Federal service (CIS) after the first inspection location where the requirements of this AD and the second inspection is performed can be accomplished. Aviation Administration (FAA), New (d) The actions shall be done in accordance England Region, Office of the Assistant in accordance with Appendix C of PW with Fokker Service Bulletin SBF100–32– Chief Counsel, 12 New England Alert Service Bulletin (ASB) No. 5842, 071, dated June 22, 1993. This incorporation Executive Park, Burlington, MA 01803– Revision 3, dated October 10, 1990. by reference was approved by the Director of 5299; or at the Office of the Federal Finally, the FAA has determined that the Federal Register in accordance with 5 Register, 800 North Capitol Street, NW., certain CCOC’s, P/N 806675, were U.S.C. 552(a) and 1 CFR part 51. Copies may suite 700, Washington, DC. ultrasonically inspected by PW during be obtained from Fokker Aircraft USA, Inc., the manufacturing process, and FOR FURTHER INFORMATION CONTACT: 1199 North Fairfax Street, Alexandria, therefore do not need to be inspected Mark A. Rumizen, Aerospace Engineer, Virginia 22314. Copies may be inspected at again until they are accessible in the Engine Certification Office, FAA, Engine the FAA, Transport Airplane Directorate, shop. 1601 Lind Avenue, SW., Renton, and Propeller Directorate, 12 New A proposal to amend part 39 of the Washington; or at the Office of the Federal England Executive Park, Burlington, MA Register, 800 North Capitol Street, NW., suite Federal Aviation Regulations (14 CFR 01803–5299; telephone (617) 238–7137, part 39) by superseding telegraphic AD 700, Washington, DC. fax (617) 238–7199. (e) This amendment becomes effective on T89–05–52 was published in the March 30, 1995. SUPPLEMENTARY INFORMATION: On March Federal Register on January 27, 1994 1, 1989, the Federal Aviation Issued in Renton, Washington, on February (59 FR 3797). That action proposed to 6, 1995. Administration (FAA) issued require repetitive ultrasonic inspections telegraphic airworthiness directive (AD) S.R. Miller, of CCOC’s for cracks. The proposed AD T89–05–52, applicable to Pratt & would also allow CCOC’s that meet Acting Manager, Transport Airplane Whitney (PW) JT8D series turbofan Directorate, Aircraft Certification Service. certain signal criteria for two engines, which requires repetitive [FR Doc. 95–3357 Filed 2–27–95; 8:45 am] consecutive ultrasonic inspections to be ultrasonic inspections for cracks in the marked with a new P/N. Once BILLING CODE 4910±13±U combustion chamber outer case (CCOC). remarked, those CCOC’s would not need In addition, that telegraphic AD allowed to meet the repetitive ultrasonic 14 CFR Part 39 operators who did not have ultrasonic inspection requirements of this AD. inspection capability to perform visual Finally, the proposed AD would require [Docket No. 93±ANE±81; Amendment 39± inspections and fluorescent magnetic ultrasonic inspections on certain 9091; AD 94±25±07] penetrant inspections (FMPI) of CCOC’s. CCOC’s, P/N 806675, identified by serial That action was prompted by reports of number, that were ultrasonically Airworthiness Directives; Pratt & two CCOC’s, both part number (P/N) Whitney JT8D Series Turbofan Engines inspected by PW during the 796761, which were found in service manufacturing process, when they are AGENCY: Federal Aviation with severe cracking and distress at the accessible in the shop. Administration, DOT. weld which joins the forward case detail Interested persons have been afforded ACTION: Final rule. to the rear flange detail. These cracks an opportunity to participate in the initiated from an area of incomplete making of this amendment. Due SUMMARY: This amendment supersedes weld created during the manufacturing consideration has been given to the an existing telegraphic airworthiness process and were not detected during comments received. directive (AD), applicable to Pratt & the final inspection process. Another Two commenters state that operators Whitney (PW) JT8D series turbofan CCOC, P/N 806675, is manufactured should be exempt from the initial 10 engines, that currently requires using a similar process and has the same days or 75 cycles in service (CIS) after repetitive ultrasonic inspections of a potential for incomplete welds, but to the effective date of this AD, whichever combustion chamber outer case (CCOC) date have not been found cracked. That occurs later, ultrasonic inspection if weld, but also allows visual inspection condition, if not corrected, could result they have already accomplished the or fluorescent magnetic penetrant in rupture of the CCOC, which could inspection in accordance with inspection (FMPI) of certain CCOC’s result in fire, engine cowl release, or telegraphic AD T89–05–52. The FAA under specified conditions. This aircraft damage. concurs and paragraphs (a) and (b) of amendment allows ultrasonic Since the issuance of that telegraphic the compliance section of this final rule inspections only. This amendment is AD, the FAA has received reports that have been revised in accordance with prompted by the greater availability of most operators now have the capability this comment. ultrasonic inspection equipment, which to perform ultrasonic inspections, Three commenters state that they provides a more definitive means of which provides a more definitive means agree with eliminating visual discovering cracks than either visual of discovering cracks than either visual inspections and only allowing 10804 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations ultrasonic inspections. The FAA PART 39ÐAIRWORTHINESS inspection conducted subsequent to 2,500 concurs. DIRECTIVES CIS since new. (d) Remove from service and replace with One commenter states that the 1. The authority citation for part 39 a serviceable part CCOC’s with maximum proposed rule will have negligible effect continues to read as follows: ultrasonic signal amplitude determined as on operations and maintenance. The follows: FAA concurs. Authority: 49 U.S.C. App. 1354(a), 1421 (1) CCOC’s with greater than or equal to and 1423; 49 U.S.C. 106(g); and 14 CFR After careful review of the available 360%, prior to further flight, with no ferry 11.89. flight permitted in accordance with data, including the comments noted paragraph (i) of this AD below. above, the FAA has determined that air § 39.13 [Amended] (2) CCOC’s with less than 360%, but safety and the public interest require the 2. Section 39.13 is amended by greater than or equal to 240%, prior to further adoption of the rule with the changes adding a new airworthiness directive, flight, with ferry flight permitted, in described previously. The FAA has Amendment 39–9091, to read as accordance with paragraph (i) of this AD determined that these changes will follows: below. neither increase the economic burden (e) Thereafter, ultrasonically inspect 94–25–07 Pratt & Whitney: Amendment 39– on any operator nor increase the scope CCOC’s, P/N’s 796761 and 806675, for cracks 9091. Docket 93–ANE–81. Supersedes at intervals determined by maximum of the AD. telegraphic airworthiness directive (AD) ultrasonic signal amplitude, in accordance The FAA estimates that 1,000 engines T89–05–52. with paragraph 2.A.(3) and Appendix B of installed on aircraft of U.S. registry will Applicability: Pratt & Whitney (PW) PW ASB No. 5842, Revision 3, dated October be affected by this AD, that it will take Models JT8D–1, –1A, –1B, –7, –7A, –7B, –9, 10, 1990, for installed CCOC’s; or paragraph approximately 2 work hours per engine –9A, –11, –15, –15A, –17, –17A, –17R, and 2.A.(5) and Appendix C of PW ASB No. 5842, to accomplish the required actions, and –17AR turbofan engines, with combustion Revision 3, dated October 10, 1990, for chamber outer case (CCOC), Part Number (P/ uninstalled CCOC’s; as applicable, as follows: that the average labor rate is $55 per (1) For those CCOC’s that meet the criteria work hour. Based on these figures, the N) 796761 or 806675. These engines are installed on but not limited to Boeing 727 described in paragraph (d) of this AD, remove total cost impact of the AD on U.S. and 737 series, and McDonnell Douglas DC– from service and replace with a serviceable operators is estimated to be $110,000. 9 series aircraft. part. The regulations adopted herein will Compliance: Required as indicated, unless (2) For those CCOC’s with less than 240%, but greater than or equal to 100%, at intervals accomplished previously. not have substantial direct effects on the of 1,000 CIS since last inspection. To prevent rupture of the CCOC, which States, on the relationship between the (3) For those CCOC’s with less than 100%, could result in fire, engine cowl release, or national government and the States, or but greater than or equal to 40%, at intervals aircraft damage, accomplish the following: on the distribution of power and of 2,500 CIS since last inspection. (a) Except for CCOC’s cited in paragraph (c) responsibilities among the various (4) For those CCOC’s with less than 40%, of this airworthiness directive (AD), inspect at the next removal of the CCOC from levels of government. Therefore, in ultrasonically inspect CCOC’s installed in accordance with Executive Order 12612, the engine since last inspection. engines that have not previously been (f) Mark CCOC’s with new P/N’s, in it is determined that this final rule does ultrasonically inspected in accordance with accordance with paragraphs 2.A.(5)(c) and not have sufficient federalism telegraphic AD T89–05–52 for cracks within 2.A.(11) of PW ASB No. 5842, Revision 3, implications to warrant the preparation 10 days or 75 cycles in service (CIS) after the dated October 10, 1990, that meet the of a Federalism Assessment. effective date of this AD, whichever occurs following criteria: later, in accordance with paragraph 2.A.(3) (1) At least two consecutive ultrasonic For the reasons discussed above, I and Appendix B of PW Alert Service Bulletin certify that this action (1) is not a inspections have been performed on the (ASB) No. 5842, Revision 3, dated October CCOC; and ‘‘significant regulatory action’’ under 10, 1990. (2) The second inspection was performed Executive Order 12866; (2) is not a (b) For CCOC’s not installed in engines and in accordance with paragraph (b) of this AD; ‘‘significant rule’’ under DOT not cited in paragraph (c) of this AD, and that and Regulatory Policies and Procedures (44 have not previously been ultrasonically (3) Have accumulated at least 2,500 CIS FR 11034, February 26, 1979); and (3) inspected in accordance with telegraphic AD since the first ultrasonic inspection; and will not have a significant economic T89–05–52, ultrasonically inspect for cracks (4) That exhibit a maximum ultrasonic impact, positive or negative, on a prior to returning the CCOC’s to service in signal amplitude of less than 40% in both accordance with paragraph 2.A.(5) and inspections. substantial number of small entities Appendix C of PW ASB No. 5842, Revision (g) Remarking of CCOC’s with a new P/N under the criteria of the Regulatory 3, dated October 10, 1990. in accordance with paragraph (f) of this AD Flexibility Act. A final evaluation has (c) For CCOC’s, P/N 806675, listed by serial constitutes terminating action to the been prepared for this action and it is number in Table 1 and paragraph 2.A.(10) of inspection requirements of this AD. contained in the Rules Docket. A copy PW ASB No. 5842, Revision 3, dated October (h) An alternative method of compliance or of it may be obtained from the Rules 10, 1990, accomplish the following: adjustment of the compliance time that Docket at the location provided under (1) At the next removal of the CCOC from provides an acceptable level of safety may be used if approved by the Manager, Engine the caption ADDRESSES. the engine after the effective date of this AD, ultrasonically inspect CCOC’s for cracks in Certification Office. The request should be List of Subjects in 14 CFR Part 39 accordance with paragraph 2.A.(5) and forwarded through an appropriate FAA Appendix C of PW ASB No. 5842, Revision Principal Maintenance Inspector, who may Air transportation, Aircraft, Aviation 3, dated October 10, 1990. add comments and then send it to the safety, Incorporation by reference, (2) Remove from service or reinspect Manager, Engine Certification Office. Safety. CCOC’s in accordance with paragraphs (d) Note: Information concerning the existence and (e), respectively, of this AD. of approved alternative method of Adoption of the Amendment (3) Mark CCOC’s with new part numbers in compliance with this AD, if any, may be obtained from the Engine Certification Office. Accordingly, pursuant to the accordance with paragraphs 2.A.(5)(c) and 2.A.(11) of PW ASB No. 5842, Revision 3, authority delegated to me by the (i) Special flight permits may be issued in dated October 10, 1990, that; accordance with §§ 21.197 and 21.199 of the Administrator, the Federal Aviation (i) have accumulated at least 2,500 CIS Federal Aviation Regulations (14 CFR 21.197 Administration amends part 39 of the since new; and and 21.199) to operate the aircraft to a Federal Aviation Regulations (14 CFR (ii) exhibit a maximum ultrasonic signal location where the requirements of this AD part 39) as follows: amplitude of less than 40% during the can be accomplished. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10805 (j) The actions required by this AD shall be done in accordance with the following alert service bulletin: Document No. Pages Revision Date PW ASB No. 5842 ...... 1±17 3 ...... Oct. 10, 1990. Appendix A ...... 1±2 Original ...... May 26, 1989. Appendix B ...... 1±23 3 ...... Oct. 10, 1990. Appendix C ...... 1±7 Original ...... May 26, 1989. Total pages: 49. This incorporation by reference was from Aerospatiale, 316 Route de maintenance and to acquire necessary approved by the Director of the Federal Bayonne, 31060 Toulouse, Cedex 03, parts for replacement. However, under Register in accordance with 5 U.S.C. 552(a) France. This information may be the provisions of paragraph (b) of the and 1 CFR part 51. Copies may be obtained examined at the Federal Aviation final rule, if an operator were to find from Pratt & Whitney, 400 Main St., East Administration (FAA), Transport Hartford, CT 06108. Copies may be inspected itself in a situation in which at the FAA, New England Region, Office of Airplane Directorate, Rules Docket, replacement parts were not immediately the Assistant Chief Counsel, 12 New England 1601 Lind Avenue, SW., Renton, available, it could request approval for Executive Park, Burlington, MA; or at the Washington; or at the Office of the the use of an alternative method of Office of the Federal Register, 800 North Federal Register, 800 North Capitol compliance until parts became Capitol Street, NW., suite 700, Washington, Street, NW., suite 700, Washington, DC. available. DC. FOR FURTHER INFORMATION CONTACT: As a result of recent communications (k) This amendment becomes effective on Sam Grober, Aerospace Engineer, with the Air Transport Association March 30, 1995. Standardization Branch, ANM–113, (ATA) of America, the FAA has learned Issued in Burlington, Massachusetts, on FAA, Transport Airplane Directorate, that, in general, some operators may January 26, 1995. 1601 Lind Avenue, SW., Renton, misunderstand the legal effect of AD’s Michael H. Borfitz, Washington 98055–4056; telephone on airplanes that are identified in the Acting Manager, Engine and Propeller (206) 227–1187; fax (206) 227–1100. applicability provision of the AD, but Directorate, Aircraft Certification Service. SUPPLEMENTARY INFORMATION: A that have been altered or repaired in the [FR Doc. 95–2693 Filed 2–27–95; 8:45 am] proposal to amend part 39 of the Federal area addressed by the AD. The FAA BILLING CODE 4910±13±P Aviation Regulations (14 CFR part 39) to points out that all airplanes identified in include an airworthiness directive (AD) the applicability provision of an AD are that is applicable to certain Aerospatiale legally subject to the AD. If an airplane 14 CFR Part 39 Model ATR42 series airplanes was has been altered or repaired in the [Docket No. 94±NM±84±AD; Amendment published in the Federal Register on affected area in such a way as to affect 39±9145; AD 95±03±08] July 21, 1994 (59 FR 37182). That action compliance with the AD, the owner or proposed to require an inspection to operator is required to obtain FAA Airworthiness Directives; Aerospatiale determine the orientation of the end of approval for an alternative method of Model ATR42±300 and ±320 Series rudder trim and elevator trim fail-safe compliance with the AD, in accordance Airplanes rods, and replacement of those rods with the paragraph of each AD that having upwards-oriented ends. provides for such approvals. A note has AGENCY: Federal Aviation Interested persons have been afforded been added to this final rule to clarify Administration, DOT. an opportunity to participate in the this requirement. ACTION: Final rule. making of this amendment. Due The FAA has recently reviewed the consideration has been given to the figures it has used over the past several SUMMARY: This amendment adopts a single comment received. years in calculating the economic new airworthiness directive (AD), The commenter, Aerospatiale, impact of AD activity. In order to applicable to certain Aerospatiale Model requests that the compliance time account for various inflationary costs in ATR42–300 and –320 series airplanes, specified in proposed paragraph (a)(1) the airline industry, the FAA has that requires an inspection to determine for replacement of SARMA-type rods be determined that it is necessary to the model and orientation of certain extended to 18 months. The proposed increase the labor rate used in these flight control rods, and replacement rule would require that these rods be calculations from $55 per work hour to with modified rods, if necessary. This replaced prior to further flight after they $60 per work hour. The economic amendment is prompted by reports of are identified during the proposed impact information, below, has been corrosion found on the pitch trim and inspection. The commenter considers revised to reflect this increase in the rudder trim rods. The actions specified this replacement requirement to be too specified hourly labor rate. by this AD are intended to prevent restrictive. The FAA does not concur. After careful review of the available problems associated with corrosion of The rule provides for a compliance time data, including the comments noted the flight control rods, which could of 18 months for accomplishing the one- above, the FAA has determined that air compromise the required strength of time inspection to determine if these safety and the public interest require the these items. types of rods are installed on the adoption of the rule with the changes DATES: Effective on March 30, 1995. airplane. The FAA finds no justification previously described. The FAA has The incorporation by reference of for providing an additional time determined that these changes will certain publications listed in the thereafter for replacement of the neither increase the economic burden regulations is approved by the Director discrepant rods. The FAA does not on any operator nor increase the scope of the Federal Register as of March 30, consider the 18-month compliance time of the AD. 1995. to be overly restrictive, since it provides The FAA estimates that 128 airplanes ADDRESSES: The service information ample time for operators to schedule the of U.S. registry will be affected by this referenced in this AD may be obtained inspection during regularly scheduled AD, that it will take approximately 4 10806 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations work hours per airplane to accomplish contained in the Rules Docket. A copy case does the presence of any modification, the required actions, and that the of it may be obtained from the Rules alteration, or repair remove any airplane from average labor rate is $60 per work hour. Docket at the location provided under the applicability of this AD. Based on these figures, the total cost the caption ADDRESSES. Compliance: Required as indicated, unless impact of the AD on U.S. operators is accomplished previously. List of Subjects in 14 CFR Part 39 estimated to be $30,720, or $240 per To prevent problems associated with airplane. Air transportation, Aircraft, Aviation corrosion of the flight control rods, which The total cost impact figure discussed safety, Incorporation by reference, could compromise the required strength of above is based on assumptions that no Safety. these items, accomplish the following: (a) Within 18 months after the effective operator has yet accomplished any of Adoption of the Amendment date of this AD, visually inspect the elevator the requirements of this AD action, and trim and rudder trim fail-safe rods to that no operator would accomplish Accordingly, pursuant to the authority delegated to me by the determine the model and the orientation of those actions in the future if this AD the open end of the rod, in accordance with were not adopted. Administrator, the Federal Aviation Aerospatiale Service Bulletin ATR42–27– Should replacement of any of the Administration amends part 39 of the 0071, dated February 23, 1994. flight control rods be necessary, the Federal Aviation Regulations (14 CFR (1) If a SARMA-type rod is installed at number of work hours and the cost of part 39) as follows: either of these locations, prior to further required parts would vary according to flight, replace that rod with a modified rod, PART 39ÐAIRWORTHINESS the type of replacement accomplished. in accordance with Aerospatiale Service DIRECTIVES In a ‘‘worst case scenario’’ (both subject Bulletin ATR42–27–0049, Revision 2, dated May 16, 1991. rods needing replacement), the cost of 1. The authority citation for part 39 (2) If a TAC-type rod is installed at either parts would be approximately $6,000 continues to read as follows: of these locations, and if the open end of the per airplane. Labor necessary to Authority: 49 U.S.C. App. 1354(a), 1421 rod is oriented in any direction other than accomplish replacement of a rod(s) and 1423; 49 U.S.C. 106(g); and 14 CFR downwards, prior to further flight, would vary from 54 to 87 work hours, 11.89. accomplish the reverse installation at an average labor rate of $60 per work procedures specified in Aerospatiale Service hour. § 39.13 [Amended] Bulletin ATR42–27–0048, Revision 2, dated The regulations adopted herein will 2. Section 39.13 is amended by May 16, 1991. not have substantial direct effects on the adding the following new airworthiness (b) An alternative method of compliance or States, on the relationship between the directive: adjustment of the compliance time that national government and the States, or provides an acceptable level of safety may be 95–03–08 Aerospatiale: Amendment 39– used if approved by the Manager, on the distribution of power and 9145. Docket 94–NM–84–AD. Standardization Branch, ANM–113, FAA, responsibilities among the various Applicability: Model ATR42–300 and -320 Transport Airplane Directorate. Operators levels of government. Therefore, in series airplanes on which Aerospatiale shall submit their requests through an accordance with Executive Order 12612, Modification 02723 has not been installed, appropriate FAA Principal Maintenance it is determined that this final rule does certificated in any category. Inspector, who may add comments and then not have sufficient federalism Note 1: This AD applies to each airplane send it to the Manager, Standardization implications to warrant the preparation identified in the preceding applicability Branch, ANM–113. of a Federalism Assessment. provision, regardless of whether it has been Note 2: Information concerning the modified, altered, or repaired in the area For the reasons discussed above, I existence of approved alternative methods of subject to the requirements of this AD. For compliance with this AD, if any, may be certify that this action (1) is not a airplanes that have been modified, altered, or obtained from the Standardization Branch, ‘‘significant regulatory action’’ under repaired so that the performance of the Executive Order 12866; (2) is not a requirements of this AD is affected, the ANM–113. ‘‘significant rule’’ under DOT owner/operator must use the authority (c) Special flight permits may be issued in Regulatory Policies and Procedures (44 provided in paragraph (b) to request approval accordance with §§ 21.197 and 21.199 of the FR 11034, February 26, 1979); and (3) from the FAA. This approval may address Federal Aviation Regulations (14 CFR 21.197 will not have a significant economic either no action, if the current configuration and 21.199) to operate the airplane to a location where the requirements of this AD impact, positive or negative, on a eliminates the unsafe condition; or different actions necessary to address the unsafe can be accomplished. substantial number of small entities condition described in this AD. Such a (d) The actions shall be done in accordance under the criteria of the Regulatory request should include an assessment of the with the following Aerospatiale Service Flexibility Act. A final evaluation has effect of the changed configuration on the Bulletins, which contain the specified been prepared for this action and it is unsafe condition addressed by this AD. In no effective pages: Revision Service bulletin number and date Page No. level shown Date shown on on page page ATR42±27±0071, Feb. 23, 1994 ...... 1±8 ...... Original ...... Feb. 23, 1994. ATR42±27±0048 ...... 1, 2, 4±6 ...... 2 ...... May 16, 1991. Revision 2 ...... 3, 8, 9 ...... Original ...... June 22, 1990. May 16, 1991 ...... 7 ...... 1 ...... Nov. 21, 1990. ATR42±27±0049 ...... 1, 2, 4 ...... 2 ...... May 16, 1991. Revision 2 ...... 3, 5, 6, 8, 11 ...... Original ...... Sept. 14, 1990. May 16, 1991 ...... 7, 9, 10 ...... 1 ...... Nov. 21, 1990. This incorporation by reference was from Aerospatiale, 316 Route de Bayonne, SW., Renton, Washington; or at the Office of approved by the Director of the Federal 31060 Toulouse, Cedex 03, France. Copies the Federal Register, 800 North Capitol Register in accordance with 5 U.S.C. 552(a) may be inspected at the FAA, Transport Street, NW., suite 700, Washington, DC. and 1 CFR part 51. Copies may be obtained Airplane Directorate, 1601 Lind Avenue, Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10807 (e) This amendment becomes effective on that is applicable to certain Aerospatiale operator has yet accomplished any of March 30, 1995. Model ATR72 series airplanes was the requirements of this AD action, and Issued in Renton, Washington, on February published in the Federal Register on that no operator would accomplish 6, 1995. July 27, 1994 (59 FR 38139). That action those actions in the future if this AD S.R. Miller, proposed to require an inspection to were not adopted. Acting Manager, Transport Airplane determine the model and orientation of Should replacement of any of the Directorate, Aircraft Certification Service. certain flight control rods, and flight control rods be necessary, the [FR Doc. 95–3355 Filed 2–27–95; 8:45 am] replacement of the rods with modified number of work hours and the cost of BILLING CODE 4910±13±U rods, if necessary. required parts will vary according to the Interested persons have been afforded type of replacement accomplished. In a an opportunity to participate in the ‘‘worst case scenario’’ (all subject rods 14 CFR Part 39 making of this amendment. No needing replacement), the cost of parts comments were submitted in response will be approximately $8,200 per [Docket No. 94±NM±83±AD; Amendment to the proposal or the FAA’s 39±9144; AD 95±03±07] airplane. Labor necessary to accomplish determination of the cost to the public. replacement of a rod(s) will vary from Airworthiness Directives; Aerospatiale The FAA has determined that air safety 2 work hours to 10 work hours, at an Model ATR72±101, ±102, ±201, and and the public interest require the average labor rate of $60 per work hour. ±202 Series Airplanes adoption of the rule as proposed. As a result of recent communications The regulations adopted herein will AGENCY: Federal Aviation with the Air Transport Association not have substantial direct effects on the Administration, DOT. (ATA) of America, the FAA has learned States, on the relationship between the national government and the States, or ACTION: Final rule. that, in general, some operators may misunderstand the legal effects of AD’s on the distribution of power and SUMMARY: This amendment adopts a on airplanes that are identified in the responsibilities among the various new airworthiness directive (AD), applicability provision of the AD, but levels of government. Therefore, in applicable to certain Aerospatiale Model that have been altered or repaired in the accordance with Executive Order 12612, ATR72 series airplanes, that requires an area addressed by the AD. The FAA it is determined that this final rule does inspection to determine the model and points out that all airplanes identified in not have sufficient federalism orientation of certain flight control rods, the applicability provision of an AD are implications to warrant the preparation and replacement of the rods with legally subject to the AD. If an airplane of a Federalism Assessment. modified rods, if necessary. This has been altered or repaired in the For the reasons discussed above, I amendment is prompted by reports of affected area in such a way as to affect certify that this action (1) is not a corrosion found on the pitch and rudder compliance with the AD, the owner or ‘‘significant regulatory action’’ under trim and rudder travel limiter fail-safe operator is required to obtain FAA Executive Order 12866; (2) is not a rods. The actions specified by this AD approval for an alternative method of ‘‘significant rule’’ under DOT are intended to prevent problems compliance with the AD, in accordance Regulatory Policies and Procedures (44 associated with corrosion of the flight with the paragraph of each AD that FR 11034, February 26, 1979); and (3) control rods, which could compromise provides for such approvals. A note has will not have a significant economic the required strength of these items. been added to this final rule to clarify impact, positive or negative, on a DATES: Effective March 30, 1995. this requirement. The FAA has substantial number of small entities The incorporation by reference of determined that this addition will under the criteria of the Regulatory certain publications listed in the neither increase the economic burden Flexibility Act. A final evaluation has regulations is approved by the Director on any operator nor increase the scope been prepared for this action and it is of the Federal Register as of March 30, of the AD. contained in the Rules Docket. A copy 1995. Additionally, the FAA has recently of it may be obtained from the Rules reviewed the figures it has used over the Docket at the location provided under ADDRESSES: The service information past several years in calculating the ADDRESSES. referenced in this AD may be obtained the caption economic impact of AD activity. In from Aerospatiale, 316 Route de order to account for various inflationary List of Subjects in 14 CFR Part 39 Bayonne, 31060 Toulouse, Cedex 03, costs in the airline industry, the FAA France. This information may be Air transportation, Aircraft, Aviation has determined that it is necessary to examined at the Federal Aviation safety, Incorporation by reference, increase the labor rate used in these Administration (FAA), Transport Safety. calculations from $55 per work hour to Airplane Directorate, Rules Docket, $60 per work hour. The economic Adoption of the Amendment 1601 Lind Avenue, SW., Renton, impact information, below has been Washington; or at the Office of the Accordingly, pursuant to the revised to reflect this increase in the Federal Register, 800 North Capitol authority delegated to me by the specified hourly labor rate. Street, NW., suite 700, Washington, DC. Administrator, the Federal Aviation The FAA estimates that 28 airplanes Administration amends part 39 of the FOR FURTHER INFORMATION CONTACT: of U.S. registry will be affected by this Federal Aviation Regulations (14 CFR Sam Grober, Aerospace Engineer, AD, that it will take approximately 6 part 39) as follows: Standardization Branch, ANM–113, work hours per airplane to accomplish FAA, Transport Airplane Directorate, the required inspection, and that the PART 39ÐAIRWORTHINESS 1601 Lind Avenue, SW., Renton, average labor rate is $60 per work hour. DIRECTIVES Washington 98055–4056; telephone Based on these figures, the total cost (206) 227–1187; fax (206) 227–1320. impact of the AD on U.S. operators is 1. The authority citation for part 39 SUPPLEMENTARY INFORMATION: A estimated to be $10,080, or $360 per continues to read as follows: proposal to amend part 39 of the Federal airplane. Authority: 49 U.S.C. App. 1354(a), 1421 Aviation Regulations (14 CFR part 39) to The total cost impact figure discussed and 1423; 49 U.S.C. 106(g); and 14 CFR include an airworthiness directive (AD) above is based on assumptions that no 11.89. 10808 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations § 39.13 [Amended] effective date of this AD, visually inspect the rod in accordance with Aerospatiale Service 2. Section 39.13 is amended by elevator trim fail-safe rods to determine the Bulletin ATR72–27–1027, dated July 28, adding the following new airworthiness model and the orientation of the open end of 1993. the rod, in accordance with Part A of directive: (2) If a TAC-type rod is installed at the Aerospatiale Service Bulletin ATR72–27– rudder travel limitation rod location, and if 95–03–07 Aerospatiale: Amendment 39– 1033, dated February 23, 1994. the open end of the rod is oriented in any 9144. Docket 94–NM–83–AD. (1) If a SARMA-type rod is installed, prior direction other than downwards, prior to to further flight, replace that rod with a Applicability: Model ATR72–101, –102, further flight, inspect that rod in accordance modified rod, in accordance with –201, and –202 series airplanes; as listed in with Aerospatiale Service Bulletin ATR72– Aerospatiale Service Bulletin ATR72–27– Aerospatiale Service Bulletin ATR72–27– 1012, Revision 3, dated October 7, 1991. 27–1027, dated July 28, 1993. 1033, dated February 23, 1994; certificated in (i) If no crack(s), deformation, or corrosion any category. (2) If a TAC-type rod is installed, and if the open end of the rod is oriented in any of the rod is found, prior to further flight, Note 1: This AD applies to each airplane direction other than downwards, prior to reinstall the rod so that the open end is identified in the preceding applicability further flight, accomplish the reverse oriented downwards, in accordance with the provision, regardless of whether it has been installation procedures specified in service bulletin. modified, altered, or repaired in the area Aerospatiale Service Bulletin ATR72–27– subject to the requirements of this AD. For (ii) If any crack(s), deformation, or 1010, Revision 4, dated February 23, 1994. airplanes that have been modified, altered, or corrosion of the rod is found, prior to further (b) For airplanes having MSN’s 126 repaired so that the performance of the flight, replace the rod with a modified rod in through 198 inclusive, 204, and 207: Within requirements of this AD is affected, the accordance with the service bulletin. 18 months after the effective date of this AD, owner/operator must use the authority (d) An alternative method of compliance or visually inspect the rudder trim fail-safe rods provided in paragraph (d) to request approval adjustment of the compliance time that to determine the model and the orientation from the FAA. This approval may address provides an acceptable level of safety may be of the open end of the rod, in accordance either no action, if the current configuration used if approved by the Manager, with Part B of Aerospatiale Service Bulletin eliminates the unsafe condition; or different Standardization Branch, ANM–113, FAA, ATR72–27–1033, dated February 23, 1994. actions necessary to address the unsafe (1) If a SARMA-type rod is installed, prior Transport Airplane Directorate. Operators condition described in this AD. Such a to further flight, replace that rod with a shall submit their requests through an request should include an assessment of the modified rod, in accordance with appropriate FAA Principal Maintenance effect of the changed configuration on the Aerospatiale Service Bulletin ATR72–27– Inspector, who may add comments and then unsafe condition addressed by this AD. In no 1012, Revision 3, dated October 7, 1991. send it to the Manager, Standardization case does the presence of any modification, (2) If a TAC-type rod is installed, and if the Branch, ANM–113. alteration, or repair remove any airplane from open end of the rod is oriented in any the applicability of this AD. Note 3: Information concerning the direction other than downwards, prior to Compliance: Required as indicated, unless existence of approved alternative methods of further flight, accomplish the reverse accomplished previously. compliance with this AD, if any, may be installation procedures specified in To prevent problems associated with obtained from the Standardization Branch, Aerospatiale Service Bulletin ATR72–27– corrosion of the flight control rods, which ANM–113. 1010, Revision 4, dated February 23, 1994. could compromise the required strength of (c) For airplanes having MSN’s 198, and (e) Special flight permits may be issued in these items, accomplish the following: 126 through 237 inclusive: Within 18 months accordance with §§ 21.197 and 21.199 of the Note 2: Rods replaced and installed in after the effective date of this AD, visually Federal Aviation Regulations (14 CFR 21.197 accordance with the instructions of any inspect the rudder travel limitation unit fail- and 21.199) to operate the airplane to a version of Aerospatiale Service Bulletin safe rods to determine the model and the location where the requirements of this AD ATR72–27–1010 prior to the effective date of orientation of the open end of the rod, in can be accomplished. this AD are not affected by the requirements accordance with Part C of Aerospatiale (f) The inspections, replacements, reverse of this AD. Service Bulletin ATR72–27–1033, dated installations, and reinstallation shall be done (a) For airplanes having Manufacturer’s February 23, 1994. in accordance with the following Serial Numbers (MSN) 126 through 183, (1) If a SARMA-type rod is installed, prior Aerospatiale service bulletins, as applicable, inclusive: Within 18 months after the to further flight, replace that rod with a new which contain the specified effective pages: Revision Service bulletin referenced and date Page No. level shown Date shown on on page page ATR72±27±1012, Revision 3, October 7, 1991 ...... 1 ...... 3 ...... Oct. 7, 1991. 2, 4, 6, 9 ...... Original ...... Oct. 29, 1990. 5, 7, 8 ...... 1 ...... Nov. 21, 1990. 3 ...... 2 ...... May 16, 1991. ATR72±27±1033 Original Issue, February 23, 1994 ...... 1±10 ...... Original ...... Feb. 23, 1994. ATR72±27±1027, Original Issue, July 28, 1993 ...... 1±11 ...... Original ...... July 28, 1993. ATR72±27±1010, Revision 4, February 23, 1994 ...... 1, 3 ...... 4 ...... Feb. 23, 1994. 2, 7 ...... Original ...... June 22, 1990. 4 ...... 2 ...... Jan. 10, 1991. 5, 6 ...... 1 ...... Nov. 21, 1990. This incorporation by reference was the Federal Register, 800 North Capitol Issued in Renton, Washington, on February approved by the Director of the Federal Street, NW., suite 700, Washington, DC. 6, 1995. Register in accordance with 5 U.S.C. 552(a) (g) This amendment becomes effective on S.R. Miller, and 1 CFR part 51. Copies may be obtained March 30, 1995. Acting Manager, Transport Airplane from Aerospatiale, 316 Route de Bayonne, Directorate, Aircraft Certification Service. 31060 Toulouse, Cedex 03, France. Copies [FR Doc. 95–3356 Filed 2–27–95; 8:45 am] may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, BILLING CODE 4910±13±U SW., Renton, Washington; or at the Office of Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 10809 LEGAL SERVICES CORPORATION and the Act provides that other APPENDIX A OF PART 1611.ÐLEGAL specified factors shall be taken into SERVICES CORPORATION 1995 POV- 45 CFR Part 1611 account along with income. ERTY GUIDELINES* Section 1611.3(b) of the Corporation’s Eligibility: Income Level for Individuals regulations establishes a maximum All states Eligible for Assistance Size of but Alas- income level equivalent to one hundred family Alaska 2 Hawaii 3 and twenty-five percent (125%) of the unit ka and AGENCY: Legal Services Corporation. Hawaii 1 ACTION: Final rule. official Federal Poverty Income Guidelines. 1 ...... $9,338 $11,675 $10,763 SUMMARY: The Legal Services Responsibility for revision of the 2 ...... 12,538 15,675 14,438 Corporation (‘‘Corporation’’) is required official Federal Poverty Income 3 ...... 15,738 19,675 18,113 by law to establish maximum income Guidelines was shifted in 1982 from the 4 ...... 18,938 23,675 21,788 levels for individuals eligible for legal Community Services Administration to 5 ...... 22,138 27,675 25,463 assistance. This document updates the the Department of Health and Human 6 ...... 25,338 31,675 29,138 specified income levels to reflect the 7 ...... 28,538 35,675 32,813 Services. The revised figures for 1995 8 ...... 31,738 39,675 36,488 annual amendments to the Federal set out below are equivalent to 125% of Poverty Guidelines as issued by the the current official Poverty Guidelines * The figures in this table represent 125% of Department of Health and Human as set out at 60 FR 7772 (Feb. 9, 1995). the poverty guidelines by family size as deter- Services. mined by the Department of Health and List of Subjects in 45 CFR Part 1611 Human Services. EFFECTIVE DATE: February 28, 1995. 1 For family units with more than eight mem- FOR FURTHER INFORMATION CONTACT: Legal services. bers, add $3,200 for each additional member Victor M. Fortuno, General Counsel, in a family. PART 1611ÐELIGIBILITY 2 For family units with more than eight mem- Legal Services Corporation, 750 First bers, add $4,000 for each additional member Street NE, Washington, D.C. 20002– 1. The authority citation for Part 1611 in a family. 4250; 202–336–8810. 3 For family units with more than eight mem- continues to read as follows: bers, add $3,675 for each additional member SUPPLEMENTARY INFORMATION: Section in a family. 1007(a)(2) of the Legal Services Authority: Secs. 1006(b)(1), 1007(a)(1) Corporation Act (‘‘Act’’), 42 U.S.C. Legal Services Corporation Act of 1974, 42 Victor M. Fortuno, U.S.C. 2996e(b)(1), 2996f(a)(1), 2996f(a)(2). 2996f(a)(2), requires the Corporation to General Counsel. establish maximum income levels for 2. Appendix A of Part 1611.is revised [FR Doc. 95–4837 Filed 2–27–95; 8:45 am] individuals eligible for legal assistance, to read as follows: BILLING CODE 7050±01±P 10810 Proposed Rules Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 This section of the FEDERAL REGISTER (Hyattsville); (301) 734–8699 plants. The comment period was to contains notices to the public of the proposed (Riverdale). expire on February 14, 1995. issuance of rules and regulations. The SUPPLEMENTARY INFORMATION: On On February 8, 1995, the Commission purpose of these notices is to give interested January 23, 1995, we published in the stated (60 FR 7467) that it intended to persons an opportunity to participate in the extend the comment period to allow rule making prior to the adoption of the final Federal Register (60 FR 4383–4389, rules. Docket No. 93–076–2) a proposal to interested persons adequate time to amend the Animal Welfare regulations provide comments on staff guidance to establish standards for ‘‘swim-with- documents consisting of five draft DEPARTMENT OF AGRICULTURE the-dolphin’’ interactive programs. regulatory guides and three standard Comments regarding the proposed review plan sections that were to Animal and Plant Health Inspection rule were required to be received on or accompany the proposed rule, but were Service before February 22, 1995. During the delayed in issuance. The Commission comment period, we received a request stated that it would extend the comment 9 CFR Parts 1 and 3 that we extend the comment period period 75 days after the staff guidance [Docket No. 93±076±4] beyond February 22. The requestor, a documents became available. marine mammal industry association, Availability of the above staff RIN 0579±AA59 stated that additional time is necessary guidance documents is being announced in the Notices section of this Animal Welfare; Marine Mammals to allow its members to meet and to formulate comments. issue of the Federal Register. The AGENCY: Animal and Plant Health In response to this request, we are comment period for the proposed rule is Inspection Service, USDA. extending the comment period for hereby extended to May 12, 1995. ACTION: Notice of extension of comment Docket No. 93–076–2 through March 9, DATES: Comment period now expires period. 1995. This will allow time for the May 12, 1995. Comments received after requestor and other interested persons this date will be considered if it is SUMMARY: We are extending the to develop comments on the proposed practical to do so, but the Commission comment period for our proposed rule rule. is able to assure consideration only for regarding the establishment of standards Authority: 7 U.S.C. 2131–2159; 7 CFR 2.17, comments received on or before this for ‘‘swim-with-the-dolphin’’ interactive date. programs. This extension will provide 2.51, and 371.2(g). ADDRESSES: Mail written comments to: interested persons with additional time Done in Washington, DC, this 22nd day of Secretary, U.S. Nuclear Regulatory to prepare comments on the proposed February 1995. Commission, Washington, DC 20555, rule. Terry L. Medley, Acting Administrator, Animal and Plant Attention: Docketing and Service DATES: Consideration will be given only Branch. to comments on Docket No. 93–076–2 Health Inspection Service. [FR Doc. 95–4881 Filed 2–27–95; 8:45 am] Hand deliver comments to 11555 that are received on or before March 9, Rockville Pike, Rockville, Maryland, BILLING CODE 3410±34±P 1995. between 7:45 am and 4:15 pm, Federal ADDRESSES: Please send an original and workdays. three copies of your comments to Chief, Comments may be submitted NUCLEAR REGULATORY Regulatory Analysis and Development, electronically, in either ASCII text or COMMISSION PPD, APHIS, USDA, P.O. Drawer 810, Wordperfect format (version 5.1 or Riverdale, MD 20738. Please state that 10 CFR Parts 50, 52 and 100 later), by calling the NRC Electronic your comments refer to Docket No. 93– Bulletin Board (BBS) on FEDWORLD. 076–2. Comments received may be RIN 3150±AD93 The bulletin board may be accessed inspected at USDA, room 1141, South with a personal computer, a modem, Building, 14th Street and Independence Reactor Site Criteria Including Seismic and one of the commonly available Ave. SW., Washington, DC, between 8 and Earthquake Engineering Criteria communications software packages, or a.m. and 4:30 p.m., Monday through for Nuclear Power Plants and directly via Internet. Certain background Friday, except holidays. Persons Proposed Denial of Petition From Free documents on the rulemaking are also wishing to inspect comments are Environment, Inc., et al. available for downloading and viewing. requested to call ahead on (202) 690– AGENCY: Nuclear Regulatory With a personal computer and 2817 to facilitate entry into the Commission. modem, the NRC rulemaking subsystem comment reading room. ACTION: Proposed rule; extension of can be accessed on FEDWORLD, toll FOR FURTHER INFORMATION CONTACT: Dr. comment period. free, by directly dialing 1–800–303– Barbara Kohn, Senior Staff Veterinarian, 9672. Communication software Animal Care Staff, Regulatory SUMMARY: On October 17, 1994, the NRC parameters should be set as follows: Enforcement and Animal Care, APHIS, published (59 FR 52255) for public parity to none, data bits to 8, and stop USDA, P.O. Drawer 810, Riverdale, MD comment a proposed revision of 10 CFR bits to 1 (N,8,1). Using ANSI or VT–100 20738. The telephone number for the parts 50, 52, and 100 to update the terminal emulation, the NRC agency contact will change when agency criteria used in decisions regarding rulemaking subsystem can be accessed offices in Hyattsville, MD, move to power reactor siting, including geologic, by selecting the ‘‘Rules Menu’’ option Riverdale, MD, during February 1995. seismic, and earthquake engineering from the ‘‘NRC Main Menu.’’ For further Telephone: (301) 436–7833 considerations for future nuclear power information about options available for Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10811 NRC at FEDWORLD, consult the ‘‘Help/ may also be viewed and downloaded location between 8:00 a.m. and 4:30 Information Center’’ from the ‘‘NRC electronically via the Electronic Bulletin p.m., Monday through Friday, except Main Menu.’’ Users may also find the Board established by NRC for this Federal holidays. ‘‘FEDWORLD Online User’s Guides’’ rulemaking as indicated above. The service information referenced in helpful. FOR FURTHER INFORMATION CONTACT: Dr. the proposed rule may be obtained from The NRC subsystem on FEDWORLD Andrew J. Murphy, Office of Nuclear AlliedSignal Engines, 550 Main Street, also may be accessed directly by dialing Regulatory Research, U.S. Nuclear Stratford, CT 06497; telephone (203) 703–321–8020 for the main FEDWORLD Regulatory Commission, Washington, 385–1470. This information may be BBS, or by using Telnet via Internet: DC 20555, telephone (301) 415–6010, examined at the FAA, New England fedworld.gov. If 703–321–8020 is concerning the seismic and earthquake Region, Office of the Assistant Chief dialed, the NRC subsystem can be engineering aspects, and Mr. Leonard Counsel, 12 New England Executive accessed from the main FEDWORLD Soffer, Office of Nuclear Regulatory Park, Burlington, MA. menu first by selecting ‘‘Regulatory, Research, U.S. Nuclear Regulatory FOR FURTHER INFORMATION CONTACT: Government Administration and State Commission, Washington, DC 20555, Systems,’’ then selecting ‘‘Regulatory Eugene Triozzi, Aerospace Engineer, telephone (301) 415–6574, concerning Engine Certification Office, FAA, Engine Information Mall.’’ A menu will display other siting aspects. an option ‘‘U.S. Nuclear Regulatory and Propeller Directorate, 12 New Commission’’ that will lead to the NRC (5 U.S.C. 552(a)) England Executive Park, Burlington, MA Online main menu. The NRC Online Dated at Rockville, Maryland, this 22nd 01803–5299; telephone (617) 238–7148, area also may be accessed directly by day of February 1995. fax (617) 238–7199. For the Nuclear Regulatory Commission. typing ‘‘/go nrc’’ at a FEDWORLD SUPPLEMENTARY INFORMATION: command line. If NRC is accessed from John C. Hoyle, FEDWORLD’s main menu, one may Acting Secretary of the Commission. Comments Invited return to FEDWORLD by selecting the [FR Doc. 95–4872 Filed 2–27–95; 8:45 am] Interested persons are invited to ‘‘Return to FEDWORLD’’ option from BILLING CODE 7590±01±P participate in the making of the the NRC Online Main Menu. If NRC at proposed rule by submitting such FEDWORLD is accessed via NRC’s toll- written data, views, or arguments as free number, full access will be DEPARTMENT OF TRANSPORTATION they may desire. Communications available to all NRC systems, but there should identify the Rules Docket will be no access to the main Federal Aviation Administration number and be submitted in triplicate to FEDWORLD system. the address specified above. All 14 CFR Part 39 If FEDWORLD is contacted using communications received on or before Telnet, the NRC area and menus will be [Docket No. 94±ANE±56] the closing date for comments, specified available, including the Rules Menu. above, will be considered before taking While documents may be downloaded Airworthiness Directives; Textron action on the proposed rule. The and messages left, it is not possible to Lycoming ALF502L Series Turbofan proposals contained in this notice may write comments or upload files Engines be changed in light of the comments (comments). If FEDWORLD is contacted received. using FTP, all files can be accessed and AGENCY: Federal Aviation downloaded but uploads are not Administration, DOT. Comments are specifically invited on possible; a list of files without their ACTION: Notice of proposed rulemaking the overall regulatory, economic, descriptions (normal Gopher look) will (NPRM). environmental, and energy aspects of be seen. An index file listing all files the proposed rule. All comments SUMMARY: This document proposes the within a subdirectory, with submitted will be available, both before adoption of a new airworthiness descriptions, is available. There is a 15 and after the closing date for comments, directive (AD) that is applicable to minute time limit for FTP access. in the Rules Docket for examination by Although FEDWORLD also may be Textron Lycoming ALF502L series interested persons. A report accessed through the World Wide Web, turbofan engines. This proposal would summarizing each FAA-public contact this only provides access to download establish reduced retirement life limits concerned with the substance of this files and does not display the NRC for stage 1 and stage 3–7 compressor proposal will be filed in the Rules Rules Menu. disks, and stage 2 turbine disks, and Docket. For more information on NRC bulletin provide a drawdown schedule for disks Commenters wishing the FAA to boards call Mr. Arthur Davis, Systems already beyond the reduced retirement acknowledge receipt of their comments Integration and Development Branch, life limits. This proposal is prompted by submitted in response to this notice U.S. Nuclear Regulatory Commission, new life analyses of these components. must submit a self-addressed, stamped Washington, DC 20555, telephone (301) The actions specified by the proposed postcard on which the following 415–5780; e-mail [email protected]. AD are intended to prevent disk failure, statement is made: ‘‘Comments to Single copies of the proposed rule which could result in an inflight engine Docket Number 94–ANE–56.’’ The may be obtained by written request or shutdown and extensive engine damage. postcard will be date stamped and telefax (301–504–2260) from: DATES: Comments must be received by returned to the commenter. Distribution Services, Printing and Mail May 1, 1995. Availability of NPRMs Services Branch, Office of ADDRESSES: Submit comments in Administration, U.S. Nuclear Regulatory triplicate to the Federal Aviation Any person may obtain a copy of this Commission, Washington, DC 20555. Administration (FAA), New England NPRM by submitting a request to the Documents related to this rulemaking, Region, Office of the Assistant Chief FAA, New England Region, Office of the including comments received, may be Counsel, Attention: Rules Docket No. Assistant Chief Counsel, Attention: examined at the NRC Public Document 94–ANE–56, 12 New England Executive Rules Docket No. 94–ANE–56, 12 New Room, 2120 L Street NW. (Lower Level), Park, Burlington, MA 01803–5299. England Executive Park, Burlington, MA Washington, DC. These same documents Comments may be inspected at this 01803–5299. 10812 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules Discussion various levels of government. Therefore, No. ALF 502 72–0004, Revision 12, dated in accordance with Executive Order November 30, 1994. Textron Lycoming conducted new life (c) An alternative method of compliance or analyses for various components in 12612, it is determined that this proposal would not have sufficient adjustment of the compliance time that ALF502L series turbofan engines. provides an acceptable level of safety may be Textron Lycoming has determined that federalism implications to warrant the used if approved by the Manager, Engine stage 1 and stage 3–7 compressor disks, preparation of a Federalism Assessment. Certification Office. The request should be and stage 2 turbine disks require For the reasons discussed above, I forwarded through an appropriate FAA reduced retirement life limits. No certify that this proposed regulation (1) Principal Maintenance Inspector, who may failures have occurred in service on the is not a ‘‘significant regulatory action’’ add comments and then send it to the ALF502L series engines, but inspections under Executive Order 12866; (2) is not Manager, Engine Certification Office. of these components from ALF502R a ‘‘significant rule’’ under the DOT Note: Information concerning the existence series engines have found cracks prior Regulatory Policies and Procedures (44 of approved alternative methods of FR 11034, February 26, 1979); and (3) if compliance with this airworthiness directive, to attaining current service retirement if any, may be obtained from the Engine lives. This condition, if not corrected, promulgated, will not have a significant economic impact, positive or negative, Certification Office. could result in disk failure, which could Issued in Burlington, Massachusetts, on result in an inflight engine shutdown on a substantial number of small entities under the criteria of the Regulatory February 16, 1995. and extensive engine damage. James C. Jones, On October 28, 1994, AlliedSignal Flexibility Act. A copy of the draft regulatory evaluation prepared for this Acting Manager, Engine and Propeller Inc. purchased the turbine engine Directorate, Aircraft Certification Service. product line of Textron Lycoming, but action is contained in the Rules Docket. [FR Doc. 95–4852 Filed 2–27–95; 8:45 am] as of this date the anticipated name A copy of it may be obtained by change on the type certificate for the contacting the Rules Docket at the BILLING CODE 4910±13±P ALF502L series engines has not location provided under the caption occurred. However, the service bulletins ‘‘ADDRESSES.’’ (SB) issued for these engines now bear List of Subjects in 14 CFR Part 39 DEPARTMENT OF COMMERCE the title, ‘‘AlliedSignal Engines.’’ The Air transportation, Aircraft, Aviation Federal Aviation Administration (FAA) National Oceanic and Atmospheric safety, Safety. has reviewed and approved the Administration technical contents of AlliedSignal The Proposed Amendment 15 CFR Part 944 Engines SB No. ALF 502 72–0004, Accordingly, pursuant to the Revision 12, dated November 30, 1994, authority delegated to me by the [Docket No. 950222055±5055±01] that describes reduced retirement lives Administrator, the Federal Aviation RIN 0648±AH92 for affected components; and Administration proposes to amend part AlliedSignal Engines SB No. ALF502L 39 of the Federal Aviation Regulations Restricting or Prohibiting Attracting 72–281, dated November 30, 1994, that (14 CFR part 39) as follows: Sharks by Chum or Other Means in the describes a drawdown schedule for Monterey Bay National Marine disks already beyond the reduced PART 39ÐAIRWORTHINESS Sanctuary retirement life limits. DIRECTIVES Since an unsafe condition has been AGENCY: Sanctuaries and Reserves identified that is likely to exist or 1. The authority citation for part 39 Division (SRD), Office of Ocean and develop on other products of this same continues to read as follows: Coastal Resource management (OCRM), type design, the proposed AD would Authority: 49 U.S.C. App. 1354(a), 1421 National Ocean Service (NOS), National establish reduced retirement life limits and 1423; 49 U.S.C. 106(g); and 14 CFR Oceanic and Atmospheric for stage 1 and stage 3–7 compressors 11.89. Administration (NOAA), Department of disks, and stage 2 turbine disks, and § 39.13—[Amended] Commerce (DOC). provide a drawdown schedule for disks ACTION: 2. Section 39.13 is amended by Advance notice of proposed already beyond the reduced retirement rulemaking; request for comments. life limits. The actions would be adding the following new airworthiness required to be accomplished in directive: SUMMARY: The National Oceanic and accordance with the service bulletins Textron Lycoming: Docket No. 94–ANE–56. Atmospheric Administration’s described previously. Applicability: Textron Lycoming ALF502L, Sanctuaries and Reserves Division There are approximately 184 engines L–2, L–2A, L–2C, and L–3 turbofan engines (SRD) is considering amending the of the affected design in the worldwide installed on but not limited to Canadair regulations for the Monterey Bay fleet. The FAA estimates that 50 engines Challenger CL600 series aircraft. National Marine Sanctuary (MBNMS or Compliance: Required as indicated, unless installed on aircraft of U.S. registry accomplished previously. Sanctuary) to restrict or prohibit the would be affected by this proposed AD, To prevent disk failure, which could result attracting of sharks by the use of chum and that the prorated reduced service in an inflight engine shutdown and extensive or other means in the MBNMS. This life cost based on the cost of a new disk engine damage, accomplish the following: advance notice of proposed rulemaking would be approximately $16,400 per (a) Remove from service stage 1 and stage (ANPR) discusses the reasons SRD is engine. Based on these figures, the total 3–7 compressor disks, and stage 2 turbine considering restricting or prohibiting cost impact of the proposed AD on U.S. disks, in accordance with the drawdown this activity in the MBNMS. Any operators is estimated to be $820,000. schedule and procedures described in restrictions or prohibitions SRD places The regulations proposed herein AlliedSignal Engines Service Bulletin (SB) on attracting sharks by the use of chum No. ALF502L 72–281, dated November 30, would not have substantial direct effects 1994. or other means would be to ensure that on the States, on the relationship (b) This AD establishes new, reduced Sanctuary resources or qualities would between the national government and retirement life limits for stage 1 and stage 3– not be adversely impacted and/or to the States, or on the distribution of 7 compressor disks, and stage 2 turbine disks, avoid conflict among various users of power and responsibilities among the in accordance with AlliedSignal Engines SB the Sanctuary. SRD is issuing this ANPR Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10813 specifically to inform the public of the subject to various Federal and state ecological, recreational, research, issue and course of action under regulations, traditional fishing activities educational, historical and esthetic consideration by SRD, and to invite are not regulated as part of the resources and qualities of the area. submission of written information, Sanctuary regulatory regime. Sanctuary Included as an activity subject to advice, recommendations and other regulations that could indirectly regulation is the following: comments. regulate traditional fishing operations d. Taking, removing, moving, catching, DATES: Comments must be received by were specifically crafted to avoid doing collecting, harvesting, feeding, injuring, March 30, 1995. so. Thus, while fishing vessels are destroying or causing the loss of, or ADDRESSES: Comments should be sent to subject to the general regulatory attempting to take, remove, move, catch, Elizabeth Moore, Sanctuaries and prohibition against discharging or collect, harvest, feed, injure, destroy or cause the loss of a marine mammal, sea turtle, Reserves Division, National Oceanic and depositing any material or other matter in the Sanctuary, the exemption for the seabird, historical resource or other Atmospheric Administration, 1305 East Sanctuary resource. West Highway, SSMC4, 12th Floor, discharge or deposit of ‘‘fish, fish parts, Silver Spring, Maryland, 20910. chumming materials or bait used in or See 57 FR 43310, 43316 (September Comments will be available for public resulting from traditional fishing 18, 1992) (emphasis added). Therefore, inspection at the same address and at operations in the Sanctuary’’ was amending the Sanctuary regulations to the Monterey Bay National Marine designed to prevent the prohibition restrict or prohibit the taking, removing, Sanctuary office at 299 Foam Street, from indirectly regulating the conduct moving, catching, collecting, harvesting, Suite D, Monterey, California, 93940. of traditional fishing operations. feeding, injuring, destroying or causing However, an argument has been raised the loss of sharks within the MBNMS, FOR FURTHER INFORMATION CONTACT: or attempt thereto, is authorized by the Elizabeth Moore at (301) 713–3141. that the phrase in the regulatory exemption ‘‘used in or resulting from’’ Designation Document. ‘‘Take or taking’’ SUPPLEMENTARY INFORMATION: In could be interpreted to allow the is defined broadly in the Sanctuary recognition of the national significance discharge or deposit of ‘‘fish, fish parts, regulations (15 CFR 944.3), and includes of the unique marine environment chumming materials or bait’’ at any time harassment of the species it currently centered around Monterey Bay, or in conjunction with any activity, as addresses (marine mammals, seabirds California, the MBNMS was designated long as the discharge or deposit is of the and sea turtles). on September 18, 1992. SRD issued final same material used by or generated To amend the regulations, SRD must regulations, effective January, 1993, to during traditional fishing operations in follow the appropriate procedures of implement the Sanctuary designation the Sanctuary. As one option, SRD notice and comment rulemaking under (15 CFR Part 944). The MBNMS could amend the exemption for the the Administrative Procedure Act. regulations at 15 CFR 944.5(a) prohibit discharge of ‘‘fish, fish parts, chumming Further, SRD is required by the National a relatively narrow range of activities to materials or bait used in or resulting Marine Sanctuaries Act at 16 U.S.C. protect Sanctuary resources and from traditional fishing operations in 1434(a)(5) to consult with the qualities. the Sanctuary’’ to clarify that it applies appropriate Regional Fishery In January of 1994, SRD became aware only to such discharges if they are Management Council before it issues that chum was being used to attract incidental to and during the conduct of any Sanctuary regulations ‘‘for fishing’’. white sharks for viewing by SCUBA traditional fishing operations. SRD has sent a letter to the Pacific divers while in underwater cages. This SRD, with input from its MBNMS Fishery Management Council for its activity occurred in the nearshore area Advisory Council, and a number of input regarding the issues identified in off of An˜ o Nuevo in the MBNMS, during interested parties, has identified a this ANPR. the time of year white sharks come to number of concerns regarding the issue This ANPR is an optional preliminary feed. While California state law of attracting sharks within the MBNMS: step to notice and comment rulemaking. generally makes it unlawful to ‘‘take’’ (1) Attracting sharks by chum or other SRD is issuing this ANPR specifically to (e.g., catch, capture, or kill) white sharks means may cause behavioral changes in inform the public of the issue and that in state waters, it does not appear to the attracted species (e.g., feeding, it is considering restricting or address attracting sharks for other migration); (2) attracting sharks by chum prohibiting attracting sharks within the purposes, nor does it prohibit the taking or other means may cause behavioral MBNMS, and to invite submission of of sharks in those portions of the changes in the attracted species written information, advice, MBNMS outside of state waters. SRD resulting in increased predation on prey recommendations and other comments. has also received expressions of concern or non-prey marine species; and (3) In particular, SRD requests comments over this activity and inquiries as to attracting sharks by chum or other on: whether attracting sharks for viewing means may increase the risk of attack to (1) What methods are used to attract and other purposes is allowed in the other Sanctuary users, or otherwise sharks in the MBNMS; MBNMS. create user conflict in the area of the (2) What methods are used to attract There is currently no MBNMS activity. Consequently, along with sharks in other areas; regulation specifically addressing the considering amending the regulatory (3) Whether attracting sharks by chum attracting of sharks in the MBNMS. exemption to the discharge and deposit or other means is necessary if they are There is a general regulatory prohibition prohibition as discussed above, SRD is known to be naturally present in a given against discharging or depositing any considering specifically restricting or area; material or other matter in the prohibiting attracting sharks in the (4) Whether attracting sharks by chum Sanctuary. 15 CFR 944.5(a)(2). The Sanctuary. or other means causes short- or long- discharge and deposit prohibition The Designation Document for the term behavioral changes in the attracted contains an exemption for, inter alia, MBNMS, the constitution for the species or associated species that are the discharge or deposit of ‘‘fish, fish Sanctuary, contains a list of activities disruptive to their normal behavior (e.g., parts, chumming materials or bait used subject to regulation, including feeding, migration, predation); in or resulting from traditional fishing prohibition, to the extent necessary and (5) Whether attracting sharks by chum operations in the Sanctuary’’. While reasonable to ensure the protection and or other means has adverse impacts on fishing activities in the Sanctuary are management of the conservation, other MBNMS resources; 10814 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules (6) Whether attracting sharks by chum SUMMARY: This rule proposes to include operators have moved to the utilization or other means in nearshore areas methyl isobutyl ketone (MIBK) as a List of MIBK for the processing of cocaine creates a risk to other users of those II Chemical under the Controlled base to cocaine hydrochloride. Due to areas (e.g., surfers, swimmers, SCUBA Substances Act (CSA) for the purpose of information regarding the use of MIBK divers, snorklers, fishermen, boaters); imposing controls on exports which for cocaine processing, the dramatic (7) Whether other Sanctuary users may be destined for cocaine producing increase in MIBK importation, and the (e.g., surfers, swimmers, SCUBA divers, regions. This proposed action by the importation of MIBK by some firms that snorklers, fishermen, boaters) actively DEA Deputy Administrator is based on the Government of Colombia (GOC) avoid areas where attracting sharks substantial evidence that MIBK is considers suspect, the GOC has recently occurs; increasingly being used as a solvent in taken steps to control the sale and (8) Whether there are other impacts, the production of cocaine hydrochloride distribution of MIBK. risks or concerns resulting from during the conversion of cocaine base to In making the determination attracting sharks by chum or other cocaine hydrochloride. The recent steps regarding the possible control of MIBK means in the MBNMS; by the Government of Colombia (GOC) under the CSA, the DEA considered the (9) Whether a restriction or to control MIBK further support this following: prohibition against attracting sharks by proposed action. (1) The chemistry of the compound chum or other means should be This proposed action will only effect (2) The legitimate use and commerce of Sanctuary-wide or only in the nearshore export transactions; international the compound areas of the MBNMS (and if the latter, transactions in which a U.S. broker or (3) Evidence of illicit use what should constitute nearshore); and trader participates; and transshipments An examination of the chemistry of (10) Any other information that may through the U.S., which are greater than MIBK shows that it appears to be ideally be pertinent to this issue. 500 gallons or 1523 kilograms of MIBK suited for the conversion of cocaine base During the comment period of this destined for countries in the Western to cocaine hydrochloride. MIBK ANPR, SRD will hold a public meeting Hemisphere (with the exception of possesses the correct solubility allowing the public to provide written transactions destined for Canada). or oral comments. Notice of the date, characteristics, is partially miscible with DATES: Written comments and water and is relatively volatile. time and location of the meeting will objections must be received on or before appear in the Federal Register. The U.S. is a major producer of MIBK March 30, 1995. and exports this chemical to Latin Executive Order 12866 ADDRESSES: Comments and objections America. The major commercial For purposes of Executive Order should be submitted in quintuplicate to application for MIBK is as a solvent for 12866, this advance notice of proposed the Deputy Assistant Administrator, vinyl, epoxy and acrylic resins, for rulemaking is determined to be not Office of Diversion Control, Drug natural resins, for nitrocellulose and for significant. Enforcement Administration, dyes in the printing industry. It is also Washington, DC 20537, Attention: DEA a versatile extracting agent, e.g. for the List of Subjects in 15 CFR Part 944 Federal Register Representative/CCR. production of antibiotics, or the removal Administrative practice and FOR FURTHER INFORMATION CONTACT: of paraffins from mineral oil for the procedure, Coastal zone, Education, Howard McClain Jr., Chief, Drug and production of lubricating oils. MIBK’s Environmental protection, Marine Chemical Evaluation Section, Office of uses are similar to those of MEK. There resources, Natural resources, Penalties, Diversion Control, Drug Enforcement is a legitimate need for these chemicals Recreation and recreation areas, Administration, Washington, DC 20537 in Colombia. Reporting and recordkeeping at (202) 307–7183. Although Colombian imports of MEK requirements, Research. SUPPLEMENTARY INFORMATION: The have decreased, U.S. firms believe that Authority: 16 U.S.C. 1431 et seq. Controlled Substances Act (CSA), the legitimate need for MEK is being Federal Domestic Assistance Catalog specifically 21 U.S.C. section 802, met. In contrast, however, importations Number 11.429 Marine Sanctuary Program provides the Attorney General with the into Colombia of MIBK have increased Dated: February 15, 1995. authority to specify by regulation, dramatically in 1994 following Frank W. Maloney, additional precursor and essential regulatory and enforcement actions taken by the GOC and other countries Deputy Assistant Administrator for Ocean chemicals as ‘‘listed chemicals’’ if they Services and Coastal Zone Management. are used in the illicit manufacture of against MEK. No significant increase in the legitimate need for MIBK has been [FR Doc. 95–4854 Filed 2–27–95; 8:45 am] controlled substances. Section 802(39) also provides the Attorney General with identified. The amount of MIBK BILLING CODE 3510±08±M authority to establish a threshold imported into Colombia in the second amount for ‘‘listed chemicals’’ if the quarter of 1994 exceeded the total Attorney General so elects. This quantity imported over the preceding 15 DEPARTMENT OF JUSTICE authority has been delegated to the months. Some of these importations Drug Enforcement Administration Administrator of DEA by 28 CFR 0.100 were to firms which the GOC considers and redelegated to the Deputy suspect. 21 CFR Part 1310 Administrator under 28 CFR 0.104 The use of MIBK in cocaine (subpart R) appendix sec. 12. hydrochloride production has recently [DEA No. 128P] While methyl ethyl ketone (MEK) has been scientifically confirmed via the RIN 1117±AA26 become the solvent of choice in the identification of MIBK in seized cocaine processing of cocaine base to cocaine hydrochloride. While MEK is the most Records, Reports, and Exports of hydrochloride, recent regulatory and frequently seen solvent appearing in Listed Chemicals enforcement efforts in Latin America cocaine hydrochloride, MIBK has also AGENCY: Drug Enforcement have resulted in a reduced availability been identified in seized material. Administration (DEA), Justice. of MEK. Information available to DEA Recent samples show an increased indicates that in response to this incidence of MIBK in seized cocaine ACTION: Notice of Proposed Rulemaking. shortfall of MEK, cocaine laboratory hydrochloride. During the fourth quarter Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10815 of 1994, 54 percent of the cocaine (3) transshipments through the U.S., List of Subjects in 21 CFR Part 1310 hydrochloride exhibits received under which are greater than 500 gallons or Durg traffic control, reporting and DEA’s solvent analysis program 1523 kilograms of MIBK destined for recordkeeping requirements. contained MIBK. The recent increase in designated countries. Import the incidence of MIBK in seized cocaine transactions of MIBK into the U.S. (not For reasons set out above, it is hydrochloride is consistent with the destined for transshipment or transfer to proposed that 21 CFR part 1310 be timing of initial reports regarding its designated countries), and domestic amended as follows: illicit use. transactions of MIBK are excluded from PART 1310Ð[AMENDED] Given these factors, DEA has the definitions of regulated transactions determined that the control of MIBK as contained in 21 CFR 1310.01(f) and 1. The authority citation for part 1310 a List II Chemical is warranted. Since 1313.02(d). continues to read as follows: the illicit use of MIBK for cocaine The Deputy Administrator hereby Authority: 21 U.S.C. 802, 830, 871(b). certifies that this proposed rulemaking processing occurs in Latin America, the 2. Section 1310.02 is proposed to be will have no significant impact upon DEA proposes that MIBK shipments amended by adding a new paragraph entities whose interests must be exported from the U.S., shipments (b)(10) to read as follows: transshipped or transferred through the considered under the Regulatory U.S., and international transactions in Flexibility Act, 5 U.S.C. 601 et seq. A § 1310.02 Substances covered. which a U.S. broker or trader review of maritime shipments of MIBK * * * * * participates, be considered regulated reveals that during a two year period, (b) * * * transactions if destined for any country there were less than 100 above- (10) Methyl Isobutyl Ketone (MIBK) in the Western Hemisphere (with the threshold export transactions destined * * * * * exception of transactions destined for for designated countries. This proposed 3. Section 1310.04 is proposed to be Canada) 21 U.S.C. section rule is not a significant regulatory action amended by adding new paragraph 802(39)(A)(iii). In addition, the DEA and therefore has not been reviewed by (f)(2)(v) to read as follows: proposes that a threshold similar to that the Office of Management and Budget of MEK be established for MIBK. DEA pursuant to Executive Order 12866. § 1310.04 Maintenance of records. proposes that a threshold of 500 gallons This action has been analyzed in * * * * * (by volume) or 1523 kilograms (by accordance with the principles and (f) * * * weight) be established for MIBK. criteria in E.O. 12612, and it has been (2) * * * Therefore, this proposed action will determined that the proposed rule does (v) Export and International only effect (1) export transactions; (2) not have sufficient federalism Transactions to Designated Countries, international transactions in which a implications to warrant the preparation and Importations for Transshipment or U.S. broker or trader participates; and of a Federalism Assessment. Transfer to Designated Countries. Threshold by Chemical Treshold by volume weight (A) Methyl Isobutyl Ketone (MIBK) ...... 500 gallons ...... 1523 kilograms. (B) Reserved 4. Section 1310.08 is proposed to be DEPARTMENT OF TRANSPORTATION DATES: Comments must be received on amended by adding new paragraphs (c), or before May 1, 1995. (d) and (e) to read as follows: Coast Guard ADDRESSES: Comments may be mailed to Commander (obr), First Coast Guard § 1310.08 Excluded transactions. 33 CFR Part 117 District, Captain John Foster Williams * * * * * [CGD01±95±008] Federal Building, 408 Atlantic Ave., (c) Domestic transactions of Methyl Boston, Massachusetts 02110–3350, or RIN 2115±AE47 Isobutyl Ketone (MIBK). may be hand-delivered to room 628 at the same address between 6:30 a.m. and (d) Import transactions of Methyl Drawbridge Operation Regulations; 3 p.m., Monday through Friday, except Isobutyl Ketone (MIBK) destined for the Apponagansett River, MA federal holidays. The telephone number United States. AGENCY: Coast Guard, DOT. is (617) 223–8364. The comments will become part of this docket and will be (e) Export transactions, international ACTION: Notice of proposed rulemaking. transactions, and import transactions for available for inspection and copying by transshipment or transfer of Methyl SUMMARY: The Coast Guard is proposing appointment at the above address. Isobutyl Ketone (MIBK) destined for a change to the regulations governing FOR FURTHER INFORMATION CONTACT: John Canada or any country outside of the the Padanaram Bridge at mile 1.0 over W. McDonald, Project Officer, Bridge Western Hemisphere. the Apponagansett River in Dartmouth, Branch, (617) 223–8364. Massachusetts. This proposal will allow Dated: February 16, 1995. SUPPLEMENTARY INFORMATION: the Pandanaram Bridge to open on Stepehn G. Greene, signal from May 1 through October 31 Request for Comments Deputy Administrator. once an hour on the hour, between 9 The Coast Guard encourages [FR Doc. 95–4795 Filed 2–27–95; 8:45 am] a.m. and 8 p.m. instead of twice an hour interested persons to participate in this BILLING CODE 4410±09±M on the hour and half hour. This change rulemaking by submitting written views, should help relieve traffic congestion comments, data, or arguments. Persons created by bridge openings while still submitting comments should include providing for the needs of navigation. their names and addresses, identify this 10816 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules rulemaking (CGD01–95–008), the test period of 60 days, to evaluate the for each draw with figures not less than specific section of this proposal to effects on vehicular and marine traffic. twelve inches high designed, installed which each comment applies, and give This request was approved and the first and maintained according to the reasons for each comment. The Coast deviation from the permanent provisions of 33 CFR 118.160. Guard requests that all comments and regulations, published in the Federal The provision for the passage of attachments be submitted in an Register (58 FR 38056; July 15, 1993), emergency vessels at any time is unbound format no larger than 81⁄2′′ by was effective from July 1, 1993 through published at 33 CFR 117.31 for all 11′′, suitable for copying and electronic August 29, 1993. It provided an bridges and is no longer required to be filing. If that is not practical, a second opportunity to evaluate the effects of the published for each waterway. copy of any bound material is requested. hourly openings on marine and Appendix A to part 117 would be Persons desiring acknowledgment that vehicular traffic. The Coast Guard amended to add the Apponagansett their comments have been received implemented a second deviation, River entry under the State of should enclose a stamped self-addressed published in the Federal Register (58 Massachusetts subheading to advise post card or envelope. FR 47067; September 7, 1993), for a mariners that a marine radio is installed The Coast Guard will consider all thirty-two day period to evaluate an at the bridge for opening requests. comments received during the comment alternative opening time period for the Regulatory Evaluation period, and may change this proposal in Padanaram Bridge. This second light of comments received. The Coast deviation added two time periods when This proposal is not a significant Guard plans no public hearing. Persons the bridge could still open on the hour regulatory action under section 3(f) of may request a public hearing by writing and half hour: between 5 a.m. and 9 Executive Order 12866 and does not to Commander (obr), First Coast Guard a.m. and between 8 p.m. and 9 p.m. The require an assessment of potential costs District at the address listed under Coast Guard received 29 letters and benefits under section 6(a)(3) of that ADDRESSES. The request should include commenting on the two deviations. order. It has been exempted from review reasons why a hearing would be Twenty were in favor of hourly by the Office of Management and beneficial. If the Coast Guard openings and nine were opposed to any Budget under that order. It is not determines that the opportunity for oral change. Most of the comments in significant under the regulatory policies presentations will aid this rulemaking, opposition to any change were based on and procedures of the Department of the Coast Guard will hold a public the concern over the lack of facilities to Transportation (DOT) (44 FR 11040, hearing at a time and place announced tie up vessels while awaiting openings. February 26, 1979). The Coast Guard by a later notice in the Federal Register. After the two deviation periods expects the economic impact of this expired, the Town of Dartmouth proposal to be so minimal that a full Drafting Information installed traffic signals, automatic traffic Regulatory Evaluation, under paragraph The drafters of this notice are Mr. gates, navigational lights and clearance 10e of the regulatory policies and John W. McDonald, Project Officer, gauges at the bridge. The Coast Guard procedures of DOT is unnecessary. This Bridge Branch, and Lieutenant subsequently authorized a third conclusion is based on the fact that the Commander Samuel R. Watkins, Project deviation for a period of 90 to evaluate regulation will not prevent mariners Counsel, District Legal Office. the effects of these improvements to the from transiting the bridge. It will require bridge. This third deviation, published Background and Purpose only that mariners plan their transits. in the Federal Register (59 FR 31931; The Padanaram Bridge at mile 1.0 July 21, 1994), was effective from June Small Entities over the Apponagansett River between 3, 1994 through August 31, 1994. It Under the Regulatory Flexibility Act Dartmouth and South Dartmouth, MA, allowed the Padanaram Bridge to open (5 U.S.C. 601 et seq.), the Coast Guard has a vertical clearance of 9′ above mean on signal on the hour and half hour must consider whether this proposal, if high water (MHW) and 12′ above mean between 5 a.m. and 9 a.m. between 8 adopted, will have a significant low water (MLW). p.m. and 9 p.m., and once an hour on economic impact on a substantial The current operating regulations the hour between 9 a.m. and 8 p.m. The number of small entities. ‘‘Small require the bridge to open on signal on Coast Guard received two letters entities’’ include independently owned the hour and half hour, 5 a.m. to 9 p.m. commenting on the third deviation. One and operated small businesses that are May 1, through October 31. At all other letter favored the hourly openings and not dominant in their fields and that times at least six hours advance notice one letter was opposed to the hourly otherwise qualify as ‘‘small business must be given. openings. concerns’’ under section 3 of the Small In the spring of 1993, the Town of Discussion of Proposed Amendments Business Act (15 U.S.C. 632). Because of Dartmouth requested a change from the the reasons discussed in the Regulatory operating regulations to permit openings The Town of Dartmouth has requested Evaluation above, the Coast Guard once an hour rather than twice an hour. that the Coast Guard make a permanent certifies under 5 U.S.C. 605(b) that this The town selectmen felt that the traffic change to the operating regulations for action, if adopted, will not have a congestion during peak summer months the Padanaram Bridge to allow the draw significant economic impact on a was a result of the bridge opening every to open on signal from May 1 through substantial number of small entities. 30 minutes and was causing village October 31, on the hour and half hour commerce to suffer. The selectmen also between 5 a.m. and 9 a.m. and between Collection of Information considered the 30 minute opening 8 p.m. and 9 p.m., and on the hour This proposal contains no collection schedule a serious risk to public safety between 9 a.m. and 8 p.m. At all other of information requirements under the because emergency vehicles could not times a four hour advance notice would Paperwork Reduction Act (44 U.S.C. travel to and from South Dartmouth be required for bridge openings. The 3501 et seq.). during the traffic delays caused by the drawtenders will be on call to open the bridge opening every half hour. The draw when the advance notice is given. Federalism Town of Dartmouth requested that the As part of this action, the bridge The Coast Guard has analyzed this bridge be required to open only once an owner would be required to keep, in proposal under the principles and hour between 5 a.m. and 9 p.m., for a good legible condition, clearance gauges criteria contained in Executive Order Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10817 12612 and has determined that this PART 117ÐDRAWBRIDGE (b) At all other times the bridge shall proposal does not have sufficient OPERATION REGULATIONS open if at least four (4) hours advance federalism implications to warrant notice is given. preparation of a Federalism Assessment. 1. The authority citation for part 117 continues to read as follows: (c) Mooring facilities shall be Environment maintained for vessels to make fast Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 while waiting for the bridge to open. The Coast Guard considered the CFR 1.05–1(g); section 117.255 also issued environmental impact of this proposal under the authority of Pub. L. 102–587, 106 (d) The owners of this bridge shall and concluded that, under paragraph Stat. 5039. provide, and keep in good legible 2.B.2. of Commandant Instruction condition, clearance gauges for each M16475.1B, this proposal is 2. Section 117.587 is revised to read as follows: draw with figures not less than twelve categorically excluded from further (12) inches high designed, installed and environmental documentation. A § 117.587 Apponagansett River. maintained according to the provisions ‘‘Categorical Exclusion Determination’’ of § 118.160 of this chapter. will be available in the docket for The Padanaram Bridge, mile 1.0 at inspection or copying where indicated Dartmouth, shall operate as follows: 3. Appendix A to part 117 is amended under ADDRESSES. (a) From May 1 through October 31, by adding the Apponagansett River the bridge shall open on signal: entry in alphabetical order under the List of Subjects in 33 CFR Part 117 (1) Twice an hour, on the hour and State of Massachusetts subheading to Bridges. the half hour between 5 a.m. and 9 a.m. read as follows: For the reasons set out in the and between 8 p.m. and 9 p.m.; preamble, the Coast Guard proposes to (2) Once an hour, on the hour amend 33 CFR part 117 as follows: between 9 a.m. and 8 p.m. APPENDIX A TO PART 117ÐDRAWBRIDGES EQUIPPED WITH RADIOTELEPHONES Calling Working Waterway Mile Location Bridge name and owner Call signs channel channel ******* Massachusetts ...... ******* Apponagansett River ...... 1.0 Dartmouth .. Padanaram, Town of Dartmouth ...... 13 13 ******* Dated: February 6, 1995. DATES: Comments must be received on requests that all comments and J.L. Linnon, or before May 1, 1995. attachments be submitted in an Rear Admiral, U.S. Coast Guard, Commander, ADDRESSES: Comments may be mailed to unbound format no larger than 81⁄2′′ by First Coast Guard District. Commander (obr), First Coast Guard 11′′, suitable for copying and electronic [FR Doc. 95–4906 Filed 2–27–95; 8:45 am] District, Captain John Foster Williams filing. If that is not practical, a second BILLING CODE 4910±14±M Federal Building, 408 Atlantic Ave., copy of any bound material is requested. Boston, Massachusetts 02110–3350, or Persons desiring acknowledgment that may be hand-delivered to room 628 at their comments have been received 33 CFR Part 117 the same address between 6:30 a.m. and should enclose a stamped, self- [CGD01±95±001] 3 p.m., Monday through Friday, except addressed post card or envelope. federal holidays. The telephone number The Coast Guard will consider all RIN 2115±AE47 is (617) 223–8364. The comments will comments received during the comment become part of this docket and will be period, and may change this proposal in Drawbridge Operation Regulations; available for inspection and copying by light of comments received. The Coast Lagoon Pond, Tisbury, MA appointment at the above address. Guard plans no public hearing. Persons AGENCY: Coast Guard, DOT. FOR FURTHER INFORMATION CONTACT: may request a public hearing by writing ACTION: Notice of proposed rulemaking. John W. McDonald, Project Officer, to Commander (obr), First Coast Guard Bridge Branch, (617) 223–8364. District at the address listed under SUMMARY: The Coast Guard is SUPPLEMENTARY INFORMATION: ADDRESSES. The request should include considering a change to the regulations reasons why a hearing would be governing the Lagoon Pond Bridge over Request for Comments beneficial. If the Coast Guard Lagoon Pond at mile 0.0 in Tisbury, The Coast Guard encourages determines that the opportunity for oral Massachusetts. The special operating interested persons to participate in this presentations will aid this rulemaking, regulations formerly published at 33 rulemaking by submitting written views, the Coast Guard will hold a public CFR 117.79 were deleted in error. The comments, data, or arguments. Persons hearing at a time and place announced bridge has not been operating in submitting comments should include by a later notice in the Federal Register. accordance with the existing general their names and addresses, identify this regulations. This proposal is being rulemaking (CGD01–95–001), the Drafting Information considered to correct the deletion error specific section of the proposal to which The drafters of this notice are Mr. and republish the operating regulations each comment applies, and give reasons John W. McDonald, Project Officer, for the bridge. for each comment. The Coast Guard Bridge Branch, and Lieutenant 10818 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules Commander Samuel R. Watkins. Project (12) inches high designed, installed and criteria contained in Executive Order Counsel, District Legal Office. maintained according to the provisions 12612 and has determined that this of § 118.160 of this chapter. proposal does not have sufficient Background and Purpose Under the proposed rule, Appendix A federalism implications to warrant The Lagoon Pond Bridge over Lagoon to Part 117 also will be amended to add preparation of a Federalism Assessment. Pond in Tisbury, Massachusetts, has a the Lagoon Pond Bridge (under the vertical clearance of 15′ above mean Massachusetts subheading) to advise Environment ′ high water (MHW) and 17 above mean mariners that a marine radio is installed The Coast Guard considered the low water (MLW). Through an error, the at the bridge for requesting openings. environmental impact of this proposal previous special operating regulations The public vessel/emergency opening and concluded that, under paragraph for this bridge were deleted from 33 CFR provisions of the deleted rule will not 2.B.2.e.(32)(e) of Commandant 117.79. Therefore, the bridge currently be incorporated into the proposed new Instruction M16475.1B, this proposal is is required to open on signal at all times rule. Those provisions are now categorically excluded from further under the general operating regulations contained in 33 CFR 117.31, a general environmental documentation. A for drawbridges. Regulations published regulation applicable to all drawbridges. ‘‘Categorical Exclusion Determination’’ in the Federal Register of October 7, Regulatory Evaluation is available in the docket for inspection 1982 (47 FR 44258) required that the or copying where indicated under This proposal is not a significant draw: ADDRESSES. (a) Open on signal from September 16 regulatory action under section 3(f) of through May 14 provided 24 hours Executive Order 12866 and does not List of Subjects in 33 CFR Part 117 require an assessment of potential costs advance notice is given. Bridges. (b) From May 15 through September and benefits under section 6(a)(3) of that 15, open on signal only from 8:15 a.m. order. It has been exempted from review For the reasons set out in the to 8:45 a.m., 10:15 a.m. to 11 a.m., 3:15 by the Office of Management and preamble, the Coast Guard proposes to p.m. to 4 p.m., 5 p.m. to 5:45 p.m., and Budget under that order. It is not amend 33 CFR part 117 as follows: 7:30 p.m. to 8 p.m. Throughout the significant under the regulatory policies remainder of this period, the draw was and procedures of the Department of PART 117ÐDRAWBRIDGE required to open for the passage of Transportation (DOT) (44 FR 11040; OPERATION REGULATIONS vessels if 4 (four) hours advance notice February 26, 1979). The Coast Guard 1. The authority citation for Part 117 is given. expects the economic impact of this continues to read as follows: (c) Open at any time for public vessels proposal to be so minimal that a full of the United States, any vessels of state Regulatory Evaluation, under paragraph Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 or municipal governments used for 10e of the regulatory policies and CFR 1.05–1(g); section 117.255 also issued public safety, and in case of emergency under the authority of Pub. L. 102–587, 106 procedures of DOT, is unnecessary. This Stat. 5039. or during severe storm conditions. conclusion is based on the fact that the The bridge owner, the Massachusetts regulation will not prevent mariners 2. Section 117.600 is added to read as Highway Department (MHD), has been from transiting the Lagoon Pond Bridge. follows: operating the bridge in accordance with It will require only that mariners plan § 117.600 Lagoon Pond. the deleted regulations on an unofficial their transits. basis. The Coast Guard is proposing to The draw of the Lagoon Pond Bridge, publish regulations that reinstate the Small Entities mile 0.0, in Tisbury, Massachusetts, operating hours of the bridge contained Under the Regulatory Flexibility Act shall operate as follows: in the erroneously deleted rule. (5 U.S.C. 601 et seq.), the Coast Guard (a) The draw shall open on signal must consider whether this proposal if Discussion of Proposed Amendments from May 15 through September 15, adopted, will have a significant from 8:15 a.m. to 8:45 a.m., from 10:15 The MHD, after being advised of the economic impact on a substantial a.m. to 11 a.m., from 3:15 p.m. to 4 p.m., deletion of the regulations covering the number of small entities. ‘‘Small from 5 p.m. to 5:45 p.m., and from 7:30 Lagoon Pond Bridge, requested that entities’’ include independently owned p.m. to 8 p.m. At all other times the operating hours for the bridge be and operated small businesses that are draw will open from the passage of published to read as follows: not dominant in their fields and that vessels if at least four (4) hours advance (a) The draw shall open on signal otherwise qualify as ‘‘small business notice is given by calling the number from May 15 through September 15, concerns’’ under section 3 of the Small posted at the bridge. from 8:15 a.m. to 8:45 a.m., from 10:15 Business Act (15 U.S.C. 632). For the (b) The draw shall open on signal a.m. to 11 a.m., from 3:15 p.m. to 4 p.m., reasons discussed in the Regulatory from 5 p.m. to 5:45 p.m., and from 7:30 from September 16 through May 14 if at Evaluation above, the Coast Guard least twenty-four (24) hours advance p.m. to 8 p.m. At all other times the certifies under 5 U.S.C. 605(b) that this draw will open for the passage of notice is given by calling the number proposal, if adopted, will not have a posted at the bridge. vessels if at least four (4) hours advance significant economic impact on a (c) The owners of this bridge shall notice is given by calling the number substantial number of small entities. posted at the bridge. provide and keep in good legible (b) The draw shall open on signal Collection of Information condition, clearance gauges for each from September 16 through May 14, if This proposal contains no collection draw with figures not less than twelve at least twenty-four (24) hours advance of information requirements under the (12) inches high designed, installed and notice is given by calling the number Paperwork Reduction Act (44 U.S.C. maintained according to the provisions posted at the bridge. 3501 et seq.). of § 118.160 of this chapter. (c) The owners of this bridge shall 3. Appendix A to part 117 is amended provide, and keep in good legible Federalism by adding an entry in alphabetical order condition, clearance gauges for each The Coast Guard has analyzed this under the heading ‘‘Massachusetts’’ for draw with figures not less than twelve proposal under the principles and Lagoon Pond to read as follows: Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10819 APPENDIX A TO PART 117ÐDRAWBRIDGES EQUIPPED WITH RADIOTELEPHONES Calling Working Waterway Mile Location Bridge name and owner Call sign channel channel ******* Massachusetts. ******* Lagoon Pond ...... 0.0 Tisbury ...... Lagoon Pond ...... MHD 13 13 ******* Dated: January 11, 1995. Resolution Program, Environmental (CAA or the Act). EPA’s final action on J.L. Linnon, Protection Agency, 401 M Street, SW., this notice of proposed rulemaking Rear Admiral, U.S. Coast Guard, Commander, Washington, DC 20460, (202) 260–5495, (NPRM) will incorporate this regulation First Coast Guard District. or the Committee’s facilitator, Lucy into the federally approved SIP. EPA [FR Doc. 95–4905 Filed 2–27–95; 8:45 am] More or John Folk-Williams, Western has evaluated this regulation and is BILLING CODE 4910±14±M Network, 616 Don Gaspar, Santa Fe, proposing to conditionally approve it New Mexico 87501, (505) 982–9805. under provisions of the CAA regarding Dated: February 23, 1995. EPA action on SIP submittals, SIPs for national primary and secondary ambient ENVIRONMENTAL PROTECTION Deborah Dalton, AGENCY air quality standards and plan Designated Federal Official, Deputy Director, requirements for nonattainment areas. Consensus and Dispute Resolution Program. 40 CFR Ch. I The EPA’s final conditional approval is [FR Doc. 95–4892 Filed 2–27–95; 8:45 am] contingent on the SCAQMD providing [FRL±5162±5] BILLING CODE 6560±50±M the Agency with an enforceable Open Meeting of the Negotiated commitment which addresses and cures all of the deficiencies associated with Rulemaking Advisory Committee for 40 CFR Part 52 Small Nonroad Engine Regulations NOX and SOX RECLAIM within 12 [CA 78±2±6824; FRL±5162±4] months of the publication of the AGENCY: Environmental Protection proposed conditional approval. In the Agency. Approval and Promulgation of event that SCAQMD fails to provide ACTION: FACA committee meeting; Implementation Plans; California EPA with such a commitment, then EPA Implementation Plan Revision; South Negotiated rulemaking on small will publish a final rule to approve NOX Coast Air Quality Management District nonroad engine regulations. and SOX RECLAIM in the form of a AGENCY: Environmental Protection limited approval/limited disapproval SUMMARY: As required by section 9(a)(2) Agency (EPA). action. Both the conditional approval of the Federal Advisory Committee Act action and the limited approval/limited ACTION: (Pub. L. 92–463), EPA is giving notice of Notice of proposed rulemaking. disapproval action are discussed in this the next meeting of the Advisory SUMMARY: EPA is proposing to NPRM. Committee to negotiate a rule to reduce conditionally approve revisions to the DATES: Comments must be received on air emissions from small nonroad California State Implementation Plan or before March 30, 1995. engines. The meeting is open to the (SIP) which concern the control of ADDRESSES: Comments may be mailed public without advance registration. oxides of nitrogen (NOX) and oxides of to: Daniel A. Meer, Rulemaking Section The purpose of the meeting is to sulfur (SOX) emissions using an (A–5–3), Air and Toxics Division, U.S. continue identification and discussion emissions-limiting economic incentives Environmental Protection Agency, of issues, discuss interests of committee program, the NOX and SOX Regional Region IX, 75 Hawthorne Street, San members, and hear reports from task Clean Air Incentives Market (NOX and Francisco, CA 94105. groups. SOX RECLAIM). This program, which Copies of the new regulation and DATES: The committee will meet on consists of twelve rules and associated EPA’s evaluation report of the March 21 and 22, 1995 from 10 a.m. to appendices known as Regulation XX, regulation are available for public 6 p.m. applies to facilities in the South Coast inspection at EPA’s Region 9 office ADDRESSES: The location of the meeting Air Quality Management District (address above) during normal business will be the Holiday Inn East, 3750 (SCAQMD) with four or more tons of hours. Copies of the submitted Washtenaw, Ann Arbor, MI 48104, (313) NOX or SOX emissions per year from regulation are also available for 971–2000. permitted equipment. The subject inspection at the following locations: FOR FURTHER INFORMATION CONTACT: facilities, in order to meet annual California Air Resources Board, Persons needing further information on emission reduction requirements, will Stationary Source Division, Rule the technical and substantive matters of participate in an economic incentive Evaluation Section, 2020 ‘‘L’’ Street, the rule should contact Betsy McCabe, program (EIP) in order to reduce Sacramento, CA 95814. National Vehicle and Fuel Emissions emissions at a significantly lower cost. South Coast Air Quality Management Laboratory, 2565 Plymouth Rd., Ann The intended effect of proposing District, 21865 E. Copley Drive, Arbor Michigan 48105, (313) 668–4344. approval of Regulation XX is to regulate Diamond Bar, CA 91765–4182. Persons needing further information on emissions of NOX and SOX in FOR FURTHER INFORMATION CONTACT: committee procedes should call accordance with the requirements of the Kenneth Israels, Rulemaking Section Deborah Dalton, Consensus and Dispute Clean Air Act, as amended in 1990 (A–5–3), Air and Toxics Division, 10820 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules Environmental Protection Agency, 75 On April 7, 1994, EPA published a successful operation of the program in Hawthorne Street, San Francisco, CA final rule concerning EIPs entitled the context of overall RFP and 94105, Telephone: (415) 744–1194. ‘‘Economic Incentive Program Rules,’’ attainment requirements. (see 40 CFR (EIP Rules) in order to fulfill the 51.493(f)(3)(i)) SUPPLEMENTARY INFORMATION: requirements of section 182(g)(4)(A) of • Implementation schedule. The Background the Act (see 59 FR 16690). The EIP program shall contain a schedule for the Rules establish several requirements adoption and implementation of all On November 15, 1990, the Clean Air which State programs must meet. State commitments and source Act Amendments of 1990 (CAA) were These requirements are: requirements included in the program • enacted. Pub. L. 101–549, 104 Stat. Statement of goals and rationale. design. 2399, codified at 42 U.S.C. 7401–7671q. This element shall include a clear • Administrative procedures. The The air quality planning requirements statement as to the environmental program shall contain a description of for the reduction of NOX emissions problem being addressed, the intended State commitments which are integral to through reasonably available control environmental and economic goals of the implementation of the program, and technology (RACT) are set out in section the program, and the rationale relating the administrative system to be used to 182(f) of the CAA. On November 25, the incentive-based strategy to the implement the program, addressing the 1992, EPA published a NPRM entitled program goals. • adequacy of the personnel, funding, and ‘‘State Implementation Plans; Nitrogen Program scope. This element shall legislative authority. Oxides Supplement to the General contain a clear definition of the sources • Enforcement mechanisms. The Preamble; Clean Air Act Amendments affected by the program. program shall contain a compliance • Program baseline. A program of 1990 Implementation of Title I; instrument(s) for all program baseline shall be defined as a basis for Proposed Rule,’’ (the NOX Supplement) requirements, which is legally binding projecting program results and, if which describes the requirements of and enforceable by both the State and applicable, for initializing the incentive section 182(f). The November 25, 1992, EPA. This program element shall also mechanism (e.g., for marketable permits notice should be referred to for further include a State enforcement program programs). The program baseline shall information on the NOX requirements which defines violations, and specifies be consistent with, and adequately and is incorporated into this proposal auditing and inspections plans and by reference. reflected in, the assumptions and inputs used to develop an area’s reasonable provisions for enforcement actions. The Section 182(b)(2) requires submittal of further progress (RFP) plans and program shall contain effective penalties RACT rules for major stationary sources attainment and maintenance for noncompliance which preserve the of VOC emissions (not covered by a pre- demonstrations, as applicable. The State level of deterrence in traditional enactment control technologies shall provide sufficient supporting programs. For all such programs, the guidelines (CTG) document or a post- information from the areawide manner of collection of penalties must enactment CTG document) by emissions inventory and other sources be specified. November 15, 1992. There were no NOX to justify the baseline used in the State The EIP Rule should be referred to for CTGs issued before enactment and EPA or local EIP. further information on the EIP has not issued a CTG document for any • Replicable emission quantification requirements and is incorporated into NOX sources since enactment of the methods. This program element, for this proposal by reference. CAA. The RACT rules covering NOX programs other than those which are The State of California submitted the sources and submitted as SIP revisions categorized as directionally-sound, shall regulation being acted on in this are expected to require final installation include credible, workable, and document on March 21, 1994. This of the actual NOX controls by May 31, replicable methods for projecting document addresses EPA’s proposed 1995, for those sources where program results from affected sources action for SCAQMD, Regulation XX, installation by that date is practicable. and, where necessary, for quantifying NOX and SOX RECLAIM. SCAQMD Section 182(f) of the Clean Air Act emissions from individual sources adopted Regulation XX on October 15, requires States to apply the same subject to the EIP. Such methods, if 1993. This submitted regulation was requirements to major stationary sources used to determine credit taken in found to be complete on April 11, 1994, of NOX (‘‘major’’ as defined in section attainment, RFP, and maintenance pursuant to EPA’s completeness criteria 302 and section 182 (c), (d), and (e)) as demonstrations, as applicable, shall that are set forth in 40 CFR Part 51, 3 are applied to major stationary sources yield results which can be shown to Appendix V, and is being proposed for of volatile organic compounds (VOCs), have a level of certainty comparable to approval into the SIP. in moderate or above ozone that for source-specific standards and NOX emissions contribute to the nonattainment areas. The Los Angeles- traditional methods of control strategy production of ground level ozone and South Coast Air Basin is classified as development. smog. The regulation was adopted as extreme,1 therefore this area was subject • Source requirements. This program part of SCAQMD’s efforts to achieve the to the RACT requirements of section element shall include all source-specific National Ambient Air Quality Standards 182(b)(2), cited above, and the requirements that constitute compliance (NAAQS) for ozone and in response to November 15, 1992 deadline.2 with the program. Such requirements the CAA requirements cited above. The shall be appropriate, readily following is EPA’s evaluation and 1 The Los Angeles-South Coast Air Basin was ascertainable, and State and federally proposed action for this regulation. designated nonattainment and classified by enforceable. EPA Evaluation and Proposed Action operation of law pursuant to sections 107(d) and • 181(a) upon the date of enactment of the CAA. See Projected results and audit/ 55 FR 56694 (November 6, 1991). reconciliation procedures. This program In determining the approvability of a 2 NOX regulation, EPA must evaluate the EPA made a finding of nonsubmittal for NOX element includes a commitment to RACT in SCAQMD on April 21, 1993. NOX ensure the timely implementation of 3 RECLAIM in combination with other measures programmatic revisions or other EPA adopted the completeness criteria on satisfy this requirement. On October 21, 1994, EPA February 16, 1990 (55 FR 5830) and, pursuant to found that SCAQMD had submitted measures measures which the State, in response section 110(k)(1)(A) of the CAA, revised the criteria satisfying the NOX RACT requirements. to the audit, deems necessary for the on August 26, 1991 (56 FR 42216). Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10821 regulation for consistency with the appears in the various EPA policy • Rule 2000—General. This rule requirements of the CAA and EPA guidance documents listed in footnote 4 provides the program’s objective, its regulations, as found in section 110 and of this notice. Among these provisions purpose, and applicable definitions; Part D of the CAA and 40 CFR Part 51 is the requirement that an EIP rule must, • Rule 2001—Applicability. This rule (Requirements for Preparation, at a minimum, be consistent with provides the criteria for inclusion in Adoption, and Submittal of attainment and RFP requirements found NOX and SOX RECLAIM, requirements Implementation Plans). The EPA in the CAA. for sources electing to enter NOX and interpretation of these requirements, For the purpose of assisting state and SOX RECLAIM and identifies provisions which forms the basis for today’s action, local agencies in developing rules in SCAQMD rules and regulations that appears in the various EPA policy which incorporate economic incentive do not apply to NOX and SOX RECLAIM guidance documents.4 Among these strategies, EPA prepared the EIP Rules, sources; provisions is the requirement that a cited above (59 FR 16690). In the EIP • Rule 2002—Allocations for Oxides NOX rule must, at a minimum, provide Rules, EPA provides guidance on how of Nitrogen (NOX) and Oxides of Sulfur for the implementation of RACT for EIPs can be designed to be consistent (SOX). This rule establishes the stationary sources of NOX emissions. with the attainment and RFP methodology for calculating initial For the purpose of assisting state and requirements of the CAA. In general, the facility allocations for NOX and SOX local agencies in developing RACT guidance documents cited above, as RECLAIM; • rules, EPA prepared the NOX well as other relevant and applicable Rule 2004—Requirements. This rule supplement to the General Preamble, guidance documents, have been set establishes requirements for operating cited above (57 FR 55620). In the NOX forth to ensure that submitted EIPs meet under the NOX and SOX RECLAIM supplement, EPA provides guidance on federal requirements and are fully program. The rule includes provisions how RACT will be determined for enforceable and strengthen or maintain pertaining to permits, allocations, stationary sources of NOX emissions. the SIP. reporting, variances, penalties, and While most of the guidance issued by SCAQMD’s Regulation XX, NOX and breakdowns; • EPA on what constitutes RACT for SOX RECLAIM, is a new rule which was Rule 2005—New Source Review stationary sources has been directed adopted to control NOX and SOX (NSR) for RECLAIM. This rule sets forth towards application for VOC sources, emissions using an emissions-limiting pre-construction review requirements much of the guidance is also applicable economic incentives program applicable for new facilities subject to the to facilities with four or more tons of to RACT for stationary sources of NOX requirements of the NOX and SOX NOX or SOX emissions per year. (see section 4.5 of the NOX RECLAIM program and for Supplement). In addition, pursuant to Facilities with NOX or SOX emissions modifications to existing NOX and SOX section 183(c) EPA is issuing alternative from permitted equipment participate in RECLAIM facilities; • control technique documents (ACTs) a pollutant-specific market in order to Rule 2006—Permits. This rule sets that identify alternative controls for all reduce emissions at a significantly forth procedures for issuing and lower cost. The program subsumes amending NOX and SOX RECLAIM categories of stationary sources of NOX. fourteen SCAQMD Air Quality facility permits; The ACT documents will provide • information on control technology for Management Plan (AQMP) control Rule 2007—Trading Requirements. stationary sources that emit or have the measures and is projected to reduce This rule defines the NOX and SOX potential to emit 25 or more tons per emissions by an equivalent amount. RECLAIM trading credit (RTC) and The regulation discussed below is establishes the trading requirements for year of NOX. However, the ACTs will being proposed for conditional approval not establish a presumptive norm for NOX and SOX RECLAIM; under Section 110(k)(4) of the CAA • Rule 2008—Mobile Source Credits. what is considered RACT for stationary because it strengthens the SIP and EPA This rule establishes criteria for and sources of NOX. In general, the guidance is optimistic that the SCAQMD will requirements on utilizing emission documents cited above, as well as other provide EPA a commitment within 12 reductions generated from SCAQMD relevant and applicable guidance months of the publication of this 1600 series rules as RTCs; documents, have been set forth to proposal and prior to the publication of • Rule 2010—Administrative ensure that submitted NOX RACT rules the final rule. Such a commitment must Remedies and Sanctions. This rule meet federal RACT requirements and obligate the SCAQMD to revise specifies provisions to ensure that NO are fully enforceable and strengthen or X Regulation XX to correct the identified and SOX RECLAIM facilities which maintain the SIP. Appendix D deficiencies, within one exceed their allocation provide In determining the approvability of an year after the date of publication of the compensating emission reductions. This EIP, EPA must evaluate the regulation final rule. The conditional approval rule also provides for administrative for consistency with the requirements of shall be treated as a disapproval if the penalties for NOX and SOX RECLAIM the CAA and EPA regulations, as found SCAQMD fails to comply with the rule violations; in section 110 and Part D of the CAA submitted commitment. • Rule 2011—Requirements for and 40 CFR Part 51 (Requirements for The NOX and SOX RECLAIM program Monitoring, Reporting, and Preparation, Adoption, and Submittal of strengthens the SIP by placing a Recordkeeping for Oxides of Sulfur Implementation Plans). The EPA declining emissions cap on subject Emissions. This rule and its appendix interpretation of these requirements, facilities. The declining cap is based on (Appendix A) establish the monitoring, which forms the basis for today’s action, the application of RACT (or reporting, and recordkeeping requirements more stringent than requirements for SOX emissions under 4 Among other things, the pre-amendment RACT) at the facility and is reduced to the NOX and SOX RECLAIM program; guidance consists of those portions of the proposed • post-1987 ozone and carbon monoxide policy that overall emissions below RACT levels in Rule 2012—Requirements for concern RACT, 52 FR 45044 (November 24, 1987); order to bring the South Coast Air Basin Monitoring, Reporting, and ‘‘Issues Relating to VOC Regulation Cutpoints, into attainment of the ozone NAAQS. Recordkeeping for Oxides of Nitrogen Deficiencies, and Deviations, Clarification to Appendix D of November 24, 1987 Federal Register Regulation XX is comprised of 12 rules Emissions. This rule and its appendix Notice’’ (Blue Book) (notice of availability was and 2 associated appendices which are (Appendix A) establish the monitoring, published in the Federal Register on May 25, 1988). described below: reporting, and recordkeeping 10822 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules requirements for NOX emissions under provisions found in RECLAIM Rule In the event that SCAQMD is unable the NOX and SOX RECLAIM program; 2004 will be adequate for enforcement to provide EPA with a commitment and of the RECLAIM program. However, which addresses all of the deficiencies • Rule 2015—Backstop Provisions. EPA does not believe that such penalty identified by EPA within 12 months of This rule specifies NOX and SOX provisions would necessarily be the publication of this NPRM, then EPA RECLAIM program auditing adequate for other program designs. will publish a final rule which finalizes requirements and actions that the EPA will evaluate the penalty a limited approval/limited disapproval SCAQMD will take in the event that the provisions of each program design on an action on the NOX and SOX RECLAIM environmental goals of RECLAIM individual basis, paying particular program in lieu of publishing a final program are not achieved. attention to the program elements found rule which finalizes a conditional • Although the approval of in the EIP rule (see 40 CFR 51.493(i) and approval action on the NOX and SOX Regulation XX will strengthen the SIP, 59 FR 16700–16701 dated April 7, 1994) RECLAIM program. In the instance in the regulation still contains deficiencies, where applicable. which SCAQMD fails to provide the identified below and in the associated Because of the above deficiencies, commitment within 12 months of the technical support document (TSD), EPA cannot grant approval of this publication of the NPRM, the limited which are required to be corrected regulation under section 110(k)(3), approval/limited disapproval would be pursuant to section 182(b)(2) of the section 110(a)(2), section 169A, and finalized based on the same deficiencies CAA. The NOX and SOX RECLAIM Parts C and D of the Act. Also, because noted elsewhere in this document and program contains the following the submitted regulation is not the associated TSD. As noted above, deficiencies: composed of separable parts which meet • because of the noted deficiencies, EPA The program allows the use of all the applicable requirements of the cannot grant approval or partial variances to avoid compliance with CAA, EPA cannot grant partial approval approval of this regulation under program requirements; this results in of the regulation under section section 110(k)(3) and part D. However, the program failing to meet the 110(k)(3). However, EPA may grant a EPA may grant a limited approval of the requirements of section 110(i) of the conditional approval under section submitted regulation under section Act, 110(k)(4) based on a commitment by the 110(k)(3) in light of EPA’s authority • The program does not meet certain SCAQMD to revise the regulation to pursuant to section 301(a) to adopt new source review requirements of the correct the identified deficiencies regulations necessary to further air Act and Part D, within one year of the Notice of Final • quality by strengthening the SIP. The The program allows the use of Rulemaking of the conditional approval. Executive Officer discretion in the approval is limited because EPA’s EPA is optimistic that the SCAQMD will action also contains a simultaneous implementation of certain emissions commit to adopt a regulation correcting monitoring provisions; this results in limited disapproval. In the instance the deficiencies within the required where a commitment from SCAQMD is the program failing to meet the timeframe. The commitment letter must requirements of section 110(i) of the not submitted within 12 months of the contain a schedule of interim steps publication of the NPRM, in order to Act, (with dates) for the regulation. The State • The program’s references to other strengthen the SIP, EPA will finalize a of California must submit the limited approval of SCAQMD’s programs, notably those involving the commitment letter to EPA. Therefore, use of mobile source emission reduction submitted Regulation XX under sections EPA is proposing to give conditional 110(k)(3) and 301(a) of the CAA. credits (MERCs) is inconsistent with approval to submitted Regulation XX section 110(i) of the Act, and under section 110(k)(4) of the CAA. At the same time, EPA will also • The submittal does not provide all Under section 110(k)(4), the finalize a limited disapproval of this of the necessary demonstrations to conditional approval shall be treated as regulation because it contains ensure that the requirements of EPA’s a disapproval of a rule if the SCAQMD deficiencies that have not been EIP Rules are being met. fails to adopt rules correcting the corrected as required by section A detailed discussion of the rule deficiencies within the time allowed. 182(a)(2)(A) of the CAA, and, as such, deficiencies can be found in the TSD for Under 179(a)(2), if the Administrator the regulation does not fully meet the Regulation XX (January 5, 1995), which disapproves a submission under section requirements of part D of the Act. As is available from the U.S. EPA, Region 110(k) for an area designated noted above, if the identified 9 office. Because SCAQMD is not using nonattainment, based on the deficiencies are not corrected within 18 Regulation XX as a means to achieve or submission’s failure to meet one or more months of EPA’s final limited maintain attainment of the SO2 of the elements required by the CAA, disapproval, the sanctions described in 5 6 NAAQS, the PM10 NAAQS, or the NO2 the Administrator must apply one of the section 179 of the CAA will be applied. NAAQS, EPA does not believe that sanctions set forth in section 179(b) It should be noted that the regulation Regulation XX will interfere with unless the deficiency has been corrected covered by this NPRM has been adopted SCAQMD’s ability to meet the within 18 months of such disapproval. by the SCAQMD and is currently in requirements necessary in the Act for Section 179(b) provides two sanctions effect in the SCAQMD. EPA’s final achieving or maintaining these available to the Administrator: highway limited disapproval action in this NPRM standards. EPA believes that the penalty funding and offsets. The 18 month will not prevent the SCAQMD or the period referred to in section 179(a) will EPA from enforcing this regulation. 5 SCAQMD is presently in attainment of the SO2 begin on the effective date of EPA’s final Nothing in this action should be NAAQS. disapproval. Moreover, the final construed as permitting or allowing or 6 In this instance, SCAQMD is not asserting and disapproval triggers the federal establishing a precedent for any future EPA is not finding that SOX RECLAIM is designed to be used as a means to identify or implement best implementation plan (FIP) requirement request for revision to any state available control measures (BACM) for PM10 in the under section 110(c). It should be noted implementation plan. Each request for South Coast Air Basin. If at some point in the future that the regulation covered by this revision to the state implementation SCAQMD decides to use SOX RECLAIM as a means plan shall be considered separately in of fulfilling this requirement, an additional SIP NPRM has been adopted by the submittal must be made at which time EPA will SCAQMD and is currently in effect in light of specific technical, economic, apply the appropriate review criteria. the SCAQMD. and environmental factors and in Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10823 relation to relevant statutory and Authority: 42 U.S.C. 7401–7671q. employees in the counties of Cook, regulatory requirements. Dated: February 15, 1995. Lake, Dupage, McHenry, Kane, and Will and the townships of Aux Sable and Regulatory Process Felicia Marcus, Regional Administrator. Gooselake in Grundy County and Under the Regulatory Flexibility Act, [FR Doc. 95–4891 Filed 2–27–95; 8:45 am] Oswego in Kendall County to 5 U.S.C. Section 600 et seq., EPA must participate in a trip reduction program. BILLING CODE 6560±50±P prepare a regulatory flexibility analysis The concerns that lead to the inclusion assessing the impact of any proposed or of this Employee Commute Options final rule on small entities. 5 U.S.C. 603 40 CFR PART 52 (ECO) provision in the amended Act are and 604. Alternatively, EPA may certify that more people are driving and they that the rule will not have a significant [IL97±1±6575; FRL±5158±6] are driving longer distances. The impact on a substantial number of small increase in the number of drivers and entities. Small entities include small Clean Air Act Approval and the increase in the number of vehicle businesses, small not-for-profit Promulgation of Employee Commute miles traveled (VMT) currently offset a enterprises and government entities Options Program; Illinois large part of the emissions reductions with jurisdiction over populations of AGENCY: Environmental Protection achieved through the production and less than 50,000. Agency (USEPA). sale of vehicles that operate more Conditional approvals of SIP cleanly. It is widely accepted that ACTION: submittals under sections 110 and 301 Proposed rule. shortly after the year 2000, without and subchapter I, Part D of the CAA do SUMMARY: The USEPA is proposing to limits on increased travel, the increased not create any new requirements, but approve the State Implementation Plan emissions caused by more vehicles simply approve requirements that the (SIP) revision request submitted by the being driven more miles under more State is already imposing. Therefore, State of Illinois on July 8, 1994, for the congested conditions will outweigh the because the federal SIP-approval does purpose of establishing an Employee fact that each new vehicle pollutes less, not impose any new requirements, it Commute Options Program (ECO resulting in an overall increase in does not have a significant impact on Program) in the Chicago area, including emissions from mobile sources. The any small entities affected. Moreover, the counties of Cook, Lake, DuPage, ECO provision outlines the due to the nature of the federal-state McHenry, Kane and Will and the requirements for a program designed to relationship under the CAA, preparation townships of Aux Sable and Gooselake minimize the use of single occupancy of a regulatory flexibility analysis would in Grundy County and Oswego in vehicles in commuting trips in order to constitute Federal inquiry into the Kendall County. The rationale for the gain emissions reductions beyond what economic reasonableness of state action. proposed approval is set forth below; can be and will be obtained through The CAA forbids EPA to base its actions additional information is available at stricter tailpipe and fuel standards. concerning SIPs on such grounds. Section 182(d)(1)(B) of the amended the address indicated below. Union Electric Co. v U.S. E.P.A., 427 Act requires that employers in severe U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. DATES: Comments on this proposed rule and extreme ozone and carbon 7410(a)(2). This discussion applies in must be received on or before March 30, monoxide (CO) nonattainment areas the case where EPA finalizes a limited 1995. submit their compliance plans to the approval/limited disapproval action as ADDRESSES: Written comments should State two years after the SIP is well. be sent to: J. Elmer Bortzer, Chief, submitted to USEPA. These compliance If the conditional approval is Regulation Development Section, plans developed by employers must be converted to a disapproval under Regulation Development Branch, (AR– designed to convincingly demonstrate section 110(k), based on the State’s 18J) USEPA, Region 5, 77 West Jackson an increase in the average passenger failure to meet the submitted Boulevard, Chicago, Illinois 60604– occupancy (APO) of vehicles used by commitment, it will not affect any 3590. their employees who commute to work existing state requirements applicable to Copies of the ECO Program SIP during the peak period by no less than small entities. Federal disapproval of revision request and USEPA’s analysis 25 percent above the average vehicle the state submittal does not affect its are available for inspection at the occupancy (AVO) of the nonattainment state-enforceability. Moreover, EPA’s following address: U.S. Environmental area. These compliance plans must disapproval of the submittal does not Protection Agency, Region 5, Air and convincingly demonstrate that the impose a new federal requirement. Radiation Division, 77 West Jackson employers will meet the target no later Therefore, EPA certifies that this Boulevard, Chicago, Illinois 60604. than 4 years after the SIP is submitted. disapproval action does not have a (It is recommended that you telephone Where there are important differences in significant impact on a substantial Jessica Radolf at (312) 886–3198 before terms of commute patterns, land use, or number of small entities because it does visiting the Region 5 Office.) AVO, the States may establish different zones within the nonattainment area for not remove existing state requirements FOR FURTHER INFORMATION CONTACT: nor does it impose any new federal purposes of calculation of the AVO. Jessica Radolf, Regulation Development Section 110(k) of the amended Act requirements. Section, Regulation Development The Office of Management and Budget contains provisions governing USEPA’s Branch, (AR–18J) USEPA, Region 5, 77 (OMB) has exempted this action from action on SIP submittals. The USEPA West Jackson Boulevard, Chicago, review under Executive Order 12866. can take one of three actions on ECO Illinois 60604–3590, (312) 886–3198. Program SIP submittals. If the submittal List of Subjects in 40 CFR Part 52 SUPPLEMENTARY INFORMATION: satisfactorily addresses all of the Environmental protection, Air required ECO Program elements, the pollution control, Ozone, Hydrocarbons, I. Background USEPA shall grant full approval. If the Intergovernmental relations, Reporting Implementation of the section submittal contains approvable and recordkeeping requirements, 182(d)(1)(B) of the Clean Air Act, as commitments to implement all required Volatile organic compounds, Nitrogen amended in 1990 (amended Act), ECO Program elements, but the State dioxide. requires employers with 100 or more does not yet have all of the necessary 10824 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules regulatory authority to do so, the informed Illinois on November 19, 1992, 3. ECO Program USEPA may grant conditional approval. that USEPA could approve a definition State or local law must establish ECO Finally, if the submittal fails to of AVO that did not include transit. Program requirements for employers adequately address one or more of the Final ECO guidance was issued on with 100 or more employees at a mandatory ECO Program elements, the December 17, 1992, that would not worksite within severe and extreme USEPA shall issue a disapproval. allow for this type of AVO calculation. ozone nonattainment areas and serious On July 8, 1994, the State of Illinois Illinois’ position is that including carbon monoxide areas. In the ECO submitted a SIP revision request transit ridership in the AVO calculation Program Guidance issued December including Title 92 of the Illinois would require a 25 percent increase 1992, USEPA states that automatic Administrative Code Part 600: above the average vehicle occupancy coverage of employers of 100 or more Employee Commute Options to USEPA over existing conditions, which already should be included in the law. In in order to satisfy the requirements of relies very heavily on transit ridership, section 182(d)(1)(B) of the amended Act and this would penalize the Chicago addition, States should develop in the counties of Cook, Lake, DuPage, area for having invested heavily in an procedures for notifying subject McHenry, Kane and Will and the extensive public transit infrastructure. employers regarding the ECO Program townships of Aux Sable and Gooselake The State points out that the Illinois requirements. in Grundy County and Oswego in program has the support of affected State and/or local laws must require Kendall County, Illinois. The USEPA employers that feel that the Illinois AVO that initial compliance plans issued a finding of completeness on this target is attainable. It is the State’s convincingly demonstrate prospective submittal on July 14, 1994. position that adoption of a transit compliance. Approval of the SIP In order to gain approval, the State oriented definition, with a much higher revision depends on the ability of the submittal must contain each of the target, would be perceived by employers State/local regulations to ensure that the following ECO Program elements: (1) as unattainable and would erode their Act’s requirement that initial The AVO for each nonattainment area or support. compliance plans convincingly for each zone if the area is divided into In a June 10, 1994, letter from demonstrate compliance will be met. zones; (2) the target APO which is no Administrator Carol M. Browner to This demonstration can have any of four less than 25 percent above the AVO(s); Senator Frank R. Lautenberg, USEPA forms or any combination of these. (3) an ECO Program that includes a affirmed that ‘‘our continuing effort here One option is for the State to include process for compliance demonstration; at EPA is to make the ECO Program in the SIP evidence that State agency and, (4) enforcement procedures to work in ways that make sense at the resources are available for the effective ensure submission and implementation local level.’’ USEPA believes that plan-by-plan review of employer- of compliance plans by subject Illinois’ calculation of the AVO baseline selected measures to ensure the high employers. The USEPA issued guidance without transit ridership reflects local quality of compliance plans, and that on December 17, 1992, interpreting concerns, recognizes the already plans that are not convincing will be various aspects of the statutory significant investment in local and rejected. requirements (Employee Commute Federal dollars to develop and operate A second option is for the regulations Options Guidance, December, 1992). A an existing major public transit in the SIP to contain a convincing copy of this guidance has been included infrastructure, and is approvable minimum set of measures that all in this rulemaking docket. because it is consistent with Clean Air employers must implement. These Act section 182 (d)(1)(B) language that measures will be subject to review and II. Analysis allows for average vehicle occupancy approval by USEPA as adequate when The State has met the requirements of rates, ‘‘* * * reflecting existing the SIP is processed. section 182(d)(1)(B) of the amended Act occupancy rates and the availability of A third option is for the regulations in by submitting a SIP revision that high occupancy modes.’’ Illinois the SIP to provide that failure by the implements all required ECO Program correctly points out that if transit employer to meet the target APO will elements as discussed below. ridership is included in the AVO result in implementation of a regulation- baseline then cities like Chicago will specified, multi-measure contingency 1. The Average Vehicle Occupancy have a much higher target AVO than plan. This plan will be reviewed by Section 182(d)(1)(B) requires that the some other cities simply because there USEPA for adequacy when the SIP is State determine the AVO at the time the is an efficient rail system already in processed. SIP revision is submitted. The State has place. A fourth option is for the regulations met this requirement by establishing an In light of USEPA’s prior indication to in the SIP to include financial penalties AVO for the entire Chicago severe ozone Illinois that it could approve the AVO for employers who fail to meet the target nonattainment area. The AVO was calculation, and the agency expressed APO, and/or compliance incentives that determined to be 1.092 based on the desire to allow flexibility in are large enough to result in a most recent census data and was implementing the ECO program, USEPA significant prospective incentive for the included as part of the Illinois SIP on proposes to approve the AVO employer to design and implement an July 8, 1994. Illinois has affirmed that calculation. effective initial compliance plan of its this AVO is representative of the AVO own. at the time of submittal as required by 2. The Target APO Illinois has met these requirements by section 182(d)(1)(B). Section 182(d)(1)(B) indicates that the providing evidence in the SIP that The Chicago area AVO was calculated target APO must be not less than 25 Illinois Department of Transportation using a methodology that did not percent above the AVO for the resources are available to implement the include transit ridership in the nonattainment area. An approvable SIP first option. Illinois has contracted with numerator of the AVO calculation, revision for this program must include several consulting firms to administer resulting in a lower AVO than if transit the target APO. Illinois has met this and monitor the program, to develop a riders had been included. Transit requirement by setting the target APO at training program for employers, and to ridership is, however, included in the 1.36 which is 25 percent above the AVO prepare informational and educational APO calculation. USEPA staff had of 1.092. materials. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10825 Illinois will begin to notify the that include any of thes start-up in a program that phases-in increasingly approximately 5,400 employers in the packages could convincingly stringent requirements in which Chicago area with 100 or more demonstrate compliance during the first employers must achieve the State’s trip employees in three staggered groups. four years of the program. reduction goals four years after the SIP Beginning in January 1995, registration Option B, the Value-Added System, submittal. Employer’s may implement packages were to be sent to the largest would allow employers to develop an the episodic start-up package only 250 employers representing initial compliance plan that is during the first two years of the ECO approximately one third of all affected customized to the worksite. Employers Program. After which, all employers employees. Registration packages will would work through a series of steps for must switch to the value-added be mailed to the second and third building up the value of a compliance approach and be in compliance by July groups of employers in April 1995, and plan to a level that will ensure 8, 1998. For these reasons the episodic July 1995, respectively. Registration compliance by selecting from a menu of start-up package is being proposed for packages will include a complete trip reduction strategies that each has a approval as part of Phase 1 of the guidance document, all necessary forms, designated vehicle reduction value. Illinois ECO Program. During the Phase information regarding training and These steps include: (1) Work hour 1 period USEPA expects the episodic information regarding how to withdraw programs (telecommuting and start-up package to serve as a from the program if the number of compressed work week); (2) trip demonstration project and for the employees at the worksite falls below reduction support functions for carpool, purpose of collecting information on its 100. Registration, APO surveys, and vanpool, transit, bicycle, and walk effectiveness. The episodic strategy is compliance or maintenance plans will programs; and (3) use of financial not being proposed for approval for the be required from employers 30, 90, and incentives and disincentives. Vehicle period after the first two years of the 240 days, respectively, following receipt reduction estimates were developed for ECO Program and all employers must of the registration packet. each support function and financial meet the requirements associated with Each affected employer will receive incentive and disincentive for three the value-added approach. program guidance that explains the APO ranges and three transportation requirements of the program and environments. These values are applied 4. Enforcement Procedures provides guidelines for developing using a series of worksheets to estimate States and local jurisdictions need to approvable compliance plans for two both the singular and additive effects of include in their ECO regulations phases of the program. In Phase 1— the proposed trip reduction strategies. penalties and/or compliance incentives Start-Up (1994 to 1996) employers have for an employer who fails to submit a Phase 2—Compliance (1996–1998) the option of developing initial compliance plan or an employer who compliance plans using one of 14 start- After employers have implemented fails to implement an approved up packages or the option of utilizing their initial compliance plan for two compliance plan according to the the value-added system. In Phase 2— years, they must develop and compliance plan’s implementation Compliance (1996 to 1998) employers implement a renewal compliance plan schedule. Penalties should be sufficient that have implemented their initial based on the value-added approach that to provide an adequate incentive for compliance plan for two years, must is designed to attain the target APO. employers to comply and no less than develop a renewal compliance plan The Illinois Department of the expected cost of compliance. using the value-added approach. Transportation shall within 90 days of Illinois’ ECO SIP has met this a plan submittal evaluate the requirement by including in its ECO Phase 1—Start-Up (1994 to 1996) compliance plan. An employer whose legislation substantial penalties for Option A, ECO Start-up packages, compliance plan is not approved will be failure to comply with any provision of allows employers to choose one of 14 required to submit a revised plan within the regulation. A violator may be subject start-up packages, each of which 60 days of notification. to a fine of up to $10,000 and up to contains a fixed set of support measures USEPA proposes to accept the Illinois $1000 per day for each violation. that must be implemented. The required program as a viable ECO Program that Violations include: (1) Knowingly measures are minimum requirements will reduce vehicle miles traveled failing to register or to submit a survey, and employers may supplement these (VMT) in the Chicago severe ozone or a compliance plan for an affected packages by implementing additional nonattainment area. The June 10, 1994, worksite; (2) knowingly falsifying or strategies. letter from Administrator Carol Browner misrepresenting information provided The start-up packages include: (1) to Senator Frank R. Lautenberg stresses in an employer survey or compliance Rideshare with Support; (2) Ride-share USEPA’s commitment to policies that plan; (3) failing to make a good faith with Guaranteed Ride Home; (3) demonstrate ongoing flexibility in the effort to implement a compliance plan. Rideshare with On-Site Amenities; (4) ECO Program. USEPA will allow ‘‘states Affected employers who make a good Rideshare with Vanpool Support; (5) to grant employers credit for any faith effort to implement their approved Transit with Guaranteed Ride Home; (6) measure that reduces employee compliance plans, but fail to achieve the Transit with On-Site Transit Pass/Token commute vehicle trips in gasoline- target APO will not be subject to Sales; (7) Transit with Transit Check fueled vehicles.’’ Further, the letter penalties. Participation; (8) Transit with Shuttle provides that States may approve Service; (9) Bicycle/Walk Program; (10) employer plans that include seasonal III. Proposed Rulemaking Action and Telecommuting; (11) Compressed Work components if the plans will achieve the Solicitation of Comments Week; (12) Parking Cash Out; (13) trip reduction goal as determined by the The USEPA proposes to approve the Transportation Allowance; and, (14) State. ECO SIP revision submitted by the State Episodic Program. Each of these USEPA believes approval of the of Illinois. The State of Illinois has packages requires that a trained Illinois’ episodic Start-up package submitted a SIP revision that includes employee transportation coordinator be provides full flexibility in establishing a each of the ECO Program elements hired by the employer to develop and viable, longterm ECO Program in required by section 182(d)(1)(B) of the implement the package. USEPA believes Illinois. The Illinois Episodic Start-up amended Act. The SIP includes a that initial employer compliance plans package is a temporary, seasonal option verifiable estimate of the areawide AVO 10826 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules at the time that the SIP was submitted SIP approvals under section 110 and FOR FURTHER INFORMATION CONTACT: Pam and a target APO that is at least 25 subchapter I, part D of the Act do not Blumenthal, Mass Media Bureau, (202) percent above the areawide AVO. create any new requirements, but 418–2180. Employers with more than 100 simply approve requirements that the SUPPLEMENTARY INFORMATION: This is a employees are required to submit State is already imposing. Therefore, synopsis of the Commission’s Notice of compliance plans to the State that because the Federal SIP approval does Proposed Rule Making, MM Docket No. convincingly demonstrate that the plan not impose any new requirements, I 95–27, adopted February 9, 1995, and will increase the APO per vehicle in certify that it does not have a significant released February 23, 1995. The full text commuting trips between home and the impact on any small entities affected. of this Commission decision is available worksite during peak travel periods to a Moreover, due to the nature of the for inspection and copying during level not less than 25 percent above the Federal state relationship under the Act, normal business hours in the FCC’s areawide AVO for all such trips. preparation of a regulatory flexibility Reference Center (Room 239), 1919 M Employer notification was scheduled to analysis would constitute Federal Street, NW, Washington, D.C. The begin in January 1995. Registration inquiry into the economic complete text of this decision may also forms, APO surveys, and compliance or reasonableness of State action. The Act be purchased from the Commission’s maintenance plans will be required forbids USEPA to base its actions copy contractor, ITS, Inc., (202) 857– from employers 30, 90, and 240 days, concerning SIPs on such grounds. 3800, 2100 M Street, NW, Suite 140, respectively, following receipt of the Union Electric Co. v. U.S. E.P.A., 427 Washington, D.C. 20037. registration packet. Mailing of renewal U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. Provisions of the Regulatory notices will begin in January 1997. 7410(a)(2). Flexibility Act of 1980 do not apply to Substantial penalties that will provide List of Subjects in 40 CFR Part 52 this proceeding. an adequate incentive for employers to Members of the public should note comply and are no less than the Environmental protection, Air that from the time a Notice of Proposed expected cost of compliance are pollution control, Ozone. Rule Making is issued until the matter included in the regulation. USEPA is, Authority: 42 U.S.C. 7401–7671q. is no longer subject to Commission therefore, proposing to approve this Dated: February 10, 1995. consideration or court review, all ex submittal. Public comments are David A. Ullrich, parte contacts are prohibited in Commission proceedings, such as this solicited on the requested SIP revision Acting Regional Administrator. and on USEPA’s proposed rulemaking one, which involve channel allotments. [FR Doc. 95–4789 Filed 2–27–95; 8:45 am] action. Comments received by March See 47 CFR 1.1204(b) for rules 30, 1995 will be considered in the BILLING CODE 6560±50±P governing permissible ex parte contacts. development of USEPA’s final rule. For information regarding proper This action has been classified as a filing procedures for comments, see 47 FEDERAL COMMUNICATIONS Table 2 action by the Regional CFR 1.415 and 1.420. COMMISSION Administrator under the procedures List of Subjects in 47 CFR Part 73 published in the Federal Register on 47 CFR Part 73 January 19, 1989 (54 FR 2214–2225), as Radio broadcasting. revised by an October 4, 1993, memoran [MM Docket No. 95±27, RM±8582] Federal Communications Commission. dum from Michael H. Shapiro, Acting John A. Karousos, Radio Broadcasting Services; Yazoo Assistant Administrator for Air and City, Mississippi Chief, Allocations Branch, Policy and Rules Radiation. The Office of Management Division, Mass Media Bureau. and Budget (OMB) has exempted this AGENCY: Federal Communications [FR Doc. 95–4846 Filed 2–27–95; 8:45 am] regulatory action from Executive Order Commission. BILLING CODE 6712±01±F 12866 review. ACTION: Proposed rule. Nothing in this action should be SUMMARY: construed as permitting or allowing or The Commission requests DEPARTMENT OF DEFENSE establishing a precedent for any future comments on a petition filed by request for revision to any State Mississippi College, licensee of Station Defense Logistics Agency Implementation Plan. Each request for WHJT(FM), Channel 228A, Clinton, revision to any State Implementation Mississippi, proposing the deletion of 48 CFR Part 5416 Plan shall be considered separately in vacant Channel 229A at Yazoo City, light of specific technical, economic, Mississippi. Any party wishing to DLA Acquisition Regulation; Type of and environmental factors and in express an interest in Channel 229A Contracts Yazoo City, Mississippi, should file relation to relevant statutory and AGENCY: Defense Logistics Agency, DoD. their expression of interest by the initial regulatory requirements. ACTION: comment deadline specified herein. Proposed rule and request for Under the Regulatory Flexibility Act, comments. 5 U.S.C. 600 et seq., USEPA must DATES: Comments must be filed on or prepare a regulatory flexibility analysis before April 17, 1995, and reply SUMMARY: The Defense Logistics Agency assessing the impact of any proposed or comments on or before May 2, 1995. proposes to add coverage by adding a final rule on small entities. 5 U.S.C. 603 ADDRESSES: Federal Communications new part to 48 CFR Chapter 54, the and 604. Alternatively, USEPA may Commission, Washington, D.C. 20554. Defense Logistics Acquisition certify that the rule will not have a In addition to filing comments with the Regulation (DLAR) Part 5416. The significant impact on a substantial FCC, interested parties should serve the proposed coverage affects regulations on number of small entities. Small entities petitioner, or its counsel or consultant, the use of solicitation provisions and include small businesses, small not-for- as follows: Shaun A. Maher, Smithwick contract clauses for Economic Price profit enterprises, and government & Belediuk, P.C., 1990 M Street, NW, Adjustments (EPA). Comments are entities with jurisdiction over Suite 510, Washington, D.C. 20036 hereby requested on the proposed rule. populations of less than 50,000. (Counsel for petitioner). The proposed DLAR coverage expands Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10827 the use of EPA based on established clauses on that basis. FAR 16.203–1(c) interested parties. Comments will also prices to encompass industry-wide and and its related coverage recognize EPA be considered concerning the effect of geographically based market price references based only on indexes for the proposed rule on small entities in references, expands the use of EPA labor or materials. The proposed DLAR accordance with section 612 of the Act. based on indexes to encompass indexes coverage would expand this to include Such comments must be submitted for commercial products or services indexes for the same or similar separately and cite this case in which are identical or similar to the end commercial end products and authorize correspondence. products to be provided under the the development and use of clauses on contract, and authorizes the that basis. C. Paperwork Reduction Act development and use, subject to None of the three EPA types currently The proposed rules do not impose any established agency review and approval encompassed by the FAR are reporting or record keeping procedures, of clauses using EPA appropriate for many of the competitive requirements which require the references described above. The procurements of commercial products approval of OMB under 44 U.S.C. 3501, proposed coverage is being published undertaken by DFSC and other DLA et seq. contracting offices. The use of an EPA because it is expected to have an effect List of Subjects in 48 CFR Part 5416 beyond the internal operating reference based on an individual procedures of DLA and to provide an contractor’s established price or cost of Government procurement. opportunity for public participation and materials is impractical for Therefore, it is proposed that 48 CFR comment. procurements under which indefinite Chapter 54, as proposed in the Federal DATES: Comments on the proposed quantity contracts will be issued. Register (59 FR 21954, April 28, 1994) DLAR rule must be submitted in writing Unique EPA references for each offeror be amended by adding part 5416 to read to the address shown below on or before engender relative price variations as follows: May 1, 1995, to be considered in the during the delivery period, making it formulation of the final rules. impossible to determine the most PART 5416ÐTYPES OF CONTRACTS ADDRESSES: Interested parties should favorable offer at time of award. This Subpart 5416.2ÐFixed Price Contracts creates a significant price risk for the submit written comments to Defense 5416.203 Fixed-Price Contracts with Logistics Agency, Directorate of Government and undermines the competitive process. Use of an index Economic Price Adjustment Procurement, Contract Policy Team 5416.203–1 Description (AQPLL), Ms. Melody Reardon, based on raw material cost ignores the 5416.203–3 Limitations Cameron Station, Alexandria, Virginia effect of market conditions which affect 5416.203–4 Contract Clauses 22304–6100 FAX: (703) 274–0310. producer margins. This creates a price Authority: 5 U.S.C. 301, 10 U.S.C. 2202, 48 risk for the Government in periods FOR FURTHER INFORMATION CONTACT: CFR Part 1, subpart 1.3 and 48 CFR Part 201, Melody Reardon, Defense Logistics where margins are contracting and for subpart 201.3. Agency, AQPLL, (703) 274–6431. the contractors in periods where the margins are expanding. Such Subpart 5416.2ÐFixed Price Contracts SUPPLEMENTARY INFORMATION: fluctuations can be significant in petroleum markets. Given the need for 5416.203 Fixed Price Contracts with A. Background Economic Price Adjustment a common EPA reference, a reference The Defense Fuel Supply Center, a that more closely follows market prices 5416.203±1 Description. major contracting activity of DLA, has for the end item reduces price risk for (a)(S–90) Adjustments based on historically utilized a method of price both the Government and the contractor. adjustment in the bulk petroleum area established prices. Established prices Such references are also more in may reflect industry-wide and/or using price indexes for the same or conformance with commercial practice. similar end products (most recently, geographically based market price actual monthly sales price averages B. Regulatory Flexibility Act fluctuations for commodity groups, specific supplies or services, or contract published by the Department of Energy The proposed change is not expected end items. in the Petroleum Marketing Monthly) to have significant economic impact on (c)(S–90) Adjustments based on cost and using market price assessments for a substantial number of small entities indexes of labor or materials. These commercial products published in within the meaning of the Regulatory price adjustments may also be based on industry trade journals. For the past few Flexibility Act, 5 U.S.C. 601 et seq. The increases or decreases in indexes for years, these EPA clauses have either primary user of the new DLAR coverage commodity groups specific supplies or been approved by the Director, Defense will be the Defense Fuel Supply Center, services, or contract end items. Procurement, or authorized under which has been utilizing these types of individual deviations granted by the EPA references since the early 1980s. 5416.203±3 Limitations. Executive Director, Procurement, DLA. The proposed rule will therefore not (S–90) A fixed price contract with Deviations were requested because the represent a change for small entities economic price adjustment may also be types of EPA references used in these doing business with the DFSC. used to provide for price adjustments clause are not specifically recognized Flexibility is also limited by the need to authorized in this section. under the three general types of EPA establish a common EPA reference for references at FAR 16.203. Currently, competing offerors, as discussed above. 5416.203±4 Contract clauses. FAR 16.203–1(a) and its related Given this need, establishing the (S–90) When the contracting officer coverage and clauses, recognize EPA reference based on the same or similar determines that an existing EPA clause references based on established market end products as being provided under is not appropriate, the contracting or catalog prices of the individual the contract, as opposed to labor or officer may develop and use another contractor only. The proposed DLAR material costs, minimizes the price risk EPA clause in accordance with coverage will expand this to include experienced by small entities. An initial 5416.203–1 (a)(S–90) or (c)(S–90). industry-wide and geographically regulatory flexibility analysis has not Established prices in such clauses need specific market price assessments and been performed. Comments are invited not be verifiable using the criteria in 48 authorize the development and use of from small businesses and other CFR (FAR) 15.804–3. Established prices 10828 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules and cost indexes need not reflect changes in the costs or established prices of a specific contractor. The established price or cost index may be derived from sales prices in the marketplace, quotes, or assessments as reported or made available in a consistent manner in a publication, electronic database, or other form, by an independent trade association, Governmental body, or other third party independent of the contractor. More than one established price or cost index may be combined in a formula for economic price adjustment purposes in the absence of an appropriate single price or cost index. Dated: February 15, 1995. Margaret J. Janes, Assistant Executive Director (Procurement Policy). [FR Doc. 95–4574 Filed 2–27–95; 8:45 am] BILLING CODE 5000±04±M 10829 Notices Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 This section of the FEDERAL REGISTER determined that environmental impact the United States. The regulations set contains documents other than rules or statements need not be prepared. forth the procedures for obtaining a proposed rules that are applicable to the ADDRESSES: Copies of the environmental limited permit for the importation or public. Notices of hearings and investigations, interstate movement of a regulated committee meetings, agency decisions and assessments and findings of no rulings, delegations of authority, filing of significant impact are available for article and for obtaining a permit for the petitions and applications and agency public inspection at USDA, room 1141, release into the environment of a statements of organization and functions are South Building, 14th Street and regulated article. The Animal and Plant examples of documents appearing in this Independence Avenue SW., Health Inspection Service (APHIS) has section. Washington, DC, between 8 a.m. and stated that it would prepare an 4:30 p.m., Monday through Friday, environmental assessment and, when except holidays. Persons wishing to necessary, an environmental impact DEPARTMENT OF AGRICULTURE inspect those documents are requested statement before issuing a permit for the to call ahead on (202) 690–2817 to release into the environment of a Animal and Plant Health Inspection facilitate entry into the reading room. Service regulated article (see 52 FR 22906). FOR FURTHER INFORMATION CONTACT: Dr. Arnold Foudin, Deputy Director, In the course of reviewing each permit [Docket No. 95±009±1] Animal and Plant Health Inspection application, APHIS assessed the impact Service, Biotechnology, Biologics, and on the environment that releasing the Availability of Environmental Environmental Protection, organisms under the conditions Assessments and Findings of No Biotechnology Permits, 4700 River Road described in the permit application Significant Impact Unit 147, Riverdale, MD 20737–1237. would have. APHIS has issued permits AGENCY: Animal and Plant Health The telephone number for the agency for the field testing of the organisms Inspection Service, USDA. will change when agency offices in listed below after concluding that the Hyattsville, MD, move to Riverdale, MD, organisms will not present a risk of ACTION: Notice. during February. Telephone: (301) 436– plant pest introduction or dissemination SUMMARY: We are advising the public 7612 (Hyattsville); (301) 734–7612 and will not have a significant impact that five environmental assessments and (Riverdale). For copies of the on the quality of the human findings of no significant impact have environmental assessments and findings environment. The environmental been prepared by the Animal and Plant of no significant impact, write to Mr. assessments and findings of no Health Inspection Service relative to the Clayton Givens at the same address. significant impact, which are based on issuance and renewal of permits to Please refer to the permit numbers listed data submitted by the applicants and on allow the field testing of genetically below when ordering documents. a review of other relevant literature, engineered organisms. The SUPPLEMENTARY INFORMATION: The provide the public with documentation environmental assessments provide a regulations in 7 CFR part 340 (referred of APHIS’ review and analysis of the basis for our conclusion that the field to below as the regulations) regulate the environmental impacts associated with testing of the genetically engineered introduction (importation, interstate conducting the field tests. organisms will not present a risk of movement, and release into the Environmental assessments and introducing or disseminating a plant environment) of genetically engineered pest and will not have a significant organisms and products that are plant findings of no significant impact have impact on the quality of the human pests or that there is reason to believe been prepared by APHIS relative to the environment. Based on its findings of no are plant pests (regulated articles). A issuance and renewal of permits to significant impact, the Animal and Plant permit must be obtained before a allow the field testing of the following Health Inspection Service has regulated article may be introduced into genetically engineered organisms: Date Field test Permit No. Permittee issued Organisms location 94±284±01 ...... University of Chicago ...... 1±06±95 Arabidopsis thaliana plants genetically engineered to Illinois. express tolerance to the herbicide chlorsulfuron. 94±326±01 ...... University of Chicago ...... 1±06±95 Rapeseed plants genetically engineered to express ei- Illinois. ther a gene from Bacillus thurin-giensis subsp. kurstaki for resistance to lepidopteran insects or a gene from potato plants for resistance to chewing in- sects. 94±306±01 ...... Union Camp Corporation ... 1±26±95 American sweetgum trees genetically engineered to Georgia. express a gene for tolerance to the herbicide 2, 4±D. 94±326±03, renewal of per- Upjohn Company ...... 1±26±95 Tomato plants genetically engineered for resistance to Georgia. mit 94±055±01, issued on tomato spotted wilt virus. 4±13±94. 94±326±04, renewal of per- Upjohn Company ...... 1±26±95 Cucumber plants genetically engineered for resistance Michigan. mit 94±055±02, issued on to cucumber mosaic virus, watermelon mosaic virus 6±16±94. 2, and zucchini yellow mosaic virus. 10830 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices The environmental assessments and SUMMARY: The Chemical Weapons Atlanta, GA ...... April 6, 1995. findings of no significant impact have Convention (CWC) will directly affect a Oakland, CA ...... April 20, 1995. been prepared in accordance with: (1) significant number of private sector Newark, NJ ...... April 26, 1995. The National Environmental Policy Act chemical producers, consumers and Washington, DC ...... May 2, 1995. of 1969 (NEPA) (42 U.S.C. 4321 et seq.), processors. The CWC imposes Houston, TX ...... May 11, 1995. (2) Regulations of the Council on requirements on certain industrial Detroit, MI ...... May 18, 1995. Environmental Quality for facilities. Depending on the specific FOR FURTHER INFORMATION CONTACT: For Implementing the Procedural Provisions chemical, the CWC requires: registration materials and more • of NEPA (40 CFR parts 1500–1508), (3) Detailed reports of the quantities information on how the CWC affects USDA Regulations Implementing NEPA produced, processed, or consumed in your company, contact: Naomi Lopez, (7 CFR part 1b), and (4) APHIS your facilities; EAI Corporation, 2111 Eisenhower • Guidelines Implementing NEPA (44 FR Detailed production plans and site Avenue, Suite 302, Alexandria, VA 50381–50384, August 28, 1979, and 44 (plant) information; 22314–4679, Telephone: (800) 528–1041 • FR 51272–51274, August 31, 1979). Short-notice on-site inspections of or (703) 739–1033, Fax: (703) 739–1525. Done in Washington, DC, this 22nd day of industry facilities and records by Cathleen E. Lawrence, international inspection teams. February 1995. Director of Administration. Terry L. Medley, The key issues for U.S. chemical and related industry managers: [FR Doc. 95–3562 Filed 2–27–95; 8:45 am] Acting Administrator, Animal and Plant • BILLING CODE 6820±32±M Health Inspection Service. Compliance with CWC Requirements; [FR Doc. 95–4882 Filed 2–27–95; 8:45 am] • Protection of confidential/ BILLING CODE 3410±34±M proprietary business information; • Prevention of adverse publicity/ DEPARTMENT OF COMMERCE controversy; Economic Development ARMS CONTROL AND DISARMAMENT • Prevention of unnecessary costs/ Administration AGENCY production disruptions; • Inspection readiness; Notice of Petitions by Producing Firms U.S. Government Sponsored Chemical • Schedule for implementation. for Determination of Eligibility to Apply Weapons Convention (CWC); Seminars The U.S. Arms Control and for Trade Adjustment Assistance for the Chemical and Related Industry Disarmament Agency (ACDA) and the AGENCY: AGENCIES: Arms Control and Department of Commerce (DOC) are Economic Development Disarmament Agency (ACDA) and the sponsoring regional one-day seminars to Administration (EDA), Commerce. Department of Commerce (DOC). explain the CWC, the domestic draft ACTION: To Give Firms an Opportunity implementation legislation that is ACTION: ACDA and DOC will sponsor to Comment. currently being reviewed by the Senate, regional one-day seminars to explain the and their significance to U.S. industry. Petitions have been accepted for filing CWC and its significance for U.S. You are invited to attend one of the on the dates indicated from the firms industry. following: listed below. LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 01/19/95±02/15/95 Date Firm name Address petition Product accepted Ball Variometers, Inc ...... 6595 Odell Place, Suite C, Boulder, CO 12/20/94 VariometersÐElectrical Instruments for 80301. Aeronautical use. Kashier Specialties DBA Redford Coffee . 5302 E. Harbor Rd., P.O. Box 1430, 01/12/95 Textile Filters. Freeland, WA 98249. Binder Brothers Incorporated ...... 663 Grand Avenue, Ridgefield, NJ 07657 01/25/95 Jewelry. Electro Plasma, Inc ...... 4400 Martin-Moline Road, Millbury, OH 01/26/95 Information display panels which can be 43447. used as a replacement for CRT's. Silver Cloud, Inc ...... 2417 Baylor, Southeast, Albuquerque, 02/01/95 Jewelry. NM 87106. Water & Power Technologies, Inc ...... 3740 West 1987 South, Salt Lake City, 02/02/95 Reverse osmosis equipment for the pur- UT 84127±0836. pose of filtrating and dionizing water for purification. Interplex Electronics, Inc ...... 70 Fulton Terrace, New Haven, CT 02/06/95 Breadboards, Electronic Trainers and 06512. Custom Electronic Trainers. Orscheln Co. (including Elisha Tech- 1177 N. Morley, Moberly, MO 65270 ...... 02/08/95 Levers, Cables, Fittings and Plating. nologies Co.). Jilarous, Inc ...... 35 West 36th Street, New York, NY 02/10/95 JewelryÐEarrings. 10018±7906. Geophysical Survey Systems, Inc ...... 13 Klein Drive, North Salem, NH 03073 .. 02/13/95 Subsurface Interface Radar Systems. Harrington Mold/California Pony Cars ...... 1906 Quaker Ridge, Ontario, CA 91761 .. 02/13/95 Production Molds and Auto PartsÐMir- rors, Horns, Bracket, Insignia, etc. Nulco Manufacturing Corporation ...... 30 Beecher St., Pawtucket, RI 02862 ...... 02/15/95 Chandeliers. Klein Bicycle Corporation ...... 118 Klein Road, Chehalis, WA 98532 ..... 02/17/95 Bicycle Frames. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10831 The petitions were submitted 1992, through September 30, 1993. response, the ITC notified the pursuant to Section 251 of the Trade Act Interested parties were invited to Department that consultations between of 1974 (19 U.S.C. 2341). Consequently, comment on the preliminary affirmative the Department and the ITC regarding the United States Department of determination of circumvention. We the Department’s preliminary Commerce has initiated separate received comments from only one party, determination were unnecessary. investigations to determine whether supporting the Department’s The Department has now completed increased imports into the United States preliminary affirmative determination of this inquiry in accordance with section of articles like or directly competitive circumvention. The findings of the 781(a) of the Tariff Act. with those produced by each firm preliminary determination remain Scope of Antidumping Duty Order contributed importantly to total or unchanged; as a result, we have partial separation of the firm’s workers, determined that the respondent, Grupo The product covered by the order is or threat thereof, and to a decrease is Camesa S.A. de C.V. and its United steel wire rope, which is defined in the sales or production of each petitioning States affiliate, Camesa Inc. Department’s antidumping duty order firm. (collectively, Camesa), are on steel wire rope from Mexico as: Any party having a substantial circumventing the order and that steel ‘‘ropes, cables, and cordage of iron or interest in the proceedings may request wire strand produced in Mexico by carbon steel, other than stranded wire, a public hearing on the matter. A Camesa and imported into the United not fitted with fittings or made up into request for a hearing must be received States for use in the production of steel articles, and not made up of plated by the Trade Adjustment Assistance wire rope falls within the scope of the wire.’’ Division, Room 7023, Economic antidumping duty order on steel wire During the period of this inquiry Development Administration, U.S. rope from Mexico. (POI), such merchandise was classifiable under subheadings Department of Commerce, Washington, EFFECTIVE DATE: February 28, 1995. 7312.10.9030, 7312.10.9060, and D.C. 20230, no later than the close of FOR FURTHER INFORMATION CONTACT: 7312.10.9090 of the Harmonized Tariff business of the tenth calendar day Wendy Frankel, Office of Antidumping Schedule (HTS). HTS subheadings are following the publication of this notice. Compliance, Import Administration, provided for convenience and for The Catalog of Federal Domestic International Trade Administration, Customs purposes. The Department’s Assistance official program number and U.S. Department of Commerce, 14th written description of the scope of the title of the program under which these Street and Constitution Avenue, N.W., order remains dispositive. petitions are submitted is 11.313, Trade Washington, D.C. 20230, telephone: Adjustment Assistance. (202) 482–5253. Scope of the Circumvention Inquiry Dated: February 15, 1995. SUPPLEMENTARY INFORMATION: Products subject to this Lewis R. Podolske, circumvention inquiry are entries of Background Acting Director, Trade Adjustment Assistance strand, which are defined as stranded Division. On June 3, 1994, the Department wire having a lay or twist of not more [FR Doc. 95–4899 Filed 2–27–95; 8:45 am] published in the Federal Register (59 than one revolution for a length equal to BILLING CODE 3510±24±M FR 29176) a preliminary affirmative the strand diameter multiplied by 8.5. determination that imports into the During the inquiry, such merchandise United States of steel wire strand from was classifiable under subheading International Trade Administration Mexico were circumventing the order 7312.10.3020 of the HTS. The HTS on steel wire rope within the meaning subheading is provided for convenience [A±201±806] of section 781(a) of the Tariff Act of and for Customs purposes. The Steel Wire Rope From Mexico; 1930, as amended (the Tariff Act), and Department’s written description of the Affirmative Final Determination of 19 CFR 353.29(e), and a subsequent scope of the inquiry remains Circumvention of Antidumping Duty finding that the imported product dispositive. Order subject to the inquiry, steel wire strand manufactured in Mexico, fell within the Nature of the Circumvention Inquiry AGENCY: Import Administration, order. Pursuant to this determination, As set forth in our preliminary International Trade Administration, the Department instructed the U.S. determination, we examined whether Department of Commerce. Customs Service (Customs) to suspend (A) steel wire rope sold in the United ACTION: Notice of affirmative final liquidation of, and require cash deposits States is of the same class or kind as determination of circumvention of on entries of, the imported product, merchandise that is subject to the order; antidumping duty order. steel wire strand, manufactured in (B) such steel wire rope sold in the Mexico. Interested parties were invited United States is completed or assembled SUMMARY: On June 3, 1994, the to comment on this preliminary in the United States from parts or Department of Commerce (the determination. We received comments components (i.e., steel wire strand) Department) preliminarily determined from the petitioner, the Committee on produced in Mexico, the foreign country that imports into the United States of Domestic Steel Wire Rope and Specialty with respect to which such order steel wire strand from Mexico, which Cable Manufacturers (the Committee), applies; and (C) the difference between are assembled in the United States into on July 5, 1994, supporting the the value of such steel wire strand steel wire rope for sale in the United Department’s preliminary affirmative reffered to in (B) above, is small. Section States, were circumventing the determination of circumvention. No 781(a)(2) of the Tariff Act further antidumping duty order on steel wire other party submitted comments. provides that, in determining whether to rope from Mexico. The inquiry into the In accordance with section 781(e) of includes parts or components in an possible circumvention of this order the Tariff Act, the Department also antidumping duty order, the covers one Mexican manufacturer/ notified the International Trade Department shall take into account such exporter of the subject merchandise, and Commission (ITC) of its preliminary factors as (A) pattern of trade; (B) a related party in the United States. This determination that the imported product whether the manufacturer or exporter of inquiry covers the period October 1, fell within the scope of the order. In the parts or components is related to the 10832 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices person who assembles or completes the same class or kind of merchandise as information disclosed under APO in merchandise sold in the United States that subject to the order, and is accordance with 19 CFR 353.34(d). from the parts or components produced completed from an intermediate product Failure to comply is a violation of the in the foreign country with respect to produced in Mexico, the country to APO. which the order applies; and (C) which the order applies. Further, based This final affirmative determination of whether imports into the United States on BIA, we determine that the circumvention is in accordance with of the parts or components produced in difference in value between the section 781(a) of the Tariff Act (19 such foreign country have increased imported and finished products is U.S.C. 1677j(a)) and 19 CFR 353.29(e). after issuance of such order. small. We also determine that the Dated: February 17, 1995. pattern of trade, increase in imports of I. Statutory Criteria Susan G. Esserman, the intermediate product, and Assistant Secretary for Import Class or Kind, U.S. Assembly From relationship between Grupo Camesa and Administration. Components Produced in the Foreign Camesa Inc., are consistent with an [FR Doc. 95–4900 Filed 2–27–95; 8:45 am] Country, and Difference In Value affirmative determination of circumvention. We note that our BILLING CODE 3510±DS±M Neither the Committee nor Camesa analysis of the difference in value and challenged our preliminary resulting determination of ‘‘small’’ in determination that the steel wire rope National Institute of Standards and this case are not necessarily Technology sold in the United States was of the synonymous with such determinations same class or kind of merchandise as that the Department will formulate in [Docket No. 950124027±5027±01] that subject to the order and that the future circumvention inquiries since RIN 0693±AB38 subject steel wire rope was processed in Congress has directed us to make the United States from steel wire strand determinations regarding the difference Intent To Develop a Federal produced in Mexico, the country to in value on a case-by-case basis. Information Processing Standard which the antidumping duty order Based on this final affirmative (FIPS) for a Data Standard for Record applies. In addition, neither the determination of circumvention, we Description RecordsÐRequest for Committee nor Camesa challenged our have determined that steel wire strand, Comments preliminary determination, based on the when manufactured in Mexico by best information available (BIA), that Camesa and imported into the United AGENCY: National Institute of Standards the difference between the value of the States for use in the production of steel and Technology (NIST), Commerce. wire strand produced in Mexico and the wire rope, falls within the scope of the ACTION: Request for comments. value of the steel wire rope sold in the antidumping duty order on steel wire United States is small within the SUMMARY: NIST is considering the rope from Mexico. We will inform development of a Federal Information meaning of section 781(a) of the Tariff Customs of this decision, and will Act. Therefore, we affirm our Processing Standard (FIPS) for the data instruct it to continue to suspend elements which, when taken together, preliminary determination regarding liquidation of, and require cash these three criteria. will describe information objects of deposits, at the applicable rate, on many different kinds, both electronic II. Factors entries of steel wire strand and non-electronic. The standard would manufactured in Mexico by Camesa. apply to a wide range of information- Subsequent to our preliminary No suspension of liquidation or creating software products. It would determination, we did not request collection of cash deposits is required apply also to document management additional information regarding the for steel wire strand produced by other and object repository software products. pattern of trade, the relationship manufacturers in Mexico. In addition, Federal agencies would use the standard between the parties, and the volume of no suspension of liquidation or in specifying many software products imports of steel wire strand. Neither collection of cash deposits is required used to create documents or information party challenged our preliminary for steel wire strand produced by objects (e.g., electronic mail systems), determination regarding these factors. Camesa in Mexico that enters with an and also when specifying document or Based on our analysis of these factors, end-use certificate certifying that the we affirm our preliminary object storage and management software steel wire strand will not be used for products. This notice uses the word determinations that (A) the data on the processing into steel wire rope. pattern of trade indicate a shift from ‘‘record’’ as a broadly-encompassing However, if this documentation is not term to include ‘‘documents’’ and sales in the United States of steel wire presented at the time of entry, the rope produced in Mexico toward sales ‘‘objects,’’ regardless of media or merchandise produced by Camesa application. of steel wire rope processed in the should be subject to the applicable cash The framework for this proposed FIPS United States from steel wire strand deposit requirement. was developed by a working group of produced in Mexico; (B) respondents Interested parties should be advised the interagency Integrated Services are related parties; and (C) imports of that data and statements supporting the Panel, under the Federal Information steel wire strand into the United States exclusion of steel wire strand from this Resources Management Policy Council. increased subsequent to the issuance of antidumping duty order are subject to NIST solicits comments on the scope, the antidumping duty order. verification by the United States purpose, background, and rationale for Final Affirmative Determination of Government. the proposed standard, and on certain Interested parties may request Circumvention technical issues. After analyzing the disclosure within five days of the date comments, NIST may propose a FIPS for Based on the foregoing analysis, we of publication of this notice. determine that the respondent, Camesa, This notice serves as the only review and comment. is circumventing the antidumping duty reminder to parties subject to DATES: Comments on this effort must be order on steel wire rope from Mexico. administrative protective order (APO) of received on or before May 30, 1995. The merchandise produced in the their responsibilities concerning the ADDRESSES: Written comments should United States, steel wire rope, is of the return or destruction of proprietary be sent to: Director, Computer Systems Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10833 Laboratory, ATTN: Data Standard for Terminology legal proceedings and support their Records Description, Technology transfer to the National Archives should 1. Record Building, Room B154, National Institute such transfer be required. of Standards and Technology, The computer industry is developing Federal Government agencies will be Gaithersburg, MD 20899. a new class of information technology procuring record management products, products designed to organize, store, Written comments received in both COTS and non-COTS, some of retrieve, and manage such electronic which will be stand-alone and some of response to this notice will be made part expressions of information as textual which will be integrated with such of the public record and will be made memos and reports, sound recordings, creation software as word processing, e- available for inspection and copying in scanned images, and computer software. mail, and workgroup computing. Thus, the Central Reference and Inspection As a group, the information expressions the possible interfaces between the Facility, Room 5020, Herbert C. Hoover are called ‘‘documents,’’ or ‘‘objects.’’ software used to create records and the Building, 14th Street between The latter tends to be a broader term, to software used to store and retrieve them Pennsylvania and Constitution include computer software. Both my can very from many different packages Avenues, N.W., Washington, DC 20230. include sound recordings, images, and bought from many different vendors in FOR FURTHER INFORMATION CONTACT: what are being called ‘‘compound many different procurements, to a single documents’’ and ‘‘multimedia’’ Mr. Bruce K. Rosen, National Institute of integrated suite of software bought at documents or objects. The products one time in one procurement from one Standards and Technology, Technology being developed are usually called contractor. Building, Room A–266, Gaithersburg, object repositories or document This proposed standard would enable MD 20899, (301) 975–3246, Internet repositories or document management Federal agencies to avoid reinventing in mail [email protected]. systems or document storage and every procurement or system SUPPLEMENTARY INFORMATION: The retrieval systems. installation the identification data for Computer Systems Laboratory of the 2. Record Management System messages, letters, images, etc., and the way that data is recorded and arranged. National Institute of Standards and Throughout this notice, the term Technology is considering the It will avoid the necessity for suppliers ‘‘record management system’’ is used of software products to customize their development of a Federal Information broadly to include all software products Processing Standard (FIPS) for the data products differently for different Federal intended to store, retrieve, and manage agencies, or for Federal agencies to elements—their identification, electronic documents and information representation, arrangement, and object engage individually in complex objects. It is intended to encompass integration efforts and to develop binding—to describe information such products as those that are called objects. Such objects include but are not agency-unique solutions to a ‘‘object repository,’’ ‘‘document requirement common to all. limited to electronic mail messages, repository,’’ ‘‘document manager,’’ and word processing documents, ‘‘document storage and retrieval Issues spreadsheets, forms, voice-mail system.’’ These products may be stand- 1. Basic Architecture and Applicability messages, images, and publications. alone or they may be integrated with This notice refers to all such objects other products in an office suite. They The Record Description Record (RDR) with the single term ‘‘record’’ as a may have their own directory, or they is a set of descriptive attribute that are generic term to encompass documents, may share directory services with other identified, arrange, and bound in a messages, and information objects of all software products with which they are prescribed manner to whatever is being kinds. integrated. What distinguishes them is described. The attributes are sometimes The set of data elements will their functionality of receiving referred to as metadata, because they constitute a Record Description Record documents or information objects— identify and describe the record, and (RDR). The RDR will be created what this notice calls ‘‘records’’, storing may or may not be a part of it. The RDR whenever e-mail messages, word them for future retrieval, use, and is itself called a record because it a processing documents, image disposition, and also managing their logically-related set of discrete data documents, spreadsheet documents, integrity, access, and life-cycles. elements. Whenever a record is created using a voice-mail messages, etc., are created, Background, Purpose and Rationale computer, the creating software would using either commercial-off-the-shelf be expected to generate a corresponding (COTS) software products or non-COTS Like many private sector enterprises, Federal Government agencies are re- RDR. That RDR would be passed to a software. It will accompany those engineering their programs, missions record management system along with information objects when they are and administrative activities to perform the record itself. For records created and passed to a document management them faster, better, and at less cost. In stored outside the computer (storage and retrieval) or object general, this means replacing paper- environment, e.g., non-electronic repository product (either COTS or non- based processes with electronic, records or electronic records stored ‘‘off- COTS), or when they are passed to some computer-based workflows. Examples line,’’ the RDR information may be other software being used to store and include the electronic commerce entered manually into a record retrieve them. programs, and electronic submission of management system, thereby using the By applying the standard to document regulatory reports and filings. system to manage records in general, management or object repository As activities are migrated from paper without restriction as to the record software products, it will become to electronic workflows, transactions, media. In essence, the FIPS would be possible to use these products to and submissions, information objects specifying a standard record to be used manage non-electronic records stored pass between different software to describe other records of many externally in addition to the electronic environments. Those records must be different kinds. information objects stored in and under identified and described not only to The RDR is envisioned as comprising the control of the document support search and retrieval, but also to three sets of data elements. The first is management or repository products. substantiate their trustworthiness in a small set that wou8ld be mandatory in 10834 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices all RDRs and would apply universally to one place, a standard for data element from e-mail, word processing, voice- all records, regardless of their nature or identification and arrangement and for mail, electronic commerce, etc., it will content. The second is a small set that object binding may not be needed, and be receiving different RDRs depending would be mandatory for certain classes when adopted might not necessarily on which package created the record, of records, or conditions that apply to apply. However, the RDR information and perhaps also on the kind of record them. An example would be records content would still be necessary. When being stored. Thus, the format of the sent electronically from one party to a record is transferred out of a record RDR must be standardized in a fashion another, as contrasted with those that management system, to either another analogous to a message header or a file are printed and communicated by hand, record management system or to the label. Because there are many possible mail, messenger, or facsimile. The third National Archives, the accompanying ways of formatting RDRs, the lack of a is a potentially large set of optional data RDR would have to be bound according standard format would result in the elements to be specified by individual to the standard. creating software packages putting out agencies. Both implementors of software RDRs that record management systems This approach would yield a single products that create records and might not understand. RDR standard that would prescribe how implementors of record management Comments are desired on how the the data elements are identified, system software products are asked to RDR should be formatted, and how data arranged, and represented, and how the comment on how binding should be elements should be identified and RDR for an electronic record is to be accomplished, and why. Prospective represented, and why. Prospective bound to the record it describes. It implementors are invited to propose implementors are invited to propose presents two issues on which public specification language. specification language. comment is desired. One is whether it 3. E-Mail Receipt Data 5. Universal Mandatory Elements is reasonable to establish a single RDR standard for all applications, e.g., word Just the conduct of electronic In general, these elements will processing, e-mail, voice-mail, commerce and regulatory activities—let address the questions of (a) what kind groupware, etc. The second is whether alone intra-agency and inter-agency of record it is, or what software was the three-level specification of data communications—requires that agencies used to create it; (b) which individual or elements is appropriate. keep data about the origin and receipt organization created it; (c) when it was of electronic transactions and created; (d) what it deals with; and (e) 2. RDR Binding submissions. Much of that data is what unique identifier(s) has been given There must be some binding between generated internally by e-mail software to it. With respect to these and all other an electronic record and the RDR that packages. data elements, relevant existing FIPS for describes it. Because of the different The treatment of e-mail receipt data data element representations would be ways in which record management poses a special binding case. An e-mail expected to be used. Representation systems work, the actual RDR contents message may be sent to one or more standards would be established only for are likely to be handled differently, receivers, who may receive it at those elements for which such Federal stored differently, and used differently different times, or not at all. At some standards do not presently exist. in the various proprietary products. The point, the e-mail system may transfer Comments are solicited on the RDR contains the kind of descriptive the message and its accompanying data specific data elements that should be data that these systems put in their from its own message store to a record considered to be universal and directories, if they have directories. To management system. If some receipt mandatory. Their selection criteria are a great degree, the RDR may be viewed data for that message is generated in the (1) their importance in record as being a support to or enhancement of e-mail system after the message to identification and description, and (2) the directory functions of those record which it applies has been transferred their applicability across the broad management systems that have out, there is a question about what the spectrum of software used to create directories. e-mail system should do with that records of different kinds. Record management systems need to subsequent receipt data. It could, of 6. Conditional Mandatory Elements know how the RDRs for electronic course, be purged by the e-mail system. records will be delivered to them— Alternatively, it could be put into an Conditional mandatory elements are whether they will come as physically RDR and passed out to the record those that would be prescribed for separate records, as headers, or as management system. If put into an RDR records based on such characteristics as trailers. If this aspect is not and passed out, the record management their application of origin, their storage standardized, then software products system would need to link it to the media or location, or some statutory or that create records would be free to message to which it applies, and for regulatory requirement. The condition create the corresponding RDRs in any which one or more RDRs already exist. of greatest immediate concern is way whatsoever. A standard approach Both implementors of e-mail software electronic communication, where the could be established by which an RDR and implementors of a record storage process of communication adds its own is bound to what it describes, so that software are asked to comment on how dimensions of time and place. Examples record management system products this issue might be resolved, and are would be electronic mail, file transfer, can accept records from any source and invited to propose specification and the many other applications that understand their accompanying RDRs. language to address it. exist at the application layer of a multi- The RDR standard is seen as essential layer data communications reference to support a Federal agency’s mix-and- 4. Data Element Identification model. match of software products from The RDR will be a set of data As mentioned above, electronic different vendors. However, in the case elements. A standard mechanism must commerce and electronic submission of of integrated office suites where the be established to identify the elements regulatory reports and filings necessitate passing of a record from the creating that are present, because the record will the inclusion of ‘‘transmission’’ data in software to the storing/retrieving be a combination of mandatory and the RDR for an electronic mail message. software is handled internally or where optional data elements. If a record It is expected that these activities will the record is created and stored in just management system is receiving records necessitate a comparable requirement in Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10835 such other communications-based ACTION: Notice of partially closed examination and discussion of the applications as file transfers and meeting. budget for the Institute may be closed in electronic data interchange transactions. accordance with Section 552(b)(9)(B) of Thus far, all that is reasonably certain is SUMMARY: Pursuant to the Federal Title 5, United States Code, since the that some data that is generated Advisory Committee Act, 5 U.S.C. app. meeting is likely to disclose financial internally by e-mail systems or created 2, notice is hereby given that the information that may be privileged or by message originators—e.g., the National Institute of Standards and confidential. identities of message originators, Technology Visiting Committee on Advanced Technology will meet on Dated: February 22, 1995. identities of receivers, the date and time Samuel Kramer, of origination, and/or the date and time Tuesday, March 14, 1995, from 10:45 Associate Director. of receipt—must be bound to the a.m. to 5:00 p.m., and on Wednesday, message in the RDR. That is a relatively March 15, 1995, from 8:30 a.m. to 10:00 [FR Doc. 95–4856 Filed 2–27–95; 8:45 am] small set of data elements. However, a.m. The Visiting Committee on BILLING CODE 3510±13±M two important questions surround it. Advanced Technology is composed of The first is which of those elements nine members appointed by the Director National Oceanic and Atmospheric should be mandatory and which of the National Institute of Standards Administration optional, and the second is whether and Technology who are eminent in those mandatory elements should apply such fields as business, research, new to all applications. product development, engineering, [I.D. 021495C] labor, education, management Comments are desired on both of consulting, environment, and New Bedford Harbor Trustee Council; these questions, as well as on the international relations. The purpose of Scoping Meetings mandatory descriptive elements that this meeting is to review and make should apply to voice-mail, scanned AGENCIES: National Marine Fisheries recommendations regarding general Service (NMFS), National Oceanic and image documents, compound policy for the Institute, its organization, documents, and multimedia documents. Atmospheric Administration (NOAA), its budget, and its programs within the Commerce; and Office of Environmental 7. Optional Elements framework of applicable national Policy and Compliance, U.S. policies as set forth by the President and Department of the Interior (DOI). Optional elements may be associated the Congress. On Tuesday, March 14, with records such as e-mail messages 1995, presentations will be given on the ACTION: Notice of intent to prepare an that are common across many Federal Board on Assessment of NIST Programs’ environmental impact statement (EIS); agencies, or they may be associated with annual report; the Applied Technology request for comments. common descriptive characteristics Program focus report on Materials such as case number or client number, SUMMARY: NMFS, acting as Processing for Heavy Manufacturing; the Administrative Trustee, and DOI or they may be unique to a particular National Quality Award’s pilot agency. Some common elements may be announce the intention of the New programs in healthcare and education; Bedford Harbor Trustee Council candidates for standardization, but that and national and international is not an issue in this context. (Council) to prepare an EIS for a standards. A discussion on the proposed plan to address the restoration What is of principal concern with Institute’s budget, including funding of of natural resources that have been respect to the RDR is the production of the Applied Technology Program and injured by the release of hazardous optional elements by the information staffing of management positions at substances, including polychlorinated creation software, and their acceptance NIST, scheduled to begin at 10:45 a.m. biphenyls (PCBs), in the New Bedford by the record management system. The and to end at 11:45 a.m. on March 14, Harbor environment. The Council also data element identification standard 1995, will be closed. On Wednesday, announces its initiation of a public discussed above should cover the aspect March 15, 1995, the committee members process to determine the scope of issues of identifying each optional element will tour the molecular measurement under consideration. The purpose of that is present in an RDR, but questions laboratory. this notice is to inform the public of this remain concerning the number of DATES: The meeting will convene March process and of the opportunity to optional elements that a record 14, 1995, at 8:30 a.m. and will adjourn participate in the development of the management system must be able to at 10:00 a.m. on March 15, 1995. restoration plan/EIS. All persons accept, and what specifications should ADDRESSES: The meeting will be held in affected by, or otherwise interested in, apply to information creation software Lecture Room A, Administration the proposed restoration plan are for the creation of the optional elements. Building, National Institute of Standards invited to participate in determining the Comments are solicited on these, and and Technology, Gaithersburg, scope of significant issues to be any other aspects of optional data Maryland. considered in the EIS by submitting elements in RDRs. FOR FURTHER INFORMATION CONTACT: written comments or by attending Dated: February 22, 1995. Chris E. Kuyatt, Visiting Committee scoping meetings. The scoping process Samuel Kramer, Executive Director, National Institute of will identify and prioritize alternatives Associate Director. Standards and Technology, for potential restoration activities. [FR Doc. 95–4855 Filed 2–27–95; 8:45 am] Gaithersburg, MD 20899, telephone DATES: The Council will hold scoping number (301) 975–6090. BILLING CODE 3510±CN±M meetings in each of the affected SUPPLEMENTARY INFORMATION: The communities within the New Bedford Assistant Secretary for Administration, Harbor environment. The scoping Visiting Committee on Advanced with the concurrence of the General meetings are scheduled as follows: Technology Counsel, formally determined on 1. February 28, 1995, 6:30 p.m.–9 February 7, 1995, that portions of the p.m., New Bedford, MA AGENCY: National Institute of Standards meeting of the Visiting Committee on 2. March 1, 1995, 6:30 p.m.–9 p.m., and Technology, DOC. Advanced Technology which involve North Dartmouth, MA 10836 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 3. March 8, 1995, 6:30 p.m.–9 p.m., into the Acushnet River estuary and Federal Trustees for natural resources. Acushnet, MA Buzzards Bay and indirectly via the Federal Trustees are designated because 4. March 9, 1995, 6:30 p.m.–9 p.m., municipal wastewater treatment system. of their statutory responsibilities for Fairhaven, MA PCBs are considered to be human protection and/or management of ADDRESSES: The meetings will be held at carcinogens that can be introduced natural resources, or management of the following locations: through the eating of contaminated fish federally owned land. In addition, the 1. New Bedford—New Bedford and shellfish. PCBs found at high governors of each state are required to Whaling Museum, 18 Johnny Cake Hill, concentration may be released into the designate a state Trustee. The Trustees’ New Bedford, MA 02740 air for further deposit on surfaces responsibilities include assessing 2. North Dartmouth—University of affecting vegetation. PCBs are damages from the release of hazardous Massachusetts/Dartmouth, Old Westport concentrated in fish and shellfish substances, pursuing recoveries of both Road, North Dartmouth, MA 02714 through the process of biomagnification damages and costs, and using the sums 3. Acushnet— Acushnet Elementary in which fish and shellfish eat smaller to restore, replace, or acquire the School, 80 Middle Road, Acushnet, MA organisms such as plankton, and the equivalent of the resources that were 02743 PCBs within the smaller organisms are injured by the release. 4. Fairhaven—Hastings Middle retained in the tissue of the larger In 1983, the Federal and state trustees School, 30 School Street, Fairhaven, MA organism. Subsequent exposure further filed complaints in Federal District 02719 accumulates the PCBs in these tissues. Court in Boston alleging causes of action Additional meetings will be PCBs can also have adverse effects on under CERCLA against the electronics announced as they are scheduled. natural resources particularly birds and manufacturers for injuries to natural Public hearings will be scheduled upon higher mammals. Birds exposed to PCBs resources under their trusteeship that completion of the Draft EIS. Send have exhibited reproductive failure and had resulted from releases of hazardous written comments on the scoping birth defects. Some shellfish species substances, including PCBs. The process and scope of the EIS to Jack will die after exposure to even small eventual outcome of the complaints was Terrill, Coordinator, New Bedford concentrations of PCBs. Some fish monetary settlement agreements with Harbor Trustee Council, National species can have relatively high defendants to: (1) Fund the cleanup of Marine Fisheries Service, 1 Blackburn concentrations without serious effect the harbor by EPA, (2) restore the Drive, Gloucester, MA 01930–2298, or but pose a danger when eaten by other natural resources by the Trustees, and fax number 508–281–9301. natural resources such as birds. (3) reimburse the governments for funds Between 1974 and 1982, a number of expended. FOR FURTHER INFORMATION CONTACT: Jack environmental studies were conducted The Council was created as a result of Terrill, Coordinator, 508–281–9136. to assess the magnitude and extent of the settlement agreements. There are SUPPLEMENTARY INFORMATION: contamination by PCBs and heavy three natural resource trustees on the New Bedford Harbor is an urban tidal metals in New Bedford Harbor. These Council representing Commerce, DOI, estuary on the western shore of studies showed PCB contamination in and the Commonwealth of Buzzards Bay, MA, situated between the marine sediment over a 985–acre area to Massachusetts. The Secretary of City of New Bedford on the west and the range from a few parts per million Commerce has delegated trustee towns of Fairhaven and Acushnet on the (ppm) to over 100,000 ppm. Portions of responsibility to NOAA, with NMFS east, with the Acushnet River flowing western Buzzards Bay are also having responsibility for restoration. into the harbor from the north. The area contaminated with sediment PCB The Secretary of the Interior has contains approximately 6 square miles concentrations in excess of 50 ppm. delegated trustee responsibility to the (15.54 square kilometers) of open water, Water-column concentrations were Regional Office of Policy and tidal creeks and salt marshes. found in excess of Federal ambient Compliance. The Governor of New Bedford Harbor is an active port water quality criteria (0.030 ppm based Massachusetts has delegated trustee frequented by both commercial and on chronic impacts to marine responsibility to the Executive Office of recreational fishing vessels, as well as organisms). Fish and shellfish PCB Environmental Affairs. These are the merchant vessels delivering produce for concentrations were found in excess of only Trustees having identified trust distribution throughout the Northeast. the U.S. Food and Drug Administration responsibilities for natural resources For many years, the commercial tolerance limit (2 ppm for edible tissue). present in the New Bedford Harbor landings of predominantly scallops and To reduce the potential for human environment. groundfish species resulted in either the exposure to PCBs, the Massachusetts The Trustees are required to develop highest or second highest value of any Department of Public Health closed a restoration plan before settlement port in the country. Historically, much of the New Bedford Harbor area money can be spent on restoration approximately 300 to 400 commercial to fishing or fishing for selected species projects. Such a plan will include a fishing vessels have landed in the port with the establishment of three closure range of projects including near-term each year. Located along the shores of areas on September 25, 1979. New restoration efforts though restoration the harbor are support services for the Bedford Harbor was added to EPA’s may continue for 10 to 15 years or more. fishing industry (ice, fuel, provisions, Superfund National Priorities List in The Trustees primary task is to etc.) and manufacturing facilities, as July 1982 and was simultaneously determine how best to restore the well as residential neighborhoods. identified as the Commonwealth of injured natural resources and the Also situated along the shore were Massachusetts’ priority Superfund site. Trustees are seeking the assistance of electronic manufacturers which were Executive Order 12580 and the the public in this process. There are major users of PCBs from the time their National Contingency Plan, which is the many projects that can be done to operations commenced in the late implementing regulation for the restore the injured natural resources but 1940’s until 1977, when the Comprehensive Environmental there are also limited funds with which Environmental Protection Agency (EPA) Response, Compensation, and Liability to accomplish this. By incorporating the banned the use and manufacture of Act (CERCLA), designates the public in the process and by developing PCBs. These industries discharged Secretaries of Agriculture, Commerce, a formal restoration plan, there is greater wastewaters containing PCBs directly Defense, Energy, and Interior to be likelihood of success and acceptance. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10837 Federal actions require adherence to The Council will convene at 8:30 a.m. Atmospheric Administration (NOAA), the National Environmental Policy Act. and recess at 5:30 p.m., 8:45 a.m. to 4:00 Commerce. This Act requires the development of an p.m.—Receive public testimony on the ACTION: environmental assessment or an EIS red grouper size limit and the harvest of Notice of public meetings. which analyzes the effects of the ‘‘live rock’’ off Florida (NOTE: proposed Federal action(s) on the Testimony cards must be turned in to SUMMARY: The Mid-Atlantic Fishery environment. This notice initiates the staff before the start of public Management Council (Council) and its process of developing an EIS. testimony); Demersal Species Committee, Alternatives developed though this 4:00 p.m. to 5:30 p.m.—Amendment 3 Information and Education Committee, process will be included in the EIS as to the Fishery Management Plan for and Coastal Migratory Committee will well as an analysis of their potential Coral and Coral Reefs. hold public meetings on March 14–16, impacts on the environment. March 16, 1995 1995, at the Holiday Inn City Centre, The Trustees have scheduled four 8:30 a.m. to 9:30 a.m.—Receive 1800 Market Street, Philadelphia, PA meetings to initiate this process. The reports of the Mackerel Management 19103; telephone 215–561–7500. On purpose of these meetings is to Committee; March 14, the Demersal Species 9:30 a.m. to 11:30 a.m.—Receive introduce the public to the Trustee Committee will meet from 10:00 a.m. to reports of the Reef Fish Management Council, define the Council’s role and 4:00 p.m. and the Information and responsibilities, explain what Committee; 11:30 a.m. to 2:00 p.m.—Receive the Education Committee will meet from restoration means and the legal ICCAT Meeting Report, SAFMC Liaison 4:00 to 5:00 p.m. On March 15, the requirements that must be followed: Report, Enforcement Reports, Directors’ Council will meet from 8:30 a.m. to 2:00 Describe and seek comment on the Reports and Other Business; p.m. and the Coastal Migratory Trustee Council’s goals, objectives, and (CLOSED SESSION—2:00 p.m. to 8:00 Committee will meet from 2:00 to 5:00 project selection criteria; and provide p.m.)—Consider appointment of p.m. On March 16, the Council will guidance and receive comment on how Scientific and Statistical Committee meet from 8:00 a.m. until approximately restoration projects should be presented (SSC) members; and noon. for consideration. (CLOSED SESSION—3:00 p.m. to 5:00 The following topics may be These meetings are the first step in p.m.)—Consider appointment of discussed: the restoration plan/EIS development Advisory Panel (AP) members. process. Meetings of the Trustee Council 1. Recreational fishery measures for are open to the public and the public is Committee Meetings: summer flounder for 1995; invited to attend and participate. The March 13, 1995 2. Discuss the Information and Trustees will be seeking public (CLOSED SESSION—10:00 a.m. to Education Committee’s itinerary for the participation through citizen advisors 5:30 p.m.)—Meetings of the AP remainder of 1995; who can play a continuing role in Selection Committee, the SSC Selection restoration plan development. Once a Committee, and the Coral Management 3. Possible adoption of Amendment 5 draft restoration plan/EIS is developed, Committee. for Squid, Mackerel, and Butterfish; public hearings will be held on the March 14, 1995 4. Review Bluefish Fishery content before any such plan is 8:00 a.m. to 5:00 p.m.—Meetings of Management Plan Amendment 1 finalized. the Mackerel Management Committee scoping/informational process; and and Reef Fish Management Committee. Authority: 42 U.S.C. 4321 et seq. and 9601 5. Other fishery management matters. et seq. FOR FURTHER INFORMATION CONTACT: Wayne E. Swingle, Executive Director, The Council agenda may be revised, Dated: February 21, 1995. Gulf of Mexico Fishery Management and the meeting lengthened or Gary Matlock, Council, 5401 West Kennedy Boulevard, shortened based on the progress of the Program Management Officer, National Suite 331, Tampa, Florida 33609; meeting. The Council may go into Marine Fisheries Service. telephone: 813–228–2815. closed session to discuss personnel or [FR Doc. 95–4847 Filed 2–27–95; 8:45 am] SUPPLEMENTARY INFORMATION: This national security matters. BILLING CODE 3510±22±F meeting is physically accessible to FOR FURTHER INFORMATION CONTACT: people with disabilities. Requests for David R. Keifer, Executive Director, sign language interpretation or other [I.D. 021795E] Mid-Atlantic Fishery Management auxiliary aids should be directed to Julie Gulf of Mexico Fishery Management Krebs at the address above by March 6, Council, 300 S. New Street, Dover, DE Council; Public Meeting 1995. 19901; telephone: (302) 674–2331. SUPPLEMENTARY INFORMATION: AGENCY: National Marine Fisheries Dated: February 22, 1995. This Service (NMFS), National Oceanic and David S. Crestin, meeting is physically accessible to Atmospheric Administration (NOAA), Acting Director, Office of Fisheries people with disabilities. Requests for Commerce. Conservation and Management, National sign language interpretation or other Marine Fisheries Service. auxiliary aids should be directed to ACTION: Notice of public meetings. [FR Doc. 95–4848 Filed 2–27–95; 8:45 am] Joanna Davis on (302) 674–2331, at least SUMMARY: The Gulf of Mexico Fishery BILLING CODE 3510±22±F 5 days prior to the meeting date. Management Council (Council) will Dated: February 22, 1995. hold a meetings on March 13 through [I.D. 022195B] 16, 1995 at the Holiday Inn Downtown- David S. Crestin, Acting Director, Office of Fisheries Superdome, 330 Loyola Street, New Mid-Atlantic Fishery Management Orleans, LA; telephone: 504–581–1600. Conservation and Management, National Council; Public Meetings Marine Fisheries Service. Council Meetings: AGENCY: National Marine Fisheries [FR Doc. 95–4850 Filed 2–27–95; 8:45 am] March 15, 1995 Service (NMFS), National Oceanic and BILLING CODE 3510±22±F 10838 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices [I.D. 022195A] Washington, Oregon, and California to and outside 100 fathoms in the Eureka delay sorting, until offloading, of subarea. The applicant requests that North Pacific Fishery Management prohibited species and groundfish catch vessels be allowed to fish for and retain Council; Team Meetings in excess of trip limits. The California Pacific whiting in excess of the AGENCY: National Marine Fisheries program would allow participating nearshore 10,000–lb (4,536 kg) trip limit Service (NMFS), National Oceanic and vessels with observers to retain Pacific if an observer is on board at all times, Atmospheric Administration (NOAA), whiting in excess of the nearshore trip even when the vessel operates outside Commerce. limit in the Eureka subarea. These the area. The third EFP application, submitted ACTION: Notice of public meetings. activities would otherwise be prohibited by Federal regulations. by Oregon Department of Fish and SUMMARY: A joint meeting of the Bering DATES: Comments must be received by Wildlife would allow the landing of Sea/Aleutian Islands groundfish and February 27, 1995. unsorted catches taken in accordance with the proposed Oregon Trawl crab plan teams will be held between ADDRESSES: Comments should be 8:30 a.m. and 5:00 p.m., March 21–22, addressed to and copies of the EFP Commission data collection program that is planned to begin in 1995. The 1995, in Rooms A and B, Building 9, applications are available from William intent is to obtain representative Alaska Fisheries Science Center, 7600 Stelle, Jr., Regional Director, Northwest bycatch and discard rates for groundfish Sand Point Way NE, Seattle, WA. The Region, National Marine Fisheries and prohibited species. Observers teams will discuss the sources of crab Service, 7600 Sand Point Way NE., BIN- would gather biological data on species’ mortality and habitat considerations C15700, Seattle, WA 98115–0070; or age, length, weight, sex, maturity, relative to development of a rebuilding Hilda Diaz-Soltero, Director, Southwest viability and mortality rates. The plan for depressed crab stocks. The Region, National Marine Fisheries Oregon program would be similar to the meeting is open to the public. Service, 501 W. Ocean Blvd., Suite whiting observer program that has been FOR FURTHER INFORMATION CONTACT: 4200, in effect for three seasons. Groundfish David Witherell, North Pacific Fishery Long Beach, CA 90802–4213. Management Council, P.O. Box 103136, regulations at 50 CFR 663.7(b) stipulate FOR FURTHER INFORMATION CONTACT: that prohibited species must be returned Anchorage, AK 99510; telephone: (907) William L. Robinson at 206–526–6140, 271–2809. to sea as soon as practicable with a or Rodney R. McInnis at 310–980–4030. minimum of injury when caught and SUPPLEMENTARY INFORMATION: These SUPPLEMENTARY INFORMATION: This brought aboard. Groundfish trip limits meetings are physically accessible to action is authorized by the Pacific Coast restrict the amount of certain groundfish people with disabilities. Requests for Groundfish Management Plan and species that may be landed by a vessel sign language interpretation or other implementing regulations (50 CFR 663), (50 CFR 663.7(f)). auxiliary aids should be directed to which specify that EFPs may be issued The EFPs, if granted, would authorize Helen Allen on (907) 271–2809, at least to authorize fishing that would vessels participating in the observation 5 days prior to the meeting date. otherwise be prohibited by the FMP and program to land unsorted Pacific Dated: February 22, 1995. regulations. The procedures for issuing whiting at designated shoreside David S. Crestin, EFPs are found at 50 CFR 663.10. processing plants where the incidence Acting Director, Office of Fisheries At the October 1994 meeting of the of salmon and other bycatch species can Conservation and Management, National Pacific Fishery Management Council be monitored, on the condition that the Marine Fisheries Service. (Council), three EFP applications were prohibited species and groundfish trip [FR Doc. 95–4849 Filed 2–27–95; 8:45 am] received from the States of Oregon, limit overages are turned over to the BILLING CODE 3510±22±F California, and Washington (WOC) for state of landing for disposition. The vessels participating in observation states anticipate that about 30 vessels programs. may participate in the experimental [I.D. 021495D] The first application is from the State fisheries from March 1, 1995, to of Washington and is for the December 31, 1995. Under the EFPs, Pacific Coast Groundfish Fishery; continuation of the observation program unsorted Pacific whiting catch could be Experimental Fishing Permits in which information is collected on the delivered to shoreside processing plants AGENCY: National Marine Fisheries bycatch of salmon and other prohibited in Newport, Hammond, Charleston, and Service (NMFS), National Oceanic and species in Pacific whiting harvests Warrenton, OR; Crescent City, CA; and Atmospheric Administration (NOAA), delivered to shoreside processing Westport and Ilwaco, WA. State port Commerce. plants. This application differs from samplers would monitor the offloading ACTION: Receipt of experimental fishing previous years in that there would be no of unsorted Pacific whiting, collect permit applications; request for observer coverage; all observer coverage biological information on salmon and comments. would occur onshore after the catch is other bycatch, and arrange for the landed. disposal of salmon. Prohibited species SUMMARY: NMFS has received Under the second EFP application, taken could not be sold; disposal applications from the states of submitted by California Department of options, to be determined by the states, Washington, Oregon, and California for Fish and Game, the focus is on shore- would include donation to charitable experimental fishing permits (EFPs) for based whiting operations inside the 100 organizations or reduction to fish meal. vessels participating in bycatch fathom contour in the Eureka subarea If 71,360 metric tons (mt) of Pacific observation programs. The purpose of (from 43°00’00’’ N. lat. to 40°30’00’’ N. whiting were landed under the EFPs, it the observation programs is to lat.), where large-scale whiting is estimated that about 414 salmon enumerate the bycatch of non-target operations are currently prohibited in would be caught incidentally, based on species in the groundfish fishery. If order to minimize the impacts on the observed salmon bycatch rate of granted, the EFPs would allow salmon (50 CFR 663.23(b)(3)(iii)). The 0.0058 salmon per mt of whiting designated vessels operating in the California EFP application is for the observed in 1994 (the salmon bycatch groundfish fishery in the exclusive collection of data on the relative rate was 0.0110 in 1993). The economic zone off the coasts of incidental catch rates of salmon inside continuing shoreside monitoring Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10839 program is being pursued by the states and means by which the effectiveness of DEPARTMENT OF DEFENSE at the request of the Council. Similar Federal Government frequency EFPs were issued to 21 vessels in 1993 management may be enhanced. The Public Information Collection and 31 vessels in 1994 (58 FR 64296, Committee consists of nineteen Requirement Submitted to OMB for December 6, 1993). members, fifteen from the private sector, Review The Director, Northwest Region, and four from the Federal Government, NMFS, Regional Director has made a whose knowledge of ACTION: Notice. preliminary determination that the telecommunications is balanced in the applications contain all of the required functional areas of manufacturing, The Department of Defense has information and constitute a valid analysis and planning, operations, submitted to OMB for clearance the experimental program appropriate for research, academia and international following proposal for collection of further consideration. negotiations. information under the provisions of the At the October meeting of the Paperwork Reduction Act (44 U.S.C. The principal agenda items for the Council, the Regional Director consulted Chapter 35). meeting will be: with the Council and the directors of the Title, Applicable Form, and state fishery management agencies (1) National Spectrum Projections and Applicable OMB Control Number: concerning the applications for permits. Trends Report; Registration for Scientific and Technical The Council recommended that all three (2) NTIA Automated Spectrum Information Services; DD Form 1540; EFP applications be approved with Monitoring System; OMB Control Number 0704–0264. terms and conditions similar to those (3) APCO Projects 25 and 31; Type of Request: Reinstatement. applied to the EFPs in 1994. The (4) FLEWUG Activity Report; decision on whether to issue EFPs and Average Burden Hours Per Response: determinations on appropriate permit (5) CITEL Activities/Proposals; 25 minutes. conditions will be based on a number of (6) ITU Plenipot Update. Responses Per Respondent: 1. considerations, including the Council’s The meeting will be open to public Number of Respondents: 500. recommendation and comments observations. Public entrance to the Annual Burden Hours: 208 hours. received from the public. building is on 14th Street between Annual Responses: 500. Authority: 16 U.S.C. 1801 et seq. Pennsylvania Avenue and Constitution Needs and Uses: The information Dated: February 22, 1995. Avenue. A period will be set aside for oral comments or questions by the collected hereby, is utilized to register David S. Crestin, public which do not exceed 10 minutes Federal Government agencies and their Acting Director, Office of Fisheries each per member of the public. More contractor community to access Conservation and Management, National Defense-related information services Marine Fisheries Service. extensive questions or comments should be submitted in writing before March 4, from the Defense Technical Information [FR Doc. 95–4794 Filed 2–22–95; 3:38 pm] 1995. Other public statements regarding Center (DTIC). The collected BILLING CODE 3510±22±F Committee affairs may be submitted at information is retained in an automated any time before or after the meeting. system at DTIC as the ongoing authority Approximately 20 seats will be available to release information against each National Telecommunications and year’s certification. Information Administration for the public on a first-come, first- served basis. Affected Public: State or local Spectrum Planning and Policy This meeting is physically accessible governments; Businesses or other for Advisory Committee (SPAC); Meeting to people with disabilities. Requests for profit; Non-profit institutions; Small businesses or organizations. AGENCY: sign language interpretation or other National Telecommunications Frequency: On occasion. and Information Administration, DOC. auxiliary aids should be directed to the Federal Information Relay Service Respondent’s Obligation: Required to ACTION: Notice of Meeting, Spectrum (FIRS) on 1–800–877–8339. obtain or retain a benefit. Planning and Policy Advisory Committee (SPAC). Copies of the minutes will be OMB Desk Officer: Mr. Peter N. Weiss. available upon request 30 days after the Written comments and SUMMARY: In accordance with the meeting. recommendations on the proposed provisions of the Federal Advisory FOR FURTHER INFORMATION CONTACT: information collection should be sent to Committee Act, 5 U.S.C. Appendix, Inquires may be addressed to the Mr. Weiss at the Office of Management notice is hereby given that the Spectrum Executive Secretary, SPAC, Mr. Richard and Budget, Desk Officer for DoD, Room Planning and Policy Advisory A. Lancaster, National 10236, New Executive Office Building, Committee (SPAC) will meet on March Telecommunications and Information Washington, DC 20503. 24, 1995 from 9:30 a.m. to 4:30 p.m. in Administration, Room 1617M–7, U.S. DOD Clearance Officer: Mr. William Room 1605 at the United States Department of Commerce, 14th Street P. Pearce. Written requests for copies of Department of Commerce, 14th Street and Constitution Avenue, N.W., the information collection proposal and Constitution Avenue, N.W., Washington, D.C. 20230, telephone 202– should be sent to Mr. Pearce, WHS/ Washington, D.C. 482–4487. DIOR, 1215 Jefferson Davis Highway, The Committee was established on Suite 1204, Arlington, Virginia 22202– Dated: February 21, 1995. July 19, 1965 as the Frequency 4302. Management Advisory Council (FMAC). Richard A. Lancaster, Dated: February 22, 1995. The name was changed in April, 1991, Executive Secretary, Spectrum Planning and and in July, 1993, to reflect the Policy Advisory Committee, National L.M. Bynum, increased scope of its mission. The Telecommunications and Information Alternate OSD Federal Register, Liaison objective of the Committee is to advise Administration. Officer, Department of Defense. the Secretary of Commerce on radio [FR Doc. 95–4830 Filed 2–27–95; 8:45 am] [FR Doc. 95–4788 Filed 2–27–95; 8:45 am] frequency spectrum planning matters BILLING CODE 3510±60±M BILLING CODE 5000±04±M 10840 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Office of the Secretary DEPARTMENT OF ENERGY with the approved Plan. Sites that are in compliance with approved Plans and Meeting of the Commission on Roles Office of Environmental Management; Orders by October 1995 will not be and Missions of the Armed Forces Proposed Site Treatment Plans subject to fines and penalties related to the storage prohibitions under section AGENCY:Department of Energy. AGENCY: Department of Defense, 3004(j) of RCRA. Commission on Roles and Missions of ACTION: Notice. After consultation with affected States the Armed Forces. SUMMARY: The U.S. Department of and EPA, DOE issued a Federal Register ACTION: Notice. Energy’s (DOE) is delaying submission Notice on April 6, 1993 (58 FR 17875), of the Proposed Site Treatment Plans which set a schedule for submission of SUMMARY: Notice is hereby given of a (Proposed Plans) for developing the Site Treatment Plans in three stages. forthcoming meeting of the Commission treatment capacity and technologies for The first stage, the Conceptual Site on Roles and Missions of the Armed mixed radioactive and hazardous waste Treatment Plans, were submitted in Forces. The Commission will meet in required by the Federal Facility October 1993 and described a wide closed session from 9:00 a.m. until Compliance Act (FFCAct or Act). DOE range of possible treatment alternatives approximately 12:00 p.m., in open expects to submit the Proposed Plans to for each mixed waste stream. The Draft session from 1:00 p.m. until the State or the U.S. Environmental Plans were submitted in August 1994, approximately 2:30 p.m., and in closed Protection Agency (EPA), as and included one or two options session from approximately 2:45 p.m. appropriate, at the end of March 1995, identified by the site, with input from until 5:00 p.m. but in any event no later than April 6, the State, as the preferred treatment for each mixed waste stream. After further During the open part of the meeting, 1995. Originally scheduled for submission in February 1995, DOE is analysis of the preferred options for the the Commission will consider medical DOE complex as a whole, discussions readiness and central logistics issues. revising the submission date for the Proposed Plans with the support of the among the States, and consideration of During the closed portions of the public comments, DOE planned to meeting, the Commission will address affected States and EPA to allow additional time for further discussions submit Proposed Site Treatment Plans topics that require the disclosure of in February 1995 to the appropriate classified information, including on schedules for developing treatment capacity in light of anticipated funding regulatory agency (i.e., the State or Department of Defense decisionmaking EPA). processes and other classified issues. limitations. This revised date still provides the States and EPA the six In accordance with section 10(d) of II. Rescheduling of Proposed Plan months allowed by the FFCAct to solicit the Federal Advisory Committee Act, Submittal Date public comments and approve the Site Public Law 92–453, as amended (5 DOE has worked closely with the Treatment Plans, and to issue U.S.C. App II), it has been determined States and EPA, which will approve and compliance orders by October 6, 1995. that these portions of the Commission enforce the final Plans, throughout the ADDRESSES: on Roles and Missions meeting concern Additional information on Site Treatment Plan development matters listed in 5 U.S.C. 552b(c)(1), and the Site Treatment Plan development process. The National Governors that, accordingly, the meeting will be process and related activities can be Association (NGA) is facilitating closed to the public during these times. obtained from the Center for interactions among the States at the Environmental Management national level under a cooperative DATES: March 8, 1995, 9:00 a.m. until Information at 1–800–7EM–DATA (1– agreement with DOE. At an NGA- 5:00 p.m. 800–736–3282). sponsored meeting early in December ADDRESSES: Hyatt Regency Arlington, SUPPLEMENTARY INFORMATION: 1994 that included affected States, EPA, 1325 Wilson Boulevard, Arlington, and Tribal governments, several States Virginia. I. Background asked DOE to consider delaying The Resource Conservation and submission of the Proposed Site FOR FURTHER INFORMATION CONTACT: Recovery Act (RCRA), as amended by Treatment Plans to allow additional Commander Gregg Hartung, Director for the FFCAct, requires DOE to prepare time for discussions on funding Public Affairs, Commission on Roles Site Treatment Plans for developing availability and the potential impacts of and Missions, 1100 Wilson Boulevard, treatment capacities and technologies current and future budgetary constraints Suite 1200F, Arlington, Virginia 22209; for treating mixed waste for each site at on schedules for constructing new telephone (703) 696–4250. which DOE stores or generates mixed mixed waste treatment facilities. After SUPPLEMENTARY INFORMATION: waste (section 3021 (b)). Mixed waste is NGA confirmed with the other States Extraordinary circumstances compel defined by the FFCAct as waste involved in the FFCAct process that notice of this meeting to be posted in containing both hazardous waste subject such a delay was acceptable, DOE less than the 15-day requirement. to RCRA, and source, special nuclear, or postponed submittal of the Proposed Seating will be available on a first- by-product material subject to the Plans. come, first-served basis. Members of the Atomic Energy Act of 1954. Site DOE expects to submit the Proposed press who wish to reserve seating Treatment Plans are being prepared for Plans to the appropriate regulatory should contact Commander Gregg approximately 48 sites located in 22 agencies for approval at the end of Hartung, Director of Public Affairs, in States. March 1995, but in any event no later advance at (703) 696–4250. DOE must submit the Site Treatment than April 6, 1995. This will still allow Plan to the State or EPA, as appropriate, the States and EPA the six months Dated: February 22, 1995. for approval, disapproval, or approval provided by the Act to review the L.M. Bynum, with modification. The FFCAct provides Proposed Plans and make them Alternate OSD Federal Register Liaison six months for the regulatory agency to available to the public, and to issue Officer, Department of Defense. review the Plan and make it publicly Compliance Orders by October 6, 1995. [FR Doc. 95–4787 Filed 2–27–95; 8:45 am] available. Upon approval, the agency is Sites that are in compliance with BILLING CODE 5000±04±M to issue an Order requiring compliance approved Plans and Compliance Orders Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10841 after October 6, 1995, are not subject to Management Information at 1–800– Environmental Protection Agency, fines and penalties related to the RCRA 7EM–DATA (1–800–736–3282), or resource and land management storage prohibitions for their mixed through the Internet at address http:// agencies, and interested organizations waste. www.em.doe.gov/ffcabb/ffcamain.html. and individuals. This document evaluates the environmental III. Activities in Progress Issued in Washington DC on February 22, 1995. consequences of operating the During January and February 1995, Jill E. Lytle, applicant’s existing 6.5-megawatt (MW) DOE site offices met with Deputy Assistant Secretary for Waste hydroelectric project, located on the representatives of the States that host Management, Office of Environmental Clyde River in northern Vermont, near the largest DOE facilities to provide Management. the town of Newport. information on the overall [FR Doc. 95–4877 Filed 2–27–95; 8:45 am] The applicant proposes to: (1) Operate Environmental Management budget for BILLING CODE 6450±01±P run-of-river at the Seymore Lake, Echo their sites, and the work in progress and Pond, and West Charleston work that needs to be accomplished developments; (2) limit pond within that budget.1 These general Federal Energy Regulatory fluctuations at the Newport 1,2,3 discussions were supplemented by Commission development; provide minimum flows specific discussions on the activities in the bypassed reaches of West and associated schedules to be proposed [Project No. 11058 Massachusetts] Charleston and Newport No. 11 in the Site Treatment Plans, along with A.L.L. Natural Resources, Inc.; Notice developments and the lower bypass potential funding impacts on those of Availability of Final Environmental reach of the Newport 1,2,3 activities. The smaller DOE sites were Assessment development; provide a fish passage also encouraged to hold discussions flow and various enhancements for with their States during this period on February 22, 1995. recreation and other environmental their proposed schedules and funding In accordance with the National resources. situation. Environmental Policy Act of 1969 and The subject DEIS also evaluates the In addition, in February 1995, DOE, the Federal Energy Regulatory environmental effects of: (1) The project the affected States, EPA, and Tribal Commission’s (Commission’s) as proposed; (2) the proposed project representatives again met collectively to regulations, 18 CFR Part 380 (Order No. with additional modifications and discuss funding issues related to all of 486, 52 FR 47897), the Office of enhancements;(3) removal of Newport DOE’s environmental management Hydropower Licensing has reviewed the No. 11 dam with and without activities as well as to Site Treatment application for minor license for the repowering the Newport No. 11 Plan activities, and to discuss strategies proposed Fitchburg Paper Mill Dam #4 powerhouse; and (4) the no action for working cooperatively to address Hydroelectric Project located on the alternative. anticipated funding limitations. North Nashua River in the City of The public meetings on the Clyde DOE believes that communication Fitchburg, Worcester County, River Project will be recorded by an with, and the involvement of affected Massachusetts, and has prepared a Final official stenographer. The meeting will States, EPA, Tribal representatives, and Environmental Assessment (FEA) for be held from 7:00 P.M. to 11:00 P.M. on other interested parties is essential in the proposed project. In the FEA, the Tuesday, March 14, 1995, at the North developing Proposed Plans that are Commission’s staff has analyzed the Country Union High School on Veterans acceptable to the regulatory agency and potential environmental impacts of the Avenue in Newport, Vermont. the public. However, DOE does not proposed project and has concluded At the subject meeting, resource expect that all concerns or questions that approval of the proposed project, agency personnel and other interested about the schedules for new facilities, with appropriate mitigation measures, persons will have the opportunity to particularly for large and costly would not constitute a major federal provide oral and written comments and facilities, will be resolved before the action significantly affecting the quality recommendations regarding the Clyde Proposed Plans are submitted. DOE, like of the human environment. River DEIS for the Commission’s public many other Federal agencies, will face Copies of the FEA are available for record. increasingly limited funding in the review in the Public Reference Branch, For further information, please future. Accordingly, DOE anticipates Room 3104, of the Commission’s offices contact Kathleen Sherman, at (202) 219– that discussions will continue with at 941 North Capitol Street, N.E., 2834. regulatory agencies and the public after Washington, DC 20426. Lois D. Cashell, the Proposed Plans are submitted on the Lois D. Cashell, Secretary. relative priority of mixed waste Secretary. [FR Doc. 94–4825 Filed 2–27–95; 8:45 am] treatment and other environmental [FR Doc. 95–4824 Filed 2–27–95; 8:45 am] management activities at each site and BILLING CODE 6717±01±M across the DOE complex before the BILLING CODE 6717±01±M Plans and schedules are approved. [Project Nos. 2551±004±MI and 2579±010± [Project No. 2306±016±VT] IN] IV. For Further Information Additional information on the Citizens Utilities Companies; Notice of Indiana Michigan Power Company; development process for the Site Intent to Hold a Public Meeting in Notice of Availability of Draft Treatment Plans, a list of facilities Newport, Vermont, to Discuss Staff's Environmental Assessment preparing Plans and their locations, and Draft Environmental Impact Statement February 22, 1995. related activities can be obtained from (DEIS) for the Clyde River the DOE Center for Environmental Hydroelectric Project In accordance with the National Environmental Policy Act of 1969 and February 22, 1995. the Federal Energy Regulatory 1 The host States are Colorado, Idaho, Nevada, New Mexico, Ohio, South Carolina, Tennessee, and On February 3, 1995, the Commission Commission’s (Commission’s) Washington. staff mailed the Clyde River DEIS to the regulations, 18 CFR Part 380 (Order No. 10842 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 486, 52 FR 47897), the Office of In the FEA, the Commission’s staff delivery point will not exceed the total Hydropower Licensing has reviewed the has analyzed the potential future quantities currently authorized to be applications for new license for two environmental impacts of the project delivered. East Tennessee notes that the existing licensed hydropower projects and has concluded that approval of the installation of this new delivery point is on the St. Joseph River owned and project, with appropriate environmental not prohibited by its existing tariff. operated by the Indiana Michigan Power protective measures, would not Further, East Tennessee states that it has Company: the Buchanan Project, No. constitute a major federal action that sufficient capacity to accomplish the 2551, located in Berrien County, would significantly affect quality of the delivery of natural gas without Michigan; and the Twin Branch Project, human environment. detriment or disadvantage to its other No. 2579, located in St. Joseph County, Copies of the FEA are available for customers. Any person or the Indiana. Subsequently, the review in the Public Reference Branch, Commission’s staff may, within 45 days Room 3104, of the Commission’s offices Commission’s staff prepared one Draft after issuance of the instant notice by Environmental Assessment (DEA) that at 941 North Capitol Street, NE., the Commission, file pursuant to Rule discusses the relicensing of the two Washington, DC 20426. 214 of the Commission’s Procedural projects. Lois D. Cashell, Rules (18 CFR 385.214) a motion to In the DEA, staff evaluates the Secretary. potential environmental impacts that intervene or notice of intervention and [FR Doc. 95–4827 Filed 2–27–95; 8:45 am] pursuant to Section 157.205 of the would result from the continued BILLING CODE 6717±01±M operation of the projects. Staff Regulations under the Natural Gas Act concludes that relicensing the projects (18 CFR 157.205) a protest to the with appropriate enhancement [Docket No. CP95±207±000] request. If no protest is filed within the measures would not constitute a major time allowed therefor, the proposed federal action significantly affecting the East Tennessee Natural Gas Company; activity shall be deemed to be quality of the human environment. Notice of Request Under Blanket authorized effective the day after the Copies of the DEA are available for Authorization time allowed for filing a protest. If a review in the Public Reference Branch, February 22, 1995. protest is filed and not withdrawn Room 3104, of the Commission’s offices Take notice that on February 17, 1995, within 30 days after the time allowed at 941 North Capitol Street, NE., East Tennessee Natural Gas Company for filing a protest, the instant request Washington, DC 20426. (East Tennessee), P.O. Box 2511, shall be treated as an application for Any comments should be filed within Houston, Texas 77252, filed in Docket authorization pursuant to Section 7 of 45 days from the date of this notice and No. CP95–207–000, a request pursuant the Natural Gas Act. should be addressed to Lois D. Cashell, to Sections 157.205 and 157.212 of the Lois D. Cashell, Secretary, Federal Energy Regulatory Commission’s Regulations under the Commission, 825 North Capitol Street, Secretary. Natural Gas Act (18 CFR 157.205, and [FR Doc. 95–4810 Filed 2–27–95; 8:45 am] NE., Washington, DC 20426. Please affix 157.212) for authorization to establish a Project Nos. 2551 and 2579 to the first new delivery point for its firm BILLING CODE 6717±01±M page of all comments. transportation customer, Sevier County For further information, please Utility District (Sevier County) under contact Jim Haimes, Environmental East Tennessee’s blanket certificate [Docket Nos. CP92±182±007; RP95±103± Coordinator, at (202) 219–2780. issued in Docket No. CP82–412–000, 000] Lois D. Cashell, pursuant to Sections 7(b) and 7(c) of the Secretary. Natural Gas Act, all as more fully set Florida Gas Transmission Company; [FR Doc. 95–4826 Filed 2–27–95; 8:45 am] forth in the request which is on file with Notice on Technical Conference BILLING CODE 6717±01±M the Commission and open to public February 22, 1995. inspection. East Tennessee proposes to establish On January 31, 1995, the Commission [Project No. 11285±001 California] a new delivery point for Sevier County issued an order in the captioned Lake Casitas Municipal Water District; on its 3300 Mainline System at M.P. proceeding requiring, among other Notice of Availability of Final 3302–1+6.28 located in Sevier County, things, a technical conference on the Environmental Assessment Tennessee. East Tennessee states that a Florida Gas Transmission Company’s 4-inch hot tap assembly and proposed changes to its operating February 22, 1995. approximately 40-feet of 4-inch conditions. The conference will be held In accordance with the National interconnecting pipe will be installed 10:00 a.m., March 22, 1995, at 810 First Environmental Policy Act of 1969 and on its existing right-of-way; and that the Street NE., Washington, D.C., in a room the Federal Energy Regulatory measurement facilities will be located to be designated at that time. Any Commission’s (Commission) on property provided by Sevier County questions concerning the conference regulations, 18 CFR Part 380 (Order No. located immediately adjacent to East should be directed to John M. Robinson 486, 52 FR 47897), the Office of Tennessee’s right-of-way. (202) 208–0808, or Kerry Noone (202) Hydropower Licensing has reviewed the East Tennessee estimates that the cost 208–0285. application for an original, minor for the construction of this new facility license for the Lake Casitas Power will be $68,596, which will be fully Lois D. Cashell, Recovery Facility (project), and has reimbursed by Sevier County. East Secretary. prepared a Final Environmental Tennessee states that the purpose of this [FR Doc. 95–4809 Filed 2–27–95; 8:45 am] Assessment (FEA) for the project. The installation is to provide Sevier County BILLING CODE 6717±01±M project is located on the Bureau of with delivery point flexibility. Reclamation’s existing pipeline between East Tennessee asserts that the total its Casitas dam Venture, in Ventura quantities to be delivered to Sevier County, California. County after installation of the new Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10843 [Docket No. MG88±30±002] [Docket No. RP95±120±000] [Docket No. RP94±416±000] Great Lakes Gas Transmission Co.; NorAm Gas Transmission Company; Northern Natural Gas Company; Notice Notice of Filing Notice of Change in Date of Technical of Technical Conference Conference February 22, 1995. February 22, 1995. February 22, 1995. In the Commission’s order issued Take notice that on February 10, 1995, Take notice that the technical February 15, 1995, the Commission held Great Lakes Gas Transmission Company conference originally scheduled to be that the filing in the above captioned (Great Lakes) filed revised standards of held on Tuesday, February 28, 1995, at proceeding raises issues that should be conduct governing the business 10:00 a.m., will now be held on addressed in a technical conference. relationship between Great Lakes and its Thursday, March 9, 1995, at 10:00 a.m., Take notice that the technical 1 marketing/brokering affiliates. in a room to be designated at the offices conference will be held on Thursday, Any person desiring to be heard or to of the Federal Energy Regulatory March 23, 1995, at 2:00 p.m., in a room protest said filing should file a motion Commission, 810 First Street, N.E., to be designated at the offices of the to intervene or protest with the Federal Washington D.C. 20426. All interested Federal Energy Regulatory Commission, Energy Regulatory Commission, 825 parties and Staff are permitted to attend. 810 First Street, N.E., Washington D.C. North Capitol Street, N.E., Washington, Lois D. Cashell, 20426. All interested parties and Staff D.C., 20426, in accordance with Rules Secretary. are permitted to attend. 211 or 214 of the Commission’s Rules of [FR Doc. 95–4813 Filed 2–27–95; 8:45 am] Lois D. Cashell, Practice and Procedure (18 CFR 385.211 BILLING CODE 6717±01±M Secretary. or 385.214). All such motions to [FR Doc. 95–4807 Filed 2–27–95; 8:45 am] intervene or protest should be filed on BILLING CODE 6717±01±M or before March 9, 1995. Protests will be [Docket No. RP95±53±000] considered by the Commission in determining the appropriate action to be NorAm Gas Transmission Company; [Docket Nos. RP95±65±000 and RP95±69± taken but will not serve to make Notice of Change in Date of Technical 000] Conference protestants parties to the proceeding. Northern Natural Gas Company; Notice Any person wishing to become a party February 22, 1995. of Technical Conference must file a motion to intervene. Copies Take notice that the technical of this filing are on file with the conference originally scheduled to be February 22, 1995. Commission and are available for public held on Tuesday, February 28, 1995, at In the Commission’s orders issued inspection. 2:00 p.m., will now be held on December 30, 1994, the Commission Lois D. Cashell, Thursday, March 9, 1995, at 2:00 p.m., held that the filings in the above Secretary. in a room to be designated at the offices captioned proceedings raise issues that [FR Doc. 95–4811 Filed 2–27–95; 8:45 am] of the Federal Energy Regulatory should be addressed in a technical conference. Take notice that the BILLING CODE 6717±01±M Commission, 810 First Street, N.E., Washington D.C. 20426. All interested technical conference will be held on parties and Staff are permitted to attend. Thursday, March 23, 1995, at 1:00 p.m., in a room to be designed at the offices Notice Lois D. Cashell, of the Federal Energy Regulatory Secretary. February 22, 1995. Commission, 810 First Street NE., [FR Doc. 95–4812 Filed 2–27–95; 8:45 am] Washington, DC 20426. All interested Notice is hereby given that the five BILLING CODE 6717±01±M parties and Staff are permitted to attend. members of the Federal Energy Lois D. Cashell, Regulatory Commission (FERC) will attend a meeting sponsored by the [Docket No. RP95±72±000] Secretary. National Association of Regulatory [FR Doc. 95–4808 Filed 2–27–95; 8:45 am] Utility Commissioners’ Committee on Northern Natural Gas Company; Notice BILLING CODE 6717±01±M Electricity on Tuesday, February 28, of Technical Conference 1995, in Washington, D.C. The topic to February 22, 1995. [Docket No. RP95±165±000] be discussed is: NARUC/FERC— In the Commission’s order issued Working Together in the Changing December 30, 1994, the Commission Pacific Gas Transmission Co.; Notice World. held that the filing in the above of Proposed Changes to FERC Gas Lois D. Cashell, captioned proceeding raises issues that Tariff Secretary. should be addressed in a technical February 22, 1995. [FR Doc. 95–4806 Filed 2–27–95; 8:45 am] conference. Take notice that the Take notice that on February 17, 1995, BILLING CODE 6717±01±M technical conference will be held on Pacific Gas Transmission Company Friday, March 24, 1995, at 10:00 a.m., in (PGT) tendered for filing certain revised a room to be designated at the offices of 1 Standards of Conduct and Reporting tariff sheets to be a part of its FERC Gas Requirements for Transportation and Affiliate the Federal Energy Regulatory Tariff, First Revised Volume No. 1–A Transactions, Order No. 566, 59 FR 32885 (June 27, Commission, 810 First Street, N.E., 1994), III FERC Stats. & Regs. ¶ 30,997 (June 17, and Second Revised Volume No. 1 and Washington D.C. 20426. All interested requested that they be made effective 1994); Order No. 566–A, order on rehearing, 59 FR parties and staff are permitted to attend. 52896 (October 20, 1994), 69 FERC ¶ 61,044 March 19, 1995. (October 14, 1994); Order No. 566–B, order on Lois D. Cashell, PGT states that the tariff sheets which rehearing, 59 FR 65707, (December 21, 1994); 69 Secretary. FERC ¶ 61,334 (December 14, 1994); appeal it is submitting eliminate an ambiguity docketed sub nom. Conoco, Inc. v. FERC, D.C. Cir. [FR Doc. 95–4814 Filed 2–27–95; 8:45 am] in calculating the Reservation Charge No. 94–1745 (December 13, 1994). BILLING CODE 6717±01±M credit mechanism for Rate Schedules T– 10844 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 3 and FTS–1. In addition, PGT is letter and summary of Settlement Any person desiring to protest said correcting minor typographical errors to Refund Amounts submitted with this filing should file a protest with the the table of contents of the filing have been served on all affected Federal Energy Regulatory Commission, Transportation Terms and Conditions of customers and respective State 825 North Capitol Street, NE., its First Revised Volume No. 1–A. Regulatory Commissions. Washington, DC 20426, in accordance PGT further states it has served a copy Any person desiring to protest the with § 385.211 of the Commission’s of this filing upon all interested state said filing should file a protest with the Rules and Regulations. All such protests regulatory agencies and PGT’s Federal Energy Regulatory Commission, should be filed on or before March 3, jurisdictional customers. 825 North Capitol Street, NE., 1995. Protests will be considered by the Any person desiring to be heard or Washington, DC 20426, in accordance Commission in determining the protest said filing should file a motion with Sections 385.214 and 385.211 of appropriate action to be taken, but will to intervene or protest with the Federal the Commission’s Rules and not serve to make protestants parties to Energy Regulatory Commission, 825 Regulations. All such protests should be the proceeding. Copies of this filing are North Capitol Street, N.E., Washington, filed on or before March 3, 1995. on file with the Commission and are D.C. 20426, in accordance with Sections Protests will be considered by the available for public inspection in the 385.214 and 385.211 of the Commission in determining the Public Reference Room. Commission’s Rules of Practice and appropriate action to be taken, but will Lois D. Cashell, Procedure. All such motions or protests not serve to make protestants parties to Secretary. should be filed on or before March 2, the proceeding. Copies of this filing are [FR Doc. 95–4817 Filed 2–27–95; 8:45 am] 1995. Protests will be considered by the on file with the Commission and are BILLING CODE 6717±01±M Commission in determining the available for public inspection in the appropriate action to be taken, but will Public Reference Room. not serve to make protestants parties to Lois D. Cashell, [Docket No. TM95±4±17±000] the proceeding. Any person wishing to Secretary. become a party must file a motion to Transcontinental Gas Pipe Line [FR Doc. 95–4816 Filed 2–27–95; 8:45 am] Corporation; Notice of Proposed intervene. Copies of this filing are on BILLING CODE 6717±01±M file with the Commission and are Changes in FERC Gas Tariff available for public inspection in the February 22, 1995. Public Reference Room. [Docket Nos. RP93±189±003 and RP94±38± 002] Take notice that on February 16, 1995, Lois D. Cashell, Transcontinental Gas Pipe Line Secretary. Texas Gas Transmission Corporation; Corporation (TPGL) tendered for filing [FR Doc. 95–4815 Filed 2–27–95; 8:45 am] Notice of Proposed Changes in FERC as part of its FERC Gas Tariff, Third BILLING CODE 6717±01±M Gas Tariff Revised Volume No. 1, Twentieth Revised Sixth Revised Sheet No. 28, February 22, 1995. which tariff sheet is proposed to be [Docket Nos. RP88±262±030 and RP88±88± Take notice that on February 17, 1995, 006] effective February 1, 1995. Texas Gas Transmission Corporation TGPL states that the purpose of the (Texas Gas) tendered for filing the Panhandle Eastern Pipe Line instant filing is to track a rate change following revised tariff sheets to its Company; Notice of Refund Report attributable to storage service purchased FERC Gas Tariff, Original Volume No. 1: from Texas Eastern Transmission February 22, 1995. First Revised Sheet No. 20 Corporation (TETCO) under its Rate Take notice that on February 17, 1995, First Revised Sheet No. 21 Schedule X–28 the costs of which are Panhandle Eastern Pipe Line Company First Revised Sheet No. 22 included in the rates and charges (Panhandle), tendered for filing its First Revised Sheet No. 23 payable under TGPL’s Rate Schedule S– Refund Report made pursuant to Article Texas Gas states that the revised tariff 2. The tracking filing is being made II, Section 2 of the Stipulation and sheets are being filed to implement pursuant to Section 26 of the General Agreement (Settlement) dated Article IV of the Stipulation and Terms and Conditions of TGPL’s September 26, 1994 in the above docket. Agreement of Partial Settlement Volume No. 1 Tariff. Such Settlement was approved by the (Settlement) pursuant to Rule 602 of the Included in Appendix A attached to Commission on December 7, 1994. Commission’s Rules of Practice and the filing is an explanation of the rate Panhandle states that the Summary of Procedure filed on September 20, 1994. change and details regarding the Settlement Refund Amounts by The Settlement was intended to resolve computation of the revised S–2 rates. Customer filed herewith sets forth all issues in Texas Gas’s pending Order TGPL states that copies of the filing Panhandle’s refund obligation for No. 528 cost recovery filing in the are being mailed to each of its S–2 Sponsoring Parties and Subject Parties dockets referenced above. The customers and interested State for the Docket No. RP88–262–000 Rate Settlement contained pro forma tariff Commissions. Period (April 1, 1989 through March 31, sheets in Appendix B. The revised tariff Any person desiring to be heard or to 1992) and that payments to Sponsoring sheets listed above are identical to such protest said filing should file a motion Parties and Subject Parties were made pro forma tariff sheets and are to be to intervene or protest with the Federal on February 3, 1995. effective January 20, 1995, the effective Energy Regulatory Commission, 825 Panhandle states that a copy of the date of the Settlement, as described in North Capitol Street, NE., Washington, information filed with its report has Article IV. DC 20426, in accordance with previously been sent to affected Texas Gas states that copies of the §§ 385.214 and 385.211 of the customers and respective state revised tariff sheets are being mailed to Commission’s Rules and Regulations. regulatory agencies and that each Texas Gas’s jurisdictional customers, All such motions or protests should be customer has received its detail of interested state commissions, and those filed on or before March 2, 1995. interest calculations. Panhandle also appearing on the official service lists of Protests will be considered by the states that a copy of the transmittal Docket Nos. RP93–189 and RP94–38. Commission in determining the Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10845 appropriate action to be taken, but will [Docket No. CP93±541±004] and the Regulations under the Natural not serve to make protestants parties to Gas Act (18 CFR 157.10). All protests the proceeding. Any person wishing to Young Gas Storage Company, Ltd.; filed with the Commission will be Notice of Petition To Amend become a party must file a motion to considered by it in determining the intervene. Copies of this filing are on February 22, 1995. appropriate action to be taken but will file with the Commission and are Take notice that on February 17, 1995, not serve to make the protestants parties available for public inspection in the Young Gas Storage Company, Ltd. to the proceeding. Any person wishing Public Reference Room. (Young), P.O. Box 1087, Colorado to become a party to a proceeding or to participate as a party in any hearing Lois D. Cashell, Springs, Colorado 80944, filed in Docket No. CP93–541–004 an application to therein must file a motion to intervene Secretary. in accordance with the Commission’s [FR Doc. 95–4818 Filed 2–27–95; 8:45 am] amend the Order issued on June 22, 1994, in Docket Nos. CP93–541–000 and Rules. BILLING CODE 6717±01±M CP93–541–001 by deleting two tracts of Lois D. Cashell, land totaling 240 acres that were Secretary. previously included as protective [FR Doc. 95–4820 Filed 2–27–95; 8:45 am] [Docket No. MG95±5±000] acreage and observation wells #4 and #6 BILLING CODE 6717±01±M located on the subject 240 acres, all as Viking Gas Transmission Company; more fully set forth in the petition to Notice of Filing amend which is on file with the Office of Hearings and Appeals Commission and open to public February 22, 1995. inspection. Issuance of Decisions and Orders Take notice that on February 15, 1995, Young states that upon further study, During the Week of December 26 Viking Gas Transmission Company it has determined that the storage Through December 30, 1994 (Viking) filed revised standards of reservoir does not extend as far east as During the week of December 26 conduct to reflect changes mandated by originally thought and, accordingly, the through December 30, 1994 the Order Nos. 566 and 566–A.1 240 acres specified as protective acreage decisions and orders summarized below Viking states that copies of its filing and the two above-mentioned were issued with respect to applications were mailed to each of Viking’s observation wells located on the acreage for exception or other relief filed with may be deleted. Young indicates that customers and to interested state the Office of Hearings and Appeals of the deletion of the acreage would help commissions. the Department of Energy. The to resolve certain disputes with an following summary also contains a list Any person desiring to be heard or to affected landowner. Additionally, of submissions that were dismissed by protest said filing should file a motion Young states that the originally the Office of Hearings and Appeals. to intervene or protest with the Federal proposed injection/withdrawal wells Energy Regulatory Commission, 825 #26, #28, and #31 will not be injection/ Requests for Exception North Capitol Street, NE., Washington, withdrawal wells. Instead, Young states Farm, Fuel & Feed, 12/30/94, LEE–0164 DC 20426, in accordance with Rule 211 that wells #26 and #28 will be # Farm, Fuel & Feed filed an or 214 of the Commission’s Rules of observation wells and well 31 will be Application for Exception from the Practice and Procedure (18 CFR 385.211 a saltwater disposal well. Young claims Energy Information Administration or 385.214). All such motions to that the deletion of the protective (EIA) requirement that it file Form EIA– intervene or protest should be filed on acreage will allow it to proceed with the 782B, the ‘‘Resellers’/Retailers’ Monthly or before March 9, 1995. Protests will be development of the Storage Field and to Petroleum Product Sales Report.’’ In considered by the Commission in perform the service that was authorized considering this request, the DOE found determining the appropriate action to be by the Commission in Docket Nos. that the firm was not suffering gross taken but will not serve to make CP93–541–000 and CP93–541–001. inequity or serious hardship. protestants parties to the proceeding. Young finally asserts that there would Accordingly, on November 14, 1994, the be a possibility that as the project Any person wishing to become a party DOE issued a Proposed Decision and develops that further facts could arise must file a motion to intervene. Copies Order tentatively determining that the which would require Young to revise its of this filing are on file with the exception request should be denied. No present judgment and to conclude that Notice of Objection to the Proposed Commission and are available for public acquisition of the subject acreage is inspection. Decision and Order was filed at the necessary to fulfill its duties under its Office of Hearings and Appeals of the Lois D. Cashell, certificate. Young states that if this DOE within the prescribed time period. Secretary. would occur then it would request that Therefore, the DOE issued the Proposed [FR Doc. 95–4819 Filed 2–27–95; 8:45 am] the Commission authorize Young to Decision and Order in final form, BILLING CODE 6717±01±M acquire the acreage. Young states that it denying Farm, Fuel & Feed’s reserves the right to make that filing Application for Exception. should it prove necessary. 1 Standards of Conduct and Reporting Any person desiring to be heard or to Farmers Union Coop Oil Co., 12/27/94, Requirements for Transportation and Affiliate make any protests with reference to said LEE–0162 Transactions, Order No. 566, 59 FR 32885 (June 27, petition to amend should on or before Farmers Union Coop Oil Co. 1994), III FERC Stats. & Regs. ¶ 30,997 (June 17, March 15, 1995, file with the Federal (Farmers) filed an Application for 1994); Order No. 566–A, order on rehearing, 59 FR Energy Regulatory Commission, Exception from the Energy Information 52896 (October 20, 1994), 69 FERC ¶ 61,044 Washington, DC 20426, a motion to Administration (EIA) requirement that it (October 14, 1994); Order No. 566–B, order on rehearing, 59 FR 65707, (December 21, 1994); 69 intervene or a protest in accordance file Form EIA–782B. The ‘‘Resellers’/ FERC ¶ 61,334 (December 14, 1994); appeal with the requirements of the Retailers’ Monthly Petroleum Product docketed sub nom. Conoco, Inc. v. FERC, D.C. Cir. Commission’s Rules of Practice and Sales Report.’’ In considering this No. 94–1745 (December 13, 1994). Procedure (18 CFR 385.214 or 385.211) request, the DOE found that the firm 10846 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices was not suffering gross inequity or and Order in final form, denying Hood Texaco Inc. Subpart V special refund serious hardship. Accordingly, the DOE River’s Application for Exception. proceeding on behalf of Bituminous denied Farmers’ exception request. Quint Cities Petroleum Co., 12/30/94, Materials, Inc. (Bituminous). The DOE Galaxie Oil Ltd., 12/30/94, LEE–0110 LEE–0154 had previously rescinded a refund granted to Bituminous because a Galaxie Oil Ltd. filed an Application Quint Cities Petroleum Company filed an Application for Exception from the different firm was eligible to receive the for Exception from the Energy Energy Information Administration refund based on Bituminous’ Texaco Information Administration (EIA) requirement that it file Form EIA–782B, purchases. The Motion for requirement that it file Form EIA–782B, the ‘‘Resellers’/Retailers’ Monthly Reconsideration requested that the DOE the ‘‘Resellers’/Retailers’ Monthly Petroleum Product Sales Report.’’ In vacate its determination to assess Petroleum Product Sales Report.’’ In considering Quint Cities’ request, the interest on the rescinded refund considering this request, the DOE found DOE found that the firm was not amount. The DOE determined that in that the firm was not suffering gross experiencing a serious hardship or gross the absence of a compelling reason not inequity or serious hardship. On August inequity. According, exception relief to assess interest, it should adhere to its 1, 1994, the DOE issued a Proposed was denied. usual practice in the Texaco refund Decision and Order determining that the proceeding of restoring the Texaco exception request should be denied. No Refund Applications escrow account to its correct level. Notice of Objection to the Proposed Gulf Oil Corporation/Wayne F. Johnson, Accordingly, the Motion was denied. Decision and Order was filed at the Inc., 12/30/94, RF300–606 Office of Hearings and Appeals of the The DOE issued a Decision and Order Texaco Inc./Hank Texaco & Towing, Lee DOE within the prescribed time period. concerning an Application for Refund Paradise Texaco, Lee’s Texaco, 12/ Therefore, the DOE issued the Proposed filed by Wayne F. Johnson, Inc. in the 27/94, RF321–20237, RF321–21046, Decision and Order in final form, Gulf Oil Corporation refund proceeding. RF321–21056 denying Galaxie’s Application for The DOE found that the firm had failed The Department of Energy (DOE) Exception. to submit sufficient information to issued a Decision and Order granting a Hood River Supply Association, 12/30/ support a full volumetric refund beyond refund to Hank Metevier and rescinding 94, LEE–0134 the presumptive injury level. The DOE a refund that had been granted to Lee Hood River Supply Association (Hood also found that the firm’s volume Paradise and Mary J. Paradise in the River) of Hood River, Oregon, filed an information was scant. Nevertheless, the Texaco special refund proceeding. In Application for Exception from the DOE determined that in view of the that Decision, the DOE found that Mr. Energy Information Administration length of time the case had been Metevier was the Texaco retailer at one (EIA) requirement that it file Form EIA– pending and the good faith efforts by the of the locations for which Mr. & Mrs. 782B, the ‘‘Resellers’/Retailers’ Monthly claimant to submit corroborative Paradise received a refund. Accordingly, Petroleum Product Sales Report.’’ In evidence, the claimant should receive a Lee Paradise and the Estate of Mary considering this request, the DOE found refund based on the evidence currently Paradise were each directed to remit that the firm was not suffering gross in the file. The DOE found that there $221 to the DOE. was sufficient information available to inequity or serious hardship. On Refund Applications November 14, 1994, the DOE issued a grant the firm a refund at the small Proposed Decision and Order claims presumptive level. Accordingly, The Office of Hearings and Appeals determining that the exception request the firm was granted a refund of $5,000, issued the following Decisions and should be denied. No Notice of plus $4,609 in interest. Orders concerning refund applications, Objection to the Proposed Decision and Texaco Inc./Bituminous Materials, Inc., which are not summarized. Copies of Order was filed at the Office of Hearing 12/27/94, RR321–173 the full texts of the Decisions and and Appeals of the DOE within the The DOE issued a Decision and Order Orders are available in the Public prescribed time period. Therefore, on denying a Motion for Reconsideration Reference Room of the Office of the DOE issued the Proposed Decision filed by William L. Walton in the Hearings and Appeals. Atlantic Richfield Company/Wehah Farms, Inc. et al ...... RF304–14640 12/28/94 Gulf Oil Corporation/City of North Olmsted ...... RF300–20425 12/30/94 Gulf Oil Corporation/Lazy 8, Inc ...... RF300–21816 12/30/94 J. Laurance Nicholson & Son, Inc. et al ...... RF272–91001 12/28/94 Northrop Corporation ...... RF272–92554 12/30/94 Suburban Transfer Service, Inc ...... RF272–93035 12/30/94 Texaco Inc./Major Oils ...... RR321–321 12/30/94 Dismissals The following submissions were dismissed: Name Case No. B&B Texaco ...... RF321±9046 Braswell Sand & Gravel Co., Inc ...... RF300±16531 Ethyl Petroleum Additives, Inc ...... RF272±93279 Ganado Unified School District #20 ...... RF272±90142 Olin Corporation ...... RF272±93307 Prospect Heights School #23 ...... RF272±82565 State of Louisiana ...... RF272±98927 Super Service Oil Co ...... RF321±7456 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10847 Name Case No. Syd Smith ...... RF321±14088 Vitamilk Dairy ...... RF272±90917 Copies of the full text of these him and by reducing his annual merit Spaletta was constructively terminated. decisions and orders are available in the pay increases. At the same time OCEP The Hearing Officer also rejected Public Reference Room of the Office of also found that Spaletta had not shown Spaletta’s request that the Hearing Hearings and Appeals, Room 1E–234, that the contractor had retaliated against Officer order the contractor to withdraw Forrestal Building, 1000 Independence him by failing to assign him important the report in question. Finally, the Avenue, S.W., Washington, D.C. 20585, and meaningful work, by requiring him Hearing Officer directed the parties to Monday through Friday, between the to solicit work, or by requiring him to submit additional information hours of 1:00 p.m. and 5:00 p.m., except take unpaid leave during a Christmas concerning the amount of back pay, federal holidays. They are also available holiday curtailment of work. Spaletta attorney’s fees, and costs that should be in Energy Management: Federal Energy requested a hearing to challenge OCEP’s awarded in the case. Guidelines, a commercially published finding and conclusions. Refund Application loose leaf reporter system. Subsequent to the hearing, an OHA Dated: February 21, 1995. Hearing Officer issued an Initial Agency Standard Oil Company (Indiana) et al./ Oklahoma, 01/04/95, RM21–277 et George B. Breznay, Decision, setting forth his findings. As explained below, in the Initial Agency al. Director, Office of Hearings and Appeals. Decision, the OHA Hearing Officer The DOE issued a Decision and Order [FR Doc. 95–4878 Filed 2–27–95; 8:45 am] found that some of Spaletta’s claims granting a Motion for Modification BILLING CODE 6450±01±P were meritorious. (Motion) filed by the State of Oklahoma The OHA Hearing Officer found that in the Standard Oil Company (Indiana), Issuance of Decisions and Orders Spaletta’s disclosures were protected by Belridge Oil Company, Palo Pinto Oil & During the Week of January 2 Through the DOE’s contractor employee Gas, OKC Corporation, and Vickers January 6, 1995 protection program. In that regard, the Energy Corporation refund proceedings. Hearing Officer found that Spaletta In its Motion, Oklahoma proposed to During the week of January 2 through made his disclosures with a good faith reallocate $21,080 in interest from funds January 6, 1995 the decisions and orders belief that a final report concerning the which the State received for other summarized below were issued with evaluation of welds at the Tennessee second-stage refund plans to provide a respect to appeals and applications for Valley Authority’s Watts Bar nuclear transportation service for individuals other relief filed with the Office of power plant did not disclose that the departing from three self-help Hearings and Appeals of the Department evaluation used a weld inspection code organizations in downtown Oklahoma of Energy. The following summary also that was not mentioned in the plant’s City and traveling to jobs outside the contains a list of submissions that were Final Safety Analysis Report (FSAR) inner city. The vehicle to be used is a dismissed by the Office of Hearings and and, as a consequence, evaluated 15-passenger compressed natural gas Appeals. employee weld safety concerns against (CNG) van. In accordance with prior a standard different from the standard Appeal Decisions, where we have noted the contained in the FSAR. The Hearing benefits of alternative fuel vehicles and Howard W. Spaletta, 01/04/95, LWA– Officer also found that Spaletta believed the increased use of public 0010 that these conditions impacted on safety transportation, the DOE approved Howard W. Spaletta filed a at the Watts Bar plant. Oklahoma’s Motion. whistleblower complaint against EG&G The Hearing Officer also found that Idaho, Inc. in which he alleged that the the contractor retaliated against Spaletta Refund Applications contractor retaliated against him for by referring fewer work assignments to The Office of Hearings and Appeals making health and safety disclosures. him and by reducing his annual merit issued the following Decisions and After investigating the complaint, the pay increases for a three-year period. Orders concerning refund applications, Office of Contractor Employee The Hearing Officer rejected Spaletta’s which are not summarized. Copies of Protection found that Spaletta had made claims (i) that the contractor retaliated the full texts of the Decisions and protected disclosures and that thereafter against him by requiring him to take Orders are available in the Public the contractor had retaliated against him leave during a Christmas holiday Reference Room of the Office of by referring fewer work assignments to curtailment of work and (ii) that Hearings and Appeals. Atlantic Richfield Company/Edmonds Arco ...... RF304–13881 01/06/95 Florence Car Wash ...... RF304–13908 ...... Smith Motor Sales ...... RF304–13998 ...... Enron Corp./Nixon Company ...... RF340–74 01/04/95 Pioneer Energy, Inc ...... RF340–88 ...... Bonesteel Oil Company ...... RF340–117 ...... Gulf Oil Corporation/Vic’s Gulf Service et al ...... RF300–21603 01/06/95 Shellabarger Chevrolet ...... RF272–94629 01/03/95 Texaco Inc./Norm’s Texaco et al ...... RF321–20582 01/04/95 Texaco Inc./Rommel’s Holiday Inn Texaco et al ...... RF321–11298 01/04/95 Texaco Inc./Von’s Texaco Service et al ...... RF321–20610 01/06/95 Town of Oelwein et al ...... RF272–96608 01/06/95 10848 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Dismissals The following submissions were dismissed: Name Case No. Bill's Texaco ...... RF321±19630 Les Texaco ...... RF321±19705 Marathon Letourneau Company ...... RF272±95057 Copies of the full text of these than the law requires or who sell ACTION: Amended Notice of Meeting— decisions and orders are available in the vehicles in California which are cleaner Common Sense Initiative Council, Public Reference Room of the Office of than the law requires may earn credits Petroleum Refining Sector Hearings and Appeals, Room 1E–234, which may be banked and applied to Subcommittee. Forrestal Building, 1000 Independence future years’ sales requirements or Avenue, SW., Washington, DC 20585, traded to other manufacturers. These SUMMARY: The Environmental Protection Monday through Friday, between the manufacturers will submit annual Agency established the Common Sense hours of 1:00 p.m. and 5:00 p.m., except reports containing information on Initiative Council (CSIC) on October 17, federal holidays. They are also available vehicle sales in California and the 1994, to provide independent advice in Energy Management: Federal Energy number of credits created, banked, and counsel to EPA on environmental Guidelines, a commercially published traded and/or used. EPA will use the issues associated with the petroleum loose leaf reporter system. information to determine compliance refining industry and other industrial sectors. The charter for the CSIC was Dated: February 21, 1995. with the sales requirements and the credit program. authorized through October 17, 1996, George B. Breznay, under regulations established by the Director, Office of Hearings and Appeals. Burden Statement: Public reporting and recordkeeping burden for this Federal Advisory Committee Act [FR Doc. 95–4879 Filed 2–27–95; 8:45 am] collection of information is estimated to (FACA). The Petroleum Refining Sector BILLING CODE 6450±01±P average 30 minutes per response, (PRS) Subcommittee operates as a including time for reviewing subcommittee of the CSIC. instructions, searching existing data AMENDED OPEN MEETING NOTICE: Notice is ENVIRONMENTAL PROTECTION sources, gathering and maintaining the hereby given of a change in dates for the AGENCY data needed, and completing the upcoming CSIC-PRS Subcommittee [FRL±5161±4] collection of information. meeting from a one day meeting, March Respondents: Manufacturers of clean- 10, 1995, to a two day meeting to be Agency Information Collection fueled vehicles sold in California. held March 9 and 10, 1995. The meeting Activities Under OMB Review Estimated Number of Respondents: was previously noticed in the Federal Register for a one day meeting on AGENCY: Environmental Protection 20. Agency (EPA). Estimated Total Annual Burden on Friday, March 10, 1995, from 9:00 a.m. Respondents: 10 hours. to 5:30 p.m. at the Radisson Inn Hotel, ACTION: Notice. Frequency of Collection: Annually. 2150 Veterans Blvd., Kenner, LA 70062 SUMMARY: In compliance with the Send comments regarding the burden (1–800–333–3333 or 504–467–3111). Paperwork Reduction Act (44 U.S.C. estimate, or any other aspect of this The meeting is now scheduled for two 3501 et seq.), this notice announces that information collection, including days, March 9 and 10 in the same the Information Collection Request (ICR) suggestions for reducing the burden, to: location. An additional day is needed to abstracted below has been forwarded to Sandy Farmer, U.S. Environmental conduct the full range of committee the Office of Management and Budget Protection Agency, Information Policy business and to convene in workgroups (OMB) for review and comment. The Branch (2136), 401 M Street, SW., that will begin identifying specific ICR describes the nature of the Washington, DC 20460 issues and formulating a CSIC-PRS subcommittee workplan. Seating will be information collection and its expected and cost and burden; where appropriate, it available on a first come, first served includes the actual data collection Troy Hillier, Office of Management and basis. instrument. Budget, Office of Information and INSPECTION OF SUBCOMMITTEE Regulatory Affairs, 725 17th Street, DATES: Comments must be submitted on DOCUMENTS: Documents relating to the or before March 30, 1995. NW.,Washington, DC 20503. topics above will be publicly available FOR FURTHER INFORMATION CONTACT: For Dated: February 22, 1995. at the meeting. Thereafter, these further information, or a copy of this Paul Lapsley, documents, together with the CSIC-PRS ICR, contact Sandy Farmer at (202) 260– Director, Regulation Management Division. meeting minutes, will be available for 2740. [FR Doc. 95–4895 Filed 2–27–95; 8:45 am] public inspection in Room 2417M of EPA Headquarters, 401 M Street, SW., SUPPLEMENTARY INFORMATION: BILLING CODE 6560±50±F Washington, D.C., Mail Code 6101, Office of Air and Radiation phone (202) 260–7417. [FRL±5162±6] Title: California Pilot Program: FOR FURTHER INFORMATION CONTACT: Vehicle Credit Program EPA ICR Common Sense Initiative Council, Anyone who would like further #1590.02; OMB #2060–0229). This ICR Petroleum Refining Sector information should contact the Common requests renewal of the existing Subcommittee; Meeting Sense Initiative Program Staff office by clearance. phone on (202) 260–7417, or by FAX on Abstract: Manufacturers who sell AGENCY: Environmental Protection (202) 260–9766. Members of the public more clean-fuel vehicles in California Agency (EPA). may submit written comments of any Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10849 length prior to the meeting. One hour of Section 184 provisions for the ‘‘Control Reauthorization Act of 1986 (‘‘SARA’’), meeting time each day will be set aside of Interstate Ozone Air Pollution.’’ Pub. L. 99–499, for response costs for oral presentations. Each individual Section 184(a) establishes an ozone incurred at the Metamora Landfill Site or group making an oral presentation transport region comprised of the States (‘‘the Site’’). The U.S. EPA proposes to will be limited to a total of five minutes. of Connecticut, Delaware, Maine, address the potential liability of the Attendees should provide their names Maryland, Massachusetts, New Settling Party by execution of a CERCLA and telephone numbers to the Common Hampshire, New Jersey, New York, Section 122(h)(1) Administrative Cost Sense Initiative Program Staff so that the Pennsylvania, Rhode Island, Vermont, Recovery Settlement (‘‘AOC’’) prepared Agency can advise them of any schedule parts of Virginia and the District of pursuant to 42 U.S.C. Section changes. Columbia. 9622(h)(1). The key terms and Dated: February 22, 1995. The Assistant Administrator for Air conditions of the AOC may be briefly Prudence Goforth, and Radiation of the Environmental summarized as follows: (1) the Settling Acting, Designated Federal Officer. Protection Agency convened the first Party agrees to pay U.S. EPA meeting of the commission in New York [FR Doc. 95–4893 Filed 2–27–95; 8:45 am] $332,256.00; (2) the Settling Party agrees City on May 7, 1991. The purpose of the BILLING CODE 6560±50±P to assign to EPA all payments and rights Transport Commission is to deal with to receive payments from and including appropriate matters within the transport March 1, 1995 pursuant to its Land [FRL±5162±3] region. Contract Receivable and its Asset The purpose of this notice is to Purchase and Sale Agreement; (3) the Ozone Transport Commission for the announce that this Commission will Settling Party agrees to waive all claims Northeast United States; Notice of meet on February 28, 1995. The meeting against the United States that arise out Meeting will be held at the address noted earlier of response activities conducted at the AGENCY: Environmental Protection in this notice. Site; and (4) U.S. EPA affords the Agency. Section 176A(b)(2) of the Clean Air Settling Party a covenant not to sue for Act Amendments of 1990 specifies that ACTION: Notice of meeting. all response costs incurred and to be the meetings of Transport Commissions incurred at the Site upon satisfactory SUMMARY: The United States are not subject to the provisions of the completion of obligations under the Environmental Protection Agency is Federal Advisory Committee Act. This Settlement. The Site is on the NPL and announcing its Winter meeting of the meeting will be open to the public as is currently being remediated pursuant Ozone Transport Commission to be held space permits. to the terms of a Consent Decree entered Type of Meeting: Open. on February 28, 1995. by the United States District Court for Agenda: Copies of the final agenda This meeting is for the Transport the Eastern District of Michigan will be available from Stephanie Cooper Commission to deal with appropriate Southern Division—Flint on March 17, of the OTC office (202) 508–3840 on matters within the transport region, as 1993. provided for under the Clean Air Act Monday, February 20, 1995. The Amendments of 1990. This meeting is purpose of this meeting is to review air DATES: Comments on the proposed AOC not subject to the provisions of the quality needs within the Northeast and must be received by U.S. EPA on or Federal Advisory Committee Act, Public Mid-Atlantic States, consider the before March 30, 1995. Law 92–463, as amended. development of market-based programs ADDRESSES: A copy of the proposed DATES: The meeting will be held on in the region, and to discuss ozone State Implementation Plans. AOC is available for review at U.S. EPA, February 28, 1995 from 10:00 a.m. to Region 5, 77 West Jackson Boulevard, 4:00 p.m. Dated: February 16, 1995. Chicago, Illinois 60604. Please contact PLACE: The meeting will be held at: The John DeVillars, Connie Puchalski at (312) 886–6719, Hotel du Pont, 11th and Market Streets, Regional Administrator, EPA Region I. prior to visiting the Region 5 office. Wilmington, DE 19801. [FR Doc. 95–4896 Filed 2–27–95; 8:45 am] Comments on the proposed AOC FOR FURTHER INFORMATION CONTACT: BILLING CODE 6560±50±P should be addressed to Connie EPA Puchalski, Office of Regional Counsel, Doug Gutro, State Relations [FRL±5163±2] U.S. EPA, Region 5, 77 West Jackson Coordinator, Region I, U.S. Boulevard (Mail Code CS–29A), Environmental Protection Agency, Proposed CERCLA Section 122(h)(1) Chicago, Illinois 60604. John F. Kennedy Federal Building, Administrative Cost Recovery Settlement for the Metamora Landfill FOR FURTHER INFORMATION CONTACT: Boston, MA 02203, (617) 565–3383 Connie Puchalski at (312) 886–6719, of THE STATE CONTACT: AGENCY: Environmental Protection the U.S. EPA Region 5 Office of Host Agency: Agency (‘‘U.S. EPA’’). Regional Counsel. ACTION: Proposal of CERCLA Section Carol Brown, Delaware Department of A 30-day period, commencing on the 122(h)(1) Administrative Cost Recovery Natural Resources and Environmental date of publication of this notice, is Settlement for the Metamora Landfill. Control, P.O. Box 1401, 89 Kings open pursuant to Section 122(i) of CERCLA, 42 U.S.C. Section 9622(i), for Highway, Dover, DE 19903, (302) SUMMARY: U.S. EPA proposes to address comments on the proposed AOC. 739–4403 the potential liability of U.S. Chemical Comments should be sent to the FOR DOCUMENTS AND PRESS INQUIRIES Company (hereinafter referred to as ‘‘the addressee identified in this notice. CONTACT: Stephanie A. Cooper, Ozone Settling Party’’) under the Transport Commission, 444 North Comprehensive Environmental Robert Springer, Capitol Street, N.W., Suite 604, Response, Compensation, and Liability Acting Regional Administrator, Washington, DC 20001, (202) 508–3840. Act of 1980 (‘‘CERCLA’’), 42 U.S.C. Environmental Protection Agency, Region 5. SUPPLEMENTARY INFORMATION: The Clean Section 9601 et seq., as amended by the [FR Doc. 95–4999 Filed 2–27–95; 8:45 am] Air Act Amendments of 1990 contain at Superfund Amendments and BILLING CODE 6560±50±P 10850 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices [OPPTS±62145; FRL±4937±4] necessary accreditation. The that it had been filed, their tariffs would information is also maintained so that be cancelled in accordance with 46 CFR Accredited Training Programs Under the Agency and approved state 514.1(c)(1)(iii)(C) and their licenses the Asbestos Hazard Emergency accreditation and licensing programs would be suspended in accordance with Response Act (AHERA) will have a reliable means of identifying 46 CFR 510.16(a)(6). The license AGENCY: Environmental Protection and verifying the approval status of suspension shall remain in effect until Agency (EPA). training courses and organizations. such time as the license is reinstated by ACTION: National Directory of AHERA Previously, EPA had published this the Commission after an Anti-Rebate Accredited Courses (NDAAC); notice of listing in the Federal Register on a Certification is filed. availability of new edition. quarterly basis. The last Federal Firms filing the Anti-Rebate Register listing required by law was Certification during the 45-day notice SUMMARY: Effective February 28, 1995, published on August 30, 1991. EPA period will not have their tariffs the EPA is announcing the availability recognized the need to continue cancelled or licenses suspended, of a new edition of its National publication of this document even however these firms may be subject to Directory of AHERA Accredited Courses though the legislative mandate had a civil penalty of up to $5,000 for each (NDAAC). This publication, updated expired. The NDAAC fulfills the public day the firm is in violation. quarterly, provides information to the need for this information while at the Newton J. Frank, public about training providers and same time, it reduces EPA cost and Deputy Director, Bureau of Tariffs, courses approved for accreditation improves the service’s capabilities. Certification and Licensing. purposes pursuant to the Asbestos Hazard Emergency Response Act List of Subjects Part A: Common Carriers by Water in (AHERA). As a nationwide listing of the Foreign Commerce of the United Environmental protection. approved asbestos training programs States that Have Not Filed Anti-Rebate and courses, the NDAAC has replaced Dated: Feburary 16, 1995. Certifications the similar listing which was formerly Susan B. Hazen, Acronym: A.A. Freight Forwarding, Inc. published quarterly by EPA in the Acting Director, Office of Pollution Prevention Organization No.: 002518 Federal Register. The February 28, and Toxics. Acronym: A.L.S. Associazione Logistica 1995, directory, which supersedes the Spedizionieri version released on November 30, 1994, [FR Doc. 95–4600 Filed 2–27–95; 8:45 am] Organization No.: 012259 may be ordered through the NDAAC BILLING CODE 6560±50±F Acronym: A.M.Z. International Clearinghouse along with a variety of Shipping Co. related reports. Organization No.: 012328 ADDRESSES: Parties interested in FEDERAL MARITIME COMMISSION Acronym: AA Forwarding Inc. receiving a brochure which describes Organization No.: 009386 Acronym: ABCO International Freight the national directory and provides Intent to Cancel Tariffs of Common (H.K.), Ltd. ordering information should contact: Carriers by Water and To Suspend Licenses of Ocean Freight Forwarders Organization No.: 012754 EPA AHERA-NDAAC, c/o VISTA Acronym: Ace Shipping Corp. Computer Services, 3rd Floor, 6430 for Failure To File Anti-Rebate Certifications Organization No.: 002158 Rockledge Drive, Bethesda, Maryland Acronym: Active Cargo Services 20817, Telephone: 1–800–462–6706. Notice is given that the Federal Limited FOR FURTHER INFORMATION CONTACT: Maritime Commission (‘‘Commission’’) Organization No.: 010553 Susan B. Hazen, Director, intends to cancel the tariffs of certain Acronym: AFS Freight Management Environmental Assistance Division common carriers and suspend the (USA) Inc. (7408), Office of Pollution Prevention licenses of certain licensed ocean freight Organization No.: 012403 and Toxics, Environmental Protection forwarders who have failed to file the Acronym: Air Market Express Limited Agency, Rm. E–543B, 401 M St., SW., Anti-Rebate Certification required by Organization No.: 012720 Washington, DC 20460, (202) 554–1404, section 15 of the Shipping Act of 1984. Acronym: Air Tiger Express (U.S.A.), TDD: (202) 554–0551. 46 U.S.C. app. 1714. The common Inc. SUPPLEMENTARY INFORMATION: Pursuant carriers by water and ocean freight Organization No.: 007319 to AHERA, as amended by the Asbestos forwarders shown in Parts A, B and C Acronym: Airfreight Master Limited, School Hazard Abatement respectively on the attached lists have The Reauthorization Act (ASHARA), not timely filed with the Commission Organization No.: 010629 contractors who prepare management the Anti-Rebate Certification which was Acronym: Airtrade Express, Inc. plans for schools, inspect for asbestos in due on or before December 31, 1994. Organization No.: 010967 Acronym: Airtruk/Seatruk, Inc. schools or public and commercial The Commission’s regulations at 46 CFR Organization No.: 012827 buildings, or design or conduct response 582.1(a) and 582.3(a) require every Acronym: Alfons Koster actions with respect to friable asbestos- common carrier by water and ocean Organization No.: 010619 containing materials in schools or freight forwarder in the foreign Acronym: All Shipping Company, Inc. public and commercial buildings, are commerce of the United States to file an Organization No.: 012901 required to obtain accreditation by Anti-Rebate Certification by December Acronym: Allegro International Service completing prescribed training 31 of each even numbered calendar Organization No.: 010608 requirements. EPA therefore maintains a year. Acronym: Aloyd International, Corp. current national listing of AHERA- The firms listed in Parts A, B and C Organization No.: 011242 accredited courses and approved were notified by certified mail dated Acronym: Amco Shipping International training providers so that this and mailed on February 21, 1995, that, Limited information will be readily available to if within 45 days of the date of such Organization No.: 012523 assist the public in accessing these notice, they have not either filed an Acronym: Amerasa Rapid Transport training programs and obtaining the Anti-Rebate Certification or established USA, Inc. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10851 Organization No.: 012831 Acronym: Bering Orient, Inc. Organization No.: 011245 Acronym: America First International, Organization No.: 013002 Acronym: China National Foreign Trade Inc. Acronym: Best Air & Sea Services (HK), Transportation C Organization No.: 007266 Ltd. Organization No.: 000747 Acronym: American Caribbean Express Organization No.: 013010 Acronym: China Trading Service USA Shipping Co., Inc. Acronym: Bogo Shipping Co., Ltd. Inc. Organization No.: 013140 Organization No.: 010439 Organization No.: 013152 Acronym: American Liner System, Inc. Acronym: Bolivian Intermodal Acronym: Choice Container Corp. Organization No.: 013231 Containers Lines S.R.L. Organization No.: 011060 Acronym: American Rate, Inc. Organization No.: 011947 Acronym: City Cargo International Organization No.: 012251 Acronym: Bosco Atlantic Lines, Inc. Organization No.: 011388 Acronym: American Ship Management, Organization No.: 012228 Acronym: Clare Freight International Inc. Acronym: Brazil Consolidating Services, Inc. Organization No.: 012847 Inc. Organization No.: 011999 Acronym: American Tri-Net Express, Organization No.: 012574 Acronym: Clear Link Shipping Inc. Acronym: Brazilian Overseas Shipping Company Inc. Organization No.: 005862 Services, Ltd. Organization No.: 012329 Acronym: Amership, Inc. Organization No.: 009604 Acronym: Clipper Shipping Ltd. Organization No.: 005871 Acronym: Brighten Ocean Forwarding, Organization No.: 011636 Acronym: Amexcaribe, Inc. Ltd. Acronym: Club Prestige Antilles N.V. Organization No.: 009678 Organization No.: 010582 Organization No.: 012199 Acronym: Amzone International, Inc. Acronym: C & T International N.V. Acronym: CMB Transport NV Organization No.: 008795 Organization No.: 013207 Organization No.: 011178 Acronym: Arctic Shipping Management Acronym: C.A. Venezolana De Acronym: CMS International Co. S.A. Navegacion Organization No.: 007321 Organization No.: 011292 Organization No.: 000010 Acronym: Colex Ltd. Acronym: Armada Anz Parcel Service Acronym: Caicos Seafreight, Ltd. Organization No.: 001811 B.V. Organization No.: 012898 Acronym: Colombia Transport Line, Organization No.: 011990 Acronym: Calberson International Paris Incorporated Acronym: Arms Ocean Systems, Inc. Nord II Organization No.: 011240 Organization No.: 013257 Organization No.: 008856 Acronym: Colombo Marine Cargo, Inc. Acronym: Arrow Shipping Limited Acronym: Cargo Co-Ordinators Organization No.: 012000 Organization No.: 011413 Shipping (H.K.), Ltd. Acronym: Commodity Forwarders, Inc. Acronym: Asia Fortune Shipping, Inc. Organization No.: 012836 Organization No.: 004682 Organization No.: 012115 Acronym: Cargo Trader, Inc., The Acronym: Commonwealth Shipping Acronym: Asia Pacific Shipping, Inc. Organization No.: 011378 Ltd. Organization No.: 011996 Acronym: Cargo Transport Lines, Inc. Organization No.: 009587 Organization No.: 012292 Acronym: Asia Top Shipping Limited Acronym: Compagnie Nationale Acronym: Caribbean Express Line, Inc. Organization No.: 011997 Algerienne De Navigation Organization No.: 012221 Acronym: Asia Transportation Co., Ltd. Organization No.: 000787 Acronym: Caribe Basin Services, Inc. Organization No.: 012481 Acronym: Companhia De Navegacao Organization No.: 006284 Maritima Neutumar Acronym: Asiamerica Lines Acronym: Caribe U.S.A., Inc. Organization No.: 012220 Organization No.: 010864 Organization No.: 001537 Acronym: Asian Shipping, Ltd. Acronym: Carpe Air & Sea Shipping, Acronym: Complete Cargo Services, Inc. Organization No.: 008492 Inc. Organization No.: 012453 Acronym: Atlas Freight Consolidators, Organization No.: 008655 Acronym: Con-Carriers GMBH Inc. Acronym: Catcor Services, Inc. Organization No.: 010482 Organization No.: 011991 Organization No.: 012581 Acronym: Conship Maritime Agency, Acronym: Atlas Intermodal Services, Acronym: CCAL (Canada), Inc. Inc. Inc. Organization No.: 000754 Organization No.: 007590 Organization No.: 012373 Acronym: CCCA/FNC Acronym: Consorcio Naviero Del Acronym: Aton Shipping Corporation Organization No.: 012551 Occidente, C.A. Organization No.: 012291 Acronym: Central America Shippers Organization No.: 007527 Acronym: Aust-Asia Worldwide L.L.C. Acronym: Container Development Shipping Pty., Ltd. Organization No.: 012849 Group Corporation Organization No.: 010650 Acronym: Central American Container Organization No.: 012120 Acronym: Australian Freight Services, Line, S.A. Acronym: Conterm Consolidation Ltd. Organization No.: 010790 Services (USA) Inc. Organization No.: 011722 Acronym: Central States Transport Ltd. Organization No.: 007913 Acronym: Babun Shipping Corporation Organization No.: 010627 Acronym: Conti-Lines N.V. Organization No.: 011570 Acronym: Chat, Inc. Organization No.: 00189 Acronym: Bank Line East Africa Limited Organization No.: 011260 Acronym: Continental Container Lines Organization No.: 008549 Acronym: Chavez, Ninfa V. Ltd. Acronym: Basle Line Nigeria Limited Organization No.: 012343 Organization No.: 012818 Organization No.: 012560 Acronym: Cheng Ho Forwarding Co., Acronym: Continental Seacorp Acronym: Bekins Moving & Storage Ltd. Shipping, Ltd. Organization No.: 005328 Organization No.: 011103 Organization No.: 007318 Acronym: Benemerito, Lisenio R. Acronym: China Express Forwarders Acronym: Continental World Movers, Organization No.: 013151 Co., Ltd. Inc. 10852 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Organization No.: 002700 Acronym: Empresa Naviera Santa Ltd. Acronym: Global Container Lines Acronym: Corporate World Relocation Organization No.: 009405 Limited International, Inc. Acronym: Encinal Terminals Organization No.: 012227 Organization No.: 012121 Organization No.: 001929 Acronym: Global Forwarding Ltd. Acronym: Covenant Container Line, Inc. Acronym: EOS/McArthur (Belgium) Organization No.: 012552 Organization No.: 009624 BVBA Acronym: Global International Acronym: Croatia Line Organization No.: 012122 Forwarding Ltd. Organization No.: 011097 Acronym: Esbo Shipping Inc. Organization No.: 010392 Acronym: Cross Ocean International, Organization No.: 011959 Acronym: Global Worldwide, Inc. Inc. Acronym: Euro Trans International, Inc. Organization No.: 007842 Organization No.: 008941 Organization No.: 011944 Acronym: Global Cargo, Inc. Acronym: CTL Maritime (USA) Inc. Acronym: Euro-Link Cargo Service Ltd. Organization No.: 012086 Organization No.: 012105 Organization No.: 008863 Acronym: Globus International Packing, Acronym: D.T. Gruelle Company Acronym: Ever Concord Ltd. Shipping & Movi Organization No.: 012187 Organization No.: 010805 Organization No.: 012912 Acronym: Dammers Chartering N.V. Acronym: Exx-Ortz International, Inc. Acronym: Glorious Shipping Organization No.: 011642 Organization No.: 012038 Organization No.: 009697 Acronym: Danfast Freight Limited Acronym: FC Wright International Ltd. Acronym: Goldline Limited Organization No.: 011862 Organization No.: 011496 Organization No.: 012555 Acronym: Dantransport (UK) Limited Acronym: F.S. Cargo, Inc. Acronym: Graybar Navigation Inc. Organization No.: 011167 Organization No.: 012599 Organization No.: 008850 Acronym: Dart Express (Los Angeles) Acronym: Falcon Freight International Acronym: Green Sail Ltd. Inc. Limited Organization No.: 011364 Organization No.: 008448 Organization No.: 010347 Acronym: Gruenhut International Ltd. Acronym: Deckwell Sky Express Ltd. Acronym: Far Eastern Shipping Organization No.: 010375 Organization No.: 013164 Company Acronym: Guardship America, Inc. Acronym: Deep-Sea Consolidation AB Organization No.: 010823 Organization No.: 008016 Organization No.: 012862 Acronym: Fast Forward Container Line Acronym: Gulf and Eastern Steamship & Acronym: Dennis Shipping & Organization No.: 008862 Chartering Corp. Photography Co. Acronym: Filipinas Cargo Forwarders Organization No.: 008901 Organization No.: 012293 Organization No.: 012104 Acronym: Gulf Coast Shipping Acronym: Devoted Cargo Services (H.K.) Acronym: First Maritime Company, Inc. Organization No.: 011383 Ltd. Organization No.: 005731 Acronym: Gulf-Atlantic Refrigerated Organization No.: 011059 Acronym: Fordson Shipping Limited Line, Inc. Acronym: DSR/Senator Joint Service Organization No.: 011280 Organization No.: 011573 Organization No.: 009934 Acronym: Formerica Consolidation Acronym: H. Schumacher Associates Acronym: Dynasty Express Co., Ltd. Service, Inc. Organization No.: 009867 Organization No.: 012695 Organization No.: 011336 Acronym: Haewoo Air & Shipping Co., Acronym: East Indies Shipping Acronym: Foss Maritime Company Ltd. Company Organization No.: 010863 Organization No.: 009837 Organization No.: 011132 Acronym: Franco Vago International Acronym: Hallmark Transport (Taiwan) Acronym: Eastern Mediterranean Inc. Co., Ltd. Shipping Corp. Organization No.: 013029 Organization No.: 010807 Organization No.: 013236 Acronym: Freight Liner SA Acronym: Hamda International Freight Acronym: Eastern Worldwide Company, Organization No.: 012455 Ltd. Limited Acronym: Freightlink International Inc. Organization No.: 011363 Organization No.: 007780 Organization No.: 013112 Acronym: Han Maritime Limited Acronym: Eastop Shipping Ltd. Acronym: French International Movers, Organization No.: 011150 Organization No.: 011246 Inc. Acronym: Hanshin Air Cargo USA Inc. Acronym: Econolines Ltd. Organization No.: 013178 Organization No.: 010633 Organization No.: 012674 Acronym: Freshtainer Operations Acronym: Helka Expresss International Acronym: Ecuadorian Line, Inc. Limited Ltd. Organization No.: 001775 Organization No.: 012025 Organization No.: 008783 Acronym: EES Shipping (Australia) Pty Acronym: Frontier Liner Services Inc. Acronym: Henriques, Beverly Ltd. Organization No.: 010779 Organization No.: 012708 Organization No.: 010227 Acronym: Fuchuen Transportation Acronym: Hintex International Limited Acronym: Egyptian Navigation Company Limited Organization No.: 012534 Company Organization No.: 011864 Acronym: Horizon Steamship Line Ltd. Organization No.: 001228 Acronym: Fuji Unyu Co., Ltd. Organization No.: 013100 Acronym: Empremar/CTE Agreement Organization No.: 008464 Acronym: Hudson Int’l Transport No. 207–011397 Acronym: Fund on Shipping Limited (Taiwan) Corp. Organization No.: 011358 Organization No.: 011692 Organization No.: 012522 Acronym: Empremar/MSC Agreement Acronym: Fushiki Kairiku Unso Co., Acronym: Hudson Shipping (Hong Organization No.: 011013 Ltd. Kong) Ltd. Acronym: Empresa Mocambicana De Organization No.: 010715 Organization No.: 012624 Navegacao Internaciona Acronym: Gateway Express Co., Inc. Acronym: Hyaline Shipping (H.K.) Co., Organization No.: 009333 Organization No.: 007078 Ltd. Acronym: Empresa Naviera Andina S.A. Acronym: GFI Express Corp. Organization No.: 010663 Organization No.: 012223 Organization No.: 012717 Acronym: Hycob Maritime, Inc. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10853 Organization No.: 011563 Acronym: Kintetsu Intermodal (Taiwan) Acronym: Massworld Maritime Ltd. Acronym: Imex Trans Line Inc. Inc. Organization No.: 009742 Organization No.: 012535 Organization No.: 009664 Acronym: Master Air Cargo, Inc. Acronym: Inchcape Shipping Services Acronym: Kunyoung Shipping Co., Ltd. Organization No.: 011296 (HK) Ltd. Organization No.: 010192 Acronym: Master Freight Ltd. Organization No.: 011414 Acronym: KWE-Kintetsu World Express Organization No.: 009507 Acronym: Industrial Maritime Carriers, (S) Pte Ltd. Acronym: Max Gruenhut Gmbh Inc. Organization No.: 009661 Organization No.: 010493 Organization No.: 009370 Acronym: L.C. Shipping, Inc. Acronym: Max International Freight Acronym: Inteks, Inc. Organization No.: 008397 Service Ltd. Organization No.: 010587 Acronym: Latin Freight Corporation Organization No.: 010855 Acronym: Interamericana Shipping Organization No.: 013122 Acronym: Maxcaribe, Inc. Line, Inc. Acronym: Latinmar, Inc. Organization No.: 011352 Organization No.: 013131 Organization No.: 012673 Acronym: Maxfine Shipping Limited Acronym: International Caribbean Acronym: Leader Ocean Freight Organization No.: 011695 Shipping (USA) Inc. Forwarder, Inc. Acronym: MCC (Mercantile Europe) Organization No.: 005833 Organization No.: 010651 Gmbh Acronym: International Express Acronym: Leadway Express Co., Ltd. Organization No.: 010418 Consolidators Co. Organization No.: 010880 Acronym: MCC Distribution AB Organization No.: 013168 Acronym: Lextrans Co. Organization No.: 010386 Acronym: International Express Organization No.: 013165 Acronym: Meng Horng Shipping Pte Shipping Co., Ltd. Acronym: Lianfeng Shipping Co. Ltd. Ltd. Organization No.: 012701 Organization No.: 010923 Organization No.: 009789 Acronym: International Tomas Acronym: Lineas Agromar S.A. Acronym: Merks Southern Star Line Consolidated Ltd. Organization No.: 001608 Ltd. Organization No.: 008971 Acronym: Ling Bridge Transport Organization No.: 011968 Acronym: International Transport Incorporation Acronym: Mexus Ro/Ro Line, Inc. Systems Organization No.: 008546 Organization No.: 012821 Organization No.: 012336 Acronym: Lockson Services Limited Acronym: Miller Intermodal Logistics Acronym: International Transportation Organization No.: 012020 Services and Cargo Service Acronym: Logistics International Organization No.: 012539 Organization No.: 008220 Management Services Acronym: MM Lines Inc. Acronym: Isabella Shipping Company Organization No.: 009696 Organization No.: 011228 Limited (Bermuda) Acronym: Lonkon Investments Limited Acronym: Modern Line Service, Inc. Organization No.: 012071 Organization No.: 012564 Organization No.: 012746 Acronym: J-Mar Overseas Transport, Acronym: Lucky Accord Co. Ltd. Acronym: Mondial Freight (HK) Limited Inc. Organization No.: 011571 Organization No.: 012068 Organization No.: 007861 Acronym: Lucky Ocean Shipping Acronym: Morex Line Corp. Acronym: J.R.C. Corp. Limited Organization No.: 011177 Organization No.: 012691 Organization No.: 011973 Acronym: MSS Maritime Shipping Acronym: Jardine Shoushan Int’l Co., Acronym: M. I. International, Inc. Services, Ltd. Ltd. Organization No.: 013093 Organization No.: 012300 Organization No.: 011495 Acronym: Macs Maritime Carrier Acronym: Multimodal Services (NY) Acronym: Jasper Freight Inc. Shipping Gmbh & Company Inc. Organization No.: 012834 Organization No.: 001639 Organization No.: 011326 Acronym: Jefferson Shipping Ltd. Acronym: Magenta Overseas Limited Acronym: Multimodal Shipping Organization No.: 013088 Organization No.: 012826 Company, Inc. Acronym: Jet Compania Naviera S.A. Acronym: Magnus International Organization No.: 011953 Organization No.: 011151 Organization No.: 009382 Acronym: Myers Maritime International Acronym: Jet-Speed Sea Freight Ltd. Acronym: Main Chain, America Ltd. Organization No.: 011014 Corporation Organization No.: 002226 Acronym: Jeuro Incorporation. Organization No.: 011974 Acronym: N.G.K., Inc. Organization No.: 010519 Acronym: Mares Transport. Organization No.: 012398 Acronym: Jiangsu Commercial Organization No.: 012128 Acronym: National Container Line Transportation (HK) Co. Ltd. Acronym: Marine Cargo Containers (H.K.) Limited Organization No.: 012053 Organization No.: 012485 Organization No.: 011375 Acronym: JMS International Services Acronym: Marine Shipping Lines, Inc. Acronym: National Shipping Company Organization No.: 012444 Organization No.: 012536 of Saudi Arabia, TH Acronym: K.S. Shipping Line Acronym: Marlin Marine Services, Inc. Organization No.: 001497 Organization No.: 011952 Organization No.: 001678 Acronym: Naviera Comercial Naylamp Acronym: Kaitone Shipping Co., Ltd. Acronym: Marmex Line, S.A. S.A. Organization No.: 006938 Organization No.: 011498 Organization No.: 012229 Acronym: Kam International Line Acronym: Marquez, Rolando L. Acronym: Naviera Interamericana Organization No.: 006585 Organization No.: 012245 ‘‘Navicana’’, S.A. Acronym: Kawanishi Shipping Service Acronym: Masco International Inc. Organization No.: 006809 (H.K.) Ltd. Organization No.: 011341 Acronym: Navimar Lines, C.A. Organization No.: 010564 Acronym: Massan Shipping Industries, Organization No.: 011046 Acronym: Khana Enterprise Co., Ltd. Inc. Acronym: Net Ocean, Inc. Organization No.: 010595 Organization No.: 009468 Organization No.: 001536 10854 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Acronym: New Zealand Van Lines Ltd. Organization No.: 000977 Acronym: S.A.F.E. Shipping USA, Inc. Organization No.: 010584 Acronym: Pan Trans International Organization No.: 011625 Acronym: Noble Shipping Corporation Freight Service Co., L Acronym: Safco International Freight Organization No.: 012410 Organization No.: 010407 Corp. Acronym: Norstar Shipping Agency, Acronym: Panama Line, Inc. Organization No.: 010545 Inc. Organization No.: 009474 Acronym: Sampaguita Group, The Organization No.: 012457 Acronym: Pangaea Enterprises Organization No.: 013028 Acronym: Norte/Sur Americana Organization No.: 011036 Acronym: Samson Transport Company Logistics. Acronym: Pantainer Ltd. (UK) Ltd. Organization No.: 012264 Organization No.: 008092 Organization No.: 010732 Acronym: North Star Airlines, Inc. Acronym: Pearcy Marine, Inc. Acronym: Samson Transport Company Organization No.: 013141 Organization No.: 006584 A/S Acronym: North Star Ocean Services, Acronym: Peltransport Ltd. Organization No.: 010400 Inc. Organization No.: 010573 Acronym: Sanko Steamship Co. Ltd., Organization No.: 008337 Acronym: Peninsula Navigation The Acronym: Norvanco International, Inc. Corporation Organization No.: 001070 Organization No.: 011038 Organization No.: 011420 Acronym: Savino Del Bene (Texas) Ind. Acronym: Ocean Conco Line, Inc. Acronym: Piff Shipping Ltd. Organization No.: 013191 Organization No.: 012757 Organization No.: 013142 Acronym: Scanam Transport (USA) Inc. Acronym: Ocean Focus Int’l (USA) Inc. Acronym: Polamer, Inc. Organization No.: 013087 Organization No.: 009571 Organization No.: 010526 Acronym: Scanfreight Limited Acronym: Ocean Horizon Shipping Co. Acronym: Polar Steamship and Organization No.: 012080 Organization No.: 010612 Commerce Company Inc Acronym: SCN Container Line, Inc. Acronym: Ocean Marine Line Organization No.: 011090 Organization No.: 012577 Organization No.: 007088 Acronym: Poseidon Freight Forwarding Acronym: SDV Management Services, Acronym: (Oceangate Container Line Co., Ltd. Inc. Organization No.: 002789 Organization No.: 010972 Organization No.: 011682 Acronym: (Oceanic Comp. Ltd. Acronym: PPS Enterprise Acronym: Sea Star Marine Corporation Organization No.: 012413 Organization No.: 008604 Organization No.: 012222 Acronym: Oceanic Lloyd Limited Acronym: Professional Cargo Services Acronym: Seabridge Transport (HK) Ltd. Organization No.: 011192 Int’l Inc. Organization No.: 011308 Acronym: Oceanlink Forwarder Co., Organization No.: 013015 Acronym: Seajet Express, Inc. Ltd. Acronym: Protexa Burlington Organization No.: 008514 Organization No.: 010226 International-Bahamas, Ltd Acronym: Seamar Shipping Corporation Acronym: Omni-Express International Organization No.: 011306 Organization No.: 010718 Inc. Acronym: Puma International Acronym: Seanav International, Ltd. Organization No.: 011054 Forwarding Service Organization No.: 007564 Acronym: Orient Freight International, Organization No.: 011148 Acronym: Seawinds Freight Services, Inc. Acronym: R. T. Shipping Limited Inc. Organization No.: 010507 Organization No.: 013027 Organization No.: 011365 Acronym: Orient Overseas Container Acronym: R.F.S. International, Corp. Acronym: Sesko Marine Trailers, Inc. Line Ltd. Organization No.: 013139 Organization No.: 001133 Organization No.: 011398 Acronym: Rae Cargo Services Acronym: Seven Seas Steamship Line, Acronym: Orient Star Trading & Organization No.: 011693 Inc. Shipping, Inc. Acronym: Raf International Forwarding Organization No.: 012385 Organization No.: 007802 Inc. Acronym: Sextans S.A. Cia. Argentina Acronym: Orion Express Line Organization No.: 009854 De Navegacion Organization No.: 010961 Acronym: Rainbow World Transport, Organization No.: 012584 Acronym: Overseas International Inc. Acronym: Sharp Base Shipping and Corporation Organization No.: 013250 Transport Ltd. Organization No.: 009618 Acronym: Rambaud International Organization No.: 007634 Acronym: Overseas Transportation Organization No.: 010611 Acronym: Shipair Express (HK) Limited Corporation Acronym: Rapid Transport Ltd. Organization No.: 011668 Organization No.: 013074 Organization No.: 011683 Acronym: Shui Nam Navigation (H.K.) Acronym: P&O Swire Containers Ltd. Acronym: Red Oak Industries, Inc. Ltd. Organization No.: 012648 Organization No.: 011318 Organization No.: 012602 Acronym: P.O.L. (HK) Ltd. Acronym: Rennies Group Limited Acronym: Siam Paetra International Co., Organization No.: 012333 Organization No.: 010422 Ltd. Acronym: Pacific Ameritrans Shipping Acronym: Riva International Freight Organization No.: 013102 Corporation Management Ltd. Acronym: Sino Ocean Shipping (HK) Organization No.: 012683 Organization No.: 008594 Co. Acronym: Pacific Champion Express Acronym: Rockwood International Organization No.: 010788 Co., Ltd. Freight Limited Acronym: Sino-American Corporation Organization No.: 011283 Organization No.: 010710 Organization No.: 006365 Acronym: Pacific Glory Shipping Acronym: Rong-Shang International Acronym: Societe Nationale Malgache Limited Corp. De Transports Mari Organization No.: 012281 Organization No.: 013150 Organization No.: 007982 Acronym: Pakistan National Shipping Acronym: Rusflot Shipping Line N.V. Acronym: Sofrana Holding Limited Corporation Organization No.: 011301 Organization No.: 012011 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10855 Acronym: Sotbi Trading Inc. Organization No.: 011754 Acronym: UCI Consolidator Ltd. Organization No.: 012670 Acronym: Trade Air, Inc. Organization No.: 009777 Acronym: South Atlantic Cargo Organization No.: 010846 Acronym: UKL Shipping Company Shipping NV Acronym: Traders Freight Systems Limited Organization No.: 005769 (U.S.A.) Inc. Organization No.: 011387 Acronym: Southern Caribbean Organization No.: 010577 Acronym: Ultra Cargo Lines, Inc. Shipping, Inc. Acronym: Trans Am Sea Freight (HK) Organization No.: 012364 Organization No.: 011107 Ltd. Acronym: Uni-Sea & Air Freight Co., Acronym: Southern Oceans Container Organization No.: 009790 Ltd. Line Limited Acronym: Trans Power International Organization No.: 010728 Organization No.: 011376 Forwarder Corp. Acronym: Unifreight Forwarder Inc. Acronym: Speedtrans (Int’l) Organization No.: 008414 Organization No.: 011251 Consolidator Co., Ltd. Acronym: Trans-World Shipping APS Acronym: Union Marine International Organization No.: 008310 Organization No.: 013149 Co., Ltd. Acronym: Speedy Freight Systems Inc. Acronym: Transcontinental Maritime Organization No.: 011304 Organization No.: 012419 Ltd. Acronym: Union Star Line Limited Acronym: Stalwart Shipping, Inc. Organization No.: 009681 Organization No.: 009883 Organization No.: 011272 Acronym: Transglobal Forwarding Co., Acronym: Unipac Shipping Inc. Acronym: Star Ocean Shipping Ltd. Organization No.: 002766 Company Organization No.: 012655 Acronym: Unishipping Organization No.: 009844 Acronym: Translink Navigation S.A. Organization No.: 013052 Acronym: Sunlex Shipping Limited Organization No.: 012486 Acronym: Unison Shipping Co., Ltd. Organization No.: 011961 Acronym: Transnation Freight Services, Organization No.: 007059 Acronym: Sunrise Agency Ltd. Inc. Acronym: Unitainer System Forwarder Organization No.: 010654 Organization No.: 010857 Inc. Acronym: Sunshine Shipping Ltd. Acronym: Transportacion Maritime Organization No.: 009870 Organization No.: 011562 Mexicana, S.A. De C.V. Acronym: United American Acronym: T.V.L. Shipping (H.K.) Co., Organization No.: 000604 Consolidators Corp. Ltd. Acronym: Transtec Ocean Express Inc. Organization No.: 007836 Organization No.: 012379 Organization No.: 011607 Acronym: United Distributors Service Acronym: Taehwa Aerosea Forwarders Acronym: Transway International Co., (Far East) Ltd. Inc. Ltd. Organization No.: 006161 Organization No.: 011639 Organization No.: 013174 Acronym: United Intermodal Line Acronym: Taiwan Consolidation Co., Acronym: Transworld Freight Services, Organization No.: 000056 Ltd. Inc. Acronym: Unitrans Shipping & Air Organization No.: 010331 Organization No.: 007881 Cargo Limited Acronym: Taiwan Dispatch Forwarding Acronym: Transworld Transportation Organization No.: 012567 Inc. Co., Ltd. Acronym: Universal Maritima S.L. Organization No.: 008922 Organization No.: 008972 Organization No.: 013095 Acronym: Tak Shing Transportation Co., Acronym: Travima S.A. Acronym: UTS International Ltd. Organization No.: 010330 Forwarding Ltd. Organization No.: 009516 Acronym: Treasure Coast Transport Organization No.: 010892 Acronym: TBI Limited Company, Inc. Acronym: Van Ommeren Bulk Shipping Organization No.: 005775 Organization No.: 012843 BV Acronym: TDY Freight Services, Ltd. Acronym: Tri-Star Industries, Inc. Organization No.: 005685 Organization No.: 000512 Organization No.: 012218 Acronym: Vav Universal Shipping Acronym: Tellux Shipping Ltd. Acronym: Tri-Star Marine, Inc. Organization No.: 007627 Organization No.: 011704 Organization No.: 011756 Acronym: Vector International Freight Acronym: Tetramaris Agencies, S.A. Acronym: Trinity Shipping Line, Inc. (HK) Ltd. Organization No.: 013156 Organization No.: 011330 Organization No.: 012640 Acronym: Texas American Shipping Acronym: Triple Freight Marine Corp. Acronym: Venconav USA Ltd. Corp. Organization No.: 010903 Organization No.: 012424 Organization No.: 005781 Acronym: Turbo Express Int’l Corp. Acronym: Venezuelan Container Line, Acronym: Thompson Express Co. Organization No.: 010716 C.A. Organization No.: 010896 Acronym: U.C.S. Group Inc. Organization No.: 007292 Acronym: Tientsin Marine Shipping Organization No.: 010574 Acronym: Venture Shipping Inc. Company Acronym: U.C.T. International, Inc. Organization No.: 012357 Organization No.: 002337 Organization No.: 011338 Acronym: Vicon Shipping Corp. Acronym: Tigerline Inc. Acronym: U.S. Atlantic Freight Lines, Organization No.: 012589 Organization No.: 012422 Inc. Acronym: Votainer Europe B.V. Acronym: Tokyo Container Lines Co., Organization No.: 007785 Organization No.: 010951 Ltd. Acronym: U.S. Brokers, Inc. Acronym: W.B.E. International Ltd. Organization No.: 007779 Organization No.: 011476 Organization No.: 012269 Acronym: Top Freight Systems, Inc. Acronym: U.S. Intermodal Maritime Acronym: Wah Shun Shipping Co., Ltd. Organization No.: 011142 Ltd. Organization No.: 010221 Acronym: Topocean Consolidation Organization No.: 013190 Acronym: Waterway Maritime Co., Ltd. Service Ltd. Acronym: UAL Universal Africa (USA) Organization No.: 012845 Organization No.: 012067 Lines N.V. (N.A.) Acronym: Weita International Acronym: Tormont Shipping Inc. Organization No.: 007781 Corporation 10856 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Organization No.: 010211 Organization No.: 013119 Organization No.: 007464 Acronym: West Coast Line, Inc. Acronym: Ameripack Freight Systems Acronym: Express Service International, Organization No.: 011565 Organization No.: 012172 Inc. Acronym: Western Bulk Carriers A/S Acronym: Ameritrans Express, Inc. Organization No.: 006170 Organization No.: 006375 Organization No.: 007461 Acronym: F.P. International Corporation Acronym: Westwind Africa Line Acronym: Apollo International Organization No.: 013001 Limited Forwarders Inc. Acronym: Fabian Forwarding Company, Organization No.: 001791 Organization No.: 006385 Inc. Acronym: Wide Tech Shipping Limited Acronym: Arrow Freight Services, Inc. Organization No.: 005288 Organization No.: 011984 Organization No.: 012554 Acronym: Falcon Forwarding, Inc. Acronym: Williams Shipping & Delivery Acronym: ASG Forwarding, Inc. Organization No.: 012327 Services, Inc. Organization No.: 004622 Acronym: Farag, Nabil M. Organization No.: 012545 Acronym: Atlantic International Freight Organization No.: 007465 Acronym: Wilson (F.E.) Ltd. Forwarders Inc. Acronym: Fari International, Inc. Organization No.: 011428 Organization No.: 008033 Organization No.: 011187 Acronym: Windward Supplies Limited Acronym: Automated Freight Systems, Acronym: Florida Worldwide Citrus Organization No.: 012515 Inc. Products Group, Inc. Acronym: Winspeed Shipping Ltd. Organization No.: 012184 Organization No.: 007541 Organization No.: 012315 Acronym: Bahl, Vandana C. Acronym: Fontana International, Inc. Acronym: Woo Shin International Organization No.: 013116 Organization No.: 009467 Transport Co., Ltd. Acronym: Barnes, Robert Field Acronym: Frama Forwarding Corp. Organization No.: 010373 Organization No.: 004697 Organization No.: 011469 Acronym: Woodlands International Acronym: Barry, Christopher Kevin Acronym: Freight Connections Transport Company Lim. Organization No.: 012869 International, Ltd. Organization No.: 012139 Acronym: Bench, Julia G. Organization No.: 008346 Acronym: World Cargo Corporation Organization No.: 012863 Acronym: G & G International, Inc. Organization No.: 013129 Acronym: Best Freight Forwarding Inc. Organization No.: 013133 Acronym: World Express Co., Ltd. Organization No.: 012796 Acronym: Gayo International Organization No.: 011631 Acronym: Bill Polkinhorn, Inc. Forwarders, Inc. Acronym: Worldwide Ocean & Air Organization No.: 004360 Organization No.: 005169 Shipping Lines Inc. Acronym: C Port Miami Corporation Acronym: GCI Forwarding Company, Organization No.: 012678 Organization No.: 011008 Incorporated Acronym: Y.K. Shipping International Acronym: C. J. Swift & Co., Inc. Organization No.: 013098 Acronym: Guerra, Rosendo H. (USA), Inc. Organization No.: 004679 Organization No.: 004558 Organization No.: 009346 Acronym: Camota, Virgilio A. Acronym: Gulf-Ocean Shipping Acronym: Yamato Transport (HK) Ltd. Organization No.: 010909 Corporation Organization No.: 009339 Acronym: Cargonauts, Inc. Organization No.: 012325 Acronym: Yatari Express Co., Ltd. Organization No.: 012195 Acronym: H. G. Ollendorff, Inc. Acronym: Cari World International, Inc. Organization No.: 010887 Organization No.: 004172 Organization No.: 005649 Acronym: Yetion Shipping Ltd. Acronym: H. P. Blanchard & Co. Acronym: Caribbean Freight Organization No.: 012353 Organization No.: 010799 Acronym: Zonn Agency Forwarders, Inc. Acronym: Harvey Yaffe Forwarding, Inc. Organization No.: 009709 Organization No.: 012626 Organization No.: 011583 Acronym: Carnisco International Part B: Licensed Ocean Freight Acronym: Hip Forwarding Co., Inc. Custom House Brokers Organization No.: 006454 Forwarders That Have Not Filed Anti- Organization No.: 009766 Rebate Certifications Acronym: Ideal Cargo Service, Inc. Acronym: Charles A. Redden, Inc. Organization No.: 005349 Acronym: A & M International Service Organization No.: 004345 Acronym: Imperial Freight Brokers, Inc. Corp. Acronym: Chicago Cargo Corporation Organization No.: 004652 Organization No.: 012470 Organization No.: 005191 Acronym: Independent Cargo Services, Acronym: A.J. Gugliatto Acronym: Cole Forwarding, Inc. Inc. Organization No.: 005160 Organization No.: 006487 Organization No.: 004626 Acronym: Action Cargo International, Acronym: Colombo Service, Inc. Acronym: Inexco Corporation Inc. Organization No.: 004718 Organization No.: 004818 Organization No.: 013097 Acronym: Condor Shipping Company, Acronym: Integrated Traffic Systems, Acronym: Advance Brokers, Ltd. Inc. Incorporated Organization No.: 004030 Organization No.: 005484 Organization No.: 008923 Acronym: Air-Mar Shipping, Inc. Acronym: Dean Forwarding Company, Acronym: Inter-American Moving Organization No.: 004758 Inc. Services, Inc. Acronym: All State International Freight Organization No.: 000920 Organization No.: 002770 Inc. Acronym: Dependable Freight Acronym: Inter-Orient Corporation Organization No.: 012887 Forwarding, Inc. Organization No.: 004011 Acronym: Alpha Cargo Services, Inc. Organization No.: 004931 Acronym: Interamerican World Organization No.: 011440 Acronym: E.R.A. Freight Forwarding Transport Corporation Acronym: Alternative Freight Services, Inc. Organization No.: 002402 Inc. Organization No.: 013135 Acronym: Intercarga U.S.A. Corporation Organization No.: 008709 Acronym: Eagle Warehousing, Inc. Organization No.: 012627 Acronym: American Vanpac Carriers, Organization No.: 011163 Acronym: Intercontinental Cargo Inc. Acronym: Enterprise Forwarders, Inc. Express, Ltd. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10857 Organization No.: 011115 Acronym: Meteor Air Freight, Inc. Organization No.: 012346 Acronym: International Consolidators & Organization No.: 006489 Acronym: San Diego Freight Services, Freight Forward Acronym: Milton Snedeker Corporation Inc. Organization No.: 005114 Organization No.: 004139 Organization No.: 011522 Acronym: International Freight Agency Acronym: Mountain Air Delivery Acronym: Sankyu U.S.A., Incorporated Organization No.: 011500 Organization No.: 010991 Organization No.: 007821 Acronym: International Transportation Acronym: Naimoli, Anthony Acronym: Saudinvest Transportation & Network, Inc. Organization No.: 012875 Traffic Services Organization No.: 012867 Acronym: Nettles & Co., Inc. Organization No.: 005125 Acronym: Irwin Brown Company, The Organization No.: 004522 Acronym: SCAC (USA), Inc. Organization No.: 004543 Acronym: New England Household Organization No.: 009858 Acronym: J.B. Fong & Co., Inc. International Acronym: Schick Moving & Storage Organization No.: 004728 Organization No.: 004920 Company Acronym: J.R. Michels, Inc. Acronym: Newport Cargo Consolidated, Organization No.: 004578 Organization No.: 004364 Inc. Acronym: Sea Link Corporation Acronym: J.G. International Freight Organization No.: 012787 Organization No.: 012797 Forwarding, Inc. Acronym: Newport Cargo Consolidators, Acronym: Shippers, Inc. Organization No.: 012239 Inc. Organization No.: 013175 Acronym: Jamar Shipping, Inc. Organization No.: 008685 Acronym: Solano, John J. Organization No.: 012509 Acronym: O’Hanneson Worldwide Organization No.: 005108 Acronym: Jones, Richard L. Organization No.: 004477 Acronym: Southern Steamship Agency Organization No.: 004680 Acronym: Oakland Van & Storage, Inc. Organization No.: 004323 Acronym: K Line Air Service (U.S.A.), Organization No.: 004873 Acronym: Struyk, Carrie D. Inc. Acronym: Oceangate Forwarding, Inc. Organization No.: 006554 Organization No.: 012671 Organization No.: 007381 Acronym: T C International Marketing Acronym: Keegan, Arthur Acronym: Olympic International Freight Network, Inc. Organization No.: 004263 Forwarders, Inc. Organization No.: 012505 Acronym: Kenehan, John W. Organization No.: 004809 Acronym: Thomas Hudson Enterprises, Organization No.: 005012 Acronym: Omega Shipping, Inc. Inc. Acronym: Kim, Young S. Organization No.: 011680 Organization No.: 005648 Organization No.: 005464 Acronym: Page International, Inc. Acronym: Total Transport, Inc. Acronym: KNL International, Inc. Organization No.: 012726 Organization No.: 011438 Organization No.: 011677 Acronym: Palm Beach Forwarding Acronym: Traders of Miami, Inc. Acronym: Konoike Hayakawa International, Inc. Organization No.: 012672 Forwarding, Inc. Organization No.: 007964 Acronym: Trans-Global Expeditors Organization No.: 005091 Acronym: Partec Forwarding Forwarding, Inc. Acronym: Laufer Shipping Co., Inc. Corporation Organization No.: 013195 Organization No.: 004268 Organization No.: 013086 Acronym: Treset Corporation Acronym: Leading Export Service Corp. Acronym: Pasha International, Inc. Organization No.: 013115 Organization No.: 004467 Organization No.: 006643 Acronym: Triple Freight Corp. Acronym: Lee, Johnson Acronym: Phil Thomas & Son Organization No.: 011544 Organization No.: 011589 International Co. Acronym: Trust Forwarding Acronym: Lewis, Leslie David Organization No.: 004505 International, Inc. Organization No.: 005247 Acronym: Poseidon Forwarding Organization No.: 012800 Acronym: Logistics Services Company, Inc. Acronym: U.S.A. Shipping Corporation Incorporated Organization No.: 007965 Organization No.: 004930 Organization No.: 013113 Acronym: Posey International, Inc. Acronym: US International Transport, Acronym: Maarten Intermodal Organization No.: 004801 Inc. Expeditors Acronym: Reedy Forwarding Co., Inc. Organization No.: 012155 Organization No.: 005532 Organization No.: 004228 Acronym: Vantage International Acronym: Manufacturers Export Acronym: Reliable International, Inc. Shipping, Inc. Service, Inc. Organization No.: 004824 Organization No.: 012185 Organization No.: 005494 Acronym: Resolution, Inc. Acronym: Vialoma Trading Corporation Acronym: Mara Shipping, Inc. Organization No.: 004164 Organization No.: 011585 Organization No.: 004698 Acronym: Rewico America, Inc. Acronym: Victory Van Lines, Inc. Acronym: Marco Forwarding Organization No.: 008347 Organization No.: 009770 International Co. Acronym: Roger Baum International, Acronym: Viking Sea Freight Inc. Organization No.: 012351 Inc. Organization No.: 005341 Acronym: Maritime Connections Corp. Organization No.: 004861 Acronym: Walker, Alicia Seneca Organization No.: 005475 Acronym: Rome International Freight Organization No.: 011175 Acronym: Martinez, Miriam Consultants, Inc. Acronym: Westwind Overseas Limited Organization No.: 005528 Organization No.: 004969 Organization No.: 004888 Acronym: Maust Corporation, The Acronym: Ryan Freight Services, Inc. Acronym: World Destinations, Inc. Organization No.: 002001 Organization No.: 012784 Organization No.: 011147 Acronym: Maverick Distribution Acronym: S. Swartz Co. Acronym: Worldlink International, Inc. Services, Inc. Organization No.: 004489 Organization No.: 011467 Organization No.: 013085 Acronym: S.A.I.M.A. America, Inc. Acronym: Worldwide Shipping Inc. Acronym: Meiko America, Inc. Organization No.: 004174 Organization No.: 006551 Organization No.: 005240 Acronym: S.J. Stile Associates, Ltd. Acronym: Wu, Yvonne (Yihong) 10858 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Organization No.: 013146 and to continue until 4:00 p.m., with a Other matters previously considered Acronym: Yoon, In Joong lunch break from 1:00 p.m. until 2:00 by the Council or initiated by Council Organization No.: 011459 p.m. The Martin Building is located on members also may be discussed. Acronym: Zappola, Denise C Street, Northwest, between 20th and Persons wishing to submit to the Organization No.: 007358 21st Streets in Washington, D.C. Council their views regarding any of the The Council’s function is to advise Part C: Common Carriers by Water in above topics may do so by sending the Board on the exercise of the Board’s written statements to Ann Marie Bray, the Foreign Commerce of the United responsibilities under the Consumer States and Licensed Ocean Freight Secretary, Consumer Advisory Council, Credit Protection Act and on other Division of Consumer and Community Forwarders That Have Not Filed Anti- matters on which the Board seeks its Rebate Certifications Affairs, Board of Governors of the advice. Time permitting, the Council Federal Reserve System, Washington, Acronym: Alpine Express Corporation will discuss the following topics: D.C. 20551. Comments must be received Organization No.: 008556 Community Reinvestment Act Reform. no later than close of business Acronym: Bravo, Mario C. Discussion led by the Bank Regulation Wednesday, March 15, 1995, and must Organization No.: 011074 Committee on the implementation of the be of a quality suitable for reproduction. Acronym: Chemical Leaman Tank interagency proposal to revise Lines, Inc. regulations implementing the Information with regard to this Organization No.: 008681 Community Reinvestment Act. meeting may be obtained from Ann Acronym: Dateline Forwarding Services, Consumer Leasing Disclosures. Marie Bray, 202-452-6470. Inc. Discussion led by the Consumer Credit Telecommunications Device for the Deaf Organization No.: 008497 Committee on whether and how the (TDD) users may contact Dorothea Acronym: Express Line Corporation Board should amend Regulation M Thompson, 202-452-3544. Organization No.: 006930 (Consumer Leasing) to address Board of Governors of the Federal Reserve Acronym: Fast Cargo U.S. (LA), Inc. technological and other developments System,February 22, 1995. Organization No.: 008607 in the leasing industry and to simplify Jennifer J. Johnson, Acronym: Inter-Continental Corporation compliance and reduce burdens without Deputy Secretary of the Board. Organization No.: 004509 diminishing consumer protections. [FR Doc. 95–4844 Filed 2–27–95; 8:45am] Acronym: Intermar Steamship Corp. Regulatory Coverage for Stored-Value BILLING CODE 6210±01±F Organization No.: 001352 Cards. Discussion led by the Depository Acronym: Intersped Inc. and Delivery Systems Committee on Organization No.: 001377 whether and how the Board should Robert Lee & Beverly Sue Martin; Acronym: Jagro Customs Brokers & amend Regulation E (Electronic Fund Change in Bank Control Notice International Freight Transfers) to govern technologically Organization No.: 001403 advanced electronic products, such as Acquisition of Shares of Banks or Acronym: John Cassidy & Sons, Inc. smart cards, prepaid cards, and Bank Holding Companies Organization No.: 000727 electronic purses. Acronym: Kurz-Allen, Inc. Waiver of Consumer’s Right of The notificant listed below has Organization No.: 011555 Rescission for Certain Loans. Update by applied under the Change in Bank Acronym: Lancer International Corp. the Consumer Credit Committee on its Control Act (12 U.S.C. 1817(j)) and § Organization No.: 010938 work in providing timely Council input 225.41 of the Board’s Regulation Y (12 Acronym: Latin American Express Corp. to the Board on the issue of consumer CFR 225.41) to acquire a bank or bank Organization No.: 004904 waivers of the right to rescind certain holding company. The factors that are Acronym: Nedrac Incorporated mortgage transactions under Regulation considered in acting on notices are set Organization No.: 007561 Z (Truth in Lending). (This issue will be forth in paragraph 7 of the Act (12 Acronym: Premier Shipping Company, the subject of a March 1995 Board report U.S.C. 1817(j)(7)). Inc. to the Congress.) The notice is available for immediate Organization No.: 004388 Sale of Uninsured Investment inspection at the Federal Reserve Bank Acronym: Ralex International Corp. Vehicles by Depository Institutions. indicated. Once the notice has been Organization No.: 011675 Discussion led by the Depository and accepted for processing, it will also be Acronym: Suntrans International, Inc. Delivery Systems Committee of available for inspection at the offices of Organization No.: 008622 nonregulatory actions by the Board to the Board of Governors. Interested Acronym: Total Cargo International, Inc. address consumers’ information needs persons may express their views in Organization No.: 005214 about uninsured investment products writing to the Reserve Bank indicated [FR Doc. 95–4790 Filed 2–27–95; 8:45 am] offered by depository institutions. for the notice or to the offices of the BILLING CODE 6730±01±M Governor’s Report. Report by Federal Board of Governors. Comments must be Reserve Board Member Lawrence B. received not later than March 20, 1995. Lindsey on economic conditions, recent A. Federal Reserve Bank of Chicago FEDERAL RESERVE SYSTEM Board initiatives, and issues of concern, with an opportunity for questions from (James A. Bluemle, Vice President) 230 Council members. South LaSalle Street, Chicago, Illinois Consumer Advisory Council; Notice of 60690: Meeting of Consumer Advisory Members Forum. Presentation of Council individual Council members’ views on 1. Robert Lee & Beverly Sue Martin, the economic conditions present within Jefferson, Wisconsin; to acquire an The Consumer Advisory Council will their industries or local economies additional 1.6 percent for a total of 18.6 meet on Thursday, March 23, 1995. The (including whether there is a strong percent of the voting shares of Jefferson meeting, which will be open to public focus on lending in the inner cities). County Bancorp, Inc., Jefferson, observation, will take place in Terrace Committee Reports. Reports from Wisconsin, and thereby indirectly Room E of the Martin Building. The Council committees on their work and acquire Jefferson County Bank, meeting is expected to begin at 9:00 a.m. plans for 1995. Jefferson, Wisconsin. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10859 Board of Governors of the Federal Reserve Savings and Loan Association, South LaSalle Street, Chicago, Illinois System, February 22, 1995. Fredericktown, Missouri, and thereby 60690: Jennifer J. Johnson, engage in operating a thrift institution, 1. Ogle County Bancshares, Rochelle, Deputy Secretary of the Board. pursuant to § 225.25(b)(9) of the Board’s Illinois; to engage de novo in making [FR Doc. 95–4840 Filed 2–27–95; 8:45 am] Regulation Y. and servicing loans, pursuant to BILLING CODE 6210±01±F Board of Governors of the Federal Reserve §225.25(b)(1) of the Board’s Regulation System, February 22, 1995. Y. Jennifer J. Johnson, Board of Governors of the Federal Reserve New Era Bancorporation, Inc.; Deputy Secretary of the Board. System, February 22, 1995. Acquisition of Company Engaged in [FR Doc. 95–4841 Filed 2–27–95; 8:45 am] Jennifer J. Johnson, Permissible Nonbanking Activities Deputy Secretary of the Board. BILLING CODE 6210±01±F The organization listed in this notice [FR Doc. 95–4842 Filed 2–27–95; 8:45 am] has applied under § 225.23(a)(2) or (f) BILLING CODE 6210±01±F of the Board’s Regulation Y (12 CFR Ogle County Bancshares; Notice of 225.23(a)(2) or (f)) for the Board’s Applications to Engage de novo in approval under section 4(c)(8) of the Permissible Nonbanking Activities Peoples Independent Bancshares, Inc., Bank Holding Company Act (12 U.S.C. et al.; Formations of; Acquisitions by; 1843(c)(8)) and § 225.21(a) of Regulation The company listed in this notice has and Mergers of Bank Holding Y (12 CFR 225.21(a)) to acquire or filed an application under § 225.23(a)(1) Companies control voting securities or assets of a of the Board’s Regulation Y (12 CFR 225.23(a)(1)) for the Board’s approval The companies listed in this notice company engaged in a nonbanking have applied for the Board’s approval activity that is listed in § 225.25 of under section 4(c)(8) of the Bank Holding Company Act (12 U.S.C. under section 3 of the Bank Holding Regulation Y as closely related to Company Act (12 U.S.C. 1842) and § banking and permissible for bank 1843(c)(8)) and § 225.21(a) of Regulation Y (12 CFR 225.21(a)) to commence or to 225.14 of the Board’s Regulation Y (12 holding companies. Unless otherwise CFR 225.14) to become a bank holding noted, such activities will be conducted engage de novo, either directly or through a subsidiary, in a nonbanking company or to acquire a bank or bank throughout the United States. holding company. The factors that are The application is available for activity that is listed in § 225.25 of Regulation Y as closely related to considered in acting on the applications immediate inspection at the Federal are set forth in section 3(c) of the Act Reserve Bank indicated. Once the banking and permissible for bank holding companies. Unless otherwise (12 U.S.C. 1842(c)). application has been accepted for Each application is available for noted, such activities will be conducted processing, it will also be available for immediate inspection at the Federal throughout the United States. inspection at the offices of the Board of Reserve Bank indicated. Once the The application is available for Governors. Interested persons may application has been accepted for immediate inspection at the Federal express their views in writing on the processing, it will also be available for Reserve Bank indicated. Once the question whether consummation of the inspection at the offices of the Board of application has been accepted for proposal can ‘‘reasonably be expected to Governors. Interested persons may processing, it will also be available for produce benefits to the public, such as express their views in writing to the inspection at the offices of the Board of greater convenience, increased Reserve Bank or to the offices of the Governors. Interested persons may competition, or gains in efficiency, that Board of Governors. Any comment on express their views in writing on the outweigh possible adverse effects, such an application that requests a hearing question whether consummation of the as undue concentration of resources, must include a statement of why a proposal can ‘‘reasonably be expected to decreased or unfair competition, written presentation would not suffice produce benefits to the public, such as conflicts of interests, or unsound in lieu of a hearing, identifying greater convenience, increased banking practices.’’ Any request for a specifically any questions of fact that competition, or gains in efficiency, that hearing on this question must be are in dispute and summarizing the outweigh possible adverse effects, such accompanied by a statement of the evidence that would be presented at a as undue concentration of resources, reasons a written presentation would hearing. not suffice in lieu of a hearing, decreased or unfair competition, Unless otherwise noted, comments identifying specifically any questions of conflicts of interests, or unsound regarding each of these applications fact that are in dispute, summarizing the banking practices.’’ Any request for a must be received not later than March evidence that would be presented at a hearing on this question must be 24, 1995. hearing, and indicating how the party accompanied by a statement of the A. Federal Reserve Bank of Atlanta commenting would be aggrieved by reasons a written presentation would (Zane R. Kelley, Vice President) 104 approval of the proposal. not suffice in lieu of a hearing, Marietta Street, N.W., Atlanta, Georgia Comments regarding the application identifying specifically any questions of 30303: must be received at the Reserve Bank fact that are in dispute, summarizing the 1. Peoples Independent Bancshares, indicated or the offices of the Board of evidence that would be presented at a Inc., Boaz, Alabama; to merge with Governors not later than March 14, hearing, and indicating how the party Randolph Bancshares, Inc., Roanoke, 1995. commenting would be aggrieved by Alabama, and thereby indirectly acquire A. Federal Reserve Bank of St. Louis approval of the proposal. First Bank, Wadley, Alabama. (Randall C. Sumner, Vice President) 411 Unless otherwise noted, comments B. Federal Reserve Bank of Kansas Locust Street, St. Louis, Missouri 63166: regarding the application must be City (John E. Yorke, Senior Vice 1. New Era Bancorporation, Inc., received at the Reserve Bank indicated President) 925 Grand Avenue, Kansas Fredericktown, Missouri; to acquire up or the offices of the Board of Governors City, Missouri 64198: to 9.9 percent of St. Francois County not later than March 14, 1995. 1. Community Bancshares, Inc., Financial Corp., Farmington, Missouri, A. Federal Reserve Bank of Chicago Neosho, Missouri; to acquire 100 and thereby acquire St. Francois County (James A. Bluemle, Vice President) 230 percent of the voting shares of Seneca 10860 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Management Company, Seneca, 2.51 of the Commission’s Rules of By the Commission. Missouri, and thereby indirectly acquire Practice, 16 CFR 2.51, and the Donald S. Clark, State Bank of Seneca, Seneca, Missouri. Commission’s July 22, 1994, Statement Secretary. Board of Governors of the Federal Reserve of Policy with Respect to Duration of [FR Doc. 95–4861 Filed 2–27–95; 8:45 am] System, February 22, 1995. Competition Orders and Statement of BILLING CODE 6750±01±M Jennifer J. Johnson, Intention to Solicit Public Comment Deputy Secretary of the Board. with Respect to Duration of Consumer [FR Doc. 95–4843 Filed 2–27–95; 8:45 am] Protection Orders (‘‘Sunset Policy [Dkt. C±3553] 2 BILLING CODE 6210±01±F Statement’’). Leon Hess, also a respondent in this Baby Furniture Plus Association, Inc.; matter, joined in Amerada Hess’s Prohibited Trade Practices, and FEDERAL TRADE COMMISSION Request, by letter dated September 21, Affirmative Corrective Actions 1994. Southland Oil Company, [Dkt. C±2456] AGENCY: Federal Trade Commission. successor to respondent VGS Amerada Hess Corporation, et al.; Corporation, filed a Statement in ACTION: Consent order. Prohibited Trade Practices and Support of Request to Reopen and Affirmative Corrective Actions Vacate Order on October 21, 1994. In SUMMARY: In settlement of alleged addition, on October 20, 1994, Hunt violations of federal law prohibiting AGENCY: Federal Trade Commission. Refining Company, the purchaser of unfair acts and practices and unfair methods of competition, this consent ACTION: Set Aside Order. assets from respondent Clarco Pipe Line order prohibits, among other things, an Company, filed a petition requesting, SUMMARY: This order reopens a 1973 Alabama-based buying cooperative and among other things, that the consent order—which required that the trade association from taking any action Clarco Pipe Line be divested and Commission reopen the proceeding and on behalf of its members, or encouraging prohibited Amerada, VGS Corporation vacate the order as to Hunt (‘‘Petition’’). them to take any action, that interferes and Clarco Pipe Line Company from Amerada Hess’s Request, Hunt’s with a juvenile product manufacturer’s acquiring assets related to the Petition and the information supplied decision as to how or to whom to transportation or refining of crude oil by Leon Hess and Southland Oil distribute its products. The consent produced in either Mississippi or Company were placed on the public order also prohibits the respondent from Alabama without prior Commission record pursuant to Section 2.51 of the coercing—by means of actual or approval—and sets aside the consent Commission’s Rules of Practice and threatened refusals to deal—any order pursuant to the Commission’s Procedure, 16 CFR 2.51.3 No comments juvenile products manufacturer to Sunset Policy Statement, under which were received. abandon or adopt—or to refrain from the Commission presumes that the The Commission in its July 22, 1994, abandoning or adopting—any marketing public interest require setting aside Sunset Policy Statement said, in method for its products. competition orders in effect for more relevant part, that ‘‘effective DATES: than 30 years. Complaint and Order issued immediately, the Commission will January 18, 1995.1 DATES: Consent order issued September presume, in the context of petitions to FOR FURTHER INFORMATION CONTACT: 18, 1973. Set aside order issued January reopen and modify existing orders, that 3, 1995. Phoebe Morse, Boston Regional Office, the public interest requires setting aside Federal Trade Commission, 101 FOR FURTHER INFORMATION CONTACT: orders in effect for more than twenty Merrimac St., Suite 810, Boston, MA. Daniel Ducore, FTC/S–2115, years.’’ 4 02114–4719. (617) 424–5960. Washington, D.C. 20580. (202) 326– 2526. The Commission’s order in Docket SUPPLEMENTARY INFORMATION: On No. C–2456 was issued on September SUPPLEMENTARY INFORMATION: In the Tuesday, November 1, 1994, there was 18, 1973, and has been in effect for more Matter of Amerada Hess Corporation, et published in the Federal Register, 59 FR al. The prohibited trade practices and/ than twenty-one years. Consistent with 54601, a proposed consent agreement or corrective actions are removed as the Commission’s July 22, 1994, Sunset with analysis In the Matter of Baby indicated. Policy Statement, the presumption is Furniture Plus Association, Inc., for the that the order should be terminated. purpose of soliciting public comment. (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interpret Nothing to overcome the presumption Interested parties were given sixty (60) or apply sec. 5, 38 Stat. 719, as amended; sec. days in which to submit comments, 7, 38 Stat. 731, as amended; 15 U.S.C. 45, 18) having been presented, the Commission has determined to reopen the suggestions or objections regarding the Order Reopening Proceeding and proceeding and set aside the order in proposed form of the order. Setting Aside Order Docket No. C–2456. No comments having been received, Commissioners: Janet D. Steiger, Chairman, Accordingly, it is ordered that this the Commission has ordered the Mary L. Azcuenaga, Roscoe B. Starek, III, matter be, and it hereby is, reopened; issuance of the complaint in the form Christine A. Varney. contemplated by the agreement, made It is further ordered that the On September 12, 1994, Amerada its jurisdictional findings and entered Commission’s order in Docket No. C– an order to cease and desist, as set forth Hess Corporation (‘‘Amerada Hess’’) 2456 be, and it hereby is, set aside, as filed a Request to Reopen and Vacate in the proposed consent agreement, in of the effective date of this order. Order (‘‘Request’’) in this matter.1 disposition of this proceeding. Amerada Hess requests that the 2 Commission set aside the 1978 consent The Sunset Policy Statement is published at 59 1 Copies of the Complaint, the Decision and FR 45,286 (Sept. 1, 1994). Order, and Commissioner Azcuenaga’s statement order in this matter, pursuant to Rule 3 The fifth respondent named in the order died in are available from the Commission’s Public 1989. Reference Branch, H–130, 6th Street & Pennsylvania 1 See Amerada Hess Corp., 83 F.T.C. 487 (1973). 4 Sunset Policy Statement, 59 FR at 45,289. Avenue, NW., Washington, DC. 20580. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10861 (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interpret or applies sec. 5, 38 Stat. 719, as amended; or applies sec. 5, 38 Stat. 719, as amended; or apply sec. 5, 38 Stat. 719, as amended; sec. 15 U.S.C. 45) 15 U.S.C. 45, 52) 7, 38 Stat. 731, as amended; 15 U.S.C. 45, 18) Donald S. Clark, Donald S. Clark, Donald S. Clark, Secretary. Secretary. Secretary. [FR Doc. 95–4862 Filed 2–27–95; 8:45 am] [FR Doc. 95–4863 Filed 2–27–95; 8:45 am] [FR Doc. 95–4864 Filed 2–27–95; 8:45 am] BILLING CODE 6750±01±M BILLING CODE 6750±01±M BILLING CODE 6750±01±M [File No. 932 3286] [Dkt. C±3550] [Docket No. C±3558] Felson Builders, Inc., et al.; Proposed Bee-Sweet, Inc., et al.; Prohibited Charter Medical Corporation; Consent Agreement With Analysis to Trade Practices, and Affirmative Prohibited Trade Practices, and Aid Public Comment Corrective Actions Affirmative Corrective Actions AGENCY: Federal Trade Commission. ACTION: Proposed consent agreement. AGENCY: Federal Trade Commission. AGENCY: Federal Trade Commission. SUMMARY: In settlement of alleged ACTION: Consent order. ACTION: Consent orders. violations of federal law prohibiting SUMMARY: In settlement of alleged unfair acts and practices and unfair SUMMARY: In settlement of alleged violations of federal law prohibiting methods of competition, this consent violations of federal law prohibiting unfair acts and practices and unfair agreement, accepted subject to final unfair acts and practices and unfair methods of competition, this consent Commission approval, would require, methods of competition, this consent order requires, among other things, among other things, three California order prohibits, among other things, a Charter Medical Corporation (Charter), a firms and an officer to comply with the North Carolina corporation and its Georgia-based chain of psychiatric full disclosure requirements of the officer from representing that bee pollen hospitals, to modify its agreement to Truth in Lending Act and Regulation Z, products are effective as a cure or in purchase certain National Medical its implementing regulation, in mitigating certain conditions and Enterprises (NME) facilities to rescind advertising credit terms. physical ailments, and from Charter’s acquisitions of NME DATES: Comments must be received on misrepresenting the existence, contents, or before May 1, 1995. validity, results, conclusions, or psychiatric facilities in four specified ADDRESSES: Comments should be interpretations of any test or study. In localities. In addition, the consent order directed to: FTC/Office of the Secretary, addition, the consent order requires the requires Charter, for ten years, to secure Room 159, 6th St. and Pa. Ave., NW., respondents to notify all sellers of the Commission approval before acquiring Washington, DC 20580. products, for the last 12 months, about or divesting psychiatric facilities in FOR FURTHER INFORMATION CONTACT: the settlement with the Commission. those localities. Jeffrey Klurfeld, San Francisco Regional DATES: Complaint and Order issued DATES: Complaint and Order issued Office, Federal Trade Commission, 901 February 14, 1995.1 January 17, 1995.1 Market St., Suite 570, San Francisco, CA FOR FURTHER INFORMATION CONTACT: 94103. (415) 744–7920. FOR FURTHER INFORMATION CONTACT: Robert W. Doyle, Jr. or Ronald B. Rowe, SUPPLEMENTARY INFORMATION: Pursuant Ronald Waldman, FTC/New York FTC/S–2105, Washington, DC 20580, to section 6(f) of the Federal Trade Regional, 150 William St., Suite 1300, (202) 326–2819 or 326–2610. Commission Act, 38 Stat. 721, 15 U.S.C. New York, NY 10038. (212) 264–1207. SUPPLEMENTARY INFORMATION: On 46 and § 2.34 of the Commission rules SUPPLEMENTARY INFORMATION: On Monday, November 28, 1994, there was of practice (16 CFR 2.34), notice is hereby given that the following consent Tuesday, November 8, 1994, there was published in the Federal Register, 59 FR agreement containing a consent order to published in the Federal Register, 59 FR 60804, a proposed consent agreement cease and desist, having been filed with 55665, a proposed consent agreement with analysis In the Matter of Charter and accepted, subject to final approval, with analysis In the Matter of Bee- Medical Corporation, for the purpose of Sweet, Inc., et al., for the purpose of by the Commission, has been placed on soliciting public comment. Interested the public record for a period of sixty soliciting public comment. Interested parties were given sixty (60) days in parties were given sixty (60) days in (60) days. Public comment is invited. which to submit comments, suggestions Such comments or views will be which to submit comments, suggestions or objections regarding the proposed or objections regarding the proposed considered by the Commission and will form of the order. form of the order. be available for inspection and copying No comments having been received, at its principal office in accordance with No comments having been received, the Commission has ordered the § 4.9(b)(6)(ii) of the Commission’s rules the Commission has ordered the of practice (16 CFR 4.9(b)(6)(ii)). issuance of the complaint in the form issuance of the complaint in the form contemplated by the agreement, made contemplated by the agreement, made Agreement Containing Consent Order its jurisdictional findings and entered its jurisdictional findings and entered To Cease and Desist an order to cease and desist, as set forth an order, as set forth in the proposed consent agreement, in disposition of this In the Matter of: Felson Builders, Inc., a in the proposed consent agreement, in corporation; Diamond Crossing Associates, disposition of this proceeding. proceeding. L.P., a limited partnership, dba D.C. Funding; Elmhurst Partners, L.P., a limited 1 1 Copies of the Complaint and the Decision and Copies of the Complaint and the Decision and partnership, dba Elmhurst Funding; and Order are available from the Commission’s Public Order are available from the Commission’s Public Joseph L. Felson, individually and as an Reference Branch, H–130, 6th Street & Pennsylvania Reference Branch, H–130, 6th Street & Pennsylvania officer of Felson Builders, Inc. File No. 932– Ave., NW., Washington, DC 20580. Avenue NW., Washington, DC 20580. 3286. 10862 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices The Federal Trade Commission (c) All rights to seek judicial review 7. Proposed respondents have read having initiated an investigation of or otherwise to challenge or contest the the proposed complaint and order certain acts and practices of Felson validity of the order entered pursuant to contemplated hereby. Proposed Builders, Inc., a corporation; Diamond this agreement; and respondents understand that once the Crossing Associates, L.P., a limited (d) all claims under the Equal Access order has been issued they will be partnership, dba D.C. Funding; to Justice Act. required to file one or more compliance Elmhurst Partners, L.P. a limited 4. This agreement shall not become a reports showing that they have fully partnership, dba Elmhurst Funding; part of the public record of the complied with the order. Proposed Joseph L. Felson, individually and as an proceeding unless and until it is respondents further understand that officer of Felson Builders, Inc., and it accepted by the Commission. If this they may be liable for civil penalties in now appearing that Felson Builders, agreement is accepted by the the amount provided by law for each Inc., a corporation; Diamond Crossing Commission, it, together with the draft violation of the order after it becomes Associates, L.P., a limited partnership, of the complaint contemplated thereby, final. dba D.C. Funding; Elmhurst Partners, will be placed on the public record for Order L.P., a limited partnership, dba a period of sixty (60) days and Elmhurst Funding; and Joseph L. information in respect thereto publicly I released. The Commission thereafter Felson, individually and as an officer of It is ordered that respondents Felson Felson Builders, Inc., hereinafter may either withdraw its acceptance of this agreement and so notify the Builders, Inc., a corporation, its sometimes referred to as proposed successors and assigns, and its officers; respondents, are willing to enter into an proposed respondents, in which event it will take such action as it may consider Diamond Crossing Associates, L.P., a agreement containing an order to cease limited partnership, dba D.C. Funding, and desist from the use of the acts and appropriate, or issue and serve its complaint (in such form as the its successors and assigns, and its practices being investigated, offices; Elmhurst Partners, L.P., a It is hereby agreed by and between circumstances may require) and decision, in disposition of the limited partnership, dba Elmhurst Felson Builders, Inc., by its duly Funding, its successors and assigns, and authorized officer; Diamond Crossing proceeding. 5. This agreement is for settlement its officers; and Joseph L. Felson, Associates, L.P., by its duly authorized individually and as an officer of Felson officer; Elmhurst Partners, L.P., by its purposes only and does not constitute an admission by proposed respondents Builders, Inc.; and respondents’ agents, duly authorized officer; and Joseph L. representatives and employees, directly Felson, individually and as an officer of that the law has been violated as alleged in the draft of the complaint here or through any corporation, subsidiary, Felson Builders, Inc., and their division , or other device, in connection attorneys, and counsel for the Federal attached, or that the facts as alleged in the draft complaint, other than with any extension of consumer credit, Trade Commission that: or in connection with any advertisement 1. (a) Proposed respondent Felson jurisdictional facts, are true. 6. This agreement contemplates that, to aid, promote, or assist, directly or Builders, Inc., is a corporation if it is accepted by the Commission, and indirectly, any extension of consumer organized, existing and doing business if such acceptance is not subsequently credit, as ‘‘consumer credit’’ and under and by virtue of the laws of the withdrawn by the Commission pursuant ‘‘advertisement’’ are defined in State of California. (b) Proposed respondent Diamond to the provisions of § 2.34 of the Regulation Z (12 CFR part 226) to the Crossing Associates, L.P., is a limited Commission’s rules, the Commission Truth in Lending Act (‘‘TILA’’) (15 partnership organized, existing and may, without further notice to proposed U.S.C. 1601–1667e, as amended) do respondents, (1) issue its complaint doing business under and by virtue of forthwith cease and desist from: corresponding in form and substance the laws of the State of California. 1. Failing to furnish consumers with (c) Proposed respondent Elmhurst with the draft of complaint here the disclosures, as required by Section Partners, L.P., is a limited partnership attached and its decision containing the 128 of the TILA, 15 U.S.C. 1638, and by organized, existing and doing business following order to cease and desist in §§ 226.17(a) and 226.18 of Regulation Z, under and by virtue of the laws of the disposition of the proceeding and (2) 12 CFR 226.17(a) and 226.18. State of California,. make information public in respect 2. Failing to furnish consumers prior (d) Each of the above proposed thereto. When so entered, the order to to the consummation of a consumer respondents has its principal place of cease and desist shall have the same credit transaction with the disclosures, business at 1290 B Street, Suite 210, force and effect and may be altered, as required by Section 128 of the TILA, Hayward, California 94541. modified or set aside in the same 15 U.S.C. 1638, and by §§ 226.17(b) and (e) Proposed respondent Joseph L. manner and within the same time 226.18 of Regulation Z, 12 CFR Felson is an officer of proposed provided by statute for other orders. The 226.17(b) and 226.18. respondents Felson Builders, Inc. He order shall become final upon service. 3. Stating the amount or percentage of formulates, directs and controls the acts Delivery by the U.S. Postal Service of any downpayment, the number of and practices of said proposed the complaint and decision containing payments or period of repayment, the respondent, and his principal place of the agreed-to order to proposed amount of any payment, or the amount business is the same as that of said respondents’ address as stated in this of any finance charge, without stating, proposed respondent. agreement shall constitute service. clearly and conspicuously, all of the 2. Proposed respondents admit all the Proposed respondents waive any right terms required by Regulation Z, as jurisdictional facts set forth in the draft they may have to any other manner of follows: of complaint here attached. service. The complaint may be used in (1) The amount or percentage of the 3. Proposed respondents waive: construing the terms of the order, and downpayment, (a) Any further procedural steps; no agreement, understanding (2) The terms of repayment, including (b) The requirement that the representation, or interpretation not the amount of any balloon payment, and Commission’s decision contain a contained in the order or the agreement (3) The ‘‘annual percentage rate,’’ statement of findings of fact and may be used to vary or contradict the using that term or the abbreviation conclusions of law; terms of the order. ‘‘APR.’’ If the annual percentage rate Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10863 may be increased after consummation of than thirty (30) days after such Elmhurst Partners, L.P., and Joseph L. the credit transaction, that fact must discontinuance and affiliation has Felson, individually and as an officer of also be disclosed. occurred. Such notice shall include the Felson Builders, Inc., have disseminated (Section 144 of the TILA, 15 U.S.C. 1664, and respondent’s current business address or caused to be disseminated § 236.24(c) of Regulation Z, 12 CFR 226.24(c)) and telephone number and a statement advertisements that state the amount or as to the nature of the business or percentage of any downpayment, the 4. Stating a rate of finance charge employment in which he is engaged, as number of payments or period of without stating the rate as an ‘‘annual percentage rate,’’ using that term or the well as a description of his duties and repayment, the amount of any payment, abbreviation ‘‘APR,’’ as required by responsibilities and financial interest in or the amount of any finance charge, but Regulation Z. If the annual percentage the business. fail to state all of the terms required by Regulation Z, as follows: The amount or rate may be increased after V percentage of the downpayment, the consummation, the advertisement shall It is further ordered that for five (5) state that fact. The advertisement shall terms of repayment, including the years after the date of service of this amount of any balloon payment, and the not state any other rate, except that a order respondents, their successors and simple annual rate or periodic rate that annual percentage rate, using that term assigns shall maintain and upon request or the abbreviation ‘‘APR.’’ The is applied to an unpaid balance may be make available all records that will stated in conjunction with , but not complaint alleges this practice to be in demonstrate compliance with the violation of §§ 226.24(c) of Regulation Z, more conspicuously than, the annual requirements of this order. percentage rate. and that it constitutes an unfair and VI deceptive act or practice in violation of (Sec. 144 of the TILA, 15 U.S.C. 1664, and section 5 of the Federal Trade § 226.24(b) of Regulation Z, 12 CFR It is further ordered that the Commission Act. 226.24(b)) respondents herein shall within sixty (60) days after service upon them of this Finally, the complaint alleges that 5. Failing to comply in any other respondents Felson Builders, Inc., respect with the Truth in Lending Act, order, file with the Commission a report, in writing, setting forth in detail Diamond Crossing Associates, L.P., 15 U.S.C. 1601–1667e, as amended, or Elmhurst Partners, L.P., and Joseph L. its implementing regulation, Regulation the manner and form in which they have complied with this order. Felson, individually and as an officer of Z, 12 CFR part 226, as amended. Felson Builders, Inc., have disseminated II Analysis of Proposed Consent Order to or caused to be disseminated Aid Public Comment It is further ordered that respondents advertisements that failed to state the distribute a copy of this order to all their The Federal Trade Commission has rate of a finance charge as an ‘‘annual operating divisions, if any, and to all accepted an agreement, subject to final percentage rate,’’ using that term or the present or future personnel, agents or approval, to a proposed consent order abbreviation ‘‘APR,’’ as required by representatives having sales, from respondents Felson Builders, Inc., Regulation Z, in violation of § 226.24(b) advertising, or policy responsibilities a California corporation; Diamond of Regulation Z. with respect to the subject matter of this Crossing Associates, L.P., a limited The proposed order requires order, and that respondents secure from partnership, dba D.C. Funding; respondents to furnish consumers with each such person a signed statement Elmhurst Partners, L.P., a limited the disclosures required by Regulation acknowledging receipt of said order. partnership, dba Elmhurst Funding; and Z, in connection with respondents’ Joseph L. Felson, individually and as an extension of consumer credit. III officer of the corporation. The proposed order also requires It is further ordered that respondents The proposed consent order has been respondents to furnish consumers, prior notify the Commission at least thirty placed on the public record for sixty to the consummation of a consumer (30) days prior to any proposed change (60) days for reception of comments by credit transaction, with the disclosures in any respondent which is a interested persons. Comments received required by Regulation Z, in connection corporation or limited partnership, such during this period will become part of with respondents’ extension of as dissolution, assignment or sale the public record. After sixty (60) days, consumer credit. resulting in the emergence of a the Commission will again review the successor corporation or limited agreement and the comments received Finally, the proposed order requires partnership, the creation or dissolution and will decide whether it should respondents in any advertisements to of subsidiaries, or any other change in withdraw from the agreement and take promote any extension of consumer the corporation or limited partnership other appropriate action or make final credit, whenever the amount or which may affect compliance the agreement’s proposed order. percentage of the downpayment, the obligations arising out of the order. The complaint alleges that number of payments or period of respondents Diamond Crossing repayment, the amount of any payment, IV Associates, L.P., and Elmhurst Partners, or the amount of any finance charge is It is further ordered that, for a period L.P. have failed to furnish consumers stated, to state clearly and of five (5) years following service upon the disclosures required by Regulation conspicuously, all of the terms required him of this order, the individual Z, the implementing regulation of the by Regulation Z, as follows: the amount respondent named herein shall notify Truth in Lending Act, in violation of or percentage of the downpayment, the the Commission of the discontinuance §§ 226.17(a) and 226.18 of Regulation Z, terms of repayment, including the of his present business or employment and that respondents’ practice amount of any balloon payment, and the and of his affiliation with any new constitutes an unfair and deceptive act ‘‘annual percentage rate,’’ using that business or employment involved in the or practice in violation of section 5 of term or the abbreviation ‘‘APR.’’ advertising and/or extension of the Federal Trade Commission Act. The purpose of this analysis is to ‘‘consumer credit,’’ as that term is The complaint also alleges that facilitate public comment on the defined in the Truth in Lending Act and respondents Felson Builders, Inc., proposed order. It is not intended to its implementing Regulation Z, no later Diamond Crossing Associates, L.P., constitute an official interpretation of 10864 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices the agreement and proposed order or to (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets No comments having been received, modify in any way their terms. or applies sec. 5, 38 Stat. 719, as amended; the Commission has ordered the 15 U.S.C. 45) Donald S. Clark, issuance of the complaint in the form Donald S. Clark, Secretary. contemplated by the agreement, made Secretary. its jurisdictional findings and entered [FR Doc. 95–4865 Filed 2–27–95; 8:45 am] [FR Doc. 95–4866 Filed 2–27–95; 8:45 am] an order to cease and desist, as set forth BILLING CODE 6750±01±M BILLING CODE 6750±01±M in the proposed consent agreement, in disposition of this proceeding. (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets [Dkt. C±3554] [Dkt. C±3552] or applies sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45) New England Juvenile Retailers Medical Staff of Good Samaritan Donald S. Clark, Regional Medical Center; Prohibited Association, et al.; Prohibited Trade Secretary. Trade Practices, and Affirmative Practices, and Affirmative Corrective [FR Doc. 95–4867 Filed 2–27–95; 8:45 am] Corrective Actions Actions BILLING CODE 6750±01±M AGENCY: Federal Trade Commission. AGENCY: Federal Trade Commission. ACTION: Consent order. [Dkt. C±3555] ACTION: Consent order. SUMMARY: In settlement of alleged Oerlikon-Buhrle Holding AG; SUMMARY: In settlement of alleged violations of federal law prohibiting Prohibited Trade Practices, and violations of federal law prohibiting unfair acts and practices and unfair Affirmative Corrective Actions unfair acts and practices and unfair methods of competition, this consent methods of competition, this consent order prohibits, among other things, a AGENCY: Federal Trade Commission. order prohibits, among other things, the Massachusetts association of retailers ACTION: Consent order. members of the medical staff from from combining, agreeing or conspiring to: fix or maintain prices or the terms of SUMMARY: In settlement of alleged agreeing, or attempting to enter into an sale for juvenile products; engage in or violations of federal law prohibiting agreement, to prevent or restrict the threaten boycotts in order to influence unfair acts and practices and unfair services offered by Good Samaritan, the a manufacturer’s decision as to how or methods of competition, this consent clinic, or any other health care provider to whom it distributes its products; or order permits, among other things, a by refusing to deal with others offering use coercion by means of actual or Switzerland-based corporation to health care services, or by withholding threatened refusals to deal in order to acquire Leybold AG, a German firm, but patient referrals. compel a juvenile products requires the respondent to divest both DATES: Complaint and Order issued manufacturer to adopt or refrain from the Leybold compact disc metallizer February 1, 1995.1 adopting any marketing method for its business and the Balzers-Pfeiffer products. The consent order also turbomolecular pump business, within FOR FURTHER INFORMATION CONTACT: requires the dissolution of the 12 months, to Commission approved Mark Horoschak, FTC/S–3115, association within sixty days and entities. If the divestitures are not Washington, DC 20580. (202) 326–2756. requires the association to send a letter, completed within 12 months, the Commission is permitted to appoint SUPPLEMENTARY INFORMATION: On Friday, acknowledging the consent order with trustees to complete them. In addition, September 23, 1994, there was the Commission and outlining its terms, to the manufacturers it allegedly the respondent is required, for ten years, published in the Federal Register, 59 FR threatened to boycott. to obtain Commission approval before 48889, a proposed consent agreement acquiring any interest in any entity with analysis In the Matter of Medical DATES: Complaint and Order issued January 18, 1995.1 engaged in either of the two markets at Staff of Good Samaritan Regional issue. Medical Center, for the purpose of FOR FURTHER INFORMATION CONTACT: DATES: Complaint and Order issued soliciting public comment. Interested Phoebe Morse, Boston Regional Office, February 1, 1995.1 parties were given sixty (60) days in Federal Trade Commission, 101 which to submit comments, suggestions Merrimac St., Suite 810, Boston, MA FOR FURTHER INFORMATION CONTACT: or objections regarding the proposed 02114–4719. (617) 424–5960. Ann Malester or Michael Moiseyev, FTC/S–2224, Washington, DC 20580. form of the order. SUPPLEMENTARY INFORMATION: On Tuesday, November 1, 1994, there was (202) 326–2682. A comment was filed and considered published in the Federal Register, 59 FR SUPPLEMENTARY INFORMATION: On Friday, by the Commission. The Commission 54604, a proposed consent agreement November 18, 1994, there was has ordered the issuance of the with analysis In the Matter of New published in the Federal Register, 59 FR complaint in the form contemplated by England Juvenile Retailers Association, 59780, a proposed consent agreement the agreement, made its jurisdictional et al., for the purpose of soliciting with analysis In the Matter of Oerlikon- findings and entered an order to cease public comment. Interested parties were Buhrle Holding AG, for the purpose of and desist, as set forth in the proposed given sixty (60) days in which to submit soliciting public comment. Interested consent agreement, in disposition of this comments, suggestions or objections parties were given sixty (60) days in proceeding. regarding the proposed form of the which to submit comments, suggestions order. or objections regarding the proposed form of the order. 1 Copies of the Complaint, the Decision and 1 Copies of the Complaint, the Decision and Order, and Commissioner Starek’s statement are Order, and Commissioner Azcuenaga’s statement 1 Copies of the Complaint and the Decision and available from the Commission’s Public Reference are available from the Commission’s Public Order are available from the Commission’s Public Branch, H–130, 6th Street & Pennsylvania Avenue, Reference Branch, H–130, 6th Street & Pennsylvania Reference Branch, H–130, 6th Street & Pennsylvania NW., Washington, DC. 20580. Avenue, NW., Washington, DC 20580. Avenue, NW., Washington, DC 20580. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10865 No comments having been received, an order to cease and desist, as set forth Seating reservations will be accepted the Commission has ordered the in the proposed consent agreement, in through Friday, March 10, 1995. issuance of the complaint in the form disposition of this proceeding. Michael F. DiMario, contemplated by the agreement, made (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets Public Printer. its jurisdictional findings, and entered or applies sec. 5, 38 Stat. 719, as amended; [FR Doc. 95–4835 Filed 2–27–95; 8:45 am] an order to divest, as set forth in the 15 U.S.C. 45, 52) BILLING CODE 1505±02±M proposed consent agreement, in Donald S. Clark, disposition of this proceeding. Secretary. (Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interpret [FR Doc. 95–4869 Filed 2–27–95; 8:45 am] DEPARTMENT OF HEALTH AND or apply sec. 5, 38 Stat. 719, as amended; sec. BILLING CODE 6750±01±M HUMAN SERVICES 7, 38 Stat. 731, as amended; 15 U.S.C. 45, 18) Donald S. Clark, Food and Drug Administration Secretary. [FR Doc. 95–4868 Filed 2–27–95; 8:45 am] GOVERNMENT PRINTING OFFICE Statement of Organization, Functions, BILLING CODE 6750±01±M and Delegations of Authority The Federal Register Online Via GPO Part H, Chapter HF (Food and Drug Access; Public Meeting for Federal, Administration) of the Statement of [Docket No. C±3556] State and Local Agencies, and Others Organization, Functions, and Interested in a Demonstration of GPO Olsen Laboratories, Inc., et al.; Delegations of Authority for the Access, the Online Service Providing Prohibited Trade Practices, and Department of Health and Human the Federal Register and Other Federal Affirmative Corrective Actions Services (35 FR 3685, February 25, 1970 Databases and 56 FR 29484, June 27, 1991, as AGENCY: Federal Trade Commission. amended most recently in pertinent ACTION: Consent order. The Superintendent of Documents will hold two public meetings for parts at 51 FR 8032, March 7, 1986) is SUMMARY: In settlement of alleged Federal, State and local government amended to reflect the following violations of federal law prohibiting agencies, and others interested in an reorganization in the Food and Drug unfair acts and practices and unfair overview and demonstration of the Administration (FDA). FDA is revising the substructure of methods of competition, this consent Government Printing Office’s online the Office of Public Affairs within the order prohibits, among other things, two service GPO Access, provided under the Office of External Affairs. The purpose Kansas-based firms and an official from Government Printing Office Electronic of the revisions is to establish a new making false claims for Eez-Away, an Information Access Enhancement Act of Broadcast Media Staff to manage arthritis pain treatment, or similar 1993 (Pub. L. 103–40). products. The consent order requires the broadcast media activities. The Two sessions are available on respondents to possess competent and broadcast media functions will be Tuesday, March 14, 1995, from 9 a.m. to reliable scientific evidence before transferred to the new staff from the 10:30 a.m. and from 11 a.m. to 12:30 making any health or medical benefit Press Relations Staff, which will p.m. Both sessions will be held at the claim for any personal or household continue to have print media functions. U.S. Government Printing Office, Carl product or service they market in the Hayden Room (eighth floor), 732 North Under Section HF–B, Organization future; requires them to clearly identify Capitol Street NW., Washington, DC any future infomerical they disseminate 1. Delete subparagraph (e–1) Press 20401. as paid advertising; and prohibits them Relations Staff (HFAJA) in its entirety from misusing endorsements. The online Federal Register service and insert new subparagraphs (e–1) Press Relations Staff (HFAJA) and (e–6) DATES: Complaint and Order issued offers access to the daily issues of the Broadcast Media Staff (HFAJG) under February 6, 1995.1 Federal Register by 6 a.m. on the day paragraph Office of Public Affairs FOR FURTHER INFORMATION CONTACT: of publication. All notices, rules and Lesley Fair, FTC/S–4002, Washington, proposed rules, Presidential documents, (HFAJ) under Office of External Affairs DC, 20580. (202) 326–3081. executive orders, separate parts, and (HFAQ) reading as follows: SUPPLEMENTARY INFORMATION: On reader aids are included in the database Press Relations Staff (HFAJA) Thursday, December 1, 1994, there was as ASCII text files, with graphics provided in TIFF format. The online Advises and assists top level Agency published in the Federal Register, 59 FR officials on print press matters involving 61622, a proposed consent agreement Federal Register is available via the Internet or as a dial-in service. mass media communications. with analysis In the Matter of Olsen Plans, develops, and implements Laboratories, Inc., et al., for the purpose Historical data is available from January 1994 forward. Agencywide print media strategies for of soliciting public comment. Interested disseminating regulatory and parties were given sixty (60) days in Other databases currently available educational materials to the public which to submit comments, suggestions online through GPO Access include the through the mass media. or objections regarding the proposed Congressional Record; Congressional Serves as the Agency focal point for form of the order. Record Index, including the History of preparing, clearing, and disseminating No comments having been received, Bills; Congressional Bills, Public Laws; press releases and other print media the Commission has ordered the and U.S. Code. statements representing Agency policy issuance of the complaint in the form Individuals interested in attending and responding to print media inquiries; contemplated by the agreement, made either session should contact the GPO’s maintains liaison with news media and its jurisdictional findings and entered Office of Electronic Information pertinent publications. Dissemination Services, John Berger, Establishes policy for and coordinates 1 Copies of the Complaint and the Decision and Product Manager, on 202–512–1525; Order are available from the Commission’s Public all print media information activities, Reference Branch, H–130, 6th Street & Pennsylvania (FAX) 202–512–1262; or by Internet e- including news interviews and Avenue, NW., Washington, DC. 20580. mail at [email protected]. responses to inquiries; prepares position 10866 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices and policy statements for use by Agency National Institutes of Health related disciplines as well as employees in responding to print media representatives from the public. questions; tracks issues of potential Consensus Development Conference After 11⁄2 days of presentations and interest to the media. on Cochlear Implants in Adults and audience discussion, an independent, Coordinates the research and drafting Children non-Federal consensus panel will weigh the scientific evidence and write a draft of major public statements by the Notice is hereby given of the NIH Commissioner, including transmittal statement that it will present to the Consensus Development Conference on audience on the third day. The documents and supportive statements ‘‘Cochlear Implants in Adults and for use in transactions with the consensus statement will address the Children,’’ which will be held May 15– following key questions: Department, other agencies, and the 17, 1995, in the Natcher Conference White House; provides editorial * What factors affect the auditory Center of the National Institutes of performance of cochlear implant consultation and review for Health, 9000 Rockville Pike, Bethesda, manuscripts, articles, and speeches recipients? Maryland 20892. The conference begins * What are the benefits and written by the staff offices serving the at 8:30 a.m. on May 15, at 8 a.m. on May limitations of cochlear implantation? Commissioner to ensure consistency of 16, and at 9 a.m. on May 17. * What are the technical and safety information and policy interpretation considerations of cochlear and maintains mailing lists for these Cochlear implants are effective implantation? documents. options in habilitation and rehabilitation of individuals with * Who is a candidate for cochlear Compiles, publishes, and distributes profound hearing impairment. The vast implantation? the weekly FDA Enforcement Report majority of adults who are deaf and * What are the directions for future and the FDA Public Calendar; maintains have cochlear implants derive research on cochlear implantation? the FDA Daily Clipping Service and substantial benefit from them when they The primary sponsors for this FDA’s electronic bulletin board; and are used in conjunction with conference are the National Institute on coordinates the Daily Media Report. speechreading, and a considerable Deafness and Other Communication Disorders and the NIH Office of Medical Broadcast Media Staff (HFAJG) number of implanted individuals can understand speech without visual clues. Applications of Research. The Advises and assists top level Agency Benefits have also been observed in conference is cosponsored by the officials on electronic media matters children including those who lost their National Institute on Aging, the involving mass media communications. hearing prelingually. National Institute of Child Health and Human Development, and the National Plans, develops, and implements The NIH sponsored a Consensus Institute of Neurological Disorders and Agencywide broadcast media strategies Development Conference on Cochlear Stroke. This is the 100th Consensus for disseminating regulatory and Implants in 1988. Since then, implant Development Conference held by NIH educational materials to the public technology has been continually since the establishment of the through the mass media. improved. Questions unanswered at this Consensus Development Program in Serves as the Agency focal point for time have now been resolved. However, 1977. preparing, clearing, and disseminating new issues have emerged that must be On the second day of the conference, electronic media requests representing addressed. For example, the time has been allocated for 5-minute Agency policy and responding to performance of some severely to formal oral presentations by concerned electronic media inquiries; maintains profoundly hearing-impaired adults individuals or organizations. Those liaison with broadcast media contacts. using hearing aids is poorer than that of individuals or groups wishing to send a Establishes policy for and coordinates even more severely hearing-impaired representative to contribute during this all braodcast media information individuals using cochlear implants session must contact Ms. Elsa Bray by activities, including on-camera with advanced speech processing 5 p.m. eastern time, May 1, 1995 at: interviews and responses to media strategies. Therefore, the criteria for Office of Medical Applications of inquiries; prepares position and policy implantation should be re-examined. Research, National Institutes of Health, statements for use by Agency employees Prediction of implant efficacy in a Federal Building, Room 618, 7550 in responding to broadcast media specific individual remains a problem, Wisconsin Avenue MSC9120, Bethesda, questions; tracks issues of potential and agreement does not exist on the Maryland 20892–9120, phone (301) interest to the media. definition of a successful implant user. 496–1144. If the number of requests Surgical and other risks and possible Plans and coordinates all broadcast exceeds the slots available, presenters long-term effects of cochlear implants media training for the Agency. will be chosen by lot, and those selected require evaluation. will be notified by May 5, 1995. Under Section HF–D, Delegation of Implantation of individuals with Advance information on the Authority multiple disabilities, the elderly, and conference program and conference Pending further delegations, children, particularly children who are registration materials may be obtained directives, or orders by the prelingually deaf, engender special from: Ann Besignano, Technical Commissioner of Food and Drugs, all questions. What educational setting is Resources International, Inc., 3202 delegations of authority to officers or best for the development of speech and Tower Oaks Blvd., Suite 200, Rockville, employees of the Office of Public Affairs language in children who are deaf and Maryland 20852, (301) 770–3153. in effect prior to this date shall continue have a cochlear implant? Are cochlear The consensus statement will be in effect in them or their successors. implants efficacious in children who are submitted for publication in prelingually deaf? professional journals and other Dated: February 10, 1995. This conference will bring together publications. In addition, the consensus David A. Kessler, specialists in auditory anatomy and statement will be available beginning Commissioner of Food and Drugs. physiology, otolaryngology, audiology, May 17, 1995 from the NIH Consensus [FR Doc. 95–4796 Filed 2–27–95; 8:45 am] aural rehabilitation, education, speech Program Information Service, P.O. Box BILLING CODE 4160±01±M and language pathology and other 2577, Kensington, Maryland 20891, Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10867 phone 1–800–NIH–OMAR (1–800–644– the distinction of being the only The proposed project will serve as a 6627). organization with extensive experience national demonstration site on the Dated: February 9, 1995. in linking coal miners, farmers, and development and implementation of Ruth L. Kirschstein, their families with mental health outreach to rural families who are services. Further, because of their years experiencing mental illnesses or are at- Deputy Director, NIH. of experience and organizational risk of developing mental illnesses. [FR Doc. 95–4823 Filed 2–27–95; 8:45 am] readiness, the project can be Dated: February 21, 1995. BILLING CODE 4140±01±M implemented with a minimal start-up Richard Kopanda, time. The FRC has in place mechanisms to recruit, train, and dispatch volunteers Acting Executive Officer, SAMHSA. Substance Abuse and Mental Health to provide outreach and counseling to [FR Doc. 95–4845 Filed 2–27–95; 8:45 am] Services Administration the target population. Moreover, FRC’s BILLING CODE 4162±20±P Grant to the Farm Resource Center trained staff have a long history of working closely with State or regional AGENCY: Center for Mental Health associations of the United Mine Workers DEPARTMENT OF THE INTERIOR Services (CMHS), Substance Abuse and of America, Association of Public Mental Health Services Administration Health Administrators, the Easter Seal Bureau of Land Management (SAMHSA), HHS. Society, and the Association of [ID±030±05±1430±01; IDI±31091] ACTION: Planned single-source award to Community Mental Health Agencies. support mental health outreach to coal Background: A significant portion of Intent To Prepare a Plan Amendment miners, farmers, and their families. the adult population in the United to the Medicine Lodge Resource States reports experiencing personal or Management Plan (RMP); Proposed SUMMARY: This notice is to provide emotional problems in the course of a Sale of Public Land in Jefferson information to the public concerning a year. Half of these people say they are County, ID planned single-source award by the unable to solve their problems, and CMHS/SAMHSA to the Farm Resource approximately one-third report they are AGENCY: Bureau of Land Management, Center (FRC) of Cairo, Illinois, to fund unable to do anything to make their Interior. the ‘‘MH Outreach to Coal Miners, problems more bearable. Yet relatively ACTION: Notice of Intent to Prepare a Farmers, and Families’’ project. Upon few seek help. Thus, outreach services Plan Amendment to the Medicine Lodge receipt of a satisfactory grant are important to engage more persons Resource Management Plan (RMP); application that is recommended for into appropriate services. Outreach, Proposed Sale of Public Land in approval by an Initial Review Group when carried out aggressively, can Jefferson County, Idaho. and the CMHS National Advisory engage and empower coal miners, SUMMARY: Council, approximately $600,000 in Pursuant to 43 CFR part 1600, farmers, and their families by giving the Idaho Falls office of the Bureau of Federal funds will be made available to them access to needed mental health the FRC to carry out a 1-year project. Land Management proposes to amend services. the Medicine Lodge RMP to identify a This is not a formal request for The effects of economic stress are portion of the following described applications. Grant funds will be pervasive in rural areas, and coal public land as suitable for disposal. The provided only to the FRC. miners, farmers, and their families have land, located in Jefferson County, Idaho, Authority/Justification: This grant been particularly hard hit. will be examined for possible disposal will be made under the authority of Unemployment and underemployment by direct sale to the City of Mud Lake. Section 520A of the Public Health have resulted in a high incidence of Service Act (42 USC 290bb-32). problems including alcohol/drug abuse, Boise Meridian, Idaho An award is being made on a single- family violence, depression, suicides, T. 6 N., R. 34 E., BM source basis in response to House and and other stress-related symptoms. Sec. 18, lot 10, NE1⁄4. Senate Appropriation Subcommittees This grant is intended to address the The land being considered for sale is language contained in H.R. Report 103– mental health needs of a wide range of approximately 40 to 50 acres. A Cadastral 553 and S. Report 103–318 instructing rural population groups including the survey would be required to determine the the agency to provide funding for two poor, the elderly, the disabled, women exact acreage and legal description. pilot projects to provide outreach (particularly those of child bearing age), DATES: Comments concerning the plan counseling services to families of coal and minority populations in Illinois and amendment must be received no later miners. A grant is the appropriate West Virginia. It will enhance effective March 30, 1995. mechanism to fund this activity since service utilization in five areas by: support will be provided for a public ADDRESSES: Written comments (1) Expanding the mental health concerning the plan amendment may be purpose and agency involvement in the service capacity in communities to serve actual conduct of the activity is not sent to the BLM Associate District persons in the target population; Manager, 940 Lincoln Road, Idaho Falls, required. (2) Increasing access to existing ID 83401. The FRC has provided mental health mental health and related support and substance abuse outreach services services; FOR FURTHER INFORMATION CONTACT: in rural Illinois since 1986. FRC has (3) Increasing utilization of existing Additional information may be obtained provided counseling to farmers, coal mental health and related support by contacting Bruce Bash, Realty miners and their families, established a services; Specialist, at the above address, or by statewide hotline, and utilized outreach (4) Developing effective public calling 208–524–7521. counselors to work with rural families education efforts to address mental SUPPLEMENTARY INFORMATION: The in their homes to address problems such health and substance abuse issues; and amendment would change the land as depression, financial stress, (5) Providing family-centered designation, of about 40–50 acres, from alcoholism, and domestic violence. outreach in the cultural context that is retention status to transfer status. The The FRC is uniquely qualified to carry most appropriate for the client and following resources would be out the aims of this project in that it has family involved. considered in preparation of the 10868 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices amendment: lands, wildlife, range, David McGillivary, Supervisor, Office of regulations initially effective beginning minerals, cultural resources, watershed/ Marine Mammals Management at the on December 16, 1993, for an 18-month soils, threatened/endangered species, above identified address, telephone, or period through June 16, 1995. and hazardous materials. Staff members FAX numbers. Consistent with the intent of the representing each resource will be FOR FURTHER INFORMATION CONTACT: International Agreement, the final rule consulted during preparation of the David McGillivary in Anchorage, contains provisions that require the environmental document. Alaska, at 907/786–3800. Service to develop and begin The primary issue to be addressed is SUPPLEMENTARY INFORMATION: The implementing a strategy, as part of our the change in land designation from Marine Mammal Protection Act of 1972 management plan process pursuant to retention to transfer status. The (Act) vested authority for management section 115 of the Act, for the amendment is not expected to be and conservation of polar bears in the identification and protection of controversial as the City of Mud Lake United States (i.e., Alaska) with the important polar bear habitats. Development of a strategy, as well as the currently holds an airport lease on the Service. Provisions in section 101(a)(5) same land. No public meetings are initiation of steps to implement it, is of the Act authorize the incidental, scheduled; however, written comments necessary for the Beaufort Sea final unintentional take by U.S. citizens of may be submitted after each of two regulations to be extended beyond their small numbers of marine mammals (e.g., public notices. initial 18 month effective period (now polar bear) in specified activities other Prepared documents will be available set to expire on June 16, 1995) for a total than commercial fishing. As defined in at the BLM Idaho Falls office. Office 5-year period (through December 15, section 3 of the Act, the term ‘‘take’’ hours are 7:45 a.m. to 4:30 p.m., 1998) as authorized by the Act. Monday through Friday, except means to harass, hunt, capture, or kill, Initiating efforts to develop this draft holidays. or attempt to harass, hunt, capture, or Strategy, the Service on December 28, kill any marine mammal. 1993, published a ‘‘Notice of intent to Dated: February 16, 1995. While the Act authorizes these Gary L. Bliss, prepare a polar bear habitat protection incidental takes, section 2(6) of the Act strategy, conduct public meetings, and Associate District Manager. states that: request [for] information,’’ in the [FR Doc. 95–4801 Filed 2–27–95; 8:45 am] Marine mammals * * * should be Federal Register (58 FR 68659). Public BILLING CODE 4310±GG±M protected and encouraged to develop to the meetings were held in Anchorage and greatest extent feasible commensurate with Barrow, Alaska, on January 20 and 25, sound policies of resource management and 1994, respectively, in order to provide Fish and Wildlife Service that the primary objective of their background information and our management should be to maintain the Marine Mammals; Polar Bear Habitat health and stability of the marine ecosystem. proposed plan for development of a Conservation Strategy, and to solicit input from those In this regard, section 112(a) of the Act in attendance. The formal public AGENCY: Fish and Wildlife Service, authorizes the Secretary of the Interior comment period associated with the Interior. to prescribe regulations that are Notice closed on February 11, 1994. ACTION: Availability of a draft Habitat necessary and appropriate to carry out Additional meetings subsequently were Conservation Strategy for Polar Bears in the purposes of the Act. held in coastal Alaska communities and Alaska; request for comments. In addition to its responsibilities discussions have been conducted with under the Act, the Service has further Alaskan Native hunters to collect SUMMARY: Final Fish and Wildlife responsibilities under the 1973 knowledge on polar bear habitat use. Service (Service) regulations published International Agreement on the The Service has also consulted with the in the Federal Register on November 16, Conservation of Polar Bears Marine Mammal Commission, 1993, authorized and governed the (International Agreement). Article II of signatories to the International incidental, unintentional take of small this International Agreement states that: Agreement, the Department of State, the numbers of polar bear and walrus Each Contracting Party [i.e., Canada, State of Alaska, the oil and gas industry, during oil and gas industry operations Denmark, Norway, Russia, and the U.S.] shall conservation organizations, and year-round in the Beaufort Sea and take appropriate action to protect the academia. Information obtained during adjacent northern coast of Alaska. Those ecosystems of which polar bears are a part, these various efforts has been regulations contained provisions with special attention to habitat components incorporated into the draft Strategy. requiring the Service by June 15, 1995, such as denning and feeding sites and The objective of this Strategy is to to develop and being implementing a migration patterns * * * identify and enhance protection of strategy for the identification and On December 17, 1991, BP important polar bear habitats in Alaska. protection of important polar bear Exploration (Alaska), Inc., for itself and This will enable the United States to habitats. The Service has developed a on behalf of 14 other oil and gas related address the ecosystem protection draft Habitat Conservation Strategy for companies operating in Alaska, provisions of the Act and the Polar Bears in Alaska (Strategy), petitioned the Service to promulgate Agreement, and to ensure oil and gas announces its availability, and solicits regulations pursuant to section 101(a)(5) activities are conducted in a manner public comments. of the Act to allow for the incidental, that minimizes adverse impacts on polar DATES: Comments on the draft Strategy unintentional take of small numbers of bears, their habitat, and on their must be received by May 1, 1995. polar bears and walrus during year- availability for subsistence uses. Its goal ADDRESSES: Copies of the draft Strategy round oil and gas activities (i.e., is to maintain the integrity of the are available by contacting the Office of exploration, development, and ecosystem upon which polar bears Marine Mammals Management, Fish production) in the Beaufort Sea and depend and to maintain polar bear and Wildlife Service, 1011 E. Tudor adjacent northern coast of Alaska. populations at optimum sustainable Road, Anchorage, AK 99503; Telephone: Culminating a two-year process, the population levels. The Service hereby 907/786–3800; FAX: 907/786–3816. Service ultimately published a final rule announces the availability of its draft Written comments should be in the Federal Register on November 16, Strategy. Public review and comment is submitted either by mail or FAX to 1993 (58 FR 60402), with final solicited. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10869 The Service has prepared a draft transforming the final design into a Persons wishing further information Environmental Assessment (EA) in finished product. concerning this meeting, or who wish to conjunction with the draft Strategy. A SUPPLEMENTARY INFORMATION: The submit written statements may contact copy of the draft EA may be obtained Advisory Committee was established Steve Adams, Superintendent, Pea from the Service’s Office of Marine under Title II of the Act of December 10, Ridge National Military Park, P.O. Box Mammal Management identified above 1991, for the purpose of advising the 700, Pea Ridge, AR 72751–0700, in the ADDRESSES section. Secretary on the site selection for a Telephone 501/451–8122. Dated: February 17, 1995. memorial in honor and recognition of Minutes of the meeting will be Bruce Blanchard, the Indians who fought to preserve their available for public inspection four weeks after the meeting at the office of Acting Director, Fish and Wildlife Service. land and culture at the Battle of Little Bighorn, on the conduct of a national Pea Ridge National Military Park. [FR Doc. 95–4903 Filed 2–27–95; 8:45 am] design competition for the memorial, BILLING CODE 4310±55±M Dated: February 21, 1995. and ‘‘* * * to ensure that the memorial Jerry Rogers, designed and constructed as provided in Regional Director, Southwest Region. National Park Service section 203 shall be appropriate to the monument, its resources and landscape, [FR Doc. 95–4803 Filed 2–27–95; 8:45 am] AGENCY: National Park Service, Interior. sensitive to the history being portrayed BILLING CODE 4310±70±M ACTION: Notice of Meeting of Sub- and artistically commendable.’’ committee on Design Competition FOR FURTHER INFORMATION CONTACT: Ms. Trail of Tears National Historic Trail Package. Barbara A. Booher, Indian Affairs Advisory Council; Meeting Coordinator and Indian Advisory SUMMARY: This notice announces an Committee Liaison, National Park Notice is hereby given in accordance upcoming meeting of the Indian Service, Rocky Mountain Regional with the Federal Advisory Committee Memorial Advisory Sub-Committee Office, 12795 W. Alameda Parkway, Act, Public Law 92–463, that a meeting producing the Design Competition P.O. Box 25287, Denver, Colorado of the Trail of Tears National Historic Package. Notice of this meeting is 80225–0287 (303) 969–2511. Trail Advisory Council will be held required under the Federal Advisory March 30–31, 1995, at 8:30 a.m., at the Committee Act (Public Law 92–463). Dated: February 9, 1995. Gerard Baker, Comfort Hotel River Plaza, 407 Chestnut MEETING DATE AND TIME: Thursday, Street, Chattanooga, Tennessee. March 2, 1995, 1:30—5:00 pm.; and Superintendent, Little Bighorn Battlefield National Monument, Designated Federal The Trail of Tears National Historic Friday, March 3, 1995, 8:00—12:00 a.m., Trail Advisory Council was established and 1:30—5:00 p.m. Official, National Park Service. [FR Doc. 95–4805 Filed 2–27–95; 8:45 am] pursuant to Public Law 100–192 ADDRESSES: American Institute of BILLING CODE 4310±70±M establishing the Trail of Tears National Architects (AIA), Denver Chapter Office, Historic Trail to advise the National 1526 15th Street, Denver, Colorado Park Service on such issues as 80202: (303) 446–2266. Pea Ridge National Military Park preservation of trail routes and features, THE AGENDA OF THIS MEETING WILL BE: Advisory Team; Meeting public use, standards for posting and Continue work begun by the Indian maintaining trail markers, as well as Memorial Advisory Committee and the Notice is hereby given in accordance administrative matters. National Park Service Support Team to with the Federal Advisory Committee The matters to be discussed include: produce a package that establishes the Act that a meeting of the Pea Ridge —Plan Implementation Status structure, rules, processes that will National Military Park Advisory Team —Trail Association Status guide an upcoming national design will be held at 6:00 p.m., on Thursday, competition for the creation of a March 16, 1995, in the park visitor —Cooperative Agreements Negotiation memorial to the Indian participants in center auditorium, 15930 Highway 62, —Fundraising the 1876 conflict at Little Bighorn Garfield, Arkansas. The meeting will be open to the Battlefield National Monument, located The Pea Ridge National Military Park public. However, facilities and space for at Crow Agency, Montana. This meeting Advisory Team was established under accommodating members of the public will incorporate help from a select authority of section 3 of Public Law 91– are limited, and persons will be group of four architects under the 383 (16 U.S.C. 1a–2(c)) to provide a accommodated on a first-come, first- sponsorship of the AIA. The architects forum for dialogue between community served basis. Any member of the public will provide professional insight into representatives and the Pea Ridge may file a written statement concerning formulating and managing design National Military Park on management the matters to be discussed with David competitions and will help steer the issues affecting the park and the Gaines, Superintendent. final decisions of the sub-committee. community. Persons wishing further information The components of the meeting will The matter to be discussed at this concerning this meeting, or who wish to consist of a review of project progress to meeting includes: submit written statements may contact date and discussion/decisions about; —Boundary Study David Gaines, Superintendent, Long competition staging; advertising and The meeting will be open to the Distance Trails Group Office-Santa Fe, promotional strategies; applicant public. However, facilities and space for National Park Service, Southwest registration, rules, and fees; design accommodating members of the public Region, P.O. Box 728, Santa Fe, New competition language; design criteria; are limited, and persons will be Mexico 87504–0728, telephone 505/ base data needs and format; evaluation accommodated on a first-come-first 988–6888. Minutes of the meeting will criteria; jury composition and scoring/ served basis. Any member of the public be available for public inspection at the selection alternatives; stipends for may file a written statement concerning office of the Superintendent, located in finalists; awards and commendations the matters to be discussed with the Room 358, Pinon Building, 1220 South (amounts and categories); competition superintendent, Pea Ridge National St. Francis Drive, Santa Fe, New and design development schedule; and Military Park. Mexico. 10870 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Dated: February 21, 1995. King and Queen County Blackstock, Thomas M. and Bridget, House, Jerry Rogers, Farmington, 1.5 mi. SE of jct. of VA 14 and 507 Washington Ct., Sheboygan, 95000256 Regional Director, Southwest Region. US 360, S side, St. Stephens Church Waukesha County vicinity, 95000243 [FR Doc. 95–4802 Filed 2–27–95; 8:45 am] Merten, Charles, House, 929 Rosemary St., BILLING CODE 4310±70±M Northumberland County Waukesha, 95000248 Anchorage, The, 1 mi. W of jct. of VA 605 Northwestern Hotel, 322 Williams St., and VA 669, N side, Kilmarnock vicinity, Waukesha, 95000249 National Register of Historic Places; 95000245 Winnebago County Notification of Pending Nominations Coan Baptist Church, VA 638, E of jct. with VA 612, Heathsville vicinity, 95000239 First Methodist Church, 502 N. Main St., Oshkosh, 95000247 Nominations for the following Richmond Independent City [FR Doc. 95–4804 Filed 2–27–95; 8:45 am] properties being considered for listing Belle Isle, James R. at US1/301, Richmond in the National Register were received (Independent City), 95000246 BILLING CODE 4310±70±M by the National Park Service before WASHINGTON February 18, 1995. Pursuant to § 60.13 of 36 CFR Part 60 written comments Asotin County INTERSTATE COMMERCE concerning the significance of these Grande Ronde River Bridge (Bridges of COMMISSION properties under the National Register Washington State MPS), WA 129 over the [Finance Docket No. 32607] criteria for evaluation may be forwarded Grande Ronde R., Asotin vicinity, to the National Register, National Park 95000262 WFEC Railroad CompanyÐ Service, P.O. Box 37127, Washington, Cowlitz County Construction and Operation DC 20013–7127. Written comments Jim Creek Bridge (Bridges of Washington ExemptionÐChoctaw and McCurtain should be submitted by March 15, 1995. State MPS), WA 503 over Jim Cr., Counties, OK Carol D. Shull, Woodland vicinity, 95000258 AGENCY: Interstate Commerce Chief of Registration, National Register. Ferry County Commission. FLORIDA Barstow Bridge (Bridges of Washington State ACTION: Notice of Exemption. MPS), US 395 and Co. Rd. 4061 over the Manatee County Kettle R., Kettle Falls vicinity, 95000263 SUMMARY: The Commission, under 49 Cortez Historic District, Bounded by Cortez Columbia River Bridge at Kettle Falls (Bridges U.S.C. 10505, conditionally exempts Rd., 119th St. W. Sarasota Bay and 124th of Washington State MPS), US 395 over the from the prior approval requirements of St. Ct. W. Tallahassee, 95000250 Columbia R., Kettle Falls vicinity, 49 U.S.C. 10901 the construction and 95000260 Monroe County operation by the WFEC Railroad Lincoln County Company of a 14-mile line of railroad in Florida Keys Memorial, US 1 at Mile Marker Spokane River Bridge at Fort Spokane Choctaw and McCurtain Counties, OK, 81.5, Islamorada, 95000238 (Bridges of Washington State MPS), WA 25 subject to the results of our MONTANA over the Spokane R., Hunters vicinity, environmental review and further 95000261 decision. The line will extend north Missoula County Pierce County from the Western Farmers Electric Christie, Thomas J., House, 401 McLeod Cooperative’s Hugo Generating Station Ave., Missoula, 95000251 Winnifred Street Bridge (Bridges of Washington State MPS), Winnifred St. over loop track, cross a line of the Kiamichi OKLAHOMA the Burlington Northern RR tracks, Ruston Railroad Company, and then extend east vicinity, 95000259 to connect with a line of the Texas, Caddo County Oklahoma & Eastern Railroad Company Caddo County Medicine Creek WEST VIRGINIA near Valliant, OK. Archaeological District, Address Braxton County DATES: The exemption cannot become Restricted, Binger vicinity, 95000235 Burnsville Bridge, Old Bridge St. over the effective until after the environmental Stevens Rock Shelter, Address Restricted, Little Kanawha R., Burnsville, 95000254 process has been completed. At that Gracemont vicinity, 95000237 Fayette County time, the Commission will issue a Greer County further decision addressing the Oak Hill Railroad Depot, Jct. of Virginia Ave. environmental matters and establishing Manqum Community Building, 201 W. and Central Ave., Oak Hill, 95000255 Lincoln, Mangum, 95000236 an exemption effective date, if Hancock County appropriate. Petitions to reopen must be VIRGINIA People’s Bank, 3383 Main St., Weirton, filed by March 20, 1995. Amherst County 95000253 ADDRESSES: Send pleadings referring to Sweet Briar College Historic District, Sweet Marshall County Finance Docket No. 32607 to: (1) Office of the Secretary, Case Control Branch, Briar Dr., 5 mi. W of US 29, Amherst Moundsville Commercial Historic District, vicinity, 95000240 Roughly, Jefferson Ave. from Second to Interstate Commerce Commission, 1201 Constitution Avenue NW., Washington, Chesterfield County Seventh Sts., Seventh from Jefferson to Lafayette Ave. and Lafayette S of Seventh, DC 20423; and (2) Petitioner’s Falling Creek Ironworks Archaeological Site, Moundsville, 95000252 representative: John H. LeSeur, Slover & Address Restricted, Richmond vicinity, Loftus, 1224 Seventeenth St., NW., WISCONSIN 95000242 Washington, DC 20036. Clarke County Columbia County FOR FURTHER INFORMATION CONTACT: Glendale Farm, Jct. of VA 761 and VA 632, Portage Industrial Waterfront Historic Beryl Gordon, (202) 927–5610. [TDD for District, Jct. of E. Mullet and Dodge Sts., N side, Berryville vicinity, 95000244 the hearing impaired: (202) 927–5721.] Portage, 95000257 Wickliffe Church, VA 608, E side, .5 mi. S of SUPPLEMENTARY INFORMATION: VA–WV line, Berryville vicinity, 95000241 Sheboygan County Additional information is contained in Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10871 the Commission’s decision. To purchase exemption will be effective on March By the Commission, David M. Konschnik, a copy of the full decision, write to, call, 30, 1995, unless stayed pending Director, Office of Proceedings. or pick up in person from: Dynamic reconsideration. Petitions to stay that do Vernon A. Williams, Concepts, Inc., Room 2229, Interstate not involve environmental issues,1 Secretary. Commerce Commission Building, 1201 formal expressions of intent to file an [FR Doc. 95–4874 Filed 2–27–95; 8:45 am] Constitution Avenue, NW., Washington, OFA under 49 CFR 1152.27(c)(2),2 and BILLING CODE 7035±01±P DC 20423. Telephone (202) 289–4357/ trail use/rail banking requests under 49 4359. [Assistance for the hearing CFR 1152.29 3 must be filed by March impaired is available through TDD 10, 1995. Petitions to reopen or requests DEPARTMENT OF JUSTICE services (202) 927–5721.] for public use conditions under 49 CFR Decided: February 10, 1995. 1152.28 must be filed by March 20, Antitrust Division 4 By the Commission, Chairman McDonald, 1995, with: Office of the Secretary, United States v. Association of Retail Vice Chairman Morgan, and Commissioners Case Control Branch, Interstate Simmons and Owen. Travel Agents: Public Comments and Commerce Commission, Washington, Response on Proposed Final Vernon A. Williams, DC 20423. Judgment Secretary. A copy of any pleading filed with the Pursuant to the Antitrust Procedures [FR Doc. 95–4914 Filed 2–27–95; 8:45 am] Commission should be sent to and Penalties Act, 15 U.S.C. 16(b)–(h), BILLING CODE 7035±01±P applicant’s representative: John J. the United States publishes below the Paylor, Consolidated Rail Corporation, comments received on the proposed [Docket No. AB±167 (Sub-No. 1144X)] Two Commerce Square, 2001 Market Final Judgment in United States v. Street, P.O. Box 41416, Philadelphia, PA Association of Retail Travel Agents, Consolidated Rail CorporationÐ 19101–1416. Abandonment ExemptionÐin Civil Action No. 94–2305 (PF), United Cumberland and Dauphin Counties, PA If the notice of exemption contains States District Court for the District of false or misleading information, the Columbia, together with the response of Consolidated Rail Corporation exemption is void ab initio. the United States to the comments. (Conrail) has filed a notice of exemption Conrail has filed an environmental Copies of the response and the public under 49 CFR 1152 Subpart F—Exempt report which addresses the comments are available on request for Abandonments to abandon a 1-mile line abandonment’s effects, if any, on the inspection and copying in room 3233 of the Antitrust Division, U.S. Department of railroad (the Cumberland Valley environment and historic resources. The Railroad Bridge) spanning the of Justice, Tenth Street and Section of Environmental Analysis Susquehanna River, between Harrisburg Pennsylvania Avenue, NW., (SEA) will issue an environmental and Lemoyne, PA, located on a portion Washington, DC. 20530, and for assessment (EA) by March 3, 1995. of track known as the Shippensburg inspection at the Office of the Clerk of Secondary, between milepost 0.5 and Interested persons may obtain a copy of the United States District Court for the milepost 1.5, in Cumberland and the EA by writing to SEA (Room 3219, District of Columbia, United States Dauphin Counties, PA. Interstate Commerce Commission, Courthouse, Third Street and Conrail has certified that: (1) No local Washington, DC 20423) or by calling Constitution Avenue, NW., Washington, or overhead traffic has moved over the Elaine Kaiser, Chief of SEA, at (202) DC 20001. line for at least 2 years; (2) no formal 927–6248. Comments on environmental Constance K. Robinson, and historic preservation matters must complaint filed by a user of rail service Director of Operations, Antitrust Division. on the line (or by a state or local be filed within 15 days after the EA is government entity acting on behalf of available to the public. United States’ Response to Public such user) regarding cessation of service Environmental, historic preservation, Comments over the line either is pending with the public use, or trail use/rail banking Introduction Commission or with any U.S. District conditions will be imposed, where In the United States District Court for the Court or has been decided in favor of appropriate, in a subsequent decision. the complainant within the 2-year District of Columbia period; and (3) the requirements at 49 Decided: February 16, 1995. United States of America, Plaintiff, v. CFR 1105.7 (environmental reports), 49 Association of Retail Travel Agents, CFR 1105.8 (historic report), 49 CFR 1 A stay will be issued routinely by the Defendant. [Civil No: 94–2305 (PF).] Commission in those proceedings where an Pursuant to section 2(d) of the 1105.11 (transmittal letter), 49 CFR informed decision on environmental issues 1105.12 (newspaper publication), and (whether raised by a party or by the Commission’s Antitrust Procedures and Penalties Act 49 CFR 1152.50(d)(1) (notice to Section of Environmental Analysis in its (‘‘APPA’’), 15 U.S.C. 16(d), the United governmental agencies) have been met. independent investigation) cannot be made prior to States responds to public comments on As a condition to use of this the effective date of the notice of exemption. See the proposed Final Judgment submitted Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d exemption, any employee adversely 377 (1989). Any entity seeking a stay on for entry in this civil antitrust affected by the abandonment shall be environmental concerns is encouraged to file its proceeding. protected under Oregon Short Line R. request as soon as possible in order to permit the This action began on October 25, Co.—Abandonment—Goshen, 360 I.C.C. Commission to review and act on the request before 1994, when the United States filed a the effective date of this exemption. Complaint alleging that the Association 91 (1979). To address whether this 2 See Exempt. of Rail Abandonment—Offers of condition adequately protects affected Finan. Assist., 4 I.C.C.2d 164 (1987). of Retail Travel Agents (hereinafter employees, a petition for partial 3 The Commission will accept a late-filed trail use ‘‘ARTA’’) had entered into a contract, revocation under 49 U.S.C. 10505(d) request as long as it retains jurisdiction to do so. combination or conspiracy in restraint must be filed. 4 Conrail indicates that, subject to the of trade in violation of section 1 of the Provided no formal expression of abandonment, they have contracted to sell the bridge to Capital Area Transit for the purpose of Sherman Act (15 U.S.C. 1). The intent to file an offer of financial preserving it as a historical structure and for Complaint alleges that ARTA, a trade assistance (OFA) has been received, this possible future public use. association, all of whose members are 10872 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices travel agents, and its members agreed on knowledge of the issues bearing on the does not allege any activity directed commission levels and other terms of consent decree, and to create a public toward or utilizing legislation or the trade on which to transact business with record of the reasoning behind the press. Nor does it allege any activity providers of travel services, and government’s consent to the decree. involving or directed toward travel encouraged and participated in a group Hearings on H.R. 9703, H.R. 9947, and agents activity involving or directed boycott with the intent to induce certain S. 782, Consumer Decree Bills Before the toward travel agents that are not ARTA providers of travel services to agree to Subcomm. on Monopolies and members. Moreover, it does not appear certain commission levels and practices. Commercial Law of the House Judiciary that the relief proposed by ITAA would The Complaint seeks an order enjoining Committee, 93rd Cong. 1st Sess. 40 prevent or mollify the violations that are ARTA from inviting or encouraging (1977) (hereinafter ‘‘Hearings’’) alleged in the complaint. The lack of a such concerted action by travel agents. (Statement of Senator Tunney.) See also connection between ITAA’s proposed Simultaneously with the filing of the United States v. Western Electric Co., relief and any alleged antitrust violation Complaint, the United States filed a 993 F.2d 1572 (D.C. (Cir.), cert. denied, is particularly apparent here because proposed Final Judgment, a Competitive 114 S. Ct. 487 (1993); United States v. attempts to petition a legislature, Impact Statement (‘‘CIS’’) and a American Tel. and Tel. Co., 552 F. standing alone, are normally not subject Stipulation signed by ARTA for entry of Supp. 131, 148 (D.D.C. 1982), aff’d sub to the antitrust laws. See Eastern the proposed Final Judgment. The nom. Maryland v. United States, 460 Railroads Presidents Conference v. proposed Final Judgment resolves the U.S. 1001 (1983). Noerr Motor Freight, Inc., 365 U.S. 127 antitrust violation alleged in the The issue in a Tunney Act proceeding (1961). Complaint by enjoining ARTA from is whether the relief provided by the inviting or encouraging travel agents to decree adequately protects the public III. Conclusion deal with travel providers only on interest. Although the Tunney Act The decree provides relief entirely agreed terms. This prohibition includes requires the Court to make an adequate to redress the harm caused by any agreements on Specified independent determination that a defendant’s conduct. Entry of the decree commission levels. The proposed Final decree is in the public interest, the is in the public interest. ITAA’s Judgment also prohibits ARTA from Court’s role is limited. Congress comment and this response will be adopting or disseminating any rules, intended to preserve the viability of the published in the Federal Register. policies, or statements that have the consent decree process by avoiding Dated: February 14, 1995. purpose or effect of advocating or lengthy and protracted judicial encouraging such a concerted refusal to proceedings, and therefore, ‘‘[t]he Anne K. Bingaman, deal. Finally, the proposed Final balancing of competing social and Assistant Attorney General. Judgment requires ARTA periodically to political interests affected by a proposed Robert E. Litan, inform its members, officers and board antitrust consent decree must be left, in Deputy Assistant Attorney General. members on the requirements of the the first instance, to the discretion of the Respectfully submitted, proposed Final Judgments and the Attorney General.’’ United States v. Roger W. Fones, antitrust laws. Bechtel Corp., 648 F.2d 660, 666 (9th Donna N. Kooperstein, As required by the APPA, on Cir. 1981). December 8, 1994, ARTA filed with this The Court’s public interest inquiry Robert D. Young, Court a description of written and oral must be conducted in light of the Nina B. Hale, communications on its behalf within the ‘‘violations set forth in the complaint.’’ Attorneys, Transportation, Energy, and reporting requirements of section 15(g) 15 U.S.C. 16(b). The enforcement Agriculture Section, Antitrust Division, of the APPA. A summary of the terms agency’s decision about what charges to Department of Justice. of the proposed Final Judgment and CIS, bring in its complaint is a matter Certificate of Service and directions for the submission of generally ‘‘committed to the agency’s I hereby certify that I have caused a written comments relating to the absolute discretion.’’ Heckler v. Chaney, copy of the foregoing UNITED STATES proposal were published in the 470 U.S. 821, 831 (1985). RESPONSE TO PUBLIC COMMENTS to Washington Post for seven consecutive II. Public Comments be served upon Alexander Anolik, 693 days beginning November 13, 1994. The Sutter St., 6th Floor, San Francisco, CA proposed Final Judgment and CIS were ITAA states that the proposed Final 94102 by first class mail, postage published in the Federal Register on Judgment should be modified to require prepaid. November 17, 1994. 59 FR 59422 (1994). ARTA to agree (a) not to lobby or ‘‘foster The 60-day period for public legislation’’ that would discriminate Dated: February 14, 1995. comments commenced on November 18, against travel agencies that are not Robert D. Young, 1994 and expired on January 16, 1995. members of ARTA, and (b) not to use Transportation, Energy and Agriculture The United States has received one the press to discriminate, or to cause Section, Antitrust Division, Department of comment on the proposed Final travel suppliers to discriminate, against Justice. non-ARTA travel agencies. ITAA’s Judgment, from the Independent Travel November 1,1994. Agencies of America Association, Inc. comment does not discuss how such remedies are related to, or would cure, Mr. Roger Fones, (‘‘ITAA’’). That comment is being filed Chief, Transportation, Energy and with the Court along with this response. the violations alleged in the Complaint, Agriculture Section, Antitrust Division, nor explain why the proposed remedies Judiciary Center Building, 555 4th Street, I. Legal Standards Governing the would otherwise be appropriate. Court’s Public Interest Determination NW, Rm 9104, Washington, DC 20001 Upon careful consideration, the Re: United States of America v. Association The procedural requirement of the government does not believe there is of Retail Travel Agents Case Number Tunney Act are intended to eliminate any reason to modify the proposed Final 1:94CVO2305 secrecy from the consent decree process, Judgment. As noted, the Complaint in Dear Mr. Fones: I am General Counsel of to ensure that the Justice Department this case alleges a boycott by ARTA to the Independent Travel Agencies of America has access to information from the induce travel suppliers to agree to Association. We represent in excess of 5000 widest spectrum of persons with commission rates and other terms. It independent travel agencies across the Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10873 country. We at ITAA and many of our purpose of employing nonimmigrant nurses will not adversely affect U.S. members have read with great interest your alien nurses. A decision has been made nurses and that the foreign nurses will release of Tuesday October 25, 1994, ‘‘Travel on these organizations’ attestations and be treated fairly. The facility’s Agent Trade Association Agrees To End they are on file with DOL. attestation must be on file with DOL Anticompetitive Practices’’ as well as the ‘‘Complaint’’ the ‘‘Stipulation’’ the proposed ADDRESSES: Anyone interested in before the Immigration and ‘‘Final Judgment’’ and the ‘‘Competitive inspecting or reviewing the employer’s Naturalization Service will consider the Impact Statement’’. attestation may do so at the employer’s facility’s H–1A visa petitions for In accordance with the Section V of the place of business. bringing nonimmigrant registered Competitive Impact Statement on behalf of Attestations and short supporting nurses to the United States. 26 U.S.C. this association and our members we would explanatory statements are also 1101(a)(15)(H)(i)(a) and 1181(m). The like to register our comments as the Final available for inspection in the U.S. regulations implementing the nursing Judgment when implemented will have a Employment Service, Employment and attestation program are at 20 CFR parts great effect upon many, if not all, of our members. Training Administration, Department of 655, subpart D, and 29 CFR part 504 The Final judgment should be modified as Labor, Room N–4456, 200 Constitution (January 6, 1994). The Employment and follows: Avenue, NW., Washington, DC 20210. Training Administration, pursuant to 20 1. ARTA should agree not to lobby or foster Any complaints regarding a particular CFR 655.310(c), is publishing the legislation in any state that would attestation or a facility’s activities under following list of facilities which have discriminate in any way against non-ARTA that attestation, shall be filed with a submitted attestations which have been travel agencies. local office of the Wage and Hour accepted for filing and those which have 2. ARTA should agree not to use the press Division of the Employment Standards been rejected. to discriminate against non-ARTA travel Administration, Department of Labor. agencies. The list of facilities is published so 3. ARTA should agree not to use the press The addresses of such offices are found that U.S. registered nurses, and other to cause suppliers of travel not to want to in many local telephone directories, or persons and organizations can be aware work with non-ARTA travel agencies. may be obtained by writing to the Wage of health care facilities that have Thank you for your time and trouble and and Hour Division, Employment requested foreign nurses for their staff. if you have any questions with regard to Standards Administration, Department If U.S. registered nurses or other persons these proposed modifications please contact of Labor, Room S–3502, 200 wish to examine the attestation (on me directly. Constitution Avenue, NW., Washington, Form ETA 9029) and the supporting Sincerely, DC 20210. documentation, the facility is required Alan A. Benjamin FOR FURTHER INFORMATION CONTACT: to make the attestation and [FR Doc. 95–4800 Filed 2–27–95; 8:45 am] documentation available. Telephone Regarding the Attestation Process BILLING CODE 4410±01±M numbers of the facilities chief executive Chief, Division of Foreign Labor officer also are listed to aid public Certifications, U.S. Employment inquiries. In addition, attestations and DEPARTMENT OF LABOR Service. Telephone: 202–219–5263 (this explanatory statements (but not the full is not a toll-free number). supporting documentation) are available Employment and Training Regarding the Complaint Process for inspection at the address for the Administration Employment and Training Questions regarding the complaint Administration set forth in the Notice of Attestations Filed by process for the H–1A nurse attestation ADDRESSES section of this notice. Facilities Using Nonimmigrant Aliens program will be made to the Chief, Farm as Registered Nurses Labor Program, Wage and Hour If a person wishes to file a complaint regarding a particular attestation or a AGENCY: Employment and Training Division. Telephone: 202–219–7605 (this is not a toll-free number). facility’s activities under the attestation, Administration, Labor. such complaint must be filed at the SUPPLEMENTARY INFORMATION: The ACTION: Notice. address for the Wage and Hour Division Immigration and Nationality Act of the Employment Standards SUMMARY: requires that a health care facility The Department of Labor Administration set forth in the (DOL) is publishing, for public seeking to use nonimmigrant aliens as ADDRESSES section of this notice. information, a list of the following registered nurses first attest to the health care facilities that have submitted Department of Labor (DOL) that it is Signed at Washington, DC, this 14th day of attestations (Form ETA 9029 and taking significant steps to develop, February 1995. explanatory statements) to one of four recruit and retain United States (U.S.) John M. Robinson, Regional Offices of DOL (Boston, workers in the nursing profession. The Deputy Assistant Secretary, Employment and Chicago, Dallas and Seattle) for the law also requires that these foreign Training Administration. DIVISION OF FOREIGN LABOR CERTIFICATIONS, HEALTH CARE FACILITY ATTESTATIONS [FORM ETA±9029] CEO-Name/Facility name/Address State Action date ETA REGION 1 01/02/95 TO 01/08/95 Maria Lapid, Abbott Manor Convalescent Center, 810 Central Ave., Plainfield, NJ 07060, 201±757±0696 ...... NJ 01/05/95 ETA CONTROL NUMBERÐ1/216641 ACTIONÐACCEPTED Martha R. Zeltner, Cranford Hall Nursing Home, 600 Lincoln Park East, Cranford, NJ 07016, 908±276±7100 ...... NJ 01/06/95 ETA CONTROL NUMBERÐ1/216771 ACTIONÐACCEPTED Maria Lapid, Green Acres Manor, 1931 Lakewood Road (Route 9), Toms River, NJ 08755, 201±286±2323 ...... NJ 01/06/95 10874 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices DIVISION OF FOREIGN LABOR CERTIFICATIONS, HEALTH CARE FACILITY ATTESTATIONSÐContinued [FORM ETA±9029] CEO-Name/Facility name/Address State Action date ETA CONTROL NUMBERÐ1/216639 ACTIONÐACCEPTED Thomas Bejgrowicz, Harbor View Health Care Center, 178±198 Ogden Avenue, Jersey City, NJ 07307, 201±963± NJ 01/05/95 1800. ETA CONTROL NUMBERÐ1/216596 ACTIONÐACCEPTED Karen Lentine, Maple Glen/Fair Lawn Nursing Ctr., 105 Saddle River Road, Fair Lawn, NJ 07410, 201±797±9522 .... NJ 01/05/95 ETA CONTROL NUMBERÐ1/216598 ACTIONÐACCEPTED Isaac Schwartz, B&H Staffing, Inc., 239 Havemeyer Street, Brooklyn, NY 11211, 718±599±2227 ...... NY 01/05/95 ETA CONTROL NUMBERÐ1/216612 ACTIONÐACCEPTED Gilbert Preira, Daughters of Jacob Geriatric Ctr., 1160 Teller Avenue, Bronx, NY 10456, 718±293±1500 ...... NY 01/05/95 ETA CONTROL NUMBERÐ1/216637 ACTIONÐACCEPTED ETA REGION 1 01/16/95 TO 01/22/95 Marnya P. Borgstrom, Yale New Haven Hospital, Inc., Human Res., Recruitment & Staffing, 20 York Street, New CT 01/19/95 Haven, CT 06504, 203±785±2291. ETA CONTROL NUMBERÐ1/217030 ACTIONÐACCEPTED Lee Hoffman, All Care Visiting Nurses of Lynn, 16 City Hall Square, Lynn, MA 01901, 598±2454 ...... MA 01/19/95 ETA CONTROL NUMBERÐ1/216837 ACTIONÐACCEPTED Trifonia Floro, HPN Staffing Services, Inc., 95±20 63rd Road, Suite 12, Rego Park, NY 11374, 718±997±1080 ...... NY 01/19/95 ETA CONTROL NUMBERÐ1/216920 ACTIONÐACCEPTED Rhetta Felton, Kings Highway Surgi-Center, 3131 Kings Highway, Brooklyn, NY 11234, 718±258±8777 ...... NY 01/19/95 ETA CONTROL NUMBERÐ1/217031 ACTIONÐACCEPTED Krishin Bhatia, Victory Memorial Hospital, 699 92nd Street, Brooklyn, NY 11228±3625, 718±567±1286 ...... NY 01/19/95 ETA CONTROL NUMBERÐ1/216852 ACTIONÐACCEPTED ETA REGION 10 01/02/95 TO 01/08/95 Marietta F. Subbert, Nurses 'R' Special, 3400 W. 6th Street Suite 302, Los Angeles, CA 90020, 213±383±7384 ...... CA 01/06/95 ETA CONTROL NUMBERÐ10/206032 ACTIONÐACCEPTED Robert E. Murray, Robert E. Murray, 13962 Holt Avenue, Santa Ana, CA 82705, 714±567±7140 ...... CA 01/05/95 ETA CONTROL NUMBERÐ10/206112 ACTIONÐACCEPTED ETA REGION 5 01/09/95 TO 01/15/95 Herman Katz, Heritage Nursing Center, Inc., P.O. Box 6179 1315 Curt Drive, Champaign, IL 61826±6179, 217±352± IL 01/13/95 5707. ETA CONTROL NUMBERÐ5/235713 ACTIONÐACCEPTED Mary Niederhauser, Westside Community Hospital, Inc., d/b/a Sacred Heart Hospital 3240, West Franklin Boulevard, IL 01/13/95 Chicago, IL 60624, 312±722±3020. ETA CONTROL NUMBERÐ5/235717 ACTIONÐACCEPTED ETA REGION 5 01/16/95 TO 01/22/95 Patricia H. Decker, Medical Express, Inc. 1650 38th Street, Boulder, CO 80301, 303±449±7470 ...... CO 01/17/95 ETA CONTROL NUMBERÐ5/235737 ACTIONÐACCEPTED Joseph Liberman, Westwood Manor, Inc., 2444 W. Touhy, Chicago, IL 60645, 312±274±7705 ...... IL 01/17/95 ETA CONTROL NUMBERÐ5/235733 ACTIONÐACCEPTED ETA REGION 5 01/23/95 TO 01/29/95 Sheila Bogen, Amboy Rehabilitation & Nursing Ctr., 15 Wasson Road, Amboy, IL 61310, 815±857±2550 ...... IL 01/25/95 ETA CONTROL NUMBERÐ5/236440 ACTIONÐACCEPTED Lois Rubon, Brentwood North Nursing & Rehab., ATTN: Sheldon Novoselsky 3705, Deerfield Road, Riverwoods, IL IL 01/23/95 60015, 708±459±1200. ETA CONTROL NUMBERÐ5/236421 ACTIONÐACCEPTED Sheila Bogen, Carrington Care Center, LTD., 759 Kane Street, South Elgin, IL 60177, 708±697±3310 ...... IL 01/25/95 ETA CONTROL NUMBERÐ5/236442 ACTIONÐACCEPTED Judy Pitzele, Glenview Terrace Nursing Center, ATTN: Mark Hollander 1511, Greenwood Road, Glenview, IL 60025, IL 01/23/95 708±729±9090. ETA CONTROL NUMBERÐ5/236403 ACTIONÐACCEPTED R. Bryan Livings, Lake Park Center, 919 Washington Park, Waukegan, IL 60085, 708±623±9100 ...... IL 01/23/95 ETA CONTROL NUMBERÐ5/236417 ACTIONÐACCEPTED James Samatas, Lexington Hlth Care of Lake Zurich, 900 S. Rand Road, Lake Zurich, IL 60047, 708±726±1200 ...... IL 01/23/95 ETA CONTROL NUMBERÐ5/236420 ACTIONÐACCEPTED Susan Simonsen, Lydia Healthcare Center, 13901 South Lydia, Robbins, IL 60472, 708±385±8700 ...... IL 01/23/95 ETA CONTROL NUMBERÐ5/236405 ACTIONÐACCEPTED James Samatas, Merit Home Health Care, Inc., d/b/a Merit Private Care Services, 1300 S. Main Street, Lombard, IL IL 01/25/95 60148, 708±620±2644. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10875 DIVISION OF FOREIGN LABOR CERTIFICATIONS, HEALTH CARE FACILITY ATTESTATIONSÐContinued [FORM ETA±9029] CEO-Name/Facility name/Address State Action date ETA CONTROL NUMBERÐ5/236444 ACTIONÐACCEPTED James Samatas, Merit Home Health Care, Inc., d/b/a Merit Private Care Services, 1300 S. Main Street, Lombard, IL IL 01/25/95 60148, 708±620±2644. ETA CONTROL NUMBERÐ5/236446 ACTIONÐACCEPTED Sheila Bogen, Ottawa Pavilion Ltd., 800 E. Center Street, Ottawa, IL 61350, 815±434±7144 ...... IL 01/25/95 ETA CONTROL NUMBERÐ5/236441 ACTIONÐACCEPTED Tamara Abell, Plum Grove of Palatine, Limited, 24 South Plum Grove Road, Palatine, IL 60067, 708±358±0311 ...... IL 01/23/95 ETA CONTROL NUMBERÐ5/236404 ACTIONÐACCEPTED Mrs. Samuel Brandman, Village Nursing Home, 9000 S. Lavergne Avenue, Skokie, IL 60077, 708±679±2322 ...... IL 01/23/95 ETA CONTROL NUMBERÐ5/236406 ACTIONÐACCEPTED Carmen Colandrea, Bryant Woods Inn, Inc., 10461 Waterfowl Terrace, Columbia, MD 21044±2463, 410±995±1100 . MD 01/25/95 ETA CONTROL NUMBERÐ5/236448 ACTIONÐACCEPTED Carrie Maurer, Presbyterian Village Redford, 17383 Garfield, Redford, MI 48240, 313±531±6874 ...... MI 01/23/95 ETA CONTROL NUMBERÐ5/236419 ACTIONÐACCEPTED John Quirk, General Healthcare Resouces, Inc., 525 Plymouth Road Suite 308, Plymouth Meeting, PA 19462, 610± PA 01/25/95 834±1122. ETA CONTROL NUMBERÐ5/236447 ACTIONÐACCEPTED ETA REGION 6 01/02/95 TO 01/08/95 Ms. Ross Hooper, Crittenden Memorial Hospital, 200 Tyler St. P.O. Box 2248, West Memphis, AR 72301, 501±732± AR 01/04/95 7740. ETA CONTROL NUMBERÐ6/223878 ACTIONÐACCEPTED Ms. Debra Turiciano, National Medical Care, Inc., 641 Harkle Road, Santa Fe, NM 87501, 505±982±9427 ...... NM 01/04/95 ETA CONTROL NUMBERÐ6/223893 ACTIONÐACCEPTED Mr. Joseph Oddis, Spartanburg Reg. Medical Center, 101 East Wood Street, Spartanburg, SC 29303, 803±560± SC 01/05/95 6937. ETA CONTROL NUMBERÐ6/224032 ACTIONÐACCEPTED Arel Malixi, Bellaire Physical Therapy Center, 8282 Bellaire, Ste. 124, Houston, TX 77036, 713±981±5200 ...... TX 01/04/95 ETA CONTROL NUMBERÐ6/224001 ACTIONÐACCEPTED Mr. J. Lindsey Bradley, Sr., Mother Frances Hospital, 800 East Dawson, Tyler, TX 75701, 903±531±4476 ...... TX 01/05/95 ETA CONTROL NUMBERÐ6/224004 ACTIONÐACCEPTED W. Taft Martin, Reitement Care Center of Hempstead, 1111 San Antonio Street, Hempstead, TX 77445, 409±826± TX 01/04/95 3382. ETA CONTROL NUMBERÐ6/223894 ACTIONÐACCEPTED Mr. David W. Cottey, Silsbee Doctors Hospital, P.O. Box 1208 Hwy 418, Silsbee, TX 77656, 409±385±1531 ...... TX 01/05/95 ETA CONTROL NUMBERÐ6/224118 ACTIONÐACCEPTED Ms. Judi H. Guthrie, Warm Springs Rehab Hosp., P. O. Box 58, Gonzales, TX 78629, 210±672±6592 ...... TX 01/05/95 ETA CONTROL NUMBERÐ6/224150 ACTIONÐACCEPTED ETA REGION 6 01/09/95 TO 01/15/95 Mr. Jeff Mukamal, Brookshire Nursing Center, 300 Meadow Land Drive, Hillsborough, NC 27278, 919±644±6714 ..... NC 01/10/95 ETA CONTROL NUMBERÐ6/224242 ACTIONÐACCEPTED Ms. Magdeline Ulrich Allen, Always Caring Home Care, 1302 Montana, Suite A, El Paso, TX 79902, 915±545±4663 TX 01/10/95 ETA CONTROL NUMBERÐ6/224247 ACTIONÐACCEPTED Mr. Gary L. Whatley, Memorial Medical Ctr of East TX, P.O. Box 1447 1201 Frank, Lufkin, TX 75902±1447, 409± TX 01/10/95 639±7789. ETA CONTROL NUMBERÐ6/224243 ACTIONÐACCEPTED ETA REGION 6 01/16/95 TO 01/22/95 Dr. Marion G.L. Faldas, AVHFHE Biomedical Research, 400 NE 100 St, Miami Shores, FL 33137, 305±751±1811 ... FL 01/19/95 ETA CONTROL NUMBERÐ6/224378 ACTIONÐACCEPTED Mr. John Hymans, Eagle Crest, 2802 Parental Home Road, Jacksonville, FL 32216, 904±721±0088 ...... FL 01/19/95 ETA CONTROL NUMBERÐ6/224377 ACTIONÐACCEPTED Ms. Alice Dessasau, The Ambrosia Home, 1709 Taliaferro Avenue, Tampa, FL 33602, 813±223±4623 ...... FL 01/19/95 ETA CONTROL NUMBERÐ6/224423 ACTIONÐACCEPTED H.J. Blessitt, South Sunflower County Hospital, 121 East Baker Street, Indianola, MS 38751, 601±887±5235 ...... MS 01/19/95 ETA CONTROL NUMBERÐ6/224564 ACTIONÐACCEPTED Mr. Robert B. Evans, East Texas Medical Center, 1000 S. Beckham, Tyler, TX 75701, 903±531±8016 ...... TX 01/20/95 ETA CONTROL NUMBERÐ6/224565 ACTIONÐACCEPTED Mr. Alan D. Holmes, Frio Hospital, 320 Berry Ranch Road, Pearsall, TX 78061, 210±334±3617 ...... TX 01/20/95 ETA CONTROL NUMBERÐ6/225017 ACTIONÐACCEPTED Mr. Stephen Cutshaw, MeadowGreen Restorative Care Cntr., 8383 Meadow Road, Dallas, TX 75231, 214±369± TX 01/20/95 7811. 10876 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices DIVISION OF FOREIGN LABOR CERTIFICATIONS, HEALTH CARE FACILITY ATTESTATIONSÐContinued [FORM ETA±9029] CEO-Name/Facility name/Address State Action date ETA CONTROL NUMBERÐ6/224424 ACTIONÐACCEPTED ETA REGION 6 01/23/95 TO 01/29/95 Ms. Nori-Ann de la Cruz, Argus Home Health Care, Inc., P.O. Box 280213, Tampa, FL 33682±0213, 813±971±9416 FL 01/26/95 ETA CONTROL NUMBERÐ6/224686 ACTIONÐACCEPTED Ms. Margaret Brock, Calhoun Liberty Hospital Assoc., 424 Burns Avenue, Blountstown, FL 32424, 904±674±5411 ... FL 01/26/95 ETA CONTROL NUMBERÐ6/224785 ACTIONÐACCEPTED Ms. Barbara Dotson, De Bary Manor, 60 North Highway 1792 P.O. Box 248, De Bary, FL 32713, 407±668±4426 ..... FL 01/26/95 ETA CONTROL NUMBERÐ6/224683 ACTIONÐACCEPTED Mr. Patrick T. DeBellis, DeBellis Associates, Inc., 400 S. Federal Highway Suite 411, Boynton Beach, FL 33435, FL 01/25/95 407±735±3706. ETA CONTROL NUMBERÐ6/224584 ACTIONÐACCEPTED Ms. Samira K. Beckwith, Hope Hospice, 8290 College Pky., Fort Myers, FL 33919, 813±482±4673 ...... FL 01/26/95 ETA CONTROL NUMBERÐ6/224728 ACTIONÐACCEPTED Ms. Rosemary Wedderspoon, IHS at Greenbriar, 9820 N. Kendall Drive, Miami, FL 33176, 305±271±6311 ...... FL 01/26/95 ETA CONTROL NUMBERÐ6/224682 ACTIONÐACCEPTED Mr. Victor J. Maya, Kendall Regional Medical Center, 11750 Bird Road, Miami, FL 33175, 305±233±3000 ...... FL 01/26/95 ETA CONTROL NUMBERÐ6/224681 ACTIONÐACCEPTED Jackie Dykes, Landmark Health Care, Inc., 1510 Crozier Street, Blountstown, FL 32424, 904±674±5464 ...... FL 01/26/95 ETA CONTROL NUMBERÐ6/224729 ACTIONÐACCEPTED Ms. Lynette Goux, Pontchartrain Health Care, 1401 Highway 190 P.O. Box 338, Mandeville, LA 70470±0338, 504± LA 01/26/95 626±8581. ETA CONTROL NUMBERÐ6/224656 ACTIONÐACCEPTED Corazon Aquino, Clover Health Resources, Inc., 601 North Oak Avenue, Ruleville, MS 38771, 601±756±2748 ...... MS 01/26/95 ETA CONTROL NUMBERÐ6/224653 ACTIONÐACCEPTED Mr. Robert Greer, Heritage House Nursing Center, 3103 Wisconsin Ave., Vicksburg, MS 39180, 601±638±1514 ...... MS 01/26/95 ETA CONTROL NUMBERÐ6/224684 ACTIONÐACCEPTED Ms. Marsha W. Kaufman, Aston Park Health Care Center, Inc., 163 Stratford Court HSI: Attn: Bea, Harford, Win- NC 01/26/95 ston-Salem, NC 27103, 704±253±4437. ETA CONTROL NUMBERÐ6/224652 ACTIONÐACCEPTED Mr. Nedro G. Parker, Allied Health Network, Inc., 4506 La Branch, Houston, TX 77004±4925, 713±522±6661 ...... TX 01/25/95 ETA CONTROL NUMBERÐ6/224621 ACTIONÐACCEPTED Sister Electa, Bethania Regional Health Care Ctr., 1600 11th Street, Wichita Falls, TX 76301, 817±720±0268 ...... TX 01/25/95 ETA CONTROL NUMBERÐ6/224563 ACTIONÐACCEPTED Mr. Tim Schnider, Denton Good Samaritan Village, 2500 Hinkle Drive, Denton, TX 75201, 817±383±2651 ...... TX 01/26/95 ETA CONTROL NUMBERÐ6/224655 ACTIONÐACCEPTED Ms. Connie Biffle, Gracy Woods Nursing Center, 12021 Metric Blvd., Austin, TX 78758, 512±339±7587 ...... TX 01/26/95 ETA CONTROL NUMBERÐ6/224786 ACTIONÐACCEPTED Mr. Gary Light, JF Medical, 1401 9th Street, Lubbock, TX 79401, 806±747±7445 ...... TX 01/25/95 ETA CONTROL NUMBERÐ6/224620 ACTIONÐACCEPTED Mr. Steve Rush, The Traymore Nursing Center, 7500 Lemmon Ave., Dallas, TX 75209, 214±358±3131 ...... TX 01/26/95 ETA CONTROL NUMBERÐ6/224787 ACTIONÐACCEPTED Ms. Emeline C. Gonzales, US 59 PT Specialist, Inc., 6776 SW Freeway, Ste. 557, Houston, TX 77074, 713±783± TX 01/25/95 8484. ETA CONTROL NUMBERÐ6/224590 ACTIONÐACCEPTED ETA REGION 6 01/30/95 TO 02/05/95 Ms. Lottie Tennant, Healthy Lifestyles, Inc., 1304 N. 18th Street, Monroe, LA 71201, 318±387±4878 ...... LA 02/01/95 ETA CONTROL NUMBERÐ6/224949 ACTIONÐACCEPTED Ms. Julia George, Starmount Villa, 109 South Holden Road, Greensboro, NC 27407, 910±292±5390 ...... NC 02/01/95 ETA CONTROL NUMBERÐ6/224788 ACTIONÐACCEPTED Mr. Ray White, P.H.E.O. Medical Center, Inc., 1400 18th Avenue South, Nashville, TN 37212±2893, 615±383±4715 TN 02/01/95 ETA CONTROL NUMBERÐ6/224843 ACTIONÐACCEPTED Kendall Turton, St. Joseph Hospital, 2801 Franciscan Drive, Bryan, TX 77802, 409±776±2515 ...... TX 02/01/95 ETA CONTROL NUMBERÐ6/224879 ACTIONÐACCEPTED Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10877 [FR Doc. 95–4887 Filed 2–27–95; 8:45 am] (a) The exemptions are the Notice in the Federal Register. All BILLING CODE 4510±30±P administratively feasible; written comments were to have been (b) They are in the interests of the received by the Department by January plans and their participants and 12, 1995. The Department received two Pension and Welfare Benefits beneficiaries; and written comments and no requests for a Administration (c) They are protective of the rights of hearing. the participants and beneficiaries of the The first comment was submitted on [Prohibited Transaction Exemption 95±14; plans. Exemption Application No. D±09743, et al.] behalf of Texas Commerce Bank, N.A., Sammons Enterprises, Inc., Employee Stock the trustee of the Trust (the Trustee). Grant of Individual Exemptions; Ownership Trust (the Trust), Located in The Trustee states that Churchill is the Sammons Enterprises, Inc. Employee Dallas, TX; [Prohibited Transaction investment manager with respect to the Stock Ownership Trust, et al. Exemption 95–14; Exemption Application assets of the Prior Plan Accounts. As No. D–09743] such, the Trustee does not have the sole AGENCY: Pension and Welfare Benefits Exemption investment discretion with respect to Administration, Labor. the assets of the Prior Plan Accounts. As ACTION: Grant of Individual Exemptions. The restrictions of sections 406(a), a result, the following changes must be 406 (b)(1) and (b)(2) of the Act and the made to the Notice: SUMMARY: This document contains sanctions resulting from the application (1) The references to ‘‘the trustee of exemptions issued by the Department of of section 4975 of the Code, by reason the Trust’’ or ‘‘Trustee’’ found in Labor (the Department) from certain of of section 4975(c)(1) (A) through (E) of Condition #5 of the Notice, the entire the prohibited transaction restrictions of the Code, shall not apply to the cash second paragraph of Representation #3 the Employee Retirement Income sale (the Sale) by certain accounts (the and subsection (e) of Representation #7 Security Act of 1974 (the Act) and/or Prior Plan Accounts) in the Trust of of the Summary of Facts and the Internal Revenue Code of 1986 (the certain limited partnership interests (the Representations (the Summary) should Code). Limited Partnership Interests) and an be replaced with ‘‘Churchill.’’ Notices were published in the Federal undivided interest in certain real (2) The third sentence of Register of the pendency before the property (the Property Interest; Representation #2 of the Summary is Department of proposals to grant such collectively, the Interests) to Otter, Inc., stricken and replaced with ‘‘Churchill, exemptions. The notices set forth a a party in interest with respect to the as investment manager, has discretion summary of facts and representations Trust. with respect to the assets of the Prior contained in each application for This exemption is conditioned upon Plan Accounts. The Trustee has exemption and referred interested the following requirements: (1) All investment discretion with respect to all persons to the respective applications terms and conditions of the Sale are at remaining assets of the Trust.’’ for a complete statement of the facts and least as favorable to the Prior Plan The Department concurs with the representations. The applications have Accounts as those obtainable in an proposed modifications and, been available for public inspection at arm’s length transaction; (2) the Sale is accordingly, amends the language of the the Department in Washington, D.C. The a one-time cash transaction; (3) the Prior Notice. notices also invited interested persons Plan Accounts are not required to pay The second comment was submitted to submit comments on the requested any commissions, costs or other on behalf of the applicants. The issues exemptions to the Department. In expenses in connection with the Sale; addressed in the comment and the addition the notices stated that any (4) the Prior Plan Accounts receive a Department’s responses are summarized interested person might submit a sales price equal to the greater of: (a) the as follows: written request that a public hearing be fair market value of the Interests as (1) The first sentence of held (where appropriate). The determined by qualified, independent Representation #1 of the Summary applicants have represented that they appraisers; or (b) the Prior Plan names the sponsored plan as the have complied with the requirements of Accounts’ aggregate costs of acquiring ‘‘Sammons Employee Stock Ownership the notification to interested persons. and holding the Interests; (5) Churchill Plan.’’ The correct name of such plan is No public comments and no requests for Management Corporation (Churchill) the ‘‘Sammons Enterprises, Inc. a hearing, unless otherwise stated, were determines that the Sale is appropriate Employee Stock Ownership Plan.’’ received by the Department. for the Prior Plan Accounts and is in the (2) The third sentence of the first The notices of proposed exemption best interests of the Prior Plan Accounts paragraph of Representation #3 of the were issued and the exemptions are and their participants and beneficiaries; Summary states that, effective 1991, the being granted solely by the Department (6) the Prior Plan Accounts, prior to the TMIS Plan merged into the Plan. The because, effective December 31, 1978, Sale, obtain the written consent of the correct year of such merger is 1989. section 102 of Reorganization Plan No. general partner of each of the limited (3) The first sentence of the first 4 of 1978 (43 FR 47713, October 17, partnerships involved with respect to paragraph of Representation #4 of the 1978) transferred the authority of the the sale of the Limited Partnership Summary states that the Plan has a 14.5 Secretary of the Treasury to issue Interests; and (7) the other partners of percent Class B interest in Sunbelt City, exemptions of the type proposed to the such limited partnerships, as per the Ltd. The correct name of such Secretary of Labor. limited partnership agreements, are partnership is ‘‘Sunbelt Oklahoma City, given the right of first refusal with Ltd.’’ Statutory Findings respect to the Limited Partnership (4) The first sentence of the third In accordance with section 408(a) of Interests. paragraph of Representation #4 should the Act and/or section 4975(c)(2) of the Written Comments: In the Notice of be revised as follows: ‘‘Annual Code and the procedures set forth in 29 Proposed Exemption (the Notice), the valuations of interests in both CFR part 2570, subpart B (55 FR 32836, Department invited all interested partnerships are furnished to investors 32847, August 10, 1990) and based upon persons to submit written comments on by Churchill Management Corporation the entire record, the Department makes the proposed exemption within forty- (Churchill), the investment adviser to the following findings: five days from the date of publication of the Prior Plan Accounts and for most of 10878 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices the other limited partners of the Limited from Confederation with respect to the times each Loan will be collateralized in Partnerships.’’ GICs; an amount equal to at least 200% of the (5) The last sentence in the fourth (D) Repayment of the Loans will be outstanding balance of such Loan, (4) paragraph of Representation #5 states restricted to the GIC Proceeds, defined equal to no more than 80% of the that the Liabilities increased by as the cash proceeds obtained by the purchase price of the Equipment $350,000 to $842,000. The correct Plan from or on behalf of Confederation financed, and (5) guaranteed personally amount of the increase in the Liabilities with respect to the GICs; by Fred Berdass, the principal was $225,000 to $842,000. (E) Repayment of the Loans will be shareholder of the Employer. The changes described above are waived to the extent that the Loans (d) The value of the collateral offered hereby incorporated into the exemption exceed the GIC Proceeds; and by the Employer will be determined by as granted. After consideration of the (F) In any sale of he GICs to the a qualified independent appraiser; entire record, including the comments, Employer, the Plan will receive a (e) Prior to the granting of each Loan, the Department has determined to grant purchase price which is no less than the an independent qualified fiduciary the exemption. In this regard, the fair market value of the GICs as of the determines, on behalf of the Plan, that comments have been included as part of sale date, and no less than the GICs’ each Loan is feasible and in the best the public record for the exemption accumulated book value, defined as the interests of the Plan and protective of application. The complete application total principal deposits plus accrued the Plan and its participants and file is made available for public interest at the rates guaranteed by the beneficiaries; inspection in the Public Documents GICs, less previous withdrawals and any (f) The independent fiduciary will Room of the Pensions and Welfare Loans made pursuant to this exemption, conduct a review of the terms and Benefits Administration, room N–5638, as of the sale date. conditions of the exemption and the U.S. Department of Labor, 200 For a more complete statement of the Loans, including the applicable interest Constitution Avenue, N.W., facts and representations supporting the rate, the sufficiency of the collateral, the Washington, D.C. 20210. Department’s decision to grant this financial condition of the Employer and For a more complete statement of the exemption, refer to the notice of compliance with the 25 percent of the facts and representations supporting the proposed exemption published on Plan asset maximum total Loan amount Department’s decision to grant this December 19, 1994 at 59 FR 65397. prior to approving each disbursement exemption, refer to the notice of under the Loan agreement; FOR FURTHER INFORMATION CONTACT: (g) The independent fiduciary will proposed exemption published on Ronald Willett of the Department, November 28, 1994 at 59 FR 60839. monitor the terms and conditions of the telephone (202) 219–8881. (This is not exemption and the Loans; and FOR FURTHER INFORMATION CONTACT: a toll-free number.) (h) The independent fiduciary is Kathryn Parr of the Department, Bermo, Inc. Profit Sharing Plan and Trust authorized to take whatever action is telephone (202) 219–8971. (This is not (the Plan), Located in Circle Pines, MN; appropriate to protect the Plan’s rights a toll-free number.) [Prohibited Transaction Exemption 95–16; throughout the duration of the American Express Incentive Savings Plan Application No. D–09826] exemption and throughout the duration (the Plan) Located in New York, NY; Exemption of any Loan granted pursuant to this [Prohibited Transaction Exemption 95–15; exemption. Exemption Application No. D–09813] The restrictions of sections 406(a), 406 (b)(1) and (b)(2) of the Act and the Temporary Nature of Exemption Exemption sanctions resulting from the application The exemption is temporary and will The restrictions of sections 406(a), of section 4975 of the Code, by reason expire five years from February 28, 406 (b)(1) and (b)(2) of the Act and the of section 4975(c)(1) (A) through (E) of 1995. Subsequent to the expiration of sanctions resulting from the application the Code, shall not apply to the series this exemption, the Plan may hold any of section 4975 of the Code, by reason of loans (the Loans), originated within a Loans originated during this five year of section 4975(c)(1) (A) through (E) of five year period, by the Plan to Bermo, period until the Loans are repaid or the Code, shall not apply to (1) the Inc. (the Employer), a party in interest otherwise terminated. extensions of credit (the Loans) to the with respect to the Plan, provided that For a more complete statement of the Plan by American Express Company the following conditions are met: facts and representation supporting the (the Employer), the sponsor of the Plan, (a) The total amount of outstanding Department’s decision to grant this with respect to two guaranteed Loans shall not exceed 25 percent of the exemption refer to the notice of investment contracts (the GICs) issued Plan’s total assets at any time during the proposed exemption published on by Confederation Life Insurance transaction; December 19, 1994 at 59 FR 65398. Company (Confederation); (2) the Plan’s (b) All terms and conditions of the FOR FURTHER INFORMATION CONTACT: potential repayment of the Loans; and Loans are at least as favorable to the Allison K. Padams of the Department, (3) the potential purchase of the GICs Plan as those which the Plan could telephone (202) 219–8971. from the Plan by the Employer for cash; obtain in an arm’s length transaction Jerome Companies Profit Sharing Plan and provided the following conditions are with an unrelated third party; Trust (the Plan), Located in Barron, WI satisfied: (c) Each loan will be: (1) For a [Prohibited Transaction Exemption 95–17; (A) All terms and conditions of such maximum term of forty-eight months Exemption Application No. D–09829] transactions are no less favorable to the fully amortized and payable in equal Plan than those which the Plan could monthly installments of principal and Exemption obtain in arm’s-length transactions with interest, (2) the Loan proceeds shall be The restrictions on sections 406(a) unrelated parties; used exclusively by the Employer to and 406 (b)(1) and (b)(2) of the Act and (B) No interest and/or expenses are purchase new equipment (the the sanctions resulting from the paid by the Plan in connection with the Equipment) used by the Employer in the application of section 4975 of the Code, transactions; course of its business, (3) collateralized by reason of section 4975(c)(1) (A) (C) The proceeds of the Loans are by the Equipment and other assets through (E) of the Code, shall not apply used solely in lieu of payments due owned by the Employer such that at all to the cash sale (the Sale) of the Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10879 Guaranteed Investment Contract #62043 proposed exemption published on section 404(a)(1)(B) of the Act; nor does (the GIC) issued by Confederation Life January 4, 1995, at 60 FR 491. it affect the requirement of section Insurance Company (Confederation), a FOR FURTHER INFORMATION CONTACT: Mr. 401(a) of the Code that the plan must Canadian insurance corporation, by the C. E. Beaver of the Department, operate for the exclusive benefit of the Plan to Jerome Food, Inc. (the telephone (202) 219–8881. (This is not employees of the employer maintaining Employer), a Wisconsin corporation, the a toll-free number.) the plan and their beneficiaries; sponsoring employer and a party in (2) These exemptions are interest with respect to the Plan: Employees’ Savings Plan of Bassett-Walker, Inc., Located in Martinsville, VA [Prohibited supplemental to and not in derogation provided that (1) the Sale is a one-time Transaction Exemption 95–19; Exemption of, any other provisions of the Act and/ transaction for cash; (2) the Plan Application No. D–09894] or the Code, including statutory or experiences no loss nor incurs any administrative exemptions and Exemption expense from the Sale; and (3) the Plan transactional rules. Furthermore, the receives as consideration from the Sale The restrictions of sections 406(a) and fact that a transaction is subject to an the greater of either the fair market 406 (b)(1) and (b)(2) of the Act and the administrative or statutory exemption is value of the GIC as determined on the sanctions resulting from the application not dispositive of whether the date of the Sale, or the principal amount of section 4975 of the Code, by reason transaction is in fact a prohibited of $500,000 plus simple interest accrued of section 4975(c)(1) (A) through (E) of transaction; and at the rate of 9.03 percent per annum on the Code, shall not apply to the cash (3) The availability of these the principal amount of the GIC for the sale (the Sale) of the Guaranteed exemptions is subject to the express period from January 25, 1994, to the Investment Contract No. 62012 (the condition that the material facts and date of the Sale. GIC), issued by Confederation Life representations contained in each For a more complete statement of the Insurance Company of Atlanta, Georgia application accurately described all facts and representations supporting the (Confederation), by the plan to VF material terms of the transaction which Department’s decision to grant this Corporation, a Pennsylvania is the subject of the exemption. exemption refer to the notice of corporation, a party in interest with proposed exemption published on respect to the Plan; provided that (1) the Signed at Washington, D.C., this 23rd day January 4, 1995, at 60 FR 487. Sale is a one-time transaction for cash; of February, 1995. FOR FURTHER INFORMATION CONTACT: Mr. (2) the Plan experiences no loss nor Ivan Strasfeld, C. E. Beaver of the Department, incurs any expense from the Sale; and Director of Exemption Determinations, telephone (202) 219–8881. (This is not (3) the Plan receives as consideration Pension and Welfare Benefits Administration, a toll-free number.) from the Sale the greater of either the Department of Labor. fair market value of the GIC as [FR Doc. 95–4888 Filed 2–27–95; 8:45 am] Employee Profit Sharing-Savings Plan and BILLING CODE 4510±29±M Trust Agreement of Modern Globe, Inc. (the determined on the date of the Sale, or Plan), Located in Wyomissing, PA $1.5 million, the principal amount of [Prohibited Transaction Exemption 95–18; the GIC, plus simple interest accrued at Exemption Application No. D–09893] the rate of 8.7 percent per annum on the principal amount of the GIC for the NATIONAL ARCHIVES AND RECORDS Exemption period from April 4, 1994, to the date ADMINISTRATION The restrictions of sections 406(a) and of the Sale. Advisory Committee on Preservation; 406 (b)(1) and (b)(2) of the Act and the For a complete statement of the facts Meeting sanctions resulting from the application and representations supporting the of section 4975 of the Code, by reason Department’s decision to grant this Notice is hereby given that the of section 4975(c)(1) (A) through (E) of exemption refer to the notice of National Archives Advisory Committee the Code, shall apply to the cash sale proposed exemption published on on Preservation will meet Friday, March (the Sale) of the Guaranteed Investment January 4, 1995, at 60 FR 489. 31, 1995. The meeting will be held from Company Contract No. 62580 (the GIC), FOR FURTHER INFORMATION CONTACT: Mr. 9:00 a.m. to 3:00 p.m. on Friday, March issued by Confederation Life Insurance C. E. Beaver of the Department, 31, 1995, in Room 105 of the National of Atlanta, Georgia (Confederation), by telephone (202) 219–8881. (This is not Archives Building, 7th and the Plan to VF Corporation, a a toll-free number.) Pennsylvania Avenue NW., Washington, Pennsylvania corporation (the DC 20408. Employer), the sponsoring employer General Information and a party in interest with respect to The attention of interested persons is The agenda for the meeting will be: the Plan; provided that (1) the Sale is a directed to the following: 1. Charters of Freedom monitoring one-time transaction for cash; (2) the (1) The fact that a transaction is the program Plan experiences no loss nor incurs any subject of an exemption under section 2. Review of Charters’ encasement expense from the Sale; and (3) the Plan 408(a) of the Act and/or section system receives as consideration from the Sale 4975(c)(2) of the Code does not relieve the greater of either the fair market a fiduciary or other party in interest or 3. Condition of encasement glass value of the GIC as determined on the disqualified person from certain other 4. Risk analysis and options date of the Sale, or an amount that is provisions to which the exemption does This meeting is open to the public. equal to the total amount expended by not apply and the general fiduciary For further information, contact Alan the Plan when acquiring the GIC, plus responsibility provisions of section 404 Calmes on (301) 713–7403. all interest accruing under the terms of of the Act, which among other things the GIC until date of Sale. require a fiduciary to discharge his Dated: February 15, 1995. For a more complete statement of the duties respecting the plan solely in the Trudy Huskamp Peterson, facts and representations supporting the interest of the participants and Acting Archivist of the United States. Department’s decision to grant this beneficiaries of the plan and in a [FR Doc. 95–4799 Filed 2–27–95; 8:45 am] exemption refer to the notice of prudent fashion in accordance with BILLING CODE 7515±01±M 10880 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices NUCLEAR REGULATORY DG–1035, ‘‘Restart of Nuclear Power of the commonly available COMMISSION Plant Shut Down by a Seismic Event,’’ communications software packages, or is being developed to provide guidance directly via Internet. Background Draft Regulatory Guides and Standard acceptable to the NRC staff for documents on the rulemaking are also Review Plan Sections; Issuance, performing inspections and tests of available for downloading and viewing Availability nuclear power plant equipment and on the bulletin board. structures prior to restart of a plant that The Nuclear Regulatory Commission If using a personal computer and has been shut down by a seismic event. has issued for public comment drafts of modem, the NRC subsystem on DG–4004, the Second Proposed FedWorld can be accessed directly by five guides planned for its Regulatory Revision 2 to Regulatory Guide 4.7, Guide Series along with drafts of three dialing the toll free number: 1–800– ‘‘General Site Suitability Criteria for 303–9672. Communications software sections of NUREG–0800, ‘‘Standard Nuclear Power Stations,’’ is being Review Plan for the Review of Safety parameters should be set as follows: developed to provide guidance on the Parity to none, data bits to 8, and stop Analysis Reports for Nuclear Power major site characteristics related to the Plants.’’ The Regulatory Guide Series bits to 1 (N,8,1). Using ANSI or VT–100 public health and safety and terminal emulation, the NRC NUREGs has been developed to describe and environmental issues that the NRC staff make available to the public such and RegGuides for Comment subsystems considers in determining the suitability can then be accessed by selecting the information as methods acceptable to of sites for nuclear power stations. the NRC staff for implementing specific ‘‘Rules Menu’’ option from the ‘‘NRC Proposed Revision 3 of Draft Standard Main Menu.’’ For further information parts of the Commission’s regulations, Review Plan Section 2.5.1, ‘‘Basic techniques used by the staff in about options available for NRC at Geologic and Seismic Information,’’ is FedWorld, consult the ‘‘Help/ evaluating specific problems or being developed to describe the kinds of postulated accidents, and data needed Information Center’’ from the ‘‘NRC basic geological, seismological, and Main Menu.’’ Users will find the by the staff in its review of applications geophysical information and review for permits and licenses. ‘‘FedWorld Online User’s Guides’’ procedures necessary to evaluate a particularly helpful. Many NRC These draft guides and draft standard nuclear power station site. subsystems and databases also have a review plans are in support of proposed The Second Proposed Revision 3 of ‘‘Help/Information Center’’ option that amendments to 10 CFR parts 50, 52, and Draft Standard Review Plan Section is tailored to the particular subsystem. 100 (59 FR 52255) that were proposed 2.5.2, ‘‘Vibratory Ground Motion,’’ is to update the criteria used in decisions being developed to describe procedures The NRC subsystem on FedWorld can regarding power reactor siting, to assess the ground motion potential of also be accessed by a direct dial phone including geologic, seismic, and seismic sources at the site and to assess number for the main FedWorld BBS: earthquake engineering considerations the safe shutdown earthquake. 703–321–8020; Telnet via Internet: for future nuclear power plants. The The Proposed Revision 3 of Draft fedworld.gov (192.239.93.3); File draft guides are intended for Division 1, Standard Review Plan Section 2.5.3, Transfer Protocol (FTP) via Internet: ‘‘Power Reactors,’’ and Division 4, ‘‘Surface Faulting,’’ is being developed ftp.fedworld.gov (192.239.92.205); and ‘‘Environmental and Siting.’’ to describe the geosciences information World Wide Web using: http:// DG–1932, ‘‘Identification and and review procedures needed to assess www.fedworld.gov (this is the Uniform Characterization of Seismic Sources and the significance of faults to the Resource Locator (URL)). Determination of Safe Shutdown suitability of the site. If using a method other than the toll Earthquake Ground Motion,’’ is being These drafts are being issued to free number to contact Fedworld, the developed to provide general guidance involve the public in the early stages of NRC subsystem will be addressed from on procedures acceptable to the NRC the development of regulatory positions the main Fedworld menu by selecting staff on conducting geological, in these areas. These drafts have not the ‘‘F—Regulatory, Government geophysical, seismological, and received complete staff review and do Administration and State Systems,’’ geotechnical investigations; identifying not represent official NRC staff then selecting ‘‘A—Regulatory and characterizing seismic sources; positions. Information Mall.’’ At that point, a conducting probabilistic seismic hazard Public comments are being solicited menu will be displayed that has an analyses; and determining the safe on these drafts. Comments should be option ‘‘A—U.S. Nuclear Regulatory shutdown earthquake ground motion for accompanied by supporting data. Commission’’ that will take you to the a nuclear power plant. Written comments may be submitted to NRC Online main menu. You can also DG–1033, the Third Proposed the Rules and Review and Directives go directly to the NRC Online area by Revision 2 to Regulatory Guide 1.12, Branch, Division of Freedom of typing ‘‘/go nrc’’ at a FedWorld ‘‘Nuclear Power Plant Instrumentation Information and Publication Services, Command line. If you access NRC from for Earthquakes,’’ is being developed to Office of Administration, U.S. Nuclear FedWorld’s main menu, you may return describe seismic instrumention type, Regulatory Commission, Washington, to FedWorld by selecting the ‘‘Return to location, operability, and characteristics DC 20555. Copies of comments received FedWorld’’ option from the NRC Online that is acceptable to the NRC staff for may be examined at the NRC Public Main Menu. However, if you access satisfying the requirements of the Document Room, 2120 L Street, NW., NRC at Fedworld by using NRC’s toll- Commission’s regulations. Washington, DC. Comments will be free number, you will have full access DG–1034, ‘‘Pre-Earthquake Planning most helpful if received by May 12, to all NRC systems but you will not and Immediate Nuclear Power Plant 1995. have access to the main FedWorld Operator Postearthquake Actions,’’ is Comments may be submitted system. For more information on NRC being developed to provide guidance electronically, in either ASCII text or bulletin boards call Mr. Arthur Davis, acceptable to the NRC staff for a timely Wordperfect format (version 5.1 or Systems Integration and Development evaluation after an earthquake of the later), by calling the NRC Electronic Branch, U.S. Nuclear Regulatory recorded seismic instrumentation data Bulletin Board on FedWorld. The Commission, Washington, DC 20555, and to determine whether plant bulletin board may be accessed using telephone (301) 415–5780; e-mail shutdown is required. personal computer, a modem, and one [email protected]. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10881 Although a time limit is given for Commission’s rules and regulations. panelist candidates provided for in comments on these drafts, comments The Commission has made appropriate Article 8 of the Understanding on Rules and suggestions in connection with findings as required by the Act and the and Procedures Governing the items for inclusion in guides or standard Commission’s rules and regulations in Settlement of Disputes (DSU) and in the review plan sections or improvements 10 CFR Chapter I, which are set forth in Decision on Certain Dispute Settlement in all published documents are the license amendment. Procedures for the General Agreement encouraged at any time. Notice of Consideration of Issuance of on Trade in Services (GATS) of the Regulatory guides and the Standard Amendment and Opportunity for World Trade Organization (WTO). Review Plan are available for inspection Hearing in connection with this action at the Commission’s Public Document was published in the Federal Register SUMMARY: The DSU provides a Room, 2120 L Street, NW., Washington, on April 12, 1994, (59 FR 17404) and mechanism for the settlement of DC. Requests for single copies of draft April 21, 1994, (59 FR 19031). No disputes among members of the WTO. A documents (which may be reproduced) request for a hearing or petition for three-person panel conducts each or for placement on an automatic leave to intervene was filed following dispute settlement proceeding and distribution list for single copies of this notice. issues a report for consideration by the future draft guides in specific division The Commission has prepared an Dispute Settlement Body (DSB) in should be made in writing to the U.S. Environmental Assessment related to which representatives of all WTO Nuclear Regulatory Commission, the action and has determined not to members participate. prepare an environmental impact Washington, DC 20555, Attention: Section 123(b) of the Uruguay Round statement. Based upon the Distribution and Mail Services Section. Agreements Act (URAA), Public Law environmental assessment, the Telephone requests cannot be 103–405, provides that the Trade Commission has concluded that the accommodated. Regulatory guides and Representative shall seek to ensure that issuance of this amendment will not standard review plans are not persons appointed to the WTO roster are have a significant effect on the quality copyrighted, and Commission approval well-qualified and that the roster is not required to reproduce them. of the human environment (60 FR 8739, dated February 15, 1995). includes persons with expertise in all of (5 U.S.C. 552(a)) For further details with respect to the the subject matters covered by the Dated at Rockville, Maryland, this 13 day action see (1) the application for Uruguay Round Agreements. USTR of February 1995. amendment dated October 15, 1993, and invites citizens of the United States with For the Nuclear Regulatory Commission. supplemented by letters dated April 15, appropriate qualifications to apply for Themis P. Speis, and November 10, 1994, and February consideration as a nominee to the roster. Deputy Director, Office of Nuclear Regulatory 10 and 14, 1995, (2) Amendment No. DATES: Eligible citizens are encouraged Research. 120 to License No. NPF–29, (3) the to apply by April 10, 1995 to be [FR Doc. 95–4873 Filed 2–27–95; 8:45 am] Commission’s related Safety Evaluation, considered for nomination to the roster BILLING CODE 7590±01±M and (4) the Commission’s in 1995. Environmental Assessment. All of these FOR FURTHER INFORMATION CONTACT: items are available for public inspection [Docket No. 50±416] For information concerning the form of at the Commission’s Public Document the application, contact Sybia Harrison, Energy Operations, Inc. et al.; Notice of Room, the Gelman Building, 2120 L Legal Assistant, Office of the General Issuance of Amendment to Facility Street NW., Washington, DC 20555, and Counsel, (202) 395–3432. For Operating License at the local public document room information concerning WTO located at the Judge George W. procedures or the duties involved, The U.S. Nuclear Regulatory Armstrong Library, P.O. Box 1406, S. contact Catherine Field, Associate Commission (Commission) has issued Commerce at Washington, Natchez, General Counsel, (202) 395–3432, or Amendment No. 120 to Facility Mississippi 39120. Mark Linscott, Office of GATT/WTO Operating License No. NPF–29 issued to Dated at Rockville, Maryland, this 21st day Affairs, (202) 395–3063. For information Energy Operations, Inc. (the licensee), of February 1995. relating to the GATS, contact Vanessa which revised the Technical For the Nuclear Regulatory Commission. Sciarra, Assistant General Counsel, Specifications for operation of the William D. Beckner, (202) 395–7305 or Richard Self, Deputy Grand Gulf Nuclear Station, Unit 1, Director, Project Directorate IV–1, Division Assistant USTR for Services, (202) 395– located in Claiborne County, of Reactor Projects III/V, Office of Nuclear 4510. Mississippi. The amendment is effective Reactor Regulation. SUPPLEMENTARY INFORMATION: Pursuant as of the date of issuance. [FR Doc. 95–4871 Filed 2–27–95; 8:45 am] The amendment modified the to Article 8 of the DSU, the WTO BILLING CODE 7590±01±M technical specifications by replacing the Secretariat is to maintain an indicative existing technical specifications in their list of well-qualifed governmental and entirety with a new set of technical non-governmental individuals, OFFICE OF THE UNITED STATES specifications based on NUREG–1434, including persons who have served on TRADE REPRESENTATIVE ‘‘Improved BWR–6 Technical or presented a case to a panel, taught or Specifications,’’ dated September 1992. Notice of Opportunity To Apply For published on international trade law or This amendment was based on the Nomination to the World Trade policy, or served as a senior trade policy licensees submittal of October 15, 1993, Organization Dispute Settlement official of a WTO member country. The as supplemented by letters dated April Rosters of Panel Candidates indicative list will be used to assist in 15, and November 10, 1994, and the selection of panelists for dispute February 10 and 14, 1995. AGENCY: Office of the United States settlement proceedings. Panel members The application for the amendment Trade Representative. are to be selected with a view to complies with the standards and ACTION: Notice of opportunity to apply ensuring a sufficiently diverse requirements of the Atomic Energy Act for nomination by the United States to background and a wide spectrum of of 1954, as amended (the Act), and the indicative lists of non-governmental experience. 10882 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices USTR currently seeks nominations consideration with the obligations of other issues covered by the WTO related to the list of non-governmental those agreements. In addition, panels agreements, and availability for service individuals. The existing roster of non- are to make such other findings as will 11. Names, addresses, telephone and, governmental individuals needs to be assist the DSB in making the if available, fax numbers of three expanded to encompass new subject recommendations provided for in the individuals authorized to provide areas covered by the WTO, such as WTO agreements. information to USTR concerning the intellectual property and services, and Panelists must act in strict conformity applicant’s qualifications for service, to prepare for a potential increase in the with the provisions of the WTO including the applicant’s familiarity number of dispute settlement panels agreements, including application of the with international trade laws and other established under the DSU. Members of appropriate standard of review. Panels areas of expertise, character, reliability the WTO may periodically nominate are responsible for providing a report to and judgment. persons to be included on the roster, the DSB, including recommendations if Information provided by applicants subject to DSB approval. Inclusion of a necessary, on the conformity of the will be used by USTR for the purpose name on the roster, however, does not matter under dispute with WTO of selecting candidates for nomination necessarily mean that the individual obligations. Panelists must also comply to the WTO roster. Further information will be selected for service on a panel. with rules relating to conflicts of concerning potential conflicts may be U.S. citizens, for example, are not interest and conduct as a panelist. requested from individuals and the permitted to serve on panels in which possibility of significant conflicts will Procedures for Application the United States is a party unless the be taken into consideration in other party to the dispute agrees. Non-governmental U.S. citizens (i.e., evaluating applicants. The Decision on Certain Dispute individuals not currently employed full- USTR will contact applicants that Settlement Procedures for the GATS time by the U.S. Federal government or qualify for further consideration as requires that panels for GATS disputes a state or local government) possessing nominees regarding any additional include specific expertise on individual expertise in international trade, information that may be required. sectors. GATS disputes could involve services, intellectual property rights or Frederick L. Montgomery, the following eleven sectors: (1) other matters covered by the WTO Professional and related technical Chairman, Trade Policy Staff Committee. agreements are invited to file an [FR Doc. 95–4897 Filed 2–27–95; 8:45 am] services, including, for example, legal, application for nomination to the roster. BILLING CODE 3190±01±M accounting, auditing and bookkeeping, Applications must be typewritten and taxation, medical, dental and veterinary submitted along with five copies to services, engineering, architectural, Sybia Harrison, Room 223, Office of the SECURITIES AND EXCHANGE urban planning services, computer and U.S. Trade Representative, 600 17th COMMISSION related services, research and Street, NW., Washington, DC 20506. development services, real estate Applicants are to provide the following [Release No. 34±35404; File No. SR±BSE± services, rental and leasing services, information to the extent applicable: 95±02] advertising and management services; 1. Name of the applicant (2) communication services; (3) 2. Business address, telephone Self-Regulatory Organizations; Notice construction and related engineering number and, if available, fax number of Filing of Proposed Rule Change by services; (4) distribution services; (5) 3. Citizenship(s) Boston Stock Exchange, Inc. educational services; (6) environmental 4. Current employment, including Requesting Permanent Approval of Its services; (7) financial services, Competing Specialist Initiative including insurance and insurance- title, description of responsibilities, and related services, banking and securities name and address of employer February 22, 1995. services; (8) health-related and social 5. Relevant education and Pursuant to section 19(b)(1) of the services; (9) tourism and travel-related professional training, including Securities Exchange Act of 1934 services; (10) recreational, cultural and particular service-sector expertise, if any (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is sporting services (other than 6. Post-education employment hereby given that on February 6, 1995, audiovisual services); and (11) transport history, including the dates and address the Boston Stock Exchange, Inc. (‘‘BSE’’ services. of each prior position and a summary of or ‘‘Exchange’’) filed with the Securities Panels for GATS disputes are to be responsibilities and Exchange Commission composed of well-qualified 7. Relevant professional affiliations (‘‘Commission’’) the proposed rule governmental and non-governmental and certifications change as described in Items I, II and III individuals who have experience in 8. List of publications and speeches, below, which Items have been prepared issues related to GATS and/or trade in including a copy of speeches and by the self-regulatory organization. The services, including associated regulatory publications relevant to the subject Commission is publishing this notice to matters. Dispute settlement panels matter of the WTO agreements or solicit comments on the proposed rule concerning sectoral matters under the service sector change from interested persons. GATS must have expertise relevant to 9. List of international trade the specific service sector to which the proceedings or domestic proceedings I. Self-Regulatory Organization’s dispute relates. relating to international trade (WTO) Statement of the Terms of Substance of WTO dispute settlement panels matters in which the person has the Proposed Rule Change consist of three persons, unless the provided advice or otherwise The BSE seeks permanent approval of parties agree to have five panelists, participated, including judicial or its Competing Specialist Initiative. whose function is to make an objective administrative proceedings over which Specifically, the rules proposed for assessment of the matter under dispute, that person has presided adoption are: Additions are italicized including an objective assessment of the 10. A short statement of and deletions are [bracketed]. facts of the case, the applicability of the qualifications, including information relevant WTO agreements and the relevant to the applicant’s familiarity Chapter XV—Specialists conformity of the measure under with international trade, services or * * * * * Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10883 Sec. 17. stock was originally assigned or the 12. The registration of any competing * * * * * specialist organization which specialist may be suspended or subsequently received approval to terminated by the Market Performance Procedures for Competing Specialists compete with the regular specialist Committee upon a determination of any Sec. 18. Any specialist can apply to desires to terminate the competition by substantial or continued failure by such the Exchange to function as a competing requesting that it be relieved of the stock competing specialist to engage in specialist pursuant to these procedures: that is the subject of competition, it dealings in accordance with the 1. Applications to compete must be should so notify the Market Constitution and Rules of the Exchange. directed to the Market Performance Performance Committee at least 3 13. Competing Specialists shall be Committee in writing and must list in business days prior to the desired allowed to execute their customer order of preference the stock(s) in which effective date of such withdrawal. When orderflow which is related to index the applicant intends to compete. The the regular specialist requests to be arbitrage only on plus or zero plus ticks Market Performance Committee will use relieved of a stock, the stock shall be when the Dow Jones Industrial Average the following guidelines in reviewing an posted for reallocation by the Stock (‘‘DJIA’’) declines by fifty points or more application: Allocation Committee. In the interim, if from the previous day’s closing value. • overall performance evaluation the Market Performance Committee is Such requirement shall remain in effect results of the applicant satisfied that the competing specialist for the remainder of the trading day • financial capability once it has been activated, except that • can continue to maintain a fair and adequacy of manpower on the floor orderly market in such stock, the the requirement shall no longer apply • objection by the regular specialist in competing specialist shall serve as the where the DJIA moves back to a value a stock, with or without cause which is twenty-five points or less from 2. Any objection 1 by the regular regular specialist until the stock has 4 the previous day’s closing value. ‘‘Index specialist to permit competition in one been reallocated. Where there is more arbitrage’’ is defined as an arbitrage or more of such specialist’s stocks must than one competing specialist in the trading strategy involving the purchase be in writing and filed with the stock, Exchange staff shall place the or sale of a group of stocks in Exchange within 48 hours 2 of notice 3 of stock with a caretaker until reallocation. 8. Any competing specialist who conjunction with the purchase or sale, the competing specialist’s application. or intended purchase or sale, of one or The objection will be considered by the withdraws his/her registration in a stock more cash-settled options or futures Market Performance Committee in will be barred from applying to compete contracts on index stock groups or reviewing the application, and its in that same stock for a period of ninety options on any such futures contracts, decision may be appealed to the (90) days following the effective date of in an attempt to profit from the price Executive Committee. withdrawal. 3. All applicants must be registered 9. Notwithstanding the existence of difference between the group of stocks with the Exchange as specialists and competing specialist situations, there is and the derivative index products. only one Exchange market in a security must meet the current minimum The Specialist’s Book requirements for specialists set forth in subject to competition. Due to the ease Sec. 6. The Specialist’s book is the Chapter XV, the minimum capital and of communications on the Floor via the book, file or record in which all orders equity requirements as set forth in Stentofon System, it will not be entrusted to the Specialist in a Chapters VIII and XXII of the Rules of necessary to locate competing particular issue must be kept. It shall be the Exchange, and conform to all other specialists adjacent to each other. closed at all times and the information performance requirements and However, the regular specialist will be therein contained shall not be divulged standards set forth in the Rules of the responsible for updating quotations; or permitted to come to the knowledge Exchange. A competing specialist will thus all competitors must communicate of anyone except the Specialist or relief be subject to all of the rules and policies their markets to the regular specialist Specialist for that book, or to the Board applicable to a regular specialist. and be responsible for their portion of 4. All applicant organizations, the published bid and/or offer. Also, of Governors, a committee of the existing or newly created, must satisfy competitors must cooperate with the Exchange, or the Chairman or Officer the Market Performance Committee that regular specialist regarding openings designated by him, except that a they have sufficient manpower to fulfill and reopenings to ensure that they are Specialist may disclose information the functions of a specialist as set forth unitary. contained in his/her book [;]: in Chapter XV in all of the stocks in 10. Limit orders entrusted to each (i) for the purpose of demonstrating which the applicant will be registered competing specialist are to be the methods of trading to visitors to the either as a regular or a competing represented and executed strictly Floor; [or] (ii) to other market centers in order to specialist. according to time priority as to receipt 5. The regular specialist will receive of the order in the BEACON System. facilitate the operation of ITS or any all orderflow not specifically directed to 11. Competing specialists must keep other Application of the System a competitor. each other informed and communicate provided, in either case, that at the same 6. The receiving specialist is to inquiring Floor brokers the full size of time he makes the information disclosed responsible for all orders directed to any executable ‘‘all-or-none’’ orders in available to all members [.]; or him/her. their possession since all-or-none orders (iii) to competing specialists in his/her 7. In any competitive situation, if cannot be represented in the published stocks on a summary basis as provided either the regular specialist to whom a quote. The competing specialists are for in the ‘‘Procedures for Competing expected to represent such orders on a Specialists’’. 1 Only the regular specialist can object to ‘‘best efforts’’ basis to ensure the II. Self-Regulatory Organization’s competition in his/her stocks. execution of the entire order at a single 2 Unless the regular specialist is unavailable, in Statement of the Purpose of and which case within 48 hours of becoming available. price or prices, or not at all. Statutory Basis for, the Proposed Rule 3 Once an application is received by the Change Exchange, a written notification will be issued to 4 Once the stock has been reallocated to a regular the regular specialist(s) in whose stocks competition specialist, that specialist shall not be permitted to In its filing with the Commission, the is being sought. object to competition in such stock. self-regulatory organization included 10884 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices statements concerning the purpose of B. Self-Regulatory Organization’s For the Commission, by the Division of and basis for the proposed rule change Statement on Burden on Competition Market Regulation, pursuant to delegated and discussed any comments it received authority. on the proposed rule change. The text The Exchange does not believe that Margaret H. McFarland, of these statements may be examined at the proposed rule change will impose Deputy Secretary. the places specified in Item IV below. any burden on competition that is not [FR Doc. 95–4857 Filed 2–27–95; 8:45 am] The self-regulatory organization has necessary or appropriate in furtherance BILLING CODE 8010±01±M prepared summaries, set forth in of the purposes of the Act. Sections A, B, and C below, of the most C. Self-Regulatory Organization’s significant aspects of such statements. [Release No. 34±35403; File No. SR±CBOE± Statement on Comments on the 94±39] A. Self-Regulatory Organization’s Proposed Rule Change Received From Statement of the Purpose of, and Members, Participants or Others Self-Regulatory Organizations; Order Statutory Basis for, the Proposed Rule Approving Proposed Rule Change and Change Comments were neither solicited nor Notice of Filing and Order Granting received. Accelerated Approval of Amendment 1. Purpose No. 1 to Proposed Rule Change by the III. Date of Effectiveness of the Chicago Board Options Exchange, The purpose of the proposed rule Proposed Rule Change and Timing for Inc., Relating to Obligations to Furnish change is to seek permanent approval of Commission Action Information the Exchange’s Competing Specialist Initiative (‘‘CSI’’) pilot program which is Within 35 days of the publication of February 22, 1995. scheduled to expire on May 18, 1995. this notice in the Federal Register or On November 7, 1994, the Chicago CSI permits competing specialists on within such longer period (i) as the Board Options Exchange, Inc. (‘‘CBOE’’ the floor of the Exchange in the form of Commission may designate up to 90 or ‘‘Exchange’’) filed with the Securities one regular specialist and one or more days of such date if it finds such longer and Exchange Commission (‘‘SEC’’ or competing specialists. Orders are period to be appropriate and publishes ‘‘Commission’’), pursuant to section directed to either specialist based on its reasons for so finding or (ii) as to 19(b)(1) of the Securities Exchange Act each customer’s independent decision, which the self-regulatory organization of 1934 (‘‘Act’’).1 and Rule 19b–4 but all orders in a stock are executed in consents, the Commission will: thereunder,2 a proposal to amend CBOE accordance with strict time priority. (A) By order approve the proposed Rule 15.9, ‘‘Regulatory Cooperation,’’ 3 Once all limit orders at a price level are rule change, or to delineate the obligation of CBOE depleted, each specialist is responsible members and persons associated with for the market orders directed to them. (B) Institute proceedings to determine CBOE members to furnish information whether the proposed rule change in connection with inquiries arising The regular specialist is responsible should be disapproved. for updating quotations and from regulatory agreements that the coordinating openings and reopenings IV. Solicitation of Comments Exchange has entered into with other to ensure they are unitary. All ITS regulatory and market institutions even activity must be cleared through the Interested persons are invited to in cases where the Exchange has not regular specialist. To all other markets submit written data, views and otherwise initiated an investigation. in the National Market System, there is arguments concerning the foregoing. In addition, the CBOE proposes to only one Boston market. Trading halts Persons making written submissions amend CBOE Rule 17.2, ‘‘Complaint and are coordinated through the regular should file six copies thereof with the Investigation,’’ to expand the set of circumstances under which members or specialist and apply to all competitors Secretary, Securities and Exchange persons associated with members are in a stock. Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of the obligated, upon request by the In addition, all competitors will be submission, all subsequent Exchange, to appear and testify, respond evaluated on competing stocks in the in writing to interrogatories and furnish Exchange’s Specialist Performance amendments, all written statements with respect to the proposed rule documentary materials and other Evaluation Program. information. change that are filed with the The proposal was published for 2. Statutory Basis Commission, and all written comment in the Federal Register on communications relating to the The BSE believes that the statutory December 8, 1994.4 No comments were proposed rule change between the basis for this proposal is Section 6(b)(5) received on the proposed rule change.5 Commission and any person, other than of the Act in that it furthers the objectives to promote just and equitable those that may be withheld from the 1 15 U.S.C. 78s(b)(1) (1988). principles of trade, to foster cooperation public in accordance with the 2 17 CFR 240.19b–4 (1994). 3 and coordination with persons engaged provisions of 5 U.S.C. 552, will be CBOE Rule 15.9(a) allows the Exchange to available for inspection and copying at ‘‘enter into agreements with domestic and foreign in regulating, clearing, settling, self-regulatory organizations, associations and processing information with respect to, the Commission’s Public Reference contract markets and the regulators of such markets and facilitating transactions in Section, 450 Fifth Street, N.W., which provide for the exchange of information and securities, to remove impediments to Washington, D.C. 20549. Copies of such other forms of mutual assistance for market surveillance, investigative, enforcement and other and perfect the mechanism of a free and filing will also be available for regulatory purposes.’’ open market and a national market inspection and copying at the principal 4 See Securities Exchange Act Release No. 35035 system, and in general, to protect office of the BSE. All submissions (December 1, 1994), 59 FR 63397 (December 8, investors and the public interest, and is should refer to File No. SR–BSE–95–02 1994). 5 not designed to permit unfair On February 15, 1995, the CBOE amended its and should be submitted by March 21, proposal to clarify that when the Exchange requests discrimination between customers, 1995. information from a member pursuant to CBOE Rule issuers, brokers, or dealers. 15.9(b), the member has the same rights and Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10885 The CBOE proposes to amend CBOE into by the Exchange pursuant to CBOE investigation of possible trading Rule 15.9 to provide that as long as a 15.9. violations and other regulatory CBOE member or person associated The CBOE also proposes to amend improprieties. In addition, the with a CBOE member is subject to the CBOE Rule 17.2, Interpretation and Commission believes that the proposal CBOE’s jurisdiction, the CBOE member Policy .01 to provide that the failure to will help the Exchange to coordinate or person associated with a CBOE furnish testimony, documentary with domestic and foreign self- member is obligated to furnish evidence, or other information regulatory organizations in testimony, documentary evidence or requested by the CBOE in the course of implementing a surveillance system other information to the full extent an Exchange inquiry within the time appropriate to today’s increasingly provided in CBOE Rule 17.2(b), period specified by the Exchange shall linked and globalized markets.9 In ‘‘Conduct of Investigation,’’ whether or be deemed to be a violation of CBOE addition, the Commission believes that not the Exchange has initiated the Rule 17.2. the proposed amendments to CBOE investigation, if the information is The Exchange states that the Rule 17.2(b) will clarify the obligation of requested by the Exchange in amendments to CBOE Rule 17.2 members to appear and testify, respond connection with any inquiry resulting delineate clearly the obligation of CBOE in writing to interrogatories and furnish from an agreement entered into by the members and persons associated with information requested by the Exchange Exchange with a domestic or foreign CBOE members to furnish information in connection with an investigation self-regulatory organization or regulator in connection with an investigation initiated pursuant to CBOE Rule 17.2(a), pursuant to CBOE Rule 15.9. A CBOE initiated by the CBOE itself, including a hearing or appeal conducted pursuant member or person associated with a information requested in connection to CBOE Chapter 17, or an inquiry CBOE member from whom such with a hearing or appeal or the resulting from an agreement entered information is requested possesses the Exchange’s preparation for a hearing or into by the Exchange pursuant to CBOE same procedural protections which appeal. The amendments to CBOE Rule Rule 15.9. The Commission believes would apply to a request made pursuant 17.2 are designed to set forth the CBOE’s that the amendments to CBOE Rule to an investigation initiated by the longstanding interpretation of existing 17.2(b) and Interpretation and Policy .01 CBOE.6 CBOE rules. should protect investors and the public According to the Exchange, the The Commission believes that the interest by facilitating the prompt amendments to CBOE Rule 15.9 are proposed rule change is consistent with resolution of disciplinary matters. designed to clarify the CBOE’s existing the requirements of the Act and the Specifically, by clearly stating rules, which do not clearly delineate the rules and regulations thereunder members’ obligation to testify and to obligation of CBOE members or persons applicable to a national securities provide information requested by the associated with CBOE members to exchange and, in particular, the Exchange, and by making 7 furnish information when the provision requirements of Section 6(b)(5) in that noncompliance with such requests a of information is required in connection it is designed to prevent fraudulent and violation of CBOE Rule 17.2, the with regulatory agreements where the manipulative acts and practices and to Commission believes that the proposal CBOE has not itself initiated an protect investors and the public interest. will encourage CBOE members to investigation. Specifically, the Commission believes comply fully with CBOE requests for In addition, the CBOE proposes to that the proposed amendment to CBOE information and will enhance the amend CBOE Rule 17.2 to state clearly Rule 15.9 will strengthen CBOE Rule Exchange’s ability to conduct that each CBOE member and person 15.9 and enhance the CBOE’s investigations in a timely manner, associated with a CBOE member is disciplinary system by indicating without burdening the members being obligated, upon the Exchange’s request, clearly that the Exchange may require investigated. The Commission believes to testify, respond in writing to CBOE members and persons associated that the CBOE must have the ability to interrogatories, and furnish with CBOE members to furnish obtain such information so that the documentary materials and other testimony, documentary evidence or Exchange will have access to all information requested by the Exchange other information pursuant to regulatory relevant facts necessary for the in connection with an investigation agreements entered into pursuant to Exchange to act on a fully informed initiated pursuant to CBOE Rule 17.2(a), CBOE Rule 15.9(a). At the same time, basis when making decisions a hearing or appeal conducted pursuant the Commission believes that the concerning the disciplining of members. to CBOE Chapter 17 or an inquiry proposal maintains procedural At the same time, the Commission resulting from an agreement entered safeguards for CBOE members by believes that the proposal is consistent providing that members from whom with the CBOE’s maintenance of a fair procedural protections in responding to the request such information is requested possess disciplinary process for its members. In as the member would have in the case of any other the same procedural protections that request for information initiated by the CBOE this regard, the Commission notes that pursuant to CBOE Rule 17.2(b). In addition, the would apply to a request made pursuant all existing due process safeguards CBOE notes that the proposal authorizes the CBOE to an investigation initiated by the relating to CBOE disciplinary to request information and compel testimony from CBOE.8 proceedings remain in place. its members or associated persons whenever the By clarifying the obligation of CBOE CBOE deems such a request to be appropriate and The Commission finds good cause for consistent with its agreements to cooperate with members to furnish testimony and other approving Amendment No. 1 to the other regulatory organizations. The CBOE notes, information in connection with such proposed rule change prior to the further, that when the CBOE requests any such investigations, the Commission believes thirtieth day after the date of information or testimony on behalf of another that the proposal will facilitate regulatory body, the CBOE continues to be the publication of notice of filing thereof in requesting regulatory body in relation to the CBOE investigations commenced pursuant to the Federal Register because member and all such requests are subject to the CBOE Rule 15.9, thereby furthering the Amendment No. 1 clarifies the proposal CBOE’s rules. See Letter from James R. McDaniel, protection of investors and the public Schiff Hardin & Waite, to Michael Walinskas, and helps to safeguard the procedural Branch Chief, Options Regulation, Division of interest by helping to ensure the prompt Market Regulation, Commission, dated February 15, 9 See Securities Exchange Act Release No. 28498 1995 (‘‘Amendment No. 1’’). 7 15 U.S.C. 78f(b)(5) (1988). (October 1, 1990), 55 FR 41286 (October 10, 1990) 6 Id. 8 See Amendment No. 1, supra note 5. (order approving File No. SR–CBOE–90–23). 10886 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices rights of members from whom the regulatory organization (‘‘SRO’’) rules The industry committee updated the Exchange requests information pursuant and regulations, new products and existing statements of the critical to CBOE Rule 15.9(b). Accordingly, the changes in industry practices. The functions of registered representatives to Commission believes it is consistent number of questions per examination ensure current relevance and with Sections 6(b)(5) and 19(b)(2) of the and the examination time are unaffected appropriateness, drafted statements of Act to approve Amendment No. 1 to the by the amendments. tasks expected to be performed by entry- proposed rule change on an accelerated The amendments described above do level registered representatives, and basis. not result in any textual changes to the conformed the existing content outline It is therefore ordered, pursuant to NASD By-Laws, Schedules to the By- to the task statements. The content Section 19(b)(2) of the Act,10 that the Laws, Rules, practices or procedures. outline reflects the revised content of proposed rule change (SR–CBOE–94– II. Self-Regulatory Organization’s the examination. The total number of 39) is approved. Statement of the Purpose of and questions in the Series 7 examination For the Commission, by the Division of Statutory Basis for, the Proposed Rule will remain 250. The revised Market Regulation, pursuant to delegated Change examination will cover all financial authority.11 product areas covered on the present Margaret H. McFarland, In its filing with the Commission, the Series 7 examination as well as several NASD included statements concerning Deputy Secretary. new products, including collateralized the purpose of and basis for the mortgage obligations (‘‘CMOs’’), long [FR Doc. 95–4858 Filed 2–27–95; 8:45 am] proposed rule change and discussed any BILLING CODE 8010±01±M term equity participation securities comments it received on the proposed (‘‘LEAPS’’) and CAPS,3 with reduced rule change. The text of these statements emphasis on direct participation [Release No. 34±35401; File No. SR±NASD± may be examined at the places specified programs. 95±04] in Item III below. The NASD has The Commission recently approved prepared summaries, set forth in two parallel filings of the New York Self-Regulatory Organizations; Sections (A), (B), and (C) below, of the Stock Exchange (‘‘NYSE’’).4 No National Association of Securities most significant aspects of such comments were received on either Dealers, Inc.; Notice of Filing and statements. filing. Order Granting Accelerated Approval The NASD believes that the proposed of Proposed Rule Change Relating to (A) Self-Regulatory Organization’s Statement of the Purpose of, and rule change is consistent with the Amendments to the Examination provisions of Section 15A(g)(3) of the Specifications and Content Outline for Statutory Basis for, the Proposed Rule Change Act in that the proposed changes to the the General Securities Registered examination are to ensure persons Representative (Series 7) Examination The Series 7 examination was created seeking registration in the securities in 1974 as an industry-wide February 22, 1995. industry have attained the requisite qualification examination for persons levels of knowledge and competence. Pursuant to Section 19(b)(1) of the seeking registration as general securities Securities Exchange Act of 1934 representatives. The Series 7 (B) Self-Regulatory Organization’s 1 (‘‘Act’’), notice is hereby given that on examination is required under rules of Statement on Burden on Competition 2 February 13, 1995, the National the SROs for persons who are engaged The NASD does not believe that the Association of Securities Dealers, Inc. in the solicitation, purchase and/or sale proposed rule change will result in any (‘‘NASD’’ or ‘‘Association’’) filed with of securities for the accounts of burden on competition that is not the Securities and Exchange customers. The purpose of the Series 7 necessary or appropriate in furtherance Commission (‘‘SEC’’ or ‘‘Commission’’) examination is to ensure that registered of the purposes of the Act, as amended. the proposed rule change as described representatives have the basic in Items I, II, and III below, which Items knowledge necessary to perform their (C) Self-Regulatory Organization’s have been prepared by the NASD. The functions and responsibilities. The Statement on Comments of the Commission is publishing this notice to Series 7 exam specifications detail the Proposed Rule Change Received From solicit comments on the proposed rule ares covered by the examination and Members, Participants, or Others change from interested persons. break down the number of examination Written comments were neither I. Self-Regulatory Organization’s questions drawn from each area. The solicited nor received. Statement of the Terms of Substance of Series 7 content outline details the III. Solicitation of Comments the Proposed Rule Change subject coverage and question allocation of the examination. Interested persons are invited to The NASD is proposing amendments Revision of the Series 7 examination, submit written data, views, and to the examination specifications and specifications and content outline was arguments concerning the foregoing. study outline for the General Securities initiated in April 1993 by an industry Persons making written submissions Registered Representative (‘‘Series 7’’) committee of self-regulatory should file six copies thereof with the qualification examination. The organizations and broker-dealer Secretary, Securities and Exchange amendments revise materials pertaining representatives in order to update the Commission, 450 Fifth Street, NW., to recently enacted federal and self- examination in view of changes in the Washington, DC 20549. Copies of the 10 securities industry including changes in 15 U.S.C. 78s(b)(2) (1988). relevant rules and regulations, the 3 OEX CAPS and SPX CAPS are new securities 11 17 CFR 200.30–3(a)(12) (1994). based on the S&P 100 (OEX) and the S&P 500 (SPX) 1 15 U.S.C. Section 78s(b)(1). development of new securities products that give investors the right to participate to a 2 The proposed rule change was originally filed and changes in the job of the registered predetermined level in upward or downward on January 26, 1995. In the amendment, filed on representative as firms offer an movements in either index. February 13, 1995, the NASD provided both the increasingly wide range of financial 4 See Securities Exchange Act Release No. 34853 amended examination specifications and content services. The specifications and content (October 18, 1994), 59 FR 53694 (October 25, 1994) outline for the Series 7 exam. The examination (File Nos. SR–NYSE–94–26 (revised exam and exam specifications were filed pursuant to a request by outline for the Series 7 examination specifications for Series 7 exam), and SR–NYSE– the NASD for confidential treatment. have not been revised since 1986. 94–27 (revised content outline for Series 7 exam)). Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10887 submission, all subsequent accounts of customers. The Commission Commission is publishing this notice to amendments, all written statements believes that the revised topics covered solicit comments on the proposed rule with respect to the proposed rule by the Series 7 examination, change from interested persons. change that are filed with the specifications and content outline are I. Self-Regulatory Organization’s Commission, and all written appropriate and include a sufficiently Statement of the Terms of Substance of communications relating to the broad range of subject matter to ensure the Proposed Rule Change proposed rule change between the an appropriate level of expertise by Commission and any person, other than general securities registered The PHLX, pursuant to Rule 19b–4 of those that may be withheld from the representatives. The revised the Act, hereby proposes to list for public in accordance with the examination focuses on relevant subject trading ‘‘DIVS’’ (Dividend Value of provisions of 5 U.S.C. 552, will be matter in view of changes in applicable Stock), ‘‘ZIPS’’ (Zero Income Principal available for inspection and copying in laws, rules, regulations, products, and of Stock) and ‘‘SPECS’’ (Speculative the Commission’s Public Reference industry practices. By ensuring this Equity Component Stock) (collectively Room. Copies of such filing will also be requisite level of knowledge, the hereinafter referred to as the available for inspection and copying at Commission anticipates that general ‘‘Products’’), which are new hybrid the principal office of the NASD. All securities registered representatives will options developed by Americus Stock submissions should refer to file number demonstrate an acceptable level of Process Corp. (‘‘ASPC’’). SR–NASD–95–04 and should be securities knowledge to carry out their II. Self-Regulatory Organization’s submitted by March 21, 1995. responsibilities. Statement of the Purpose of, and IV. Commission’s Findings and Order The Commission finds good cause for Statutory Basis for, the Proposed Rule Granting Accelerated Approval of approving the proposed rule change Change prior to the 30th day after the date of Proposed Rule Change In its filing with the Commission, the publication of notice of filing thereof in self-regulatory organization included The Commission finds that the the Federal Register. The Commission statements concerning the purpose of proposed rule change is consistent with believes that accelerated approval is and basis for the proposed rule change the requirements of the Act and the appropriate given the recent approval of and discussed any comments it received rules and regulations thereunder two parallel and substantively identical on the proposed rule change. The text applicable to the NASD and, in filings by the NYSE,6 and the of these statements may be examined at particular, with the requirements of importance of industry-wide the places specified in Item IV below. Sections 15(b)(7), 15A(b)(6), and implementation of the revised content 15A(g)(3) of the Act.5 Section 15(b)(7) The self-regulatory organization has outline and Series 7 examination as states that a registered broker or dealer prepared summaries, set forth in soon as practicable. may not effect any transaction in, or sections (A), (B), and (C) below, of the It is therefore ordered, pursuant to induce the purchase or sale of, any most significant aspects of such Section 19(b)(2) of the Act,7 that the security unless such broker or dealer statements. proposed rule change SR–NASD–95–04 meets such standards of operational be, and hereby is, approved. A. Self-Regulatory Organization’s capability and all those associated with For the Commission, by the Division of Statement of the Purpose of, and such broker or dealer meet certain Statutory Basis for, the Proposed Rule standards of training, experience, Market Regulation, pursuant to delegated 8 Change competence, and such other authority. qualifications as the Commission finds Margaret H. McFarland, The PHLX proposes to list a new necessary or appropriate in the public Deputy Secretary. product developed by and licensed to interest or for the protection of [FR Doc. 95–4798 Filed 2–27–95; 8:45 am] the PHLX by ASPC that allows the investors. Section 15A(b)(6) requires, in BILLING CODE 8010±01±M purchase or sale of any of three relevant part, that the rules of a economic interests inherent in a share of common stock. Each of these new registered securities association be [Release No. 34±35400; SR±PHLX±95±01] designed to prevent fraudulent and instruments, called DIVS, ZIPS and manipulative acts and practices, to Self-Regulatory Organizations; Notice SPECS, will be traded separately on the promote just and equitable principles of of Filing of Proposed Rule Change by PHLX’s equity options floor. The trade, and to protect investors and the the Philadelphia Stock Exchange, Inc. Exchange believes that the Products, public interest. Section 15A(g)(3) Relating to the Listing and Trading of combined, will have all the provides that a registered securities DIVS, ZIPS and SPECS characteristics of a share of the association may deny membership to, or underlying common stock, including condition the membership of, a February 21, 1995. voting rights, and that the ability to registered broker or dealer if such broker Pursuant to section 19(b)(1) of the trade the Products as separate or dealer does not meet the requisite Securities Exchange Act of 1934 component instruments will provide levels of knowledge and competence. (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is new hedge, arbitrage, speculation and The Commission believes that hereby given that on January 5, 1995, investment opportunities. revising the Series 7 exam, the Philadelphia Stock Exchange Inc. The Products will be regulated, except specifications, and content outline (‘‘PHLX’’), filed with the Securities and as described herein, by the rules should help to ensure that only those Exchange Commission (‘‘Commission’’) governing standardized options. securities representatives with a the proposed rule change as described Position limits of 1 million DIVS, ZIPS comprehensive knowledge of current in Items I, II, and III below, which Items and SPECS respectively shall be NASD rules, as well as an have been prepared by the self- established respecting any particular understanding of the Act, will be able to regulatory organization. The stock. See Rule 1001C. The sales solicit, purchase or sell securities for the practice rules applicable to options 6 See note 4, supra. (Rules 1024 through 1029) will also be 5 15 U.S.C. Sections 78o(b)(7), 78o–3(b)(6), 78o– 7 15 U.S.C. Section 78s(b)(2). applicable to sales of DIVS, ZIPS and 3(g)(3). 8 17 CFR 200.30–3(a)(12). SPECS. (See Rule 1000C(a)). The 10888 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Options Clearing Corp. (‘‘OCC’’) will be The PHLX anticipates that the sum of for that class of ZIPS or (ii) the market the exclusive issuer of the Products the market prices of DIVS, ZIPS and price of the common shares on the which the Exchange proposes to issue in SPECS on the same underlying security Termination Date.3 accordance with the disclosure scheme with the same Termination Date and For example, if the Termination Claim provided for under Rule 9b–1 of the Act Termination Claim will approximate the for a class of ZIPS is $50, and on the (‘‘Rule 9b–1’’). The Products will be actual market price for the related Termination Date of the ZIPS the market issued in separate series with each underlying security. Because DIVS, price of the related underlying common series having its own distinct CUSIP ZIPS and SPECS are each economic stock is $80, a holder of 100 ZIPS would number and trading symbol. The interests in a single underlying share, if be entitled to receive that number of Products will be issued in book-entry the combined price of a DIVS, ZIPS and common shares with an aggregate form. DIVS, ZIPS and SPECS will be SPECS diverges from that of the market value of 100×$50=$5,000. created when opening buy and sell underlying security, the Exchange $5,000/$80 equals 62.5 shares, so that orders are executed, and the additional believes that arbitrage opportunities an owner would be entitled to 62 whole execution of such orders will increase would tend to remove the pricing shares and a payment of cash in lieu of the open interest. Quotations and disparity. the fractional share of $40.4 Brokers transaction reporting will occur through As discussed below, the Products holding short component positions for the facilities of the Options Price confer voting rights to their purchasers. clients would make delivery of the Reporting Authority. The voting rights are allocated among shares and cash for any fractional The criteria for underlying common the three components, as discussed shares. Brokers holding long component stocks upon which the Products will be below. In this regard, sellers of the positions for their clients would receive based are the same criteria as utilized Products are obligated to deliver the the shares and cash for any fractional for standardized equity options listed on voting rights to the purchasers. shares, which they will forward to their the PHLX under PHLX Rule 1009. For customer margin purposes, DIVS, clients. Additionally, only the top 250 ZIPS and SPECS are contemplated to be SPECS capitalized stocks traded on a national margined as equity securities pursuant securities exchange or the NASDAQ to Regulation T for initial margin and SPECS will reflect the appreciation in national market will be considered for PHLX Rule 722 for maintenance value above the Termination Claim for listing (See Rule 1009C). DIVS, ZIPS margin.2 that series of SPECS. Specifically, and SPECS of a particular series will all SPECS will constitute the right to Characteristics of Individual receive on the Termination Date that be issued for the same length of time, Components DIVS currently proposed to be up to 60 number of related common shares months, and therefore all components of The basic characteristic of DIVS will having a market value equal to the the same series will possess the same be the right to receive substitute amount, if any, by which the market termination date (‘‘Termination Date’’), payments in the same amount (and at price of the related common shares as defined in PHLX Rule 1000C(b)(5). the same time) as regular dividends exceeds the Termination Claim. The Products will have a European- declared and paid on the underlying From the example given in the style 1 settlement similar to shares of common stock for all record discussion above of ZIPS, an owner of standardized options. dates that precede the Termination Date 100 SPECS with respect to the same ZIPS and SPECS of the same series of the particular series of DIVS. series of ZIPS would be entitled to also will have a coordinate termination On each ex-dividend date, OCC will receive the following number of notify clearing members of debits they common shares: claim (‘‘Termination Claim’’), as defined × in PHLX Rule 1000C(b)(4). The have incurred on OCC’s books for any 100 ($80¥$50)=$3,000. $3,000/$80 Termination Claim is a preset price net short DIVS positions. These debits equals 37.5 common shares, so the will be charged to such clearing established at the time of the issuance owner of the 100 SPECS would be members’ accounts at OCC on payment of a new series of SPECS and ZIPS and entitled to 37 whole shares and a cash date. Ex dates and payment dates will is used to determine these instruments’ payment in lieu of the fractional share coincide with that of the underlying 5 payout on their Termination Date. In of $40. common stock. Hence, DIVS sellers On the Termination Date for a class of accordance with the PHLX Rule 1004C, assume the obligation to fund the ZIPS or SPECS, OCC will instruct Termination Claims will be set at the substitute dividend payments with delivery, based on information provided underlying stock price reflecting the respect to DIVS as they arise. On the by the brokers. Shares of the underlying most recent business day’s consolidated Termination Date for a particular series stock will be delivered from the closing value rounded up to the nearest of DIVS, DIVS holders’ rights will cease accounts of investors short the ZIPS or $2.50 increment for stocks priced at or except as to rights to unpaid dividends SPECS to satisfy the entitlements of below $25.00 or to the nearest $5.00 declared as of a record date occurring those investors long the ZIPS and increment for stocks priced above prior to the Termination Date. SPECS. $25.00. The PHLX may list new series ZIPS of DIVS, ZIPS and SPECS annually, or 3 All references to market price are to the last sale at more frequent intervals, depending Each ZIPS will confer the right to price on the relevant day as set forth on the on market conditions. No new series receive on the Termination Date that appropriate consolidated tape, or if there is no such will be opened nor opening transactions last sale price, the mean of the closing bid and ask number of underlying common shares to price or as otherwise approved by the Commission be permitted if open interest in DIVS, which the ZIPS relate having an prior to the commencement of trading in a series. ZIPS and SPECS represent more than 10 aggregate value (determined soley by 4 If the market price of a share of the related percent of the outstanding shares of any reference to the market price) equal to common stock on the Termination Date had been related underlying stock. See Rule $50 or less, the owner of the 100 ZIPS would have the lesser of (i) the Termination Claim received 100 shares of the underlying common 1012C. stock. Exercise procedures in accordance with OCC 2 The PHLX and counsel for ASPC are currently guidelines would be followed on Termination Date. 1 A European-style option may only be exercised seeking agreement and confirmation of this 5 If the market price of a common share had been during a limited period of time before the option treatment from the staff of the Board of Governors less than $50 (the Termination Claim), the SPECS expires. of the Federal Reserve System. would expire worthless. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10889 Voting Rights and one-half the Termination Claim on SPECS, special dividends are those such record date. dividends which are declared as such The vote to which the underlying If the related underlying company by the issuer of the common shares, if common share is entitled will be declares a stock dividend, the Products that issuer does not also declare that it allocated among the three components will be adjusted proportionally. For is changing its dividend policy by of the same series with the same example, in the case of a declared 5% reducing or increasing the amount of its Termination Date and Termination stock dividend, DIVS and ZIPS and regular dividends. Special dividends Claim in proposition to their relative SPECS with a Termination Claim of $50 would be allocated among DIVS, ZIPS market prices as of the record date for would be adjusted as follows: an owner and SPECS as follows: the meeting, consent or authorization. of 100 DIVS would become the owner —DIVS would be allocated and receive that For example, if there are outstanding of 105 DIVS; an owner of 100 ZIPS DIVS, ZIPS and SPECS with the portion of the special dividend equal to the would become the owner of 105 ZIPS quotient of (a) the annual dividend divided following market values, each would with a Termination Claim of $47.62; and by (b) the last sale price 6 of the stock on have the indicated vote percentage: an owner of 100 SPECS would become the day prior to the ex-distribution date the owner of 105 SPECS with a reduced by the amount of the special Security Market Percent- Termination Claim of $47.62. dividend which quotient is multiplied by price age vote (c) the amount of the special dividend. Liquidating, Special or Partial —If the remaining portion of the special DIVS term 12/31/99 .. $20.25 18.75 Liquidating Dividends dividend were less than the present value ZIPS term 12/31/99 .. 78.75 72.92 of the Termination Claim, the Termination SPECS term 12/31/ With regard to full liquidating Claim for ZIPS and SPECS would be 99 ...... 9.00 8.33 dividends to shareholders, payments reduced, but not below zero, by the future Combined Value ...... 108.00 100.00 would be allocated among owners of value at the Termination Date of the DIVS, ZIPS and SPECS of the same class remaining portion of the special dividend. If a DIVS, ZIPS or SPECS is sold as follows: All determinations of present value and uncovered, the underlying stock must —DIVS would receive the discounted present future value are computed using the be bought or borrowed by record date in value at the date of distribution of the maximum potential internal rate of return order to enable the original naked seller liquidating dividend of an imputed (‘‘IRR’’) for ZIPS. The maximum potential to deliver the appropriate percentage of dividend stream. It would be assumed that IRR for ZIPS is computed assuming the vote to the DIVS, ZIPS or SPECS the most recent four quarterly dividends purchase on the ex-distribution date at a purchaser. (unless the issuer of the related common price equal to the average closing price for the 10-day trading period preceding the Holders will receive proxy materials stock has announced a change in its dividend policy, in which case assumed announcement of the special dividend and and be able to tender proxies for their receipt of the Termination Claim on the respective shares of the vote to any dividends complying with the policy would be used) of the issuer would Termination Date (such discount rate being broker or bank carrying their account, continue through the latest record date hereinafter the ‘‘maximum potential IRR and that such broker or bank preceding the Termination Date. That cash for ZIPS’’). representing the sellers or shorts will stream would be discounted to present —The remaining portion would be allocated surrender its proxy for the appropriate value assuming payment on the usual and paid to the ZIPS. number of votes representing the dividend payment dates, using as the —If the remaining portion of the special discount rate the interest rate on U.S. dividend equals or exceeds the present components that were sold. Proxy value of the Termination Claim, ZIPS materials will be provided through the Treasury Notes having the closest maturity to the Termination Date. would receive that portion of the special mechanisms that banks, brokerage firms dividend equal in amount to such present and clearing agencies have developed to —The remaining amount would be allocated between ZIPS and SPECS of the same value; the Termination Claim would be comply with the requirements of Rules series, based upon an adjusted Termination adjusted to zero and any additional amount 14a–13, 14b–1 and 14b–2 under the Act. Claim. The Termination Claim would be of the special dividend would be allocated Costs for delivering the proxy materials adjusted by discounting the Termination and paid to the SPECS. Any further will probably be borne by DIVS, ZIPS & Claim to its present value at the date of liquidating, special or partial liquidating SPECS holders. distribution of the liquidating dividend. dividends would be allocated between The discount rate used would be the DIVS and SPECS; the ZIPS having received SPECS interest rate on U.S. Treasury Notes having in full an adjusted Termination Claim. Adjustments for Stock Splits or Stock the closest maturity to the Termination For purposes of allocating Dividends Date. ZIPS will receive the amount of the distributions made by the issuer of the distribution up to the adjusted Termination related common shares among DIVS, With respect to stock splits or stock Claim (less the amount allocated to DIVS), ZIPS and SPECS, partial liquidating dividends declared on the related with any excess going to the SPECS. dividends are all dividends other than underlying shares, DIVS, ZIPS, and Any adjustments made to the terms of regular dividends, liquidating dividends SPECS will be adjusted proportionally, the contract, as a result of any of these and special dividends. It is assumed and, in the case of ZIPS and SPECS, the ‘‘triggering’’ events, would be handled that partial liquidating dividends would Termination Claim will also be adjusted for these instruments in the same be accompanied by an announcement of proportionally on the record date for manner as standardized options and a reduction in the regular dividends such event. For example, if a company would be in accordance with any paid by the issuer. has a two for one stock split, an owner applicable OCC rules. Partial liquidating dividends would of 100 DIVS would become the owner Transmission of money to beneficial be split among the three components as of 200 DIVS with the same Termination owners would be accomplished through follows: Date; an owner of 100 ZIPS would OCC and its participants in the same —DIVS would be allocated and receive that become the owner of 200 ZIPS with the manner in which the substitute portion of the partial liquidating dividend same Termination Date and one-half the dividends would be transmitted from equal to the discounted present value of Termination Claim; and an owner of 100 short DIVS to long DIVS. SPECS would become the owner of 200 For purposes of allocating 6 If there is no last sale price, the mean of the SPECS with the same Termination Date distributions among DIVS, ZIPS and closing bid and ask prices will be used. 10890 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices the amount of the reduction in the issuer were not the surviving entity, 90 days of such date if it finds such quarterly dividend as stated in the newly each owner of DIVS, ZIPS and SPECS longer period to be appropriate and announced policy of the issuer. This would vote his interest in accordance publishes its reasons for so finding or computation would be made assuming with his voting rights, and, if the merger (ii) as to which the PHLX consents, the payment on the usual dividend payment dates, using as the discount rate the was approved, he would receive his Commission will: interest rate on U.S. Treasury Notes having share of the compensation given for (A) By order approve such proposed the closest maturity to the Termination each common share as if a liquidating rule change, or, Date. dividend was paid or an exchange offer (B) Institute proceedings to determine —If the remaining portion of the partial was made, as appropriate. whether the proposed rule change liquidating dividend were less than the should be disapproved. present value of the Termination Claim, Rights Offerings the Termination Claim for ZIPS and SPECS If the issuer of stock from which IV. Solicitation of Comments would be reduced, but not below zero, by DIVS, ZIPS and SPECS were created Interested persons are invited to the future value at the Termination Date of were to make a rights offering, the rights submit written data, views and the remaining portion of the partial arguments concerning the foregoing. liquidating dividend. The determination of would be allocated to the ZIPS and the present value and future value for ZIPS Termination Claim would be reduced by Persons making written submissions will be computed using the maximum the future value of the rights calculated should file six copies thereof with the potential IRR for ZIPS. In this case, the to the Termination Date. The future Secretary, Securities and Exchange maximum potential IRR for ZIPS is value would be computed using as the Commission, 450 Fifth Street, N.W., computed assuming purchase on the ex- interest rate, the maximum potential Washington, D.C. 20549. Copies of the distribution date at a price equal to the IRR for ZIPS and using the average submission, all subsequent average closing price for the 10-day trading closing sale price for the first 10 days of amendments, all written statements period preceding the announcement of the trading in the rights. with respect to the proposed rule partial liquidating dividend and receipt of change that are filed with the the Termination Claim on the Termination Exchange or Tender Offers Date. Commission, and all written —That remaining portion would be allocated If there were an exchange or tender communications relating to the and paid to the ZIPS. offer for the common shares to which proposed rule change between the —If the remaining portion of the partial DIVS, ZIPS and SPECS related, OCC’s Commission and any person, other than liquidating dividend equals or exceeds the existing option procedures and practices those that may be withheld from the present value of the Termination Claim, would apply. public in accordance with the ZIPS would receive that portion of the These particularized procedures for provisions of 5 U.S.C. 552, will be liquidating dividend equal in amount to adjusting the contract specifications of available for inspection and copying in such present value; the Termination Claim any open interest in any particular the Commission’s Public Reference would be adjusted to zero and any DIVS, ZIPS and SPECS series will be additional amount of the partial liquidating Section, 450 Fifth Street, N.W., dividend would be allocated and paid to well documented in the eventual Washington, D.C. 20549. Copies of such the SPECS. Any further liquidating or disclosure document to be published by filing will also be available for partial liquidating dividends would be the issuer, OCC. inspection and copying at the principal allocated between DIVS and SPECS; the The PHLX believes the proposed rule office of the above-mentioned self- ZIPS having received in full an adjusted change is consistent with Section 6(b)(5) regulatory organization. all submissions Termination Claim. of the Act which provides in part that should refer to the file number in the Spin-offs and Split-ups the rules of the Exchange be designed to caption above and should be submitted prevent fraudulent and manipulative by March 21, 1995. In the case of spin-off or split-up acts and practices, to facilitate For the Commission by the Division of transactions, each DIVS, ZIPS and transactions in securities, to remove SPECS holder would become the owner Market Regulation, pursuant to delegated impediments to and perfect the authority.7 of two issues of DIVS, ZIPS and mechanism of a free and open market Margaret H. McFarland, SPECS—one for each company and each and to protect investors and the public Deputy Secretary. having the same number of such interest. securities with the same Termination [FR Doc. 95–4859 Filed 2–27–95; 8:45 am] Date. The Termination Claim would be B. Self-Regulatory Organization’s BILLING CODE 8010±01±M allocated between the two issues of Statement on Burden on Competition ZIPS and the two issues of SPECS based The PHLX does not believe that the [Rel. No. IC±20910; 811±4376] upon the ratio of the prices of the two proposed rule change will impose any issues (i.e., the underlying common inappropriate burden on competition. State Street Fund for Foundations and shares and the spun-off company) at the Endowments; Notice of Application opening of trading on the effective date C. Self-Regulatory Organization’s of the spin-off or split-up transactions. Statement on Comments on the February 22, 1995. Proposed Rule Change Received from AGENCY: Securities and Exchange Mergers Members, Participants or Others Commission (‘‘SEC’’). If the company that issued the No written comments were either ACTION: Notice of Application for common shares from which the DIVS, received or requested. Deregistration under the Investment ZIPS and SPECS were created were to Company Act of 1940 (the ‘‘Act’’). be the surviving company, there would III. Date of Effectiveness of the be no adjustment to the terms of the Proposed Rule Change and Timing for APPLICANT: State Street Fund for DIVS, ZIPS and SPECS unless, as part Commission Action Foundations and Endowments. of such transaction, there was a stock Within 35 days of the date of RELEVANT ACT SECTION: Order requested split, stock dividend, partial liquidating publication of this notice in the Federal under section 8(f). dividend or other corporate transaction Register or within such longer period (i) that would require adjustment. If the as the Commission may designate up to 7 17 CFR 200.30–3(a)(12) (1994). Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10891 SUMMARY OF APPLICATION: Applicant a price equal to the net asset value per (The meeting scheduled for March 31, seeks an order declaring it has ceased to share of the Portfolio. On June 23, 1994, 1995 has been canceled). be an investment company. applicant has two shareholders: For further information, write or call FILING DATES: The application was filed Metropolitan Life Insurance Company, Mr. Edward A. Daum, Director, U.S. on November 21, 1994 and amended on the ultimate parent of State Street Small Business Administration, 610- January 11, 1995 and February 15, 1995. Research & Management Company, Butler Square, 100 North Sixth street, HEARING OR NOTIFICATION OF HEARING: An applicant’s investment adviser (the Minneapolis, Minnesota 55403, (612) order granting the application will be ‘‘Adviser’’), and the Felician Sisters, 370–2306. issued unless the SEC orders a hearing. O.S.F. of Livonia. On that date, the Dated: February 21, 1995. shareholders redeemed all of their Interested persons may request a Dorothy A. Overal, shares in order to reinvest the proceeds hearing by writing to the SEC’s Director, Office of Advisory Council. Secretary and serving applicant with a in another similar fund recently [FR Doc. 95–4821 Filed 2–27–95; 8:45 am] copy of the request, personally or by organized. The redemptions were mail. Hearing requests should be coordinated to assure equal treatment of BILLING CODE 8025±01±M received by the SEC by 5:30 p.m. on both shareholders. A total of 62,565.298 March 20, 1995, and should be shares having an aggregate and per share [Application No. 99000161] accompanied by proof of service on the net asset value of $6,186,252.28 and applicant, in the form of an affidavit or, $98.88, respectively, were redeemed. United Partners, Inc.; Notice of Filing for lawyers, a certificate of service. 4. On August 3, 1994, applicant’s of an Application for a License to Hearing requests should state the nature Board of Trustees (the ‘‘Trustees’’) Operate as a Small Business of the writer’s interest, the reason for the determined that it was advisable that Investment Company applicant terminate because applicant’s request, and the issues contested. Notice is hereby given of the filing of shareholders had redeemed all of their Persons may request notification of a an application with the Small Business shares. The Trustees were not required hearing by writing to the SEC’s Administration (SBA) pursuant to to seek shareholder approval because Secretary. § 107.102 of the Regulations governing applicant has had no shareholders or ADDRESSES: Secretary, SEC, 450 Fifth small business investment companies operations since June 23, 1994. Street, N.W., Washington, D.C. 20549. (13 CFR 107.102 (1994)) by UBS 5. All expenses incurred in Applicant, One Financial Center, Partners, Inc. at 299 Park Avenue, New connection with applicant’s liquidation Boston, Massachusetts 02111. York, NY 10171, for a license to operate were borne by the adviser. Such FOR FURTHER INFORMATION CONTACT: as a small business investment company expenses, totalling approximately Marianne H. Khawly, Staff Attorney, at (SBIC) under the Small Business $3,500, were for legal fees. (202) 942–0562, or C. David Messman, Investment Act of 1958, as amended, (15 6. As of the date of the application, Branch Chief, at (202) 942–0564 U.S.C. et. seq.), and the Rules and applicant had no assets, debts, (Division of Investment Management, Regulations promulgated thereunder. Its liabilities, or shareholders. Applicant is Office of Investment Company area of operation will be throughout the not a party to any litigation or Regulation). United States. administrative proceeding. Applicant is SUPPLEMENTARY INFORMATION: The UBS Partners, Inc. is a wholly owned neither engaged in nor proposes to subsidiary of UBS, Inc. UBS Partners, following is a summary of the engage in any business activities other application. The complete application Inc. has three officers: Justin S. than those necessary for the winding-up Maccarone, President; Jeffrey Keenan, may be obtained for a fee from the SEC’s of its affairs. Public Reference Branch. Vice-President and Secretary; and, 7. Applicant intends to file its Michael Greene, Vice-President and Applicant’s Representations notification of termination as a business Treasurer. The Officers, who will be 1. Applicant is a registered, open-end, trust under Massachusetts law. employed by the parent and other diversified, management investment For the SEC, by the Division of Investment affiliates, have extensive banking and company under the Act and is organized Management, under delegated authority. senior management experience, as a business trust under the laws of the Margaret H. McFarland, advanced academic training in business Commonwealth of Massachusetts. On Deputy Secretary. management, and multiple investment August 8, 1985, applicant filed a [FR Doc. 95–4860 Filed 2–27–95; 8:45 am] experiences in varied companies and Notification of Registration on Form N– BILLING CODE 8010±01±M industries. 8A pursuant to section 8(a) of the Act The applicant will begin operations and a registration statement on Form N– with Regulatory Capital of $2.6 million 1A under section 8(b) of the Act and SMALL BUSINESS ADMINISTRATION and will be a source of equity and under the Securities Act of 1933. The subordinated debt for companies with registration statement became effective Minneapolis/St. Paul Advisory Council annual sales of $5 million, as well as, on April 17, 1986, and applicant’s Meeting; Public Meeting startup small business concerns. initial public offering commenced on or Matters involved in SBA’s about that date. The U.S. Small Business consideration of the application include 2. Applicant consists of one series: the Administration Minneapolis/St. Paul the general business reputation and Fixed Income Portfolio (the ‘‘Portfolio’’). District Advisory Council will hold a character of the proposed owners and Share of beneficial interest were offered, public meeting on Thursday, March 23, management, and the probability of without sales charge, only to tax-exempt 1995 at 12:00 noon, at the Decathlon successful operations of the new charitable foundations and endowment Athletic Club, 1700 East 79th Street, company under their management, funds. Bloomington, Minnesota, to discuss including profitability and financial 3. Applicant’s declaration of trust such matters as may be presented by soundness in accordance with the Act provides that applicant may be members, staff of the U.S. Small and Regulations. terminated by this shareholders upon Business Administration, or others Notice is hereby given that any person the redemption of all of their shares at present. may, not later than 15 days from the 10892 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices date of publication of this Notice, the Answer period DOT may process the 41102, and Subpart Q of the submit written comments on the application by expedited procedures. Regulations, applies for a certificate of proposed SBIC to the Associate Such procedures may consist of the public convenience and necessity to Administrator for Investment, Small adoption of a show-cause order, a authorize Carnival to provide Business Administration, 409 3rd Street, tentative order, or in appropriate cases scheduled foreign air transportation of SW., Washington, DC 20416. a final order without further persons, property and mail between A copy of this Notice will be proceedings. Miami, Florida and Lima, Peru. published in a newspaper of general Docket Number: 50126 Docket Number: 50137 circulation in New York, New York. Date filed: February 13, 1995 Date filed: February 16, 1995 (Catalog of Federal Domestic Assistance Due Date for Answers, Conforming Due Date for Answers, Conforming Programs No. 59.011, Small Business Applications, or Motion to Modify Applications, or Motion to Modify Investment Companies) Scope: March 13, 1995 Scope: February 23, 1995 Dated: February 22, 1995. Description: Application of Aerovias de Description: Application of Fine Honduras, S.A. de C.V., pursuant to Robert D. Stillman, Airlines, Inc., pursuant to 49 U.S.C. 49 U.S.C. Section 41302 of the Act Associate Administrator for Investment. Section 41102, and Subpart Q of the and Subpart Q of the Regulations, Regulations, applies for a certificate of [FR Doc. 95–4822 Filed 2–27–95; 8:45 am] applies for a foreign air carrier permit public convenience and necessity to BILLING CODE 8025±01±M to engage in scheduled air engage in scheduled foreign air transportation of persons, property transportation of property and mail and mail between points in Honduras, between Miami, Florida, and Lima, DEPARTMENT OF TRANSPORTATION on the one hand, and points in the Peru and for the allocation to it of the United States, on the other hand, via Aviation Proceedings; Agreements three new, weekly, all-cargo intermediate points in Belize and frequencies available to U.S. carriers Filed During the Week Ended February beyond. 17, 1995 under the 1986 U.S.-Peru Air Docket Number: 50131 Transport Agreement and a January The following Agreements were filed Date filed: February 16, 1995 13, 1995 Exchange of Notes. with the Department of Transportation Due Date for Answers, Conforming Applications, or Motion to Modify Docket Number: 50139 under the provisions of 49 U.S.C. 412 Date filed: February 16, 1995 and 414. Answers may be filed within Scope: February 23, 1995 Description: Application of Arrow Air, Due Date for Answers, Conforming 21 days of date of filing. Inc., pursuant to 49 U.S.C., Part 302 Applications, or Motion to Modify Docket Number: 50132 and Subpart Q of the Regulations, Scope: February 23, 1995 Date filed: February 16, 1995 requests a certificate of public Description: Application of Challenge Parties: Members of the International convenience and necessity to permit Air Cargo, Inc., pursuant to 49 U.S.C. Air Transport Association it to engage in foreign air Section 41102, and Subpart Q of the Subject: PAC/Reso/387 dated February transportation of property and mail Regulations for amendment of its 15, 1995, Expedited Resos, r-1—810 r- between Miami, FL, on the one hand, certificate of public convenience and 2—810c r-3—810g r-4—824c and Lima, Peru, on the other hand. necessity for Route 353 to permit it to Proposed Effective Date: May 1, 1995 Arrow requests that either its operate scheduled all-cargo service Docket Number: 50133 Certificate for Route 343F be amended between the United States and Peru. Date filed: February 16, 1995 or a separate Certificate be issued. Docket Number: 50140 Parties: Members of the International Arrow also requests the allocation of Date filed: February 17, 1995 Air Transport Association three weekly round trip scheduled Due Date for Answers, Conforming Subject: Comp Telex Mail Vote 728, frequencies. Applications, or Motion to Modify Reso 010f—Passenger Currency Docket Number: 50135 Scope: February 23, 1995 Adjustment Date filed: February 16, 1995 Description: Application of Millon Air, Proposed Effective Date: April 1, 1995 Due Date for Answers, Conforming Inc., pursuant to 49 U.S.C. Section Myrna F. Adams, Applications, or Motion to Modify 41101 and Subpart Q of the Regulations requests amendment of Acting Chief, Documentary Services Division. Scope: February 23, 1995 its certificate of public convenience [FR Doc. 95–4838 Filed 2–27–95; 8:45 am] Description: Application of United Air Lines, Inc., pursuant to 49 U.S.C. and necessity, authorizing Millon Air BILLING CODE 4910±62±P Section 41101, and Subpart Q of the to perform scheduled all-cargo service Regulations, requests a Certificate of between Miami, Florida on the one Notice of Applications for Certificates Public Convenience and Necessity for hand, and Iquitos and Lima, Peru on of Public Convenience and Necessity authority to offer scheduled foreign the other hand. Millon Air also and Foreign Air Carrier Permits Filed air transportation of persons, property requests designation by the United Under Subpart Q During the Week and mail between Miami, Florida, and States pursuant to the bilateral air Ended February 17, 1995 Lima, Peru. United also requests the transport services agreement between allocation of 4.5 weekly narrow-body the U.S. and Peru for operation of The following Applications for frequencies consistent with the U.S./ three weekly scheduled round trip all- Certificates of Public Convenience and Peru bilateral Exchange of Notes, cargo frequencies along the routing Necessity and Foreign Air Carrier dated January 13, 1995. Miami-Iquitos/Lima. Permits were filed under Subpart Q of Docket Number: 50136 Docket Number: 50141 the Department of Transportation’s Date filed: February 16, 1995 Date filed: February 17, 1995 Procedural Regulations (See 14 CFR Due Date for Answers, Conforming Due Date for Answers, Conforming 302.1701 et. seq.). The due date for Applications, or Motion to Modify Applications, or Motion to Modify Answers, Conforming Applications, or Scope: February 23, 1995 Scope: March 17, 1995 Motions to Modify Scope are set forth Description: Application of Carnival Air Description: Application of Liberty below for each application. Following Lines, Inc., pursuant to 49 U.S.C. Airlines Limited, pursuant to 49 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10893 U.S.C. Section 41301, and Subpart Q 4-inch pipeline. Therefore, Columbia navigation posed by the exposed of the Regulations, applies for a Gulf cannot comply with the lowering pipeline and on any impact the mat may foreign air carrier permit to operate requirement without first lowering or have on fishing vessel operations. scheduled, non-scheduled and charter crossing below the Trunkline and Comments should identify the Docket air services, carrying passengers cargo Amoco pipelines. This coincidental and Notice numbers, and be submitted and mail, between points in lowering would present the potential for to the Dockets Unit, Room 8417, Dominica, West Indies and other damage to these lines which could Research and Special Programs states within the Organization of cause environmental pollution. Administration, 400 Seventh Street, SW, Eastern Caribbean States and points in A waiver would allow Columbia Gulf Washington, D.C. 20590. the United States. to cover 813 feet along the subject All comments received before April Myrna F. Adams, pipeline segment with a concrete mesh 14, 1995 will be considered before final Acting Chief, Documentary Services Division. blanket alternative to the 36-inch depth action is taken. Late filed comments will of cover requirement. The waiver would [FR Doc. 95–4839 Filed 2–27–95; 8:45 am] be considered so far as practicable. All also extend the time limitation required BILLING CODE 4910±62±P comments and other docketed material for compliance with section 192.612. will be available for inspection and A ‘‘concrete mesh blanket’’ unit is an copying in Room 8419 between the ′ × ′ Research and Special Programs 8 20 section constructed from 160 hours of 8:30 A.M. and 5:00 P.M. individually cast 17′′ × 17′′ × 9′′ beveled Administration Monday through Friday, except federal concrete briquettes inter-connected with holidays before and after the closing [Docket No. P±94±1W; Notice 1] 3⁄4′′ polypropelene UV stabilized line. A ′ × ′ × ′′ date. No public hearing is contemplated, total of 41 (8 20 9 ) units of but one may be held at a time and place Columbia Gulf Transmission ‘‘concrete mesh blanket’’ will be Company; Petition for Waiver set in a Notice in the Federal Register required to cover the 813’ of affected if requested by an interested person AGENCY: Research and Special Programs pipeline. Each of the 41 units will be desiring to comment at a public hearing Administration, DOT. hydrojetted flush with the seabed and and raising a genuine issue. permanently anchored with six screw ACTION: Notice of petition for waiver. Richard D. Huriax, anchors. The top of the 12 inch pipeline the Director, Regulatory Programs, Office of SUMMARY: Columbia Gulf Transmission Pipeline Safety. Company (Columbia Gulf) has mesh blanket is intended to cover is [FR Doc. 95–4907 Filed 2–27–95; 8:45 am] petitioned the Research and Special presently buried 6 inches below Programs Administration for a waiver unconsolidated bottom in the Gulf of BILLING CODE 4910±60±P ° ′ ′′ from compliance with 49 CFR Mexico from Lat. 29 30 21.46 , Long. ° ′ ′′ ° ′ ′′ 192.612(b)(3), which requires that gas 92 22 54.08 to Lat. 29 30 13.4 , Long. ° ′ pipeline facilities in the Gulf of Mexico 92 22 53.98; Block 15, Vermillion area, DEPARTMENT OF THE TREASURY found to be exposed on the seabed or approximately 8 miles South of Pecan constituting a hazard to navigation be Island, LA. The pipeline is coated with Office of Thrift Supervision reburied so that the top of the pipe is concrete. Public Information Collection 36 inches below the seabed for normal The application of the proposed Requirements Submitted to OMB for excavation or 18 inches for rock blanket would effectively cover the ′′ ′′ Review excavation. pipeline to 15 inches (9 mattress + 6 cover). The required reburial is to 36 DATES: Comments must be received on inches below the bottom or 18 inches February 20, 1995. or before March 30, 1995. below a rock bottom. The Office of Thrift Supervision ADDRESSES: Comments may be mailed to RSPA proposes to grant the waiver (OTS) has submitted the following the Dockets Branch, U.S. Department of with the provision that Columbia Gulf public information collection Transportation, 400 Seventh Street, also install a rock shield over the requirement(s) to OMB for review and SW., Washington, DC, 20590. All pipeline before installation of the clearance under the Paperwork comments and docket material may be blanket. The rock shield must be of at Reduction Act of 1980, Public Law 96– reviewed in the Dockets Branch, room 3 least ⁄8 inches of thickness constructed 11. Copies of the submission(s) may be 8426, between the hours of 8:30 a.m. to of an appropriate material, such as ‘‘Tuff obtained by calling the OTS Clearance 5:00 p.m. Monday through Friday, N Nuff’’ manufactured by Submar. With Officer listed. Comments regarding this except federal holidays. the addition of the rock shield RSPA information collection should be FOR FURTHER INFORMATION CONTACT: L.E. believes there is no reason to anticipate addressed to the OMB reviewer listed Herrick, 202–366–5523 regarding the a lesser level of safety than would be and to the OTS Clearance Officer, Office subject matter of this notice of proposed achieved by a 36′′ pipeline burial. In of Thrift Supervision, 1700 G Street, rulemaking, or the Dockets Unit, 202– view of these reasons and those stated NW., Washington, DC 20552. 366–5046, regarding copies of this in the foregoing discussion, it appears OMB Number: 1550–030. notice or other material that is that a waiver of compliance with Form Number: OTS Forms 1344 and referenced herein. § 192.612(c)(3) would not be 1561. SUPPLEMENTARY INFORMATION: During a inconsistent with pipeline safety, and as Type of Review: Revision. DOT required survey Columbia Gulf a consequence, RSPA proposes to grant Title: Application for Issuance of discovered a 260 foot portion of 36-inch the waiver. Subordinated Debt Securities. Bluewater Mainline 200 did not meet Interested parties are invited to Description: The information provided the 12-inch depth of cover requirements comment on the proposed waiver by to OTS is used to determine if the of 49 CFR 192.612. At the point where submitting in duplicate such data, proposed issuance of subordinated coverage is not sufficient, Columbia views, or arguments as they may desire. debt or preferred stock will benefit the Gulf’s pipeline crosses over a Trunkline RSPA specifically requests comments thrift institution or create an Gas Company 16-inch pipeline and an on the adequacy of the proposed unreasonable risk to the Savings Amoco Production Company abandoned concrete mat to reduce the hazard to Association Insurance Fund. 10894 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Respondents: Savings and Loan OMB Reviewer: Milo Sunderhauf, (202) proposal for the collection of Associations and Savings Banks. 395–7340, Office of Management and information under the provisions of the Estimated Number of Respondents: 5. Budget, Room 10226, New Executive Paperwork Reduction Act (44 U.S.C. Estimated Burden Hours Per Office Building, Washington, DC Chapter 35). This document lists the Respondent: 49 Hrs. Avg. 20503. following information: (1) The title of Frequency of Response: On occasion. Cora Prifold Beebe, the information collection, and the Estimated Total Reporting Burden: 246 Director of Administration. Department form number(s), if Hrs. applicable; (2) a description of the need Clearance Officer: Colleen M. Devine, [FR Doc. 95–4829 Filed 2–27–95; 8:45 am] BILLING CODE 6720±01±P and its use; (3) who will be required or (202) 906–6025, Office of Thrift asked to respond; (4) an estimate of the Supervision, 1700 G Street, NW., total annual reporting hours, and Washington, DC 20552. recordkeeping burden, if applicable; (5) OMB Reviewer: Milo Sunderhauf, (202) UNITED STATES INFORMATION AGENCY the estimated average burden hours per 395–7340, Office of Management and respondent; (6) the frequency of Budget, Room 10226, New Executive Culturally Significant Objects Imported response; and (7) an estimated number Office Building, Washington, DC for Exhibition; Determination of respondents. 20503. ADDRESSES: Copies of the proposed Cora Prifold Beebe, Notice is hereby given of the information collection and supporting Director of Administration. following determination: Pursuant to documents may be obtained from Trish [FR Doc. 95–4828 Filed 2–27–95; 8:45 am] the authority vested in me by the Act of Fineran, Veterans Benefits October 19, 1965 (79 Stat. 985, 22 U.S.C. BILLING CODE 6720±01±P Administration (20M30), Department of 2459), Executive Order 12047 of March Veterans Affairs, 810 Vermont Avenue, 27, 1978 (43 FR 13359, March 29, 1978), NW, Washington, DC 20420, (202) 273– Public Information Collection and Delegation Order No. 85–5 of June 6886. Requirements Submitted to OMB for 27, 1985 (50 FR 27393, July 2, 1985), I Comments and questions about the Review hereby determine that the objects to be items on the list should be directed to included in the exhibit, ‘‘Art and February 20,1995. VA’s OMB Desk Officer, Joseph Lackey, Empire: Treasures from Assyria in the NEOB, room 3002, Washington, DC The Office of Thrift Supervision 1 British Museum’’ (See list ) imported 20503, (202) 395–7316. Do not send (OTS) has submitted the following from abroad for the temporary requests for benefits to this address. public information collection exhibition without profit within the DATES: Comments on the information requirement(s) to OMB for review and United States, are of cultural collection should be directed to the clearance under the Paperwork significance. These objects are imported OMB Desk Officer on or before March Reduction Act of 1980, Public Law 96– pursuant to a loan agreement with the 30, 1995. 11. Copies of the submission(s) may be foreign lenders. I also determine that the obtained by calling the OTS Clearance temporary exhibition or display of the Dated: February 21, 1995. Officer listed. Comments regarding this listed exhibit objects at The By direction of the Secretary. information collection should be Metropolitan Museum of Art, New York Ronald C. Taylor, addressed to the OMB reviewer listed City from on or about April 24, 1995 Management Analyst. and to the OTS Clearance Officer, Office through August 13, 1995 is in the of Thrift Supervision, 1700 G Street, national interest. Public Notice of this Reinstatement NW., Washington, DC 20552. determination is ordered to be 1. Application for Authority to Close OMB Number: 1550–023. published in the Federal Register. Loans on an Automatic Basis— Form Number: OTS Forms 1313 and Dated: February 22, 1995. Nonsupervised Lenders, VA Form 26– 1568. Les Jin, 8736. Type of Review: Revision. General Counsel. 2. This form is used by nonsupervised Title: Thrift Financial Report. [FR Doc. 95–4898 Filed 2–27–95; 8:45 am] lenders to request approval to close Description: OTS collects financial data BILLING CODE 8230±01±M loans on an automatic basis. The from insured institutions and their information is used to determine subsidiaries in order to assure their whether applicants meet standards of safety and soundness as depositories DEPARTMENT OF VETERANS acceptability. of personal savings of the general AFFAIRS 3. Business or other for-profit. public. The OTS monitors the 4. 42 hours. financial positions and interest-rate Information Collection Under OMB 5. 25 minutes. risk so that adverse conditions can be Review: Application for Authority to 6. On occasion. remedied promptly. Close Loans on an Automatic BasisÐ 7. 100 respondents. Respondents: Businesses or other for- Nonsupervised Lenders, VA Form 26± [FR Doc. 95–4784 Filed 2–27–95; 8:45 am] profit. 8736 Estimated Number of Respondents: BILLING CODE 8320±01±M 1546. AGENCY: Department of Veterans Affairs. Estimated Burden Hours Per Response: ACTION: Notice. Information Collection Under OMB 13.25 Hrs. The Department of Veterans Affairs Review: Request for Verification of Frequency of Response: Monthly Deposit, VA Form 26±8497a Estimated Total Reporting Burden: has submitted to OMB the following 245,842 Hrs. AGENCY: Department of Veterans Affairs. Clearance Officer: Colleen M. Devine, 1 A copy of this list may be obtained by contacting Mrs. Carol B. Epstein, Assistant General ACTION: Notice. (202) 906–6025, Office of Thrift Counsel, at 619–6981, and the address is Room 700, Supervision, 1700 G Street, NW., U.S. Information Agency, 301 Fourth Street, S.W., The Department of Veterans Affairs Washington, DC 20552. Washington, D.C. 20547. has submitted to OMB the following Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10895 proposal for the collection of Chapter 35). This document lists the Chapter 35). This document lists the information under the provisions of the following information: (1) The title of following information: (1) The title of Paperwork Reduction Act (44 U.S.C. the information collection, and the the information collection, and the Chapter 35). This document lists the Department form number(s), if Department form number(s), if following information: (1) the title of the applicable; (2) a description of the need applicable; (2) a description of the need information collection, and the and its use; (3) who will be required or and its use; (3) who will be required or Department form number(s), if asked to respond; (4) an estimate of the asked to respond; (4) an estimate of the applicable; (2) a description of the need total annual reporting hours, and total annual reporting hours, and and its use; (3) who will be required or recordkeeping burden, if applicable; (5) recordkeeping burden, if applicable; (5) asked to respond; (4) an estimate of the the estimated average burden hours per the estimated average burden hours per total annual reporting hours, and respondent; (6) the frequency of respondent; (6) the frequency of recordkeeping burden, if applicable; (5) response; and (7) an estimated number response; and (7) an estimated number the estimated average burden hours per of respondents. of respondents. respondent; (6) the frequency of ADDRESSES: Copies of the proposed ADDRESSES: Copies of the proposed response; and (7) an estimated number information collection and supporting information collection and supporting of respondents. documents may be obtained from Trish documents may be obtained from Trish ADDRESSES: Copies of the proposed Fineran, Veterans Benefits Fineran, Veterans Benefits information collection and supporting Administration (20M30), Department of Administration (20M30), Department of documents may be obtained from Trish Veterans Affairs, 810 Vermont Avenue, Veterans Affairs, 810 Vermont Avenue, Fineran, Veterans Benefits NW, Washington, DC 20420 (202) 273– NW, Washington, DC 20420, (202) 273– Administration (20M30), Department of 6886. 6886. Veterans Affairs, 820 Vermont Avenue, Comments and questions about the Comments and questions about the NW, Washington, DC 20420, (202) 273– items on the list should be directed to items on the list should be directed to 6886. VA’s OMB Desk Officer, Joseph Lackey, VA’s OMB Desk Officer, Joseph Lackey, Comments and questions about the NEOB, Room 3002, Washington, DC NEOB, Room 3002, Washington, DC items on the list should be directed to 20503, (202) 395–7316. Do not send 20503, (202) 395–7316. Do not send VA’s OMB Desk Officer, Joseph Lackey, requests for benefits to this address. requests for benefits to this address. NEOB, Room 3002, Washington, DC DATES: Comments on the information DATES: Comments on the information 20503, (202) 395–7316. Do not send collection should be directed to the collection should be directed to the requests for benefits to this address. OMB Desk Officer on or before March OMB Desk Officer on or before March DATES: Comments on the information 30, 1995. 30, 1995. collection should be directed to the Dated: February 21, 1995. Dated: February 21, 1995. OMB Desk Officer on or before March By direction of the Secretary. By direction of the Secretary. 30, 1995. Ronald C. Taylor, Ronald C. Taylor, Dated: February 21, 1995. Management Analyst. Management Analyst. By direction of the Secretary. Ronald C. Taylor, Reinstatement Extension Management Analyst. 1. Application for Reinstatement, VA 1. Statement of Holder or Servicer of Extension Form 29–352 Veteran’s Loan, VA Form Letter 26–559 1. Request for Verification of Deposit, 2. This form is used by veterans 2. This form letter is completed by VA Form 26–8497a applying for reinstatement of their holders or servicers of guaranteed or 2. The information collected is used Government Life Insurance or Total insured home loans from which obligors by VA to determine whether the veteran Disability Income Provision which has may be released from liability and/or qualifies as a prospective mortgagor for lapsed for more than six months. The substitution entitlement. Information mortgage insurance or guaranty or as a information is used by VA to determine collected is used to determine that the borrower for a rehabilitation loan under eligibility for reinstatement. loan is current. VA programs. 3. Individuals or households. 3. Business or other for profit. 3. Business or other for-profit. 4. 500 hours. 4. 2,500 hours. 4. 26,000 hours. 5. 20 minutes. 5. 10 minutes. 5. 5 minutes. 6. On occasion. 6. On occasion. 6. On occasion. 7. 1,500 respondents. 7. 15,000 respondents. 7. 312,000 respondents. [FR Doc. 95–4781 Filed 2–27–95; 8:45 am] [FR Doc. 95–4785 Filed 2–27–95; 8:45 am] [FR Doc. 95–4782 Filed 2–27–95; 8:45 am] BILLING CODE 8320±01±M BILLING CODE 8320±01±M BILLING CODE 8320±01±M Information Collection Under OMB Information Collection Under OMB Information Collection Under OMB Review: Statement of Holder or Review: Status of Loan AccountÐ Review: Application for Reinstatement, Servicer of Veteran's Loan, VA Form Foreclosure or Other Liquidation, VA VA Form 29±352 Letter 26±559 Form 26±567 AGENCY: Department of Veterans Affairs. AGENCY: Department of Veterans Affairs. AGENCY: Department of Veterans Affairs. ACTION: Notice. ACTION: Notice. ACTION: Notice. The Department of Veterans Affairs The Department of Veterans Affairs The Department of Veterans Affairs has submitted to OMB the following has submitted to OMB the following has submitted to OMB the following proposal for the collection of proposal for the collection of proposal for the collection of information under the provisions of the information under the provisions of the information under the provisions of the Paperwork Reduction Act (44 U.S.C. Paperwork Reduction Act (44 U.S.C. Paperwork Reduction Act (44 U.S.C. 10896 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Chapter 35). This document lists the 7. 25,328 respondents. both Houses of Congress and the Office following information: (1) The title of [FR Doc. 95–4783 Filed 2–27–95; 8:45 am] of Management and Budget. The the information collection, and the matching program is subject to their BILLING CODE 8320±01±M Department form number(s), if review. applicable; (2) a description of the need a. Names of participating agencies: and its use; (3) who will be required or Privacy Act of 1974; Computer Department of Veterans Affairs and asked to respond; (4) an estimate of the Matching Program Department of Defense. total annual reporting hours, and b. Purpose of the match: The purpose AGENCY: Department of Veterans Affairs. recordkeeping burden, if applicable; (5) of the match is to enable VA to the estimated average burden hours per ACTION: Notice of Matching Program. determine whether an applicant is respondent; (6) the frequency of SUMMARY: eligible for payment of benefits under response; and (7) an estimated number Notice is hereby given that the Department of Veterans Affairs (VA) the Montgomery GI Bill—Active Duty or of respondents. intends to conduct a recurring matching the Montgomery GI Bill—Selected ADDRESSES: Copies of the proposed program. This will match personnel Reserve, and to verify continued information collection and supporting records of the Department of Defense compliance with the requirements of documents may be obtained from Trish with VA records of benefit receipts both programs. Fineran, Veterans Benefits under the Montgomery GI Bill. c. Authority: The authority to conduct Administration (20M30), Department of The goal of these matches is to this match is found in 38 U.S.C. Veterans Affairs, 810 Vermont Avenue, identify the eligibility status of veterans, 3684A(a)(1). NW, Washington, DC 20420, (202) 273– service members and reservists who d. Categories of records and 6886. have applied for or who are receiving individuals covered: The records Comments and questions about the education benefit payments under the covered include eligibility records items on the list should be directed to Montgomery GI Bill. The purpose of the extracted from the Department of VA’s OMB Desk Officer, Joseph Lackey, match is to enable VA to verify that Defense personnel files and benefit NEOB, Room 3002, Washington, DC individuals meet the conditions of records which VA establishes for all 20503, (202) 395–7316. Do not send military service and eligibility criteria individuals who have applied for and/ requests for benefits to this address. for payment of benefits determined by or are receiving, or have received VA under the Montgomery GI Bill— DATES: Comments on the information education benefit payments under the Active Duty and the Montgomery GI Montgomery GI Bill. These benefit collection should be directed to the Bill—Selected Reserve. OMB Desk Officer on or before March records are contained in a VA system of DATES: This match will commence on 30, 1995. records identified as 58VA21/22 March 30, 1995. The departments may entitled: Compensation, Pension, Dated: February 21, 1995. renew the agreement for another 12 Education and Rehabilitation Records— By direction of the Secretary. months at that time. VA, last published in the Federal Ronald C. Taylor, FOR FURTHER INFORMATION CONTACT: Register at 55 FR 28508. Management Analyst. John L. Fox (224), Assistant Director for e. Date of the matching program: The Procedures and Systems, Education Extension match will begin on March 30, 1995. Service, Veterans Benefits f. Address for receipt of public 1. Status of Loan Account— Administration, Department of Veterans inquiries or comments: Members of the Foreclosure or Other Liquidation, VA Affairs, 810 Vermont Avenue, NW, public who wish to submit written Form Letter 26–567. Washington, DC 20420 (202) 273–7182. comments or inquiries may write to: R. 2. This form letter is used by VA to SUPPLEMENTARY INFORMATION: Further J. Vogel, Under Secretary for Benefits obtain information from holders information regarding the matching (22), Department of Veterans Affairs, concerning the status of a loan account program is provided below. This 810 Vermont Avenue, NW., at the time of foreclosure or other information is required by paragraph 6c Washington, DC 20420. liquidation action. of the Guidelines on the Conduct of Matching Programs issued by the Office Approved: February 9, 1995. 3. Businesses or other for-profit. of Management and Budget (OMB) (54 Jesse Brown, 4. 12,664 hours. FR 25818), as amended by OMB Secretary of Veterans Affairs. 5. 30 minutes. Circular A–130, 59 FR 37906 (1994). A [FR Doc. 95–4786 Filed 2–27–95; 8:45 am] 6. On occasion. copy of this notice has been provided to BILLING CODE 8320±01±M 10897 Sunshine Act Meetings Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 This section of the FEDERAL REGISTER STATUS: Closed. Transportes Aereos Ejectivos, S.A. contains notices of meetings published under MATTERS TO BE CONSIDERED: Surveillance (TAESA), Learjet 25D, XA-BBA, the ``Government in the Sunshine Act'' (Pub. Matters. Dulles International Airport, L. 94-409) 5 U.S.C. 552b(e)(3). CONTACT PERSON FOR MORE INFORMATION: Chantilly, Virginia, June 18, 1994. Jean A. Webb, 202–254–6314. 6354A—Opinion and Order: Administrator v. Bielecki, et al, COMMODITY FUTURES TRADING COMMISSION Jean A. Webb, Dockets SE–9244–9249; disposition of TIME AND DATE: 11:00 a.m., Friday, Secretary of the Commission. respondents’ appeals. March 3, 1995. [FR Doc. 95–5072 Filed 2–24–95; 3:28 pm] NEWS MEDIA CONTACT: Telephone: (202) PLACE: 2033 K. St., N.W., Washington, BILLING CODE 6351±01±M 382–0660. D.C. 8th Floor Hearing Room. FOR MORE INFORMATION CONTACT: Bea STATUS: Closed. COMMODITY FUTURES TRADING Hardesty, (202) 382–6525. MATTERS TO BE CONSIDERED: Surveillance COMMISSION. Matters. Dated: February 24, 1995. CONTACT PERSON FOR MORE INFORMATION: TIME AND DATE: 11:00 a.m., Friday, Bea Hardesty, Jean A. Webb, 202–254–6314. March 24, 1995. Federal Register Liaison Officer. [FR Doc. 95–4966 Filed 2–24–95; 10:39 am] Jean A. Webb, PLACE: 2033K St., N.W., Washington, D.C. 8th Floor Hearing Room. BILLING CODE 7533±01±P Secretary of the Commission [FR Doc. 95–5069 Filed 2–24–95; 3:28 pm] STATUS: Closed. BILLING CODE 6351±01±M MATTERS TO BE CONSIDERED: Surveillance NUCLEAR REGULATORY COMMISSION Matters. DATE: Weeks of February 27, March 6, CONTACT PERSON FOR MORE INFORMATION: COMMODITY FUTURES TRADING COMMISSION 13, and 20, 1995. Jean A. Webb, 202–254–6314. PLACE: Commissioners’ Conference TIME AND DATE: 10:00 a.m., Monday, Jean A. Webb, Room, 11555 Rockville Pike, Rockville, March 6, 1995. Secretary of the Commission. Maryland. PLACE: 2033 K St., N.W., Washington, [FR Doc. 95–5073 Filed 2–24–95; 3:28 pm] STATUS: Public and Closed. D.C. 8th Floor Hearing Room. BILLING CODE 6351±01±M STATUS: Closed. MATTERS TO BE CONSIDERED: MATTERS TO BE CONSIDERED: Week of February 27 Enforcement Matters. COMMODITY FUTURES TRADING COMMISSION. Tuesday, February 28 CONTACT PERSON FOR MORE INFORMATION: 10:00 a.m. TIME AND DATE: 11:00 a.m., Friday, Jean A. Webb, 202–254–6314. Briefing by OIG on Special Evaluation Jean A. Webb, March 31, 1995. (Public Meeting) Secretary of the Commission PLACE: 2033K St., N.W., Washington, (Contact: Robert Shideler, 301–415–5972) [FR Doc. 95–5070 Filed 2–24–95; 3:28 pm] D.C. 8th Floor Hearing Room. 11:30 a.m. STATUS: Closed. Affirmation/Discussion and Vote (Public BILLING CODE 6351±01±M Meeting) MATTERS TO BE CONSIDERED: Surveillance *(Please Note: This item will be affirmed Matters. COMMODITY FUTURES TRADING COMMISSION immediately following the conclusion of CONTACT PERSON FOR MORE INFORMATION: the preceding meeting.) TIME AND DATE: 11:00 a.m., Friday, Jean A. Webb, 202–254–6314. a. Curators of the University of Missouri— March 10, 1995. Appeal of LBP–91–31 and LBP–91–34 Jean A. Webb, PLACE: (Tentative) 2033 K St. NW., Washington, DC, Secretary of the Commission. 8th Floor Hearing Room. (Contact: Roland Frye, 301–415–3505) [FR Doc. 95–5073 Filed 2–24–95; 3:28 pm] 2:00 p.m. STATUS: Closed. BILLING CODE 6351±01±M Discussion of Management Issues MATTERS TO BE CONSIDERED: Surveillance (Closed—Ex 2 and 6) Matters. Week of March 6—Tentative CONTACT PERSON FOR MORE INFORMATION: NATIONAL TRANSPORTATION SAFETY BOARD Thursday, March 9 Jean A. Webb, 202–254–6314. TIME AND PLACE: 9:30 a.m., Tuesday, Jean A. Webb, March 7, 1995. 2:00 p.m. Secretary of the Commission. Briefing on Performance Indicators in PLACE: The Board Room, 5th Floor, 490 Materials Performance Evaluation [FR Doc. 95–5071 Filed 2–24–95; 3:28 pm] L’Enfant Plaza, S.W., Washington, D.C. Program (Public Meeting) BILLING CODE 6351±01±M 20594. (Contact: George Pangburn, 301–415–7266) STATUS: The first item is open to the 3:30 p.m. Affirmation/Discussion and Vote (Public COMMODITY FUTURES TRADING public. The last item is closed under Exemption 10 of the Government in Meeting) (if needed) COMMISSION. Sunshine Act. Week of March 13—Tentative TIME AND DATE: 11:00 a.m., Friday, Tuesday, March 14 MATTERS TO BE CONSIDERED: March 17, 1995. 10:00 a.m. PLACE: 2033 K St., N.W., Washington, 6527—Aviation Accident Report: Briefing on Investigative Matters (Closed— D.C. 8th Floor Hearing Room. Controlled Collision with Terrain, Ex. 5 and 7) 10898 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Sunshine Act Meetings Wednesday, March 15 (recording)—(301) 415–1292. Contact PLACE: Room 101, 500 E Street S.W., 2:00 p.m. person for more information: William Washington, DC 20436. Briefing on Proposed Changes to NRC Fee Hill—(301) 415–1661. STATUS: Rule (Public Meeting) * * * * * (Contact: Jesse Funches, 301–415/7322) This notice is distributed by mail to several 1. Agenda for future meeting. 3:30 p.m. hundred subscribers; if you no longer wish Affirmation/Discussion and Vote (Public to receive it, or would like to be added to it, 2. Minutes. Meeting) (if needed) please contact the Office of the Secretary, 3. Ratification List. Attn: Operations Branch, Washington, D.C. Week of March 20—Tenative 20555 (301–415–1963). 4. Inv. Nos. 731–TA–684–685 (Final) In addition, distribution of this meeting Wednesday, March 22 (Fresh Cut Roses from Colombia and notice over the internet system will also Ecuador)—briefing and vote. 10:00 a.m. become available in the near future. If you Briefing on Status of Action Plan for Fuel are interested in receiving this Commission 5. Inv. No. 731–TA–718 (Final) Cycle Facilities (Public Meeting) meeting schedule electronically, please send (Glycine from China)—briefing and (Contact: John Hickey, 301–415–7192) an electronic message to [email protected] or vote. 11:30 a.m. [email protected]. 6. Outstanding action jackets: none. Affirmation/Discussion and Vote (Public * * * * * Meeting) (if needed) Dated: February 24, 1995. In accordance with Commission Note: Affirmation sessions are initially William M. Hill, Jr., policy, subject matter listed above, not scheduled and announced to the public on a SECY Tracking Officer, Office of the disposed of at the scheduled meeting, time-reserved basis. Supplementary notice is Secretary. may be carried over to the agenda of the provided in accordance with the Sunshine following meeting. Act as specific items are identified and added [FR Doc. 95–5051 Filed 2–24–95; 3:01 pm] to the meeting agenda. If there is no specific BILLING CODE 7590±01±M Issued: February 24, 1995. subject listed for affirmation, this means that By order of the Commission. no item has as yet been identified as UNITED STATES INTERNATIONAL TRADE Donna R. Koehnke, requiring any Commission vote on this date. COMMISSION Secretary. *The schedule for Commission meetings is subject to change on short notice. To TIME AND DATE: March 3, 1995 at 2:30 [FR Doc. 95–5077 Filed 2–24–95; 4:01 pm] verify the status of meetings call p.m. BILLING CODE 7020±02±P federal register February 28,1995 Tuesday France, etal.;Notices Roller Bearings)andPartsThereofFrom Antifriction Bearings(OtherThanTapered International TradeAdministration Commerce Department of Part II 10899 10900 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices DEPARTMENT OF COMMERCE respondent firms listed below, at the Corp., SST Bearing Corp., and Peer Office of Antidumping Compliance, International (Peer) with respect to International Trade Administration International Trade Administration, subject merchandise from Japan. Import Administration, U.S. Department [A±427±801, A±428±801, A±588±804, A±559± General Bearing Corp. and SST Bearing 801, A±401±801, A±549±801, A±412±801] of Commerce, 14th Street and Corp. informed us that they neither Constitution Avenue, NW., Washington, produced AFBs in Japan nor exported Antifriction Bearings (Other Than DC 20230; telephone: (202) 482–4733. Japanese-produced bearings to the Tapered Roller Bearings) and Parts France United States. Peer informed us that Thereof From France, et al.; Final although it is a reseller of Japanese- Results of Antidumping Duty Jacqueline Arrowsmith (SKF, SNR), made bearings, all of its suppliers had Administrative Reviews, Partial Kris Campbell (SNFA), Matthew knowledge at the time of sale that the Termination of Administrative Rosenbaum (Franke & Heydrich, Hoesch merchandise was destined for the Rothe Erde, Rollix Defontaine), or Reviews, and Revocation in Part of United States. Consequently, Peer is not Michael Rill. Antidumping Duty Orders a reseller as defined in 19 CFR 353.2(s) Germany because its sales cannot be used to AGENCY: International Trade calculate U.S. price (USP). Administration, Import Administration, Jacqueline Arrowsmith (SKF), Kris Department of Commerce. Campbell (FAG), Carlo Cavagna (NTN Revocations In Part Kugellagerfabrik), Davina Friedmann ACTION: Notice of Final Results of (INA), Charles Riggle (Fichtel & Sachs, In accordance with § 353.25(a)(2) of Antidumping Duty Administrative GMN), Matthew Rosenbaum (Franke & the Department’s regulations (19 CFR Reviews, Partial Termination of Heydrich, Hoesch Rothe Erde, Rollix 353.25(a)(2)), the Department is Administrative Reviews, and Defontaine), or Michael Rill. Revocation in Part of Antidumping Duty revoking the antidumping duty orders Orders. Japan covering the following companies and merchandise: Carlo Cavagna (Honda, Nachi, NTN), SUMMARY: On February 28, 1994, the William Czajkowski (Takeshita), J. Spherical plain bearings from France—SKF Department of Commerce (the David Dirstine (NSK, Koyo), Joseph Spherical plain bearings from Japan—Honda Department) published the preliminary Fargo (Nankai Seiko), Michael Panfeld Ball bearings from Japan—Honda results of its administrative reviews of (IKS, NPBS), or Richard Rimlinger. Cylindrical roller bearings from Japan— the antidumping duty orders on Honda antifriction bearings (other than tapered Singapore roller bearings) and parts thereof (AFBs) William Czajkowski (NMB/Pelmec), All of the above firms have submitted, from France, Germany, Japan, or Richard Rimlinger. in accordance with 19 CFR 353.25(b), Singapore, Sweden, Thailand and the requests for revocation of the orders United Kingdom. The classes or kinds of Sweden with respect to their sales of the merchandise covered by these reviews Matthew Rosenbaum (SKF), or merchandise in question. They have are ball bearings and parts thereof, Michael Rill. also demonstrated three consecutive cylindrical roller bearings and parts years of sales at not less than foreign thereof, and spherical plain bearings Thailand market value (FMV) and have submitted and parts thereof, as described in more William Czajkowski (NMB/Pelmec), the required certifications. All of these detail below. The reviews cover 29 or Richard Rimlinger. firms have agreed in writing to their manufacturers/exporters. The review United Kingdom immediate reinstatement in the order, as period is May 1, 1992, through April 30, long as any producer or reseller is 1993. Jacqueline Arrowsmith (RHP/NSK), subject to the order, if the Department Based on our analysis of the Kris Campbell (Barden/FAG), or concludes under 19 CFR 353.22(f) that comments received, we have made Michael Rill. the firm, subsequent to the revocation, changes, including corrections of certain SUPPLEMENTARY INFORMATION: sold the merchandise at less than FMV. inadvertent programming and clerical Furthermore, it is not likely that they Background errors, in the margin calculations. will sell the subject merchandise at less Therefore, the final results differ from On February 28, 1994, the Department than FMV in the future. Therefore, the the preliminary results. The final published in the Federal Register the Department is revoking the orders with weighted-average dumping margins for preliminary results of its administrative respect to the indicated companies. the reviewed firms for each class or kind reviews of the antidumping duty orders of merchandise are listed below in the on antifriction bearings (other than Scope of Reviews tapered roller bearings) and parts section entitled ‘‘Final Results of The products covered by these Review.’’ thereof (AFBs) from France, Germany, Japan, Singapore, Sweden, Thailand and reviews are AFBs, and constitute the The Department also is revoking the following ‘‘classes or kinds’’ of antidumping duty orders with respect to the United Kingdom (59 FR 9463). We gave interested parties an opportunity to merchandise: Ball bearings and parts the following companies and thereof (BBs), cylindrical roller bearings merchandise: comment on our preliminary results. At the request of certain interested and parts thereof (CRBs), and spherical Spherical plain bearings from France—SKF parties, we held a public hearing on plain bearings and parts thereof (SPBs). Spherical plain bearings from Japan—Honda general issues pertaining to all countries For a detailed description of the Ball bearings from Japan—Honda on March 28, 1994, and hearings on products covered under these classes or Cylindrical roller bearings from Japan— kinds of merchandise, including a Honda case-specific issues as follows: Germany on March 29, 1994; and Japan on March compilation of all pertinent scope EFFECTIVE DATE: February 28, 1995. 30, 1994. determinations, see the ‘‘Scope FOR FURTHER INFORMATION CONTACT: The We are terminating the administrative Appendix’’ which is appended to this appropriate case analyst, for the various reviews initiated for General Bearing notice of final results. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10901 Best Information Available AFBs are addressed in the ‘‘Issues exporter’s sales for each relevant class In accordance with section 776(c) of Appendix’’ which is appended to this or kind during the review period under the Tariff Act of 1930, as amended (the notice of final results. each order. In order to derive a single deposit rate Act), we have determined that the use Final Results of Reviews of the best information available (BIA) is for each class or kind of merchandise for We determine the following appropriate for a number of firms. For each respondent (i.e., each exporter or percentage weighted-average margins to certain firms, total BIA was necessary, manufacturer included in these exist for the period May 1, 1992, reviews), we weight-averaged the while for other firms, only partial BIA through April 30, 1993: purchase price (PP) and exporter’s sales was applied. For a discussion of our price (ESP) deposit rates (using the USP application of BIA, see the ‘‘Best Company BBs CRBs SPBs of PP sales and ESP sales, respectively, Information Available’’ section of the as the weighting factors). To accomplish Issues Appendix. France this where we sampled ESP sales, we Sales Below Cost in the Home Market first calculated the total dumping Franke & Hey- The Department disregarded sales drich ...... 66.42 (2)(2) margins for all ESP sales during the below cost for the following firms and Hoesch Rothe review period by multiplying the classes or kinds of merchandise: Erde ...... (1)(2)(2) sample ESP margins by the ratio of total Rollix Defontaine (1)(2)(2) weeks in the review period to sample Class or kind SKF ...... 3.45 (1) 0.00 weeks. We then calculated a total net Country Company of merchan- SNFA ...... 66.42 18.37 (2) USP value for all ESP sales during the dise SNR ...... 1.91 2.58 (2) review period by multiplying the sample ESP total net value by the same France ...... SKF ...... BBs, SPBs. Germany ratio. We then divided the combined SNR ...... BBs, CRBs. Germany ...... FAG ...... BBs, CRBs. total dumping margins for both PP and FAG ...... 11.80 19.64 18.79 ESP sales by the combined total USP INA ...... BBs, CRBs. Fichtel & Sachs . 14.83 (2)(2) SKF ...... BBs, CRBs, Franke & Hey- value for both PP and ESP sales to SPBs. drich ...... 132.25 (2)(2) obtain the deposit rate. Japan ...... Koyo ...... BBs, CRBs. GMN ...... 35.43 (2)(2) We will direct Customs to collect the Nachi ...... BBs, CRBs. Hoesch Rothe resulting percentage deposit rate against NPBS ...... BBs. Erde ...... (1)(2)(2) the entered Customs value of each of the NSK ...... BBs, CRBs. INA ...... 29.80 10.88 (2) exporter’s entries of subject NTN ...... BBs, CRBs, NTN ...... 8.41 (1)(1) merchandise entered, or withdrawn SPBs. Rollix Defontaine (1)(2)(2) from warehouse, for consumption on or Singapore ...... NMB/ BBs. SKF ...... 15.53 11.16 22.44 Pelmec. after the date of publication of this Sweden ...... SKF ...... BBs, CRBs. notice. Japan Thailand ...... NMB/ BBs. Entries of parts incorporated into Pelmec. finished bearings before sales to an United Kingdom RHP ...... BBs, CRBs. Honda ...... 0.37 0.01 0.01 unrelated customer in the United States IKS ...... 8.72 (2)(2) Barden/ BBs. 1 will receive the exporter’s deposit rate FAG. Koyo ...... 39.56 3.55 ( ) Nachi ...... 12.46 1.03 (2) for the appropriate class or kind of Nankai Seiko ..... 1.08 (2)(2) merchandise. Changes Since the Preliminary Results NPBS ...... 18.00 (2)(2) Furthermore, the following deposit Based on our analysis of comments NSK ...... 10.47 9.10 (1) requirements will be effective upon received, we have made the following NTN ...... 13.90 13.71 4.97 publication of this notice of final results changes in these final results. Takeshita ...... 14.58 (2)(2) of administrative review for all • Where applicable, certain shipments of AFBs entered, or programming and clerical errors in our Singapore withdrawn from warehouse, for preliminary results have been corrected. consumption on or after the date of Any alleged programming or clerical NMB/Pelmec ..... 4.84 publication, as provided by section errors with which we do not agree are 751(a)(1) of the Act: (1) The cash deposit Sweden discussed in the relevant sections of the rates for the reviewed companies will be the rates shown above, except that for Issues Appendix. SKF ...... 16.41 13.02 • Pursuant to the decision of the firms whose weighted-average margins are less than 0.50 percent, and therefore United States Court of Appeals for the Thialand Federal Circuit in Ad Hoc Committee of de minimis, the Department shall not AZ–NM–TX–FL Producers of Gray NMB/Pelmec ..... 0.01 require a deposit of estimated Portland Cement v. United States, 13 antidumping duties; (2) for previously F.3d 398 (CAFC 1994) (Ad Hoc Comm.), United Kingdom reviewed or investigated companies not we have allowed a deduction for pre- listed above, the cash deposit rate will sale inland freight in the calculation of Barden/FAG ...... 4.86 8.22 continue to be the company-specific rate foreign market value only as an indirect RHP/NSK ...... 14.57 19.71 published for the most recent period; (3) selling expense under 19 CFR 353.56(b), 1 No U.S. sales during the review period. if the exporter is not a firm covered in except where such expenses have been 2 No review requested. this review, a prior review, or the original less-than-fair-value (LTFV) shown to be directly related to sales. Cash Deposit Requirements investigation, but the manufacturer is, Analysis of Comments Received To calculate the cash deposit rate for the cash deposit rate will be the rate All issues raised in the case and each exporter, we divided the total established for the most recent period rebuttal briefs by parties to these 15 dumping margins for each exporter by for the manufacturer of the concurrent administrative reviews of the total net USP value for that merchandise; and (4) the cash deposit 10902 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices rate for all other manufacturers or reviewed those sales of merchandise A. Advertising and Promotional Expenses exporters will continue to be the ‘‘All actually entered during the POR. B. Technical Services and Warranty Others’’ rate for the relevant class or In the case of companies which did Expenses kind and country made effective by the not report entered value of sales, we C. Inventory Carrying Costs final results of review published on July calculated a proxy for entered value of D. Post-Sale Warehousing E. Commissions 26, 1993 (see Final Results of sales, based on the price information F. Credit Antidumping Duty Administrative available and appropriate adjustments G. Indirect Selling Expenses Reviews and Revocation in Part of an (e.g., insurance, freight, U.S. brokerage H. Miscellaneous Charges Antidumping Duty Order, 58 FR 39729, and handling, U.S. profit, and any other 5. Cost of Production and Constructed July 26, 1993). These rates are the ‘‘All items, as appropriate, on a company- Value Others’’ rates from the relevant LTFV specific basis). A. Research and Development investigations. For calculation of the ESP assessment B. Profit for Constructed Value These deposit requirements, when rate, entries for which liquidation was C. Related Party Inputs imposed, shall remain in effect until suspended, but which ultimately fell D. Inventory Write-off publication of the final results of the outside the scope of the orders through E. Interest Expense Offset operation of the ‘‘Roller Chain’’ rule, are F. Other Issues next administrative reviews. 6. Discounts, Rebates and Price included in the assessment rate Assessment Rates Adjustments denominator to avoid over-collecting. 7. Families, Model Match and Differences The Department shall determine, and (The ‘‘Roller Chain’’ rule excludes from in Merchandise the Customs Service shall assess, the collection of antidumping duties 8. Further Manufacturing and Roller Chain antidumping duties on all appropriate bearings which were imported by a 9. Level of Trade entries. Because sampling and other related party and further processed, and 10. Packing and Movement Expenses simplification methods prevent entry- which comprise less than one percent of 11. Related Parties by-entry assessments, we will calculate the finished product sold to the first 12. Samples, Prototypes and Ordinary wherever possible an exporter/importer- unrelated customer in the United States. Courses of Trade specific assessment rate for each class or 13. Taxes, Duties and Drawback See the section on Further 14. U.S. Price Methodology kind of antifriction bearings. Manufacturing and the ‘‘Roller Chain’’ 15. Accuracy of the Home Market Database 1. Purchase Price Sales Rule in the Issues Appendix.) 16. Miscellaneous Issues This notice also serves as a final A. Verification With respect to PP sales for these final reminder to importers of their B. Database Problems results, we divided the total dumping responsibility under 19 CFR 353.26 to C. Home Market Viability margins (calculated as the difference file a certificate regarding the D. Scope Ruling between FMV and USP) for each reimbursement of antidumping duties E. Pre-Final Reviews importer by the total number of units prior to liquidation of the relevant F. Termination Requests sold to that importer. We will direct entries during this review period. G. Programming H. Disclosure Customs to assess the resulting unit Failure to comply with this requirement dollar amount against each unit of I. Revocation could result in the Secretary’s J. No Sales During Period of Review merchandise in each of that importer’s presumption that reimbursement of entries under the relevant order during antidumping duties occurred and the Scope Appendix the review period. Although this will subsequent assessment of double A. Description of the Merchandise result in assessing different percentage antidumping duties. margins for individual entries, the total This notice also serves as the only The products covered by these orders, antidumping duties collected for each reminder to parties subject to antifriction bearings (other than tapered importer under each order for the administrative protective orders (APO) roller bearings), mounted or review period will be almost exactly of their responsibility concerning the unmounted, and parts thereof (AFBs), equal to the total dumping margins. return or destruction of proprietary constitute the following classes or kinds of merchandise: 2. Exporter’s Sales Price Sales information disclosed under APO in accordance with 19 CFR 353.34(d). 1. Ball Bearings and Parts Thereof: For ESP sales (sampled and non- Failure to comply is a violation of the These products include all AFBs that sampled), we divided the total dumping APO. employ balls as the roller element. margins for the reviewed sales by the These administrative reviews and this Imports of these products are classified total entered value of those reviewed notice are in accordance with section under the following categories: sales for each importer. We will direct 751(a)(1) of the Act (19 U.S.C. Antifriction balls, ball bearings with Customs to assess the resulting 1675(a)(1)) and 19 CFR 353.22. integral shafts, ball bearings (including percentage margin against the entered radial ball bearings) and parts thereof, Customs values for the subject Dated: January 31, 1995. and housed or mounted ball bearing merchandise on each of that importer’s Susan G. Esserman, units and parts thereof. Imports of these entries under the relevant order during Assistant Secretary for Import products are classified under the the review period. While the Administration. following Harmonized Tariff Schedule Department is aware that the entered Scope Appendix Contents (HTS) subheadings: 3926.90.45, value of sales during the period of A. Description of the Merchandise 4016.93.00, 4016.93.10, 4016.93.50, review (POR) is not necessarily equal to B. Scope Determinations 6909.19.5010, 8431.20.00, 8431.39.0010, the entered value of entries during the Issues Appendix Contents 8482.10.10, 8482.10.50, 8482.80.00, POR, use of entered value of sales as the • 8482.91.00, 8482.99.05, 8482.99.10, basis of the assessment rate permits the Abbreviations 8482.99.35, 8482.99.6590, 8482.99.70, • Comments and Responses Department to collect a reasonable 1. Annual Period of Review Averaging 8483.20.40, 8483.20.80, 8483.50.8040, approximation of the antidumping 2. Assessment and Duty Deposits 8483.50.90, 8483.90.20, 8483.90.30, duties which would have been 3. Best Information Available 8483.90.70, 8708.50.50, 8708.60.50, determined if the Department had 4. Circumstance-of-Sale Adjustments 8708.60.80, 8708.70.6060, 8708.70.8050, Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10903 8708.93.30, 8708.93.5000, 8708.93.6000, bearing is covered by the orders. Scope rulings completed between 8708.93.75, 8708.99.06, 8708.99.31, Bearings designed for highly specialized April 1, 1990, and June 30, 1990. See 8708.99.4960, 8708.99.50, 8708.99.5800, applications are not excluded. Any of Scope Rulings, 55 FR 42750 (October 23, 8708.99.8080, 8803.10.00, 8803.20.00, the subject bearings, regardless of 1990): 8803.30.00, 8803.90.30, 8803.90.90. whether they may ultimately be utilized Products excluded: 2. Cylindrical Roller Bearings, in aircraft, automobiles, or other • Antifriction bearings, including Mounted or Unmounted, and Parts equipment, are within the scope of these integral shaft ball bearings, used in Thereof: These products include all orders. textile machinery and imported with AFBs that employ cylindrical rollers as B. Scope Determinations attachments and augmentations the rolling element. Imports of these sufficient to advance their function products are classified under the The Department has issued numerous beyond load-bearing/friction-reducing following categories: Antifriction clarifications of the scope of the orders. capability rollers, all cylindrical roller bearings The following is a compilation of the (including split cylindrical roller scope rulings and determinations the Scope rulings completed between July bearings) and parts thereof, housed or Department has made. 1, 1990, and September 30, 1990. See mounted cylindrical roller bearing units Scope determinations made in the Scope Rulings, 55 FR 43020 (October 25, and parts thereof. Final Determinations of Sales at Less 1990): Imports of these products are than Fair Value; Antifriction Bearings Products covered: classified under the following HTS (Other Than Tapered Roller Bearings) • Rod ends subheadings: 3926.90.45, 4016.93.00, and Parts Thereof from the Federal • Clutch release bearings • 4016.93.10, 4016.93.50, 6909.19.5010, Republic of Germany (AFBs Ball bearings used in the manufacture 8431.20.00, 8431.39.0010, 8482.40.00, Investigation of SLTFV), 54 FR 19006, of helicopters • 8482.50.00, 8482.80.00, 8482.91.00, 19019 (May 3, 1989): Ball bearings used in the manufacture of disk drives 8482.99.25, 8482.99.35, 8482.99.6530, Products covered: 8482.99.6560, 8482.99.6590, 8482.99.70, Scope rulings completed between • Rod end bearings and parts thereof 8483.20.40, 8483.20.80, 8483.50.8040, • AFBs used in aviation applications April 1, 1991, and June 30, 1991. See 8483.90.20, 8483.90.30, 8483.90.70, • Aerospace engine bearings Notice of Scope Rulings, 56 FR 36774 8708.50.50, 8708.60.50, 8708.93.5000, • Split cylindrical roller bearings (August 1, 1991): 8708.99.4000, 8708.99.4960, 8708.99.50, • Wheel hub units Products excluded: 8708.99.8080, 8803.10.00, 8803.20.00, • Slewing rings and slewing bearings • Textile machinery components 8803.30.00, 8803.90.30, 8803.90.90. (slewing rings and slewing bearings including false twist spindles, belt 3. Spherical Plain Bearings, Mounted were subsequently excluded by the guide rollers, separator rollers, or Unmounted, and Parts Thereof: International Trade Commission’s damping units, rotor units, and These products include all spherical negative injury determination. See tension pulleys plain bearings that employ a spherically International Trade Commission: shaped sliding element, and include Scope rulings published in Antifriction Bearings (Other Than Antifriction Bearings (Other Than spherical plain rod ends. Tapered Roller Bearings) and Parts Imports of these products are Tapered Roller Bearings) and Parts Thereof from the Federal Republic of classified under the following HTS Thereof; Final Results of Antidumping Germany, France, Italy, Japan, subheadings: 3926.90.45, 4016.93.00, Administrative Review (AFBs I), 56 FR Romania, Singapore, Sweden, 4016.93.10, 4016.93.50, 6909.19.5010, 31692, 31696 (July 11, 1991): Thailand and the United Kingdom, 54 8483.30.80, 8483.90.30, 8485.90.00, Products covered: FR 21488 (May 18, 1989). 8708.93.5000, 8708.99.50, 8803.10.00, • Load rollers and thrust rollers, also • Wave generator bearings 8803.20.00, 8803.30.00, 8803.90.30, called mast guide bearings • Bearings (including mounted or 8803.90.90. • Conveyor system trolley wheels and housed units, and flanged or The HTS item numbers are provided chain wheels enhanced bearings) ultimately for convenience and Customs purposes. Scope rulings completed between July utilized in textile machinery They are not determinative of the 1, 1991, and September 30, 1991. See products subject to the orders. The Products excluded: Scope Rulings, 56 FR 57320 (November written description remains dispositive. • Plain bearings other than spherical 8, 1991): Size or precision grade of a bearing plain bearings Products covered: • does not influence whether the bearing Airframe components unrelated to the • Snap rings and wire races is covered by the orders. These orders reduction of friction • Bearings imported as spare parts cover all the subject bearings and parts • Linear motion devices • Custom-made specialty bearings thereof (inner race, outer race, cage, • Split pillow block housings • Products excluded: rollers, balls, seals, shields, etc.) Nuts, bolts, and sleeves that are not • outlined above with certain limitations. integral parts of a bearing or attached Certain rotor assembly textile With regard to finished parts, all such to a bearing under review machinery components • Linear motion bearings parts are included in the scope of these • Thermoplastic bearings orders. For unfinished parts, such parts • Stainless steel hollow balls Scope rulings completed between are included if (1) they have been heat • Textile machinery components that October 1, 1991, and December 31, treated, or (2) heat treatment is not are substantially advanced in 1991. See Notice of Scope Rulings, 57 required to be performed on the part. function(s) or value FR 4597 (February 6, 1992): Thus, the only unfinished parts that are • Wheel hub units imported as part of Products covered: not covered by these orders are those front and rear axle assemblies; wheel • Chain sheaves (forklift truck mast that will be subject to heat treatment hub units that include tapered roller components) after importation. bearings; and clutch release bearings • Loose boss rollers used in textile The ultimate application of a bearing that are already assembled as parts of drafting machinery, also called top also does not influence whether the transmissions rollers 10904 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices • Certain engine main shaft pilot Products excluded: SKF Group—SKF-France; SKF- bearings and engine crank shaft • SAR series of ball bearings Germany; SKF-Sweden; SKF-UK; bearings • Certain eccentric locking collars that SKF USA, Inc. Scope rulings completed between are part of housed bearing units SNFA—SNFA Bearings, Ltd. January 1, 1992, and March 31, 1992. Scope rulings completed between SNR—SNR Roulements; SNR Bearings See Scope Rulings, 57 FR 19602 (May 7, October 1, 1993, and December 31, USA, Inc. 1992): 1993. See Scope Rulings, 59 FR 8910 Takeshita—Takeshita Seiko Company Torrington—The Torrington Company Products covered: (February 24, 1994). • Ceramic bearings Products excluded: Other Abbreviations • Roller turn rollers • Certain textile machinery components COP—Cost of Production • Clutch release systems that contain Scope rulings completed after March COM—Cost of Manufacturing rolling elements 31, 1994. CV—Constructed Value Products excluded: Products excluded: ESP—Exporter’s Sales Price FMV—Foreign Market Value • Clutch release systems that do not • Certain textile machinery components contain rolling elements HM—Home Market • Chrome steel balls for use as check Issues Appendix HMP—Home Market Price valves in hydraulic valve systems OEM—Original Equipment Company Abbreviations Manufacturer Scope rulings completed between Barden—The Barden Corporation (U.K.) POR—Period of Review April 1, 1992, and June 30, 1992. See Ltd.; The Barden Corporation PP—Purchase Price Scope Rulings, 57 FR 32973 (July 24, FAG-Germany—FAG Kugelfischer USP—United States Price 1992): Georg Schaefer KGaA DOC—Department of Commerce Products excluded: FAG–UK—FAG (UK) Ltd. AFBs LTFV Investigation—Final • Finished, semiground stainless steel Federal-Mogul—Federal-Mogul Determinations of Sales at Less balls Corporation than Fair Value; Antifriction • Stainless steel balls for non-bearing Fichtel & Sachs—Fichtel & Sachs AG; Bearings (Other Than Tapered use (in an optical polishing process) Sachs Automotive Products Co. Roller Bearings) and Parts Thereof Scope rulings completed between July GMN—Georg Muller Nurnberg AG; from the Federal Republic of 1, 1992, and September 30, 1992. See Georg Muller of America Germany, 54 FR 19006, 19019 (May Hoesch—Hoesch Rothe Erde AG Scope Rulings, 57 FR 57420 (December 3, 1989) Honda—Honda Motor Co., Ltd.; 4, 1992). AFBs I—Antifriction Bearings (Other American Honda Motor Co., Inc. Products covered: Than Tapered Roller Bearings) and INA—INA Walzlager Schaeffler KG; INA Parts Thereof from the Federal • Certain flexible roller bearings whose Bearing Company, Inc. Republic of Germany; Final Results component rollers have a length-to- IKS—Izumoto Seiko Co., Ltd. of Antidumping Duty diameter ratio of less than 4:1 Koyo—Koyo Seiko Co. Ltd. Administrative Review, 56 FR • Model 15BM2110 bearings Nachi—Nachi-Fujikoshi Corp.; Nachi America, Inc.; Nachi Technology 31692 (July 11, 1991) Products excluded: AFBs II—Antifriction Bearings (Other • Certain textile machinery components Inc. Nankai—Nankai Seiko Co., Ltd. Than Tapered Roller Bearings) and Scope rulings completed between NMB/Pelmec—NMB Singapore Ltd.; Parts Thereof From France, et al.; October 1, 1992, and December 31, Pelmec Industries (Pte.) Ltd.; NMB Final Results of Antidumping Duty 1992. See Scope Rulings, 58 FR 11209 Thai, Ltd.; Pelmec Thai, Ltd. Administrative Reviews, 57 FR (February 24, 1993). NPBS—Nippon Pillow Block 28360 (June 24, 1992) Products covered: Manufacturing Co., Ltd.; Nippon AFBs III—Final Results of Antidumping • Certain cylindrical bearings with a Pillow Block Sales Co., Ltd.; FYH Duty Administrative Reviews and length-to-diameter ratio of less than Bearing Units USA, Inc. Revocation in Part of an 4:1 NSK—Nippon Seiko K.K.; NSK Antidumping Duty Order, 58 FR 39729 (July 26, 1993) Products excluded: Corporation • NSK-Europe—NSK Bearings Europe, 1. Annual POR Averaging Certain cartridge assemblies Ltd. comprised of a machine shaft, a NTN-Germany—NTN Kugellagerfabrik Comment 1: NSK contends that, when machined housing and two standard (Deutschland) GmbH comparing annual average FMVs with bearings NTN—NTN Corporation; NTN Bearing PP transactions, the Department should Scope rulings completed between Corporation of America; American include in such FMVs only those HM January 1, 1993, and March 31, 1993. NTN Bearing Manufacturing models that match to PP sales, rather See Scope Rulings, 58 FR 27542 (May Corporation than HM models that match to both PP 10, 1993). Peer Int’l—Peer International, Ltd. and ESP sales. That is, the Department Products covered: RHP—RHP Bearings; RHP Bearings, Inc. should calculate two separate annual average FMVs, one based only on HM • Certain cylindrical bearings with a Rollix—Rollix Defontaine, S.A. models that match to PP sales, and one length-to-diameter ratio of less than SKF-France—SKF Compagnie based only on HM models that match to 4:1 d’Applications Mecaniques, S.A. (Clamart); ADR; SARMA ESP sales. This would involve Scope rulings completed between SKF-Germany—SKF GmbH; SKF conducting a separate price stability test April 1, 1993, and June 30, 1993. See Service GmbH; Steyr Walzlager on HM models that match to PP Scope Rulings, 58 FR 47124 (September SKF-Sweden—AB SKF; SKF transactions. NSK notes that the 7, 1993). Mekanprodukter AB; SKF Sverige Department treats PP transactions Products covered: SKF–UK—SKF (UK) Limited; SKF differently than ESP transactions, that • Certain series of INA bearings Industries; AMPEP Inc. FMVs are computed separately for ESP Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10905 and PP sales, and that different COS assessment rates by dividing total calculate the amount by which the FMV adjustments are made depending on antidumping duties due (calculated as exceeds the USP and assess whether FMV is matched to PP or ESP the difference between statutory FMV antidumping duties on the basis of that transactions. NSK requests that, if the and statutory USP for the sales reported amount. However, there is nothing in Department is unwilling to conduct a for the POR) by the entered values of the the statute that dictates how the actual separate price stability test on all HM merchandise actually entered during the assessment rate is to be determined from models matched to PP transactions, the POR (not by the entered values of the that amount. Department should use the monthly, merchandise actually sold during the In accordance with section 751, we rather than annual, weighted-average POR). Respondents argue that the calculated the difference between FMV FMVs for PP matches. Department’s current methodology can and USP (the dumping margin) for all Department’s Position: We disagree. lead to a substantial overcollection of reported U.S. sales. For PP sales we The HM price stability test, which dumping duties. have calculated assessment rates based allows for limited price fluctuations on Both Torrington and Federal-Mogul on the total of these differences for each a model-by-model basis, measures the argue that the Department’s importer divided by the total number of overall stability of HM prices for the methodology is valid. Torrington notes units sold to that importer. Therefore, class or kind of merchandise under that the Department concluded that the each importer is only liable for the consideration over the POR (see AFBs III current methodology is reasonable and duties related to its entries. In ESP at 39734). The test is designed for that it constitutes an appropriate use of cases, we generally cannot tie sales to determining whether HM sales prices the Department’s discretion to specific entries. In addition, the during the POR are stable enough to implement sampling and averaging calculation of specific antidumping allow the use of annual average, rather techniques as provided for in section duties for every entry made during the than monthly average, HM prices as the 777A of the Tariff Act. See AFBs I at POR is impossible where dumping basis of FMV. There is no reason to take 31694. Torrington states that since the margins have been based on sampling, into consideration whether particular U.S. sales used to calculate the dumping even if all sales could be tied to specific HM models are matched to PP or ESP margins are only a sample of the total entries. Hence, for ESP sales, in order to transactions as the type of U.S. sale is U.S. sales during the POR, application obtain an accurate assessment of not relevant to the question of whether of FAG’s proposed methodology would antidumping duties on all entries during HM prices are stable. Furthermore, the lead to substantial undercollection of the POR, we have expressed the fact that PP sales are distinguishable antidumping duties, unless the difference between FMV and USP as a from ESP sales, that ESP sales may be Department adjusts that methodology to percentage of the entered value of the sampled while PP sales are not, and that take into account all U.S. sales during examined sales for each exporter/ different COS adjustments are made the POR. importer (ad valorem rates). We will when comparing to PP and ESP sales are Torrington also states that both the direct the U.S. Customs Service to not relevant to whether the HM prices Department’s current methodology and assess antidumping duties by applying underlying FMVs are stable. In deciding FAG’s proposed methodology are that percentage to the entered value of whether to calculate POR weighted- deficient in that neither method ‘‘ties each of that importer’s entries of subject averaged FMVs we performed the tests entries to sales.’’ Torrington proposes merchandise under the relevant order outlined in our preliminary results on two methods for dealing with the during the POR. HM sales databases to determine problem of reviewed sales that do not This approach is equivalent to whether: (1) There was a minimal match to particular entries during the dividing the aggregate dumping variance between monthly and POR POR. First, Torrington suggests that the margins, i.e., the difference between weighted-average prices; and (2) there Department review entries rather than statutory FMV and statutory USP for all was any significant correlation between sales. Torrington points out that this sales reviewed, by the aggregate USP fluctuations in price and time. Thus, we method is not ideal because it could value of those sales and adjusting the conclude that our price stability test, place the Department in the position of result by the average difference between performed on a class or kind basis, does reviewing entries made during the POR USP and entered value for those sales. not need to be modified to distinguish that contained merchandise that was While we are aware that the entered between HM models matched to PP sold after the POR. Second, Torrington value of sales during the POR is not sales and those matched to ESP sales. proposes that the Department require necessarily equal to the entered value of respondents to submit adequate entries during the POR, use of entered 2. Assessment and Duty Deposits information to trace each entry directly value of sales as the basis of the Comment 1: The FAG Group (Barden, to the sale in the United States. assessment rate permits the Department FAG-Germany, and FAG–UK) and NSK Torrington observes that at present this to collect a reasonable approximation of contend that the Department’s method would be impossible because the antidumping duties that would have assessment rate methodology is flawed, the administrative record in this review been determined if we had reviewed and state that the Department acted does not permit tracing each sale to the those sales of merchandise actually contrary to law in basing assessment entry. entered during the POR. rates on the Customs entered values of Federal-Mogul states that the Comment 2: Federal-Mogul and those sales reviewed by the Department Department’s methodology is logical Torrington object to the Department’s for the POR, because the sales actually because it establishes a link between the policy of calculating the cash deposit reviewed by the Department for the POR values calculated on the basis of the rate as a percentage of statutory USP. may have involved merchandise entered sales analyzed and the actual They claim that this practice results in before the POR. Instead, respondents assessment values over time and, a systematic undercollection of duty claim that the Department should base therefore, avoids the distortions that deposits. Federal-Mogul and Torrington assessment rates on the Customs entered FAG’s alternative would engender. propose that the Department base its values of merchandise actually entered Department’s Position: We disagree deposit rate methodology on Customs during the POR, as submitted by with the FAG Group and NSK. As stated entered values because duty deposit respondents. Respondents maintain that in AFBs III (at 39737), section 751 of the rates are applied to entered value. the Department should determine Tariff Act requires that the Department Torrington states that the legislative 10906 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices history requires that the estimated indirect selling expense factors during subsidiary for duties and continue antidumping duty deposit rate be as the POR can and have changed dumping in the United States. accurate and as close to actual duties as significantly from the first part of the Torrington and Federal-Mogul also possible, given the information period to the second part. SKF claims argue that the amount of antidumping available. Hence, if the Department has the CIT recognized this situation in duties assessed on imports of subject the entered value data available for upholding the Department’s merchandise constitutes ‘‘additional calculating the assessment rates, it methodology in Federal-Mogul; Zenith costs, charges, and expenses, * ** should use this data. Electronics Corp. v. United States, 770 incident to bringing the merchandise Torrington contends that it is F. Supp. 648 (CIT 1991) and Daewoo from the place of shipment in the important to focus on the difference Electronics Co. v. United States, 712 F. country of exportation to the place of between the entered value used by Supp. 931 (CIT 1989). delivery in the United States,’’ as Customs to collect duties and the ESP SKF argues that Torrington’s provided in section 772(d)(2)(A) of the calculated by Commerce. Entered value illustration that ESP will always be Tariff Act. Furthermore, Torrington and is different from ESP because ESP greater than entered value is Federal-Mogul contend, the includes expenses, such as the value speculative. SKF points out that while Department’s regulations recognize that added tax, that are excluded from ESP includes additions for elements such duties, when reimbursed by a entered value. which are not included in entered foreign producer or exporter, constitute RHP, Koyo, FAG, NTN, NSK, and SKF value, certain expenses are subtracted a selling expense that must be deducted disagree with Torrington and Federal- from ESP which are included in entered from USP. Mogul. Respondents argue that it has value. NTN, RHP, SKF, and the FAG Group been the Department’s consistent contend that Torrington and Federal- Department’s Position: We disagree practice to use USP as the denominator Mogul have not provided credible with Torrington and Federal-Mogul. in calculating the cash deposit rate and arguments as to why the Department First, as we stated in the final results of to apply this rate to the entered value of should alter its position on this issue. AFBs I and AFBs III, we do not accept future imports of the subject The FAG Group states that the the argument that the deposit rate must merchandise. In support of this reimbursement regulation cannot apply be calculated in exactly the same argument, NTN notes that the Court has to ESP sales because in an ESP situation manner as the assessment rate. Section repeatedly upheld the Department’s the importer is the exporter. Hence, one methodology as reasonable and in 751 of the Tariff Act merely requires cannot reimburse oneself. The FAG accordance with the antidumping that both the deposit rate and the Group also states that Torrington’s and statute. NTN cites Federal-Mogul Corp. assessment rate be derived from the Federal-Mogul’s arguments are v. United States, 813 F. Supp. 856, 866– same FMV/USP differential. premature at best because respondents 67 (CIT 1993) (Federal-Mogul) , in Furthermore, under any method of have not yet been assessed with actual which the Court ruled that the calculating cash deposit rates, there antidumping duties—liquidation of all antidumping statute does not specify would be no certainty that the cash entries from November 1988 to date has that the same method should be used for deposit rate would cause an amount to remained suspended, and the only calculating both assessment rates and be collected that is equal to the amount payments made so far have been of cash deposit rates, and that the by which FMV exceeds USP. Duty estimated antidumping duties. Thus, Department’s methodology is deposits are merely estimates of future none of the reported ESP sales made by ‘‘reasonable and in accordance with the dumping liability. If the amount of the FAG (or any other principal respondent) law.’’ Thus, NSK states that the deposit is less than the amount could have included in the resale price Department should adhere to its ultimately assessed, the Department will amounts for assessed antidumping established practice and calculate instruct the U.S. Customs Service to duties. separate assessment and deposit rates. collect the difference with interest, as Koyo, NTN, and the FAG Group argue Respondents contend that provided for under sections 737 and 778 that there is no legal basis for Torrington’s and Federal-Mogul’s of the Tariff Act and 19 CFR 353.24. Torrington’s and Federal-Mogul’s arguments fail to adequately take into Comment 3: Torrington and Federal- argument that the Department should account that, under any method of Mogul contend that the Department treat antidumping duties as selling calculating cash deposit rates, cash should deduct from ESP any expenses to be deducted from USP. deposits are unlikely to equal the antidumping duties ‘‘effectively’’ Furthermore, respondents state that a amount by which FMV exceeds USP. reimbursed by foreign producers to their deduction of antidumping duties paid Furthermore, if any difference between U.S. affiliates. Torrington argues that in would violate Department and judicial the deposit rate and the ultimate past administrative reviews it has precedent. FAG notes that, in Federal- antidumping liability results, the identified and reviewed evidence of Mogul v. United States, Slip Op. 93–17 Department will instruct the Customs reimbursement of antidumping duties. at 40 (CIT 1993), the Court held that Service to collect or to refund the Torrington argues that the Department’s deposits of antidumping duties should difference with interest. decision not to deduct antidumping not be deducted from USP because such Respondents assert that Torrington duties from ESP in the previous review deposits are not analogous to deposits of has failed to demonstrate that its was contrary to the regulations and the ‘‘normal import duties.’’ methodology would result in a more law. Torrington finds justification for FAG and NSK contend that it is clear accurate estimation of the duty. removing antidumping duties from ESP that, in accordance with 19 USC 1673, Torrington’s claim is premised on the under 19 CFR 353.26, the Department’s which states that the purpose of assumption that the information on the reimbursement regulation, stating that antidumping law is to measure the record will remain constant from review by its own terms, it applies generally amount by which FMV exceeds USP, to review. Respondents hold that this is ‘‘[i]n calculating the United States antidumping duties should not be incorrect because even the record for a price.’’ Torrington maintains that if the deducted from USP. Respondents claim single POR reveals fluctuations in reimbursement regulation is not that making an additional deduction pricing and expenses and, therefore, in applicable in ESP situations, a foreign from USP for the same antidumping margin calculations. For example, producer can reimburse its related U.S. duties that correct discrimination Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10907 between the price of comparable goods may determine, on a case-by-case basis, to complete verification, we used in the U.S. and the foreign markets what is the BIA. second-tier BIA. The rate used was would result in double-counting. For the purposes of these final results GMN’s highest previous rate, which in FAG argues that, if the Department of review, in cases where we have this case was the rate from the LTFV agrees with Torrington’s position, it determined to use total BIA we applied investigation. should, to preserve comparability, add two tiers of BIA depending on whether to USP the amount of any antidumping the companies attempted to or refused Partial BIA duties, plus interest, that are refunded to cooperate in these reviews. When a In certain situations, we found it to respondents. company refused to provide the necessary to use partial BIA. Partial BIA Department’s Position: We disagree information requested in the form was applied in cases where we were with Torrington and Federal-Mogul that required, or otherwise significantly unable to use some portion of a the Department should deduct from ESP impeded the Department’s proceedings, response in calculating a dumping antidumping duties allegedly we assigned that company first-tier BIA, margin. The following is a general reimbursed by foreign producers to their which is the higher of: (1) The highest description of the Department’s U.S. affiliates. In this administrative of the rates found for any firm for the methodology for certain situations. review neither party has identified same class or kind of merchandise in In cases where the overall integrity of record evidence that there was the same country of origin in the LTFV the questionnaire response warrants a reimbursement of antidumping duties. investigation or a prior administrative calculated rate, but a firm failed to Evidence of reimbursement is necessary review; or (2) the highest calculated rate provide certain FMV information (i.e., before we can make an adjustment to found in this review for any firm for the corresponding HM sales within the USP. This has been our consistent same class or kind of merchandise in contemporaneous window or CV data interpretation of 19 CFR 353.26, the the same country of origin. for a few U.S. sales), we applied the reimbursement regulation, and was When a company has substantially second-tier BIA rate (see above) and upheld by the Court in Otokumpu cooperated with our requests for limited its application to the particular Copper Rolled Products AB v. United information including, in some cases, transactions involved. See Final Results States, 829 F.Supp. 1371 (CIT 1993). verification, but failed to provide of Antidumping Duty Administrative As stated in AFBs II (at 28371) and complete or accurate information, we Reviews and Revocation in Part of an AFBs III (at 39736), the antidumping assigned that company second-tier BIA, Antidumping Duty Order, Antifriction statute and regulations make no which is the higher of: (1) The highest Bearings (Other Than Tapered Roller distinction in the calculation of USP rate (including the ‘‘all others’’ rate) Bearings) and Parts Thereof From between costs incurred by a foreign ever applicable to the firm for the same France, et al., 58 FR 39729, 39739 (July parent company and those incurred by class or kind of merchandise from either 26, 1993). its U.S. subsidiary. Therefore, the the LTFV investigation or a prior Where any deductions to HM prices Department does not make adjustments administrative review or, if the firm has or CV, such as freight or differences in to USP based upon intracompany never before been investigated or merchandise, were not reported or were transfers of any kind. reviewed, the all others rate from the reported incorrectly, we have assigned a We also disagree with Torrington and LTFV investigation; or (2) the highest value of zero. For comparisons of Federal-Mogul that the amount of calculated rate in this review for the similar merchandise, if adjustment antidumping duties assessed on imports class or kind of merchandise for any information for differences in of subject merchandise constitutes a firm from the same country of origin. merchandise was missing from the U.S. selling expense and, therefore, should See Allied-Signal Aerospace Co. v. sales listing, we used the second-tier be deducted from ESP. Our position was United States, Slip Op. 93–1049 (June BIA rate to determine the margins for upheld in Federal-Mogul v. United 22, 1993 CAFC). We applied this these particular transactions. If other States, Slip Op. 93–17 at 40 (CIT 1993). methodology to the companies U.S. adjustment information such as We agree with respondents that discussed below for certain classes or freight charges was missing, we used making an additional deduction from kinds of merchandise. other transactional information in the USP for the same antidumping duties response for these expenses (i.e., freight that correct for price discrimination Results Based on Total BIA charges for other sales transactions). between comparable goods in the U.S. (1) Franke & Heydrich (Ball Bearings Where respondents did not establish and foreign markets would result in from France and Germany): We used that expenses were either indirect in the double-counting. Thus, we have not first-tier BIA because Franke & Heydrich U.S. market or direct in the HM, we deducted antidumping duties or failed to respond to the Department’s generally treated them as direct in the antidumping duty-related expenses questionnaire. In this case, the rate used U.S. market and indirect in the HM. See from ESP in this case. was the highest rate in the LTFV Final Results of Antidumping Duty investigation, which was the highest 3. Best Information Available Administrative Reviews and Revocation rate ever found for each relevant class in Part of an Antidumping Duty Order, Section 776(c) of the Tariff Act or kind of merchandise in the country Antifriction Bearings (Other Than requires the Department to use BIA of origin. Tapered Roller Bearings) and Parts ‘‘whenever a party or any other person (2) SNFA: We used first-tier BIA Thereof From France, et al., 58 FR refuses or is unable to produce because SNFA failed to respond to the 39729, 39739 (July 26, 1993). information requested in a timely Department’s questionnaire. The rate We received the following comments manner and in the form required, or used was the highest rate in the LTFV concerning BIA issues: otherwise significantly impedes an investigation which was the highest rate Comment 1: GMN asserts that use of investigation.’’ In deciding what to use ever found for each relevant class or ‘‘second-tier’’ BIA for GMN is not as BIA, the Department regulations kind or merchandise in the country of supported by substantial evidence and provide that the Department may take origin. is contrary to law. into account whether a party refuses to (3) GMN: Because GMN had GMN states that it promptly filed its provide requested information. See 19 substantially cooperated with our questionnaire responses, thoroughly CFR 353.37(b). Thus, the Department requests for information, but was unable answered all supplemental questions, 10908 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices and passed the HM sales verification verification. As for the unreported quantity adjustments due to the labor because no discrepancies were found in billing adjustments and unreporting of intensive task of matching them to a any of the items verified. GMN asserts certain HM sales, NPBS asserts that sale, its response was otherwise useable. that only a small number of items were their effect is insignificant and that the Comment 3: NSK claims that because not verified, mainly due to GMN’s Department disregarded these in the it fully cooperated with the manpower shortage and the absences of previous review. Furthermore, NPBS Department’s requests for information, certain key personnel during portions of asserts that its omission of HM sales the Department should not apply a the verification. It claims that because it (which caused a failure of verification) punitive BIA to a few unmatched could not complete the sales in the second administrative review is transactions that were incorrectly verification, the Department cancelled under appeal and is not relevant to the reported. the cost verification. GMN believes it is facts in this case. Torrington contends that the being penalized for the Department’s Furthermore, NPBS asserts that the Department reasonably invoked an decision not to conduct a cost Department should consider the adverse presumption that the margins verification. GMN argues that as a worst unreported billing adjustments to be on these few unmatched sales would case analysis, the Department should insignificant under 19 CFR 353.59 and have been higher than the margin on calculate a margin by applying partial to disregard these. At the least, NPBS remaining sales or the prior margin, and BIA only to those items which were not argues, the Department should disregard should continue to apply the current verified. those unreported billing adjustments for BIA margin for the final results. Department’s Position: We disagree which the ad valorem effect is less than Department’s Position: We agree with with GMN. GMN did substantially 0.33 percent. As for the unreported Torrington. Since NSK did not provide cooperate with our requests for sales, NPBS contends that, had the sales the correct information to match the information. However, we were not able been reported, the net effect would have U.S. and the HM transactions, we have to complete sales and cost verifications been to lower FMV for all but two of the applied a second-tier BIA rate to those of GMN’s response successfully. As models. Therefore, the Department few unmatched sales in calculating the stated by GMN, ‘‘the company made should disregard these sales. final dumping margin. We have made every attempt to complete this review In response to NPBS, Torrington the adverse assumption that the margins and has * * * now found that its argues that since the billing adjustments on unmatched sales would have been resources are so diminished * * * that were never reported, there is no basis higher than the margin on the remaining it is unable to proceed further in the for determining their insignificance. sales and have therefore applied a sales verification or to prepare for and Furthermore, the ad valorem effect is partial BIA to these unmatched conduct the cost verification.’’ See GMN above 0.33% for a significant number of transactions. letter dated January 13, 1994: models. As for the omission of ‘‘zero- 4. Circumstance-of-Sale Adjustments Withdrawal of Request for Review. priced’’ sales (i.e., certain HM sales), Consequently, we were unable to Torrington contends that the 4A. Advertising and Promotional satisfactorily verify GMN’s response, Department cannot allow NPBS to Expenses and therefore we have used second-tier customize its HM database by not Comment 1: Torrington states that BIA. The second-tier BIA rate was reporting sales and then manually NMB/Pelmec failed to demonstrate that GMN’s highest previous rate, which was changing the price. its reported U.S. advertising and sales from the LTFV investigation. Federal-Mogul states that the promotion expenses were indirect in Comment 2: Torrington asserts that Department correctly and reasonably nature. Torrington believes that the NPBS failed verification, and as such, applied a second-tier BIA to those Department should reclassify certain of the Department should apply a first-tier affected transactions in light of the the reported expenses as direct selling BIA rate to the entire NPBS response. seriousness of the omissions. expenses. In rebuttal, NMB/Pelmec Specifically, Torrington cites the NPBS Department’s Position: We disagree argues that at verification it provided Sales Verification Report dated March 1, with Torrington that we should reject the Department with sample 1994, and claims that, taken as a whole, NPBS’ response and use BIA for all U.S. advertisements demonstrating that they the following seven deficiencies sales. Although we did find a number of were indirect in nature. represent failure of verification: (1) deficiencies at verification, as a whole, Department’s Position: We agree with Failure to report certain HM sales, those deficiencies do not warrant the NMB/Pelmec. At the U.S. verification, which the Department has referred to as application of total BIA. Instead, for NMB/Pelmec provided samples of its ‘‘zero-priced sales’’ (NPBS Sales deficiencies three through seven, we U.S. advertisements and sales Verification Report), (2) failure to report have adjusted the data accordingly. For promotions and demonstrated that they HM billing adjustments, (3) a slight those U.S. sales whose matching FMV were not product specific or directed at overstatement of domestic inland freight was based on transactions affected by a specific customer. expenses, (4) a discrepancy between its either the unreported billing Comment 2: Torrington alleges that reported interest rate and its verified adjustments or the unreported ‘‘zero- Koyo failed to demonstrate that all of its discount rate, (5) an overstatement of priced’’ sales, we applied a second-tier reported U.S. advertising and promotion indirect advertising and sales promotion BIA rate of 45.83%. The full extent of expenses were indirect in nature. expenses, (6) an overstatement of export the ‘‘zero-price’’ sales, which does not Torrington cites Timken Company v. selling expenses for U.S. sales, and (7) significantly impact the overall integrity United States, 673 F. Supp. 495, 512–13 an overstatement of other indirect of the response, is documented on the (CIT 1987), to argue that the burden is selling expenses. Additionally, record. As for the unreported billing on respondents to demonstrate that U.S. Torrington asserts that NPBS’s actions adjustments, we agree with Torrington expenses were indirect and to support in this review are egregious, given that in that these should not be considered Torrington’s position that the they failed to report all HM sales in the separately in terms of their ad valorem Department should treat Koyo’s U.S. second administrative review. effect, but rather their effect taken as a advertising expenses as direct selling NPBS argues that deficiencies three whole. NPBS cooperated fully with all expenses. through seven are of the types of aspects of the verification. Although In rebuttal, Koyo argues that the discrepancies which typically arise at NPBS neglected to report the billing and Department explicitly verified Koyo’s Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10909 advertising expenses, and the verifier Germany’s U.S. advertising expenses as question were indirect in nature because considered not only the amount of the direct selling expenses for the final the sample advertisements submitted by expenses incurred, but also their results. Koyo appeared in trade publications indirect nature. NTN-Germany refutes Torrington’s and were designed to promote the Koyo Department’s Position: At verification, arguments on the grounds that it name. Therefore, because these we examined examples of Koyo’s provided evidence demonstrating that expenses were used only to offset advertising and sales promotions, and NTN-Germany’s U.S. advertising indirect selling expenses deducted from conclude that these expenses were expenses are indirect selling expenses. ESP transactions, there is no institutional in nature and correctly According to NTN-Germany, the sample requirement that they be incurred on classified as indirect. advertisements that it submitted behalf of a customer. Comment 3: Torrington argues that promote the company in general, rather Comment 7: Torrington states that the the Department should reclassify than specific products. NTN-Germany Department should not accept NMB/ Nachi’s U.S. advertising expenses as further argues that under identical Pelmec Singapore’s reported indirect direct expenses because Nachi has not factual circumstances, the Department sales promotion expenses because they demonstrated that its U.S. advertising refuted Torrington’s arguments in the were incurred in order to promote was indirect in nature. Torrington states final results of AFBs III. Accordingly, future sales. Torrington argues that that, according to a Court decision (See NTN-Germany concludes that the expenses associated with future sales Timken, 673 F. Supp., at 513), if Department should treat NTN- are not expenses incurred with respect respondents do not explain the exact Germany’s U.S. advertising expenses as to sales of subject merchandise during nature of U.S. advertising expenses, the indirect selling expenses for the final the POR and should not be accepted as Department must treat them as direct. results of this review. an adjustment to FMV. Nachi argues that it submitted sample Department’s Position: We agree with NMB/Pelmec Singapore argues that advertisements that satisfy the Torrington. In stating that most of its the expenses in question were incurred definition of indirect advertising in that U.S. advertising expenses were indirect in bringing certain OEM clients from they were general advertisements aimed in nature, NTN-Germany tacitly Singapore to Thailand on a tour of at promoting the Nachi brand name as acknowledged that it incurred direct Minebea’s facilities. NMB/Pelmec opposed to specific bearing products. advertising expenses in the United argues that these clients could have Department’s Position: We agree with States. Nonetheless, NTN-Germany made additional purchases during the Nachi. The sample advertisements chose not to provide data on its direct POR. Therefore, NMB/Pelmec concludes submitted by Nachi promote the Nachi advertising expenses. Because NTN- that its sales promotions did not relate brand name in trade publications and Germany elected not to provide exclusively to future sales. not specific bearing products. See Nachi information that it possessed regarding Department’s Position: We agree with Section B response, at attachment 20 direct advertising expenses, we have NMB/Pelmec. Advertising and (September 21, 1993). Therefore, we drawn the appropriate adverse inference promotional expenses which are have treated Nachi’s U.S. advertising and treated all NTN-Germany’s reported incurred during the POR are, by expenses as indirect selling expenses. U.S. advertising expenses as direct Department practice, associated with Comment 4: Torrington maintains that selling expenses for these final results. POR sales because they cannot be the Department should reclassify NPBS’ Comment 6: Torrington argues that directly linked to particular sales. Also, U.S. indirect advertising expenses as Koyo’s HM advertising expenses must as NMB/Pelmec explains, the expenses direct selling expenses. NPBS argues have been incurred on behalf of were incurred in promoting local sales that it has documented its indirect purchasers of the merchandise to be and did relate to sales of subject selling expenses and that it has permitted as an adjustment for merchandise during the POR. As a complied fully with all reporting differences in COS, citing 19 CFR result, we have not changed our requirements. NPBS argues that the 353.56(a)(2). Torrington contends that preliminary determination to make an Department should continue treating Koyo should segregate such expenses adjustment to FMV for NMB/Pelmec these expenses as indirect. between sales to OEMs and sales to the Singapore’s reported indirect sales Department’s Position: We agree with aftermarket. Torrington argues that it is promotion expenses. NPBS. NPBS has fully complied with all implausible that a purchaser of an Comment 8: Torrington argues that reporting requirements and has automobile or an appliance would be the Department failed to deduct from separated its direct and indirect the target of an advertisement of Koyo’s USP advertising expenses that INA advertising and promotional expenses. bearings and that only properly incurred in Germany for export sales. Furthermore, at verification we substantiated advertising expenses Torrington notes that, in addition to specifically examined NPBS’ export incurred with respect to aftermarket U.S. advertising expenses, INA also selling expenses and verified their sales should be permitted as a COS identified certain indirect advertising indirect nature. See Nippon Pillow adjustment. expenses, incurred in Germany, that Block Verification Report, at 10 (March In rebuttal, Koyo argues that the related to both domestic and export 1, 1994). regulation cited by Torrington to sales. Torrington states that the Comment 5: Torrington argues that support its argument governs direct Department should allocate to U.S. sales NTN-Germany improperly failed to expenses under the COS provision. a portion of the advertising expenses report direct advertising expenses in the Because the HM advertising expenses that INA incurred in Germany and United States. According to Torrington, reported by Koyo are indirect, the deduct them from USP for the final NTN-Germany’s statement that most of Department properly deducts these results. its U.S. advertising expenses were expenses under the ESP offset INA responds that deducting the indirect expenses implies that some of provision, 19 CFR 353.56(b)(2), which advertising expenses at issue from ESP these expenses are directly related to the contains no requirement that the would result in an overstatement of sales subject to this review. Therefore, expenses be incurred on behalf of the INA’s advertising expenses. INA Torrington concludes that the purchaser. contends that it incurs the HM Department should draw an adverse Department’s Position: We agree with advertising expenses at issue for selling inference and reclassify all of NTN- Koyo that the advertising expenses in merchandise to customers for whom it 10910 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices has direct selling responsibility. guarantees, and servicing expenses treatment of RHP’s technical service Furthermore, INA asserts that its U.S. because Koyo calculated its expense expenses is correct and should not be subsidiary incurs similar advertising factor by dividing total warranty claims changed for the final results. expenses in selling to unrelated expenses by total bearing sales instead Department’s Position: We agree with customers for whom it has direct selling of quantifying expenses on the basis of Torrington and Federal-Mogul. Our responsibility. Because both INA and its class or kind of merchandise or by questionnaire specifically requests U.S. subsidiary incur advertising customer. respondents to separate fixed and expenses in making sales to their Koyo responds that the Department variable portions of technical service unrelated customers, INA argues that has verified and accepted its warranty expenses because we treat fixed the HM advertising expenses at issue are expense methodology in previous servicing costs as indirect expenses and not related to U.S. sales made by its reviews of both AFBs and TRBs and that variable servicing costs as direct subsidiary. Accordingly, INA concludes the Department should continue to treat expenses. Based on RHP’s questionnaire that the Department should not deduct Koyo’s direct warranty expenses as it response, we determine that RHP these expenses from ESP for these final did in the preliminary results and in all reasonably could have separated direct results. prior AFB reviews. and indirect technical service expenses. Department’s Position: We agree with Department’s Position: Although As RHP stated in its questionnaire, INA. During our verification at INA’s Koyo calculated a warranty expense ‘‘[t]he costs in question include such U.S. subsidiary, we confirmed that the factor based on the ratio of total items as salaries, travel expenses, subsidiary incurred advertising warranty claims to total bearing sales, vehicle leasing, etc.’’ See RHP’s Section expenses for U.S. sales. Conversely, we there is no evidence on the record that B Response at 56 (September 21, 1993). found no evidence during our the calculated warranty expense factor Generally, we consider salaries fixed verification of advertising expenses at would vary by class or kind of bearing expenses because they are costs that INA’s headquarters in Germany that or by customer. Therefore, as in AFBs III would have been incurred whether or INA incurred any expenses for (at 39743), where Koyo used the same not sales were made. By contrast we advertising directed toward customers allocation methodology, we find that generally consider travel expenses to be in the United States. Therefore, we have Koyo reasonably allocated direct directly related to sales, because not deducted these expenses from INA’s warranty expenses, and we have technicians are visiting customers to USP for these final results. accepted them for the final results. help them with specific problems. See Comment 11: RHP argues that the Roller Chain, Other Than Bicycle, From 4B. Technical Services and Warranty Department should not have treated Japan; Final Results of Administrative Expenses RHP’s U.S. technical service expenses as Review and Partial Termination, 57 FR Comment 9: Torrington argues that direct expenses, because they were 6810 (February 28, 1992) (Roller Chain). Koyo should reallocate U.S. technical reported as indirect expenses in both Because RHP described both direct service expenses over only non- the U.S. and home markets. RHP states and indirect technical servicing costs in aftermarket sales because service that the Department treats technical its questionnaire response, RHP should expenses are normally not incurred in service expenses as direct selling have reported each type of expense the after-market. Torrington claims that expenses only when such expenses are separately. The statute and the Koyo allocated service expenses over directly related to sales under review. Department have a preference for total American Koyo Corporation sales, RHP claims that it does not maintain respondents to provide actual expense which would include both OEM and records that tie the expenses of its information as opposed to allocated aftermarket sales. Furthermore, technical service engineers located in expense information. Because RHP did Torrington contends that, because Koyo the United Kingdom directly to not distinguish between the direct and failed to segregate service expenses into particular products, customers or indirect portions of its technical service direct and indirect components, the markets. Therefore, RHP allocated the expenses in either market, we made an Department should continue its expenses over its total sales volume. adverse inference and considered the preliminary treatment of considering all RHP argues that while the Department entire U.S. technical service expense as such expenses as direct expenses. requested a breakdown of fixed and direct and the entire HM technical In rebuttal, Koyo argues that it variable costs, RHP could not have service expense as indirect. Allocated allocated its service expenses over all of provided such information, and that the expenses in the U.S. market are treated its sales, including sales to both Federal Circuit has disallowed the as direct expenses because direct aftermarket and OEM customers, Department’s use of BIA when the expenses will be deducted from all USP because the services it provides to its respondent could not have provided the transactions and will, therefore, reduce aftermarket customers are essentially information requested under any USP and potentially increase dumping the same as those it provides to its OEM circumstances. margins. If these expenses were treated customers. Torrington argues that some of RHP’s as indirect expenses, they would only Department’s Position: As set forth in reported technical service expenses, be deducted from USP in ESP situations AFBs II (at 28408) and AFBs III (at such as expenses for vehicle leasing and and would, therefore, reduce USP and 39743), we have accepted Koyo’s travel, are clearly direct and should potentially increase dumping margins allocation methodology because Koyo have been reported as such. Torrington only in ESP situations. Treatment of provided the same technical services to claims that the Department requires these expenses as indirect expenses all customers that requested them, respondents to separate technical would remove any incentive a including aftermarket customers. Also, services into direct and indirect respondent has to provide the based on our review of Koyo’s response, portions. Torrington claims that when Department with actual expense we are satisfied that Koyo properly respondents fail to separate these information. See The Torrington separated its direct and indirect expenses, the Department treats the Company v. United States, 832 F. Supp. expenses. entire expense as direct in the case of 365, 376 (CIT 1993); and Timken v. Comment 10: Torrington argues that U.S. sales and indirect in the case of HM United States, 673 F. Supp. 495, 512–13 the Department should not accept sales. Similar to Torrington, Federal- (CIT 1987). The fact that RHP chooses Koyo’s reported HM direct warranties, Mogul agrees that the Department’s to keep its financial records in such a Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10911 way as to not tie its technical service SKF-France contends that since such incorrectly indicated that the expenses expenses to specific sales does not expenses do not constitute direct in question were indirect. relieve it of its responsibility to provide technical assistance, the Department Comment 15: Torrington contends the Department with actual expenses properly treated the expenses as that INA improperly reported its information. See also AFBs II (at 28408) indirect. indirect warranty, guarantee, and and AFBs III (at 39742). Department’s Position: We agree with servicing expenses in the home market. Comment 12: Federal-Mogul argues Torrington that when respondents fail to According to Torrington, the amount that the Department incorrectly treated report technical service expenses in reported by INA includes both actual SNR’s reported U.S. warranty costs as direct and indirect portions, it is our expenses paid and accrued expenses. an indirect expense because SNR did practice to treat the expenses as direct Because accrued expenses will also be not support its claim that warranty costs in the United States. See Department’s reflected among actual expenses paid, were fixed, and thus should be treated Position to Comment 11, above, and Torrington asserts that INA’s claim is as an indirect expense. As respondents AFBs III (at 39742). However, for this overstated. Accordingly, Torrington have an incentive to report U.S. particular company the issue is moot requests that for the final results, the expenses as indirect in nature, Federal- because the technical service expenses Department limit INA’s claimed indirect Mogul argues that they bear the burden SARMA reported as indirect export warranty, guarantee, and servicing of proving that U.S. expenses are selling expenses have been reclassified expenses to amounts actually paid. indirect. Federal-Mogul concludes that as research and development expenses. According to INA, the amounts that it because SNR has failed to show that its In its response SARMA classified all reported for these expenses were the warranty expenses were indirect in technical service expenses as indirect total amounts recorded in the relevant nature, the Department should deduct selling expenses and allocated these expense accounts. These amounts the expenses directly from USP. expenses across HM and export sales. represent neither cash payments of SNR responds that it reported its total However, verification of SKF-France’s warranty claims nor accruals of U.S. warranty costs as indirect in nature COP response revealed that SARMA’s contingent liability. Because INA because the cost ‘‘relates to in-house technical service expenses should have reported the amounts that it recorded as service, rather than outside been classified as research and expenses during the review period, INA contractors.’’ SNR further stated that the development expenses. For the rejects Torrington’s claim that it double- expense was clearly indirect because it preliminary results we included all counted its indirect warranty expenses. could not be tied to specific sales. technical service expenses reported by Department’s Position: We agree with Department’s Position: We agree with SARMA in the calculation of general INA. The record contains no evidence Federal-Mogul that SNR failed to and administrative expenses for the that INA failed to report accurately and demonstrate the indirect nature of all its purposes of calculating COP and CV. completely the data recorded in its U.S. warranty costs. The fact that SNR’s However, we only removed from warranty expense accounts. We verified warranty services were performed in- SARMA’s reported selling expenses that INA reported its indirect warranty house does not preclude direct expenses those technical service expenses expenses and found no evidence of from being incurred. SNR did not SARMA classified as HM indirect double-counting. Accordingly, we have separate its warranty costs into fixed selling expenses. We inadvertently treated INA’s reported indirect and variable portions, as required by the failed to remove those technical service warranty, guarantee, and servicing questionnaire. Therefore, for these final expenses incurred on behalf of U.S. expenses as indirect selling expenses for results, we have reclassified SNR’s U.S. sales that SARMA classified as indirect the final results. warranty costs as a direct expense, and export selling expenses. Therefore, in 4C. Inventory Carrying Costs we have deducted them directly from order to avoid double counting USP. See also Department’s Position to expenses, we have removed technical Comment 16: Torrington argues that Comment 11, above. service expenses from the indirect the Department should abandon the Comment 13: Torrington contends export selling expense adjustment practice of calculating inventory that because SKF-France did not because they are included in the carrying costs (ICCs) and instead impute separate SARMA’s U.S. technical calculation of COP for these final credit costs on ESP transactions starting service expenses into direct and indirect results. from the point of shipment. Torrington portions, the Department acted Comment 14: SKF-Germany asserts contends that prices should be improperly by classifying the expenses that the Department made a compared on an ‘‘f.o.b. origin’’ basis and as indirect. Torrington notes that it is programming error in its analysis. SKF neither HM or PP sales require a the Department’s policy to classify as contends that the Department treated deduction of pre-sale ICCs to arrive at direct any U.S. expenses that the U.S. technical service expenses as f.o.b. origin prices. In ESP sales, so- respondent has not separated into direct indirect selling expenses in the analysis called ICCs should be viewed as a and indirect portions. Torrington notes memorandum, but treated them as financing cost assumed by the exporter that in prior reviews SKF reported direct selling expenses in the computer on behalf of the related importer, which SARMA’s technical service expenses in programming. Federal-Mogul and must be deducted, while no comparable the same manner and the Department Torrington state that SKF’s reported expense exists in the HM. responded by substituting SARMA’s technical expenses are properly treated Torrington contends that adjustment reported technical service expenses as direct selling expenses. to FMV for ICCs misconstrues the with SKF-USA’s direct technical service Department’s Position: We agree with statutory scheme and the nature of price expenses as BIA. Torrington contends Torrington and Federal-Mogul. The comparisons in ESP calculations. that the Department’s response should computer program correctly deducted According to Torrington, the remain consistent with prior reviews. these expenses from USP as direct Department has misinterpreted the SKF-France notes that its U.S. sales selling expenses. However, there was a purpose for deducting financing charges response explained that SARMA discrepancy between the preliminary from ESP and makes an offsetting provides the U.S. market with only analysis memorandum and the deduction from FMV that is not general design and quality control computer program due to a clerical permitted by the statute. Also, the fact advice for future bearing development. error: The analysis memorandum that the foreign manufacturer and U.S. 10912 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices importer are related is irrelevant to the 818 F. Supp. 1563, 1577 (CIT 1993) the pre-sale movement expenses requirement under 19 USC 1677(e)(2) (Torrington I). without any other authority. Id. Unlike that expenses incurred for the account Department’s Position: We disagree the situation with movement expenses, of the importer by the manufacturer with Torrington. We calculate ICCs from however, the statute does not contain a must be identified and deducted from the date of production because the date specific provision for deducting ESP. of production, not the date of shipment, imputed ICCs for either USP or FMV. Finally, even if a comparable HM is when the item becomes a part of the Rather, the Department’s authority to ICCs expense is incurred, Torrington company’s inventory. Merchandise deduct imputed ICCs derives from the argues no adjustment should be made to destined for the United States and Department’s authority to deduct FMV. In contrast to its treatment of ESP, merchandise destined for the HM are indirect selling expenses. This authority the statute provides no parallel not necessarily held in inventory from stems from the general language adjustment in calculating FMV. Where the date of production to the date of contained in section 772(e)(2) of the the statutory scheme is clear, the shipment for equal lengths of time. Tariff Act, which authorizes the Department may not create adjustments Therefore, in general, an accurate Department to deduct selling expenses in misguided attempts to make ‘‘apples- accounting of ICCs in each market in ESP transactions, and from the to-apples’’ comparisons. Torrington requires beginning at the date on which Department’s authority to make fair claims that, just as in The Ad Hoc production is completed. See AFBs III. comparisons between USP and FMV, Committee of AZ–NM–TX–FL Producers The Department’s practice in this regard which allows the Department to deduct of Gray Portland Cement v. United has been upheld by the CIT: ‘‘Given its indirect selling expenses from FMV States, No. 93–1239, Slip Op. (Fed. Cir. new point of reference for measuring pursuant to the ESP offset. See Smith- Jan 5, 1994) (Ad Hoc Committee), in ICCs, the Department was correct to Corona, 713 F.2d at 1578–79. which the CAFC reversed the include home market ICCs incurred Finally, as recognized by the CIT in Department’s allowance of a deduction after the time of production of the Torrington I, the intent of the of pre-sale inland freight expenses in merchandise as part of the pool of antidumping statute and the calculating FMV, the statute does not indirect selling expenses for which Department’s practice with respect to provide a basis for making an ICC adjustment to FMV can be made subject ICCs is to remove certain expenses from adjustment to FMV. to 19 CFR 353.56(b)(2) in those FMV and ESP in order to derive an FMV Respondents argue that the situations where AFBs produced for the and ESP at a comparable point in the Department should again reject home market were held in inventory.’’ stream of commerce to achieve the so- Torrington’s argument that ICCs should See Torrington I, 818 F. Supp. at 1577. called ‘‘apples-to-apples’’ price not be calculated in the HM and that Furthermore, with respect to comparison. The Department properly imputed credit costs on ESP adjustments to FMV for imputed ICCs, carried out that intent by adjusting FMV transactions should start from the point the CIT has supported the Department’s pursuant to the ESP offset in those of shipment. NSK argues that the most methodology in calculating ICCs in both situations in which AFBs produced for obvious reason for calculating ICCs from the United States and the HM. In the HM were held in inventory. The the date of production, rather than the Torrington I, the CIT found that ‘‘the nature of the expense incurred for ICCs date of shipment, is that ICCs are Department’s adjustment to FMV for holds true regardless of whether the incurred from the date of production imputed ICCs pursuant to 19 CFR expense was incurred in the U.S. market forward. See Certain Internal 353.56(b)(2) was a reasonable exercise of or in the HM. Because the seller Combustion Forklift Trucks from Japan, the Department’s discretion in incurred the opportunity cost of holding 53 FR 12552 (April 15, 1988). Moreover, implementing the antidumping duty inventory in both markets, the because ICCs represent the ‘‘opportunity statute and is affirmed.’’ Id. As stated in Department properly adjusted for the cost of holding inventory,’’ NSK holds the original investigation and the first cost in the U.S. market as well as in the that it is appropriate to calculate such three reviews of this proceeding, in HM. costs from the time a product is placed order for comparisons to be fair, it is Comment 17: Federal-Mogul claims in inventory—the date of production. necessary to make ICC adjustments to that the Department’s approach to See Antifriction Bearings (Other Than both FMV and USP. See AFB LTFV calculating ICCs is biased in favor of Tapered Roller Bearings) and Parts Investigation, 54 FR 19050 (May 3, respondents and presents respondents Thereof From France; et al.; Final 1989); AFBs I and AFBs II. That the with an opportunity to manipulate and Results of Antidumping Duty foreign seller chooses to sell from distort these expenses. First, the Administrative Review, 57 FR 28369, inventory in the HM is no different from calculation of the adjustment relies 28410 (June 24, 1992). In addition, the seller’s decision to undertake ESP upon transfer pricing. Transfer pricing respondents argue that the Department’s transactions in the United States. The between related parties is inherently adjustment of FMV for ICCs is Department imputes ICCs because the suspect and was the reason that reasonable and supported by the actual financial cost of holding provisions for ESP were written into the antidumping statute. RHP argues that inventory after production is not antidumping law. Second, there is no the Ad Hoc Committee case referenced recorded in the financial records of the relation between the price at which the by Torrington is not on point and that company. merchandise is sold and the theoretical Torrington has not provided a new Moreover, the Department’s treatment cost of holding such merchandise prior reason for the Department to stop of ICCs complies with Ad Hoc to sale. Thus, the only reliable means by recognizing ICCs in the HM. Nachi Committee. There, the CAFC held that which ICCs can be quantified is on the argues that the Department has an adjustment may not be made to FMV basis of costs, rather than prices. Since consistently applied this practice in all if the statute explicitly provides for such not all firms submitted the data of the administrative reviews of the an adjustment to USP, but not to FMV. necessary to do this, however, the antidumping duty orders against AFBs Because the statute explicitly provides Department should at least ensure that in order to make fair ‘‘apples-to-apples’’ for an adjustment to USP for pre-sale the sales prices used are reliable and price comparisons. This practice also movement expenses but not for an consistent for both markets, and prices has been upheld by the CIT. See The adjustment to FMV, the CAFC held that used should only be derived from sales Torrington Company v. United States, the Department cannot adjust FMV for made to unrelated purchasers. Finally, Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10913 the Department should eliminate and its actual short-term borrowing rate. undermine NSK’s claim regarding the variations in the adjustments due to the Accordingly, in calculating such an average time spent in the HM inventory. interest rates employed, and should expense, we use the appropriate interest Department’s Position: We disagree recognize that a firm is likely to borrow rate actually realized by the entity with Torrington. During verification we in the market where it can obtain the financing the inventory (i.e., the HM found NSK’s ICC averages to be lowest interest rate. Because these costs interest rate for the HM entity and the reasonable and adequate. are imputed and speculative, a uniform U.S. interest rate for the U.S. affiliate). Comment 20: Torrington contends interest rate should be applied. Federal- This means that the same interest rate that INA improperly calculated per-unit Mogul cites LMI-La Metalli Industriale, is used to calculate HM ICCs and U.S. ICCs incurred in Germany. Torrington S.p.A v. United States, 912 F.2d 455 ICCs to the extent that the same alleges that INA allocated ICCs incurred (Fed. Cir. 1990) (LMI), in which the company is financing the investment in in Germany over a sales amount that Federal Circuit noted that in LMI-La inventory. When a U.S. affiliate finances included the resale prices of INA’s U.S. Metalli ‘‘the ITA presumed that LMI the investment in inventory, its actual subsidiary, and then understated the would borrow in Italy to finance its short-term borrowing rate is used per-unit expense by multiplying the United States receivables, no matter because that reflects the cost to the resulting adjustment factor by the how unfavorable the rate and whatever company. LMI is not relevant to the reported per-unit Customs value rather the available alternatives. Such a calculation of ICCs in these cases, than the resale price. For the final presumption does not withstand because only actual short-term results, Torrington requests that the scrutiny.’’ borrowing rates have been used. In LMI, Department revise the calculation of In response to Federal-Mogul, Nachi the respondent had no short-term INA’s per-unit German ICCs by argues that transfer price is a reliable borrowings and the CAFC found it multiplying the reported adjustment price that is reported to and accepted by improper to choose a higher rate over a factor by the price to the first unrelated the United States Customs Service in lower rate. However, when there exist party in the United States. valuing imports. Nachi claims that the actual borrowings by a company, it INA rejects Torrington’s argument, Customs Service would require a would be unreasonable to conclude that arguing that the sales values it used in different price, or cost, for its valuation a company would borrow at a rate other calculating its allocation factors did not purposes if transfer prices were subject than its actual rate. Moreover, the actual include resales by INA-USA. Rather, the to ‘‘unchecked manipulation.’’ RHP rate at which a company obtains short- U.S. sales included were INA’s sales to notes that the Customs Service can term funds depends on many factors, of its U.S. subsidiary at transfer prices. investigate transfer prices to determine which available rates is only one. The Therefore, INA concludes that it whether such prices are too low. conditions of available loans may properly multiplied the adjustment Furthermore, in response to Federal- compel a company to choose a loan at factor for ICCs by the transfer price to Mogul’s argument that the Department a higher rate than another at a lower calculate per-unit ICCs. should use uniform interest rates, Koyo rate. Therefore, we impute financing notes that the Department used actual, costs based on each company’s actual Department’s Position: We agree with reported interest rates in calculating borrowings where possible. If a INA. During verification, we examined ICCs, and argues that it is absurd to company did not have actual short-term the total HM sales values that INA used suggest that the Department should borrowings, financing costs are imputed to allocate various charges and reject such evidence of actual borrowing using the lowest rate the company expenses. We were able to desegregate expenses (and the associated interest demonstrates was available to it during the total HM sales values into their rates) and use instead a fictional rate the POR. constituent elements and trace these (the ‘‘most favorable rate available to a Comment 18: NSK claims that elements to the audited financial respondent in either market’’). because the Department lowered NSK’s statements of the various INA entities Department’s Position: ICCs measure short-term borrowing rate at verification subject to this review. During this the imputed cost incurred by a firm for to take into account short-term process, we found a separate account storing AFBs in inventory. As the commercial paper borrowings, the that INA uses to record sales to its U.S. Department stated in the third review, Department must also reflect this subsidiary. We saw no evidence to the transfer price reflects the cost of the change in the U.S. ICCs. suggest that INA recorded anything merchandise as it is entered into Torrington agrees with NSK’s other than its transfer prices to its U.S. inventory and therefore is an accurate proposed modification but states that subsidiary in this account. Accordingly, basis upon which to calculate the cost the Department must apply the revised we determine that the total sales value to the subsidiary of holding inventory home market rate only to the correct that INA used to allocate its ICCs prior to the sale to an unrelated U.S. portion of the inventory period. included only INA’s transfer prices to customer. See AFBs III (at 39744); see Department’s Position: We agree with its U.S. subsidiary. As a result, we have also Portable Electric Typewriters From Torrington. We have amended the HM accepted INA’s use of transfer prices to Japan: Final Results of Antidumping ICCs and the HM portion of U.S. ICCs calculate per-unit ICCs for these final Duty Administrative Review, 53 FR to reflect the short-term interest rate results. 40926, (October 19, 1988). Furthermore, determined at verification. 4D. Post-Sale Warehousing Federal-Mogul has not shown that any Comment 19: Torrington argues that if prices used in the calculation of ICCs the Department decides to allow an Comment 21: Torrington contends are unreliable and inconsistent, nor that adjustment to NSK’s FMVs for ICCs, that the Department should treat Nachi’s any transfer prices used are distortive. then a recalculation is necessary, claimed post-sale warehousing expenses We cannot calculate actual ICCs because NSK provided in its section C as indirect selling expenses. Torrington because these costs are not found in the response an example of one shipment in argues that these warehousing expenses books of respondents. Thus, we must which the actual time in inventory are not direct because they were impute the financing cost of holding varied from the reported average time in incurred prior to date of shipment, inventory. The cost to a company of inventory. which Nachi has identified as being the holding inventory is best measured by NSK argues that the Department same as date of sale. Torrington states the time it must finance such inventory discovered nothing at verification to that warehousing expenses are allowed 10914 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices as direct adjustments only when the accept the reported commission rates purchaser after the delivery of expenses are incurred after the sale. and should apply partial BIA. merchandise to the customer. Nachi contends that this issue has According to NMB/Pelmec, the Comment 24: Torrington states that been considered by the Department in Department officials ‘‘verified the with respect to RHP the Department the past three reviews and decided in accounts payable and the sales failed to deduct related-party Nachi’s favor. Nachi argues that the commissions paid for this salesman and commissions on the U.S. side in the circumstances under which it incurs tied this amount to the G/L (General preliminary results. Torrington claims warehousing expenses have not changed Ledger).’’ NMB/Pelmec concludes that that the Department has generally and that the expenses are incurred after because the Department verified all treated such commissions as direct the sale took place. Nachi contends that financial data related to commissions, expenses, citing AFBs III, and concludes the warehousing expenses were direct there is no basis to apply partial BIA. that the Department should classify all because they were incurred only on Department’s Position: We agree with of RHP’s U.S. commissions as direct sales to specific customers and would NMB/Pelmec. We verified commissions expenses. not have been incurred if the sales had in the United States, including the fact RHP claims that the Department failed not taken place. that no commissions were paid to this to deduct related-party commissions in both the U.S. and home markets, but did Department’s Position: We agree with salesman after August 22, 1992. Since not provide an explanation for this Nachi that the Department has already there were no discrepancies in the treatment. RHP states that the evaluated this issue in the past three information we verified, we have no Department adjusts for related-party reviews and determined the expenses to basis for using a BIA rate for NMB/ commissions when they are determined be direct expenses. See AFBs I (at Pelmec’s U.S. commissions. See ESP to be directly related to the sales in 31692); AFBs II (at 28415); and AFBs III Verification Report for NMB/Pelmec, February 10, 1994. question and at arm’s length. RHP states (at 39745). Nachi’s section C response that its sales data showed that Comment 23: Torrington states that and the verification report clearly show commissions were directly related to the the Department should disallow Koyo’s that the expenses in question were sales on which they were paid. RHP HM adjustment for commissions paid to incurred directly on sales to specific further contends that it submitted purchasing agents acting on behalf of customers. See Nachi Section C additional information, including Koyo’s customers because such Response, at 35–36 (September 28, information on unrelated-party payments do not affect the HM price 1993) and Nachi-Fujikoshi Home commissions in the United States, to Market Sales Verification Report, at 9– obtained by Koyo. Torrington argues support its claim that related-party 10 (February 28, 1994). In particular, the that, although Koyo claims that it enters commissions in the United States were verification report states that ‘‘[o]nce into contracts with these agents, no negotiated at arm’s length. RHP argues quantity is confirmed, the warehouse contracts were submitted on the record. that the Department should conclude delivers the desired quantity Torrington also argues that Koyo failed that the commissions it paid to related immediately to the customer and to demonstrate how these commissions parties were negotiated at arm’s length collects a fee from Nachi for its differ from rebates paid to unrelated in both the U.S. and home markets. services.’’ See Verification Report, at 9. customers. Further, Torrington asserts RHP contends that, because the Although the verification report shows that, since Koyo has not tied such situations in both markets are similar, that merchandise is shipped and stored payments to specific sales of the Department can only justify making in the warehouse before ordered merchandise, the payments should at an adjustment for related-party quantities are confirmed, merchandise least be reclassified as indirect selling commissions in one market if it makes is sent to the warehouse only after expenses. an adjustment for such commissions in customers have entered into a formal In rebuttal, Koyo states that the the other market. Accordingly, if the agreement to purchase bearings from purchasing agents of Koyo’s customers Department decides to treat related- Nachi, after they have provided Nachi are not the customers themselves, nor party commissions as direct selling with estimates of the quantities they do they act in any capacity other than expenses in the U.S. market, related- will order, and after sales prices are as the representatives of Koyo’s party commissions in the HM should be confirmed. The warehouse also delivers customers. Also, the contracts into treated the same way. the bearings on Nachi’s behalf, and thus, which Koyo enters with these agents Torrington counters that the the incurred expenses include post-sale specify the payment of commissions. Department should not deduct movement charges. Because Nachi is Department’s Position: We disagree commissions paid to NSK Europe by charged for the warehouse’s services with Torrington. Consistent with the RHP in the HM because the commission only if, and after, a bearing is sold, three previous administrative reviews, payments were made between related Nachi incurs no expenses unless a sale we have accepted Koyo’s commissions, parties, and the Department determined takes place. Therefore, we conclude that including commissions paid by Koyo to that RHP did not demonstrate the arm’s- the expenses in question varied directly purchasing agents that act on behalf of length nature of these transactions. with sales volume to specific customers its customers, as direct selling expenses. Torrington states that because RHP did and would not have been incurred if See AFBs I (at 31719); AFBs II (at not provide a factual basis for the sales had not taken place. As a result, 28407); and AFBs III (at 39746). As we Department to reverse its decision, the we have continued to treat the expenses stated in the third administrative Department is justified in disregarding as a direct adjustment to FMV. review, since Koyo pays commissions to the commissions RHP paid to NSK purchasing agents that act on behalf of 4E. Commissions Europe. its customers, Koyo’s HM sales qualify Department’s Position: In the home Comment 22: Torrington asserts that for the commission adjustment market RHP paid commissions to at verification the Department learned submitted. Koyo’s commissions are employees of NSK Europe, an affiliated that one of NMB/Pelmec’s salesmen distinct from rebates because they are company which the Department stopped receiving commissions after paid to intermediaries for providing considers part of the same entity as RHP August 22, 1992. Therefore, Torrington services. We consider rebates to be for purposes of these administrative claims the Department should not discounts which are granted to the reviews. In the U.S. market RHP paid Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10915 commissions to its employees and Cir. 1990), Torrington and Federal- payment for its HM sales, but had independent sales agents. The Mogul contend that the Department estimated dates of payment based on commissions RHP paid both to must examine the circumstances each customer’s terms of payment. independent agents and to employees surrounding related-party commissions Therefore, Torrington asserts that were expenses directly tied to sales. before determining that they should not Nachi’s calculation of HM credit Therefore, for these final results, we be used in the Department’s analysis. In expenses is not based on actual credit treated these expenses as direct selling this regard, Torrington states that NTN experience. As a result, Torrington expenses by deducting commissions incurred the expenses at issue for argues that Nachi’s HM credit expenses from both the FMV and the USP. See activities similar to those made by claim should be denied. Final Results of Antidumping Duty unrelated commission agents, and that Nachi responds that although it does Administrative Review; Porcelain-on- the rates NTN paid to related agents are not keep invoice-specific records of Steel Cookware From Mexico, 58 FR comparable to the rates that NTN paid when it receives payment, its credit 43330 (August 16, 1993). See also Final to unrelated U.S. commission agents. expenses were calculated on an average Determination of Sales at Less Than Accordingly, Torrington and Federal- customer-specific credit period derived Fair Value; Industrial Forklift Trucks Mogul conclude that the Department from actual experience. Therefore, from Japan, 53 FR 12552 (April 15, should consider these expenses to be Nachi concludes the Department should 1988) and Final Results of direct selling expenses in the U.S. continue to deduct HM credit expenses Administrative Review of Antidumping market. Federal-Mogul further contends from FMV. Finding; Drycleaning Machinery from that, because NTN failed to report Department’s Position: At verification, West Germany, 50 FR 32154 (August 8, commission rates paid to the related the Department discovered that Nachi 1985). party, the Department should resort to did use estimated dates of payment Comment 25: Torrington argues that BIA in determining the commission based on each customer’s terms of the Department erred in treating NTN’s amount to be deducted. payment. However, the payment records commissions on HM sales as direct NTN responds that there are no facts reviewed suggested that Nachi was selling expenses. According to that distinguish this review from the understating its HM credit period in Torrington, NTN’s method of three previous reviews of this case in most cases, which resulted in a higher calculating commission rates by which the Department rejected FMV. Therefore, the Department allocating total commissions paid to a Torrington’s and Federal-Mogul’s accepted the payment dates submitted commission agent over total sales by arguments concerning related-party by Nachi and will continue to do so for that agent provides no indication that commissions in the United States. NTN the final results, and has deducted HM the reported commissions are directly further argues that Torrington overstated credit expenses from FMV. See Nachi- related to HM sales of subject the alleged commission rate that NTN Fujikoshi Home Market Sales merchandise. As a result, Torrington paid to a related company in the United Verification Report, at 10–11 (February requests that the Department either States. Accordingly, NTN supports the 28, 1994). deny an adjustment to FMV for NTN’s Department’s preliminary determination Comment 28: Torrington argues that HM commissions, or treat them as that the expenses are not direct selling the Department should not accept indirect selling expenses for the final expenses for PP sales. NPBS’s credit expense methodology results. Department’s Position: We disagree because NPBS reported payment dates NTN responds that it reported with Torrington and Federal-Mogul. based on the maturity date of the commissions by applying a specific rate NTN stated that it made commission promissory notes, not the actual for each commissionaire to sales that payments to its U.S. subsidiary, NTN payment date per transaction. NTN made through that Bearing Company of America (NBCA), Torrington further argues that the commissionaire. NTN further argues for expenses that NBCA incurred with Department should reject credit that the Department confirmed at respect to sales to a specific PP expenses that are not based on actual verification that NTN reported customer. In its questionnaire payment dates or on average customer- commissions only on sales of subject responses, NTN provided specific data specific credit periods, and that NPBS’s merchandise. Therefore, NTN argues on the expenses that NBCA incurred credit expenses should be rejected that the Department should continue to with respect to the sales in question. because it failed to report its short-term treat NTN’s reported HM commissions Accordingly, rather than use the interest rate accurately. as direct selling expenses for these final commission, which is the transfer NPBS responds that its credit results. payment between NTN and NBCA, we expenses are properly reported and Department’s Position: We agree with have used the actual expenses incurred suggests that sampling error could NTN. At verification, we examined by NBCA with respect to these sales. account for a discrepancy between the documents that confirmed that NTN Further, an examination of the specific reported interest rate and the paid commissions on sales of subject types of expenses that NBCA incurred discounted rate for a few sales. NPBS merchandise and that NTN’s method of with respect to the sales in question notes that it inadvertently included two reporting commissions reflected the shows that the expenses are those that long-term loans in the calculation of commissions that NTN actually paid. we typically consider to be indirect short-term interest. These loans were Accordingly, we have treated NTN’s expenses incurred by sales later deleted and short-term interest was reported HM commissions as direct organizations. Therefore, we have used recalculated. Finally, NPBS argues that selling expenses for the final results of the actual expenses that NBCA incurred the firm’s short-term interest rate this review. with respect to the sales in question in provides the best estimate of the Comment 26: Torrington and Federal- our analysis, and have treated them as discount rate. The exact discount rate is Mogul argue that certain expenses that indirect selling expenses. nearly impossible to calculate since NTN classified as related-party U.S. each NPBS branch discounts numerous commissions appear to be directly 4F. Credit notes each week at varying rates. related to PP sales to one U.S. customer. Comment 27: Torrington notes that at Department’s Position: The Citing LMI-La Metalli Industriale S.p.A. verification the Department discovered Department agrees with NPBS. The v. United States, 912 F.2d 455, 459 (Fed. that Nachi did not report actual dates of Department verified NPBS’ credit 10916 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices methodology and found only minor number of days between shipment and contemplation of payment being made discrepancies in the application of its payment, as specified in the at the end of the agreed-upon credit payment date formula. We did not find Department’s questionnaire. period. that these minor discrepancies resulted Torrington responds that NTN- SKF-France contends that its credit in either a systematic over- or under- Germany’s concerns are unclear because expense calculations, which are based reporting of the credit period for PP of the manner in which NTN-Germany on the actual payment date, are sales. Furthermore, NPBS’ discount rate determined shipment and sale dates for consistent with Departmental policy. was lower than the reported interest its U.S. sales. Torrington further argues SKF-France cites the Department’s rate. This minor discrepancy has been that NTN-Germany has provided no position in Final Results of corrected by the Department. evidence that the Department’s method Antidumping Administrative Review; Comment 29: Torrington claims that of calculating the credit period for NTN- Certain Welded Carbon Steel Pipe and NTN-Germany improperly calculated its Germany’s U.S. sales is unreasonable. Tube Products from Turkey, 55 FR U.S. credit expenses. According to Accordingly, Torrington concludes that 42230, 42231 (1990), and Final Torrington, NTN-Germany determined the Department should not amend its Determination of Sales at Less than Fair U.S. credit expenses using interest rates calculation of NTN-Germany’s U.S. Value; Certain Tapered Journal Roller that appear to have been determined on credit expenses for these final results. Bearings and Parts Thereof From Italy, borrowings made outside of the United Department’s Position: We agree in 49 FR 2278, 2279–80 (1984), to support States. Because NTN-Germany has part with NTN-Germany. Based on a its position. SKF-France states that submitted no evidence that it finances comparison of NTN-Germany’s reported Federal-Mogul’s reference to a recent its accounts receivable using funds terms of payment, the actual number of Department redetermination on remand borrowed outside the United States, days between shipment and payment for is inapposite (see Federal-Mogul Corp. Torrington urges the Department to U.S. sales and the credit period reported v. United States, 824 F. Supp. 223 reject NTN-Germany’s reported interest by NTN-Germany in its questionnaire (1993)). Additionally, SKF-France rate and use the highest U.S. interest response, we have determined that contends that it updated SARMA’s rate reported by a German respondent to NTN-Germany’s reported credit period payment dates and recalculated credit calculate NTN-Germany’s U.S. credit does not accurately reflect the credit expenses using actual dates of payment. expenses. that NTN-Germany granted on the U.S. Department’s Position: The NTN-Germany responds that sales subject to this review. Specifically, Department disagrees with Federal- Torrington’s argument appears to be NTN-Germany’s reported credit period Mogul. Consistent with Departmental based on the fact that many of the banks does not comport with its stated terms policy, we adjust for credit expenses from which NTN-Germany borrowed of payment or with the sale-specific based on sale-specific reporting of money during the POR have foreign credit period calculated using actual actual shipment and payment dates. See names. NTN-Germany states that it shipment and payment dates for each Final Results of Administrative Review; determined the U.S. interest rate that it sale. Because NTN-Germany’s reporting Antifriction Bearings (Other Than submitted in its questionnaire response method is not representative of the Tapered Roller Bearings) and Parts based on its short-term borrowing. As a actual credit period for its U.S. sales, Thereof From the Republic of Germany, result, NTN-Germany urges the and because our questionnaire specified 56 FR 31724 (July 11, 1991). This policy Department to disregard Torrington’s the actual, sale-specific credit period as recognizes the fact that all customers do arguments. preferential to an aggregate credit period not always pay according to the agreed Department’s Position: We agree with for each customer, we have imputed the terms of payment and that respondent is NTN-Germany. The record contains no actual credit period for NTN-Germany’s aware of this fact when setting its price. evidence to suggest that NTN-Germany U.S. sales for these final results. We Therefore, it would be inappropriate to calculated its U.S. interest rate based on agree with NTN-Germany, however, that make a COS adjustment for credit based borrowing outside the United States. we should calculate the sale-specific entirely on the agreed terms of payment, Therefore, for these final results we credit period according to our since it would not take into account all have used the U.S. interest rate that longstanding practice of using the of the circumstances surrounding a sale. NTN-Germany reported in its shipment date, rather than the sale date, Furthermore, the Department agrees questionnaire response to calculate as the beginning of the credit period, with SKF-France that SARMA reported credit expenses for U.S. sales. and have revised our calculations its actual payment dates in its Comment 30: NTN-Germany states accordingly for these final results. supplemental response. that its reported U.S. credit expense was Comment 31: Federal-Mogul claims reasonable because it was based on that the Department should not allow 4G. Indirect Selling Expenses customer-specific information. SARMA to apply a late payment factor Comment 32: Torrington argues that Accordingly, NTN-Germany contests the to each customer’s terms of payment to Koyo incorrectly included among its Department’s recalculation of the firm’s establish a payment date for HM sales. total indirect selling expenses amounts reported U.S. credit expenses. If the Furthermore, Federal-Mogul argues that charged to a reserve account established Department determines not to use NTN- the Department should disallow any for doubtful debt. Torrington states that Germany’s reported U.S. credit additional credit expenses attributed to Koyo conceded in its deficiency expenses, however, NTN-Germany late payments made by SARMA (SKF- response that this reserve allowance was asserts that the Department should France) HM customers. Citing Federal- not an expense, but a provision for correctly calculate the credit period. Mogul Corp. v. United States, 824 F. future expenses. As a result, Torrington According to NTN-Germany, the Supp. 223 (1993), Federal-Mogul argues maintains that the Department should Department determined the credit that, since COS adjustments are only exclude this allowance from Koyo’s period as the number of days between allowed for those factors which affect pool of indirect selling expenses for the the sale date and the payment date. price or value, additional credit final results. NTN-Germany requests that, if the expenses incurred from a purchaser’s Citing AOC Int’l. v. United States, 721 Department continues to calculate sale- unexpected failure to pay within the F. Supp. 314 (CIT 1989) and Daewoo specific credit periods, the Department agreed-upon period cannot affect the Electric Co. v. United States, 712 F. calculate the credit period as the price which was set specifically in Supp. 931 (CIT 1989), Koyo responds Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10917 that the Department should allow Department should not adopt Koyo’s Torrington responds that before Koyo’s reported allowance for doubtful proposed revision to the Department’s making a correction to Nachi’s export debt as a HM indirect selling expense. computer program for these final selling expense calculation, the Alternatively, Koyo maintains that if results. Department should confirm that Nachi this expense is excluded from Koyo’s Department’s Position: We agree with reported transfer prices in both dollars pool of HM indirect selling expenses, Koyo. When we created new cost and and yen. then the Department should exclude it expense variables to recalculate COP Department’s Position: We agree with from the calculation of USP as well in pursuant to our verification findings, we Nachi. We confirmed that Nachi order to ensure an apples-to-apples inadvertently did not include the reported transfer prices in dollars for comparison of FMV and USP. variable for indirect selling expenses in sales made through certain channels Department’s Position: We agree in the margin section of the computer and in yen for sales made through other part with Koyo. As stated in AFBs II (at program. Because we verified the data channels. Accordingly, we have made 28412), the Department considers bad that Koyo provided on indirect selling the appropriate exchange rate debt that is actually written off during expenses for CV, we have revised our conversions to Nachi’s yen- the POR to be either a direct or an computer program to deduct these denominated transfer prices for these indirect selling expense depending on expenses from CV for these final results. final results. the relationship between the bad debt Comment 34: Torrington believes that Comment 36: Torrington argues that expense and the sale. In AOC and the Department should disallow Nachi’s the Department failed to deduct from Daewoo, respondents reported data on claim for indirect selling expenses that USP all export selling expenses that INA bad debts actually written off during the were incurred by NFC on HM sales incurred in Germany. Torrington notes relevant review periods. In contrast, made through NBC. Citing AFBs I (at that, in addition to export selling although Koyo claimed as an expense an 31720), Torrington states that the expenses that INA incurred specifically Department consistently has rejected amount set aside in reserve in the event for U.S. sales, INA also reported and claims for selling expenses incurred by that its customers fail to pay identified certain expenses related to all parent companies on sales made by outstanding charges in the future, Koyo export sales, and certain other expenses subsidiaries. Furthermore, Torrington failed to demonstrate that it actually related to both domestic and export argues that there is no evidence on the wrote off any bad debts during the sales. Torrington requests that the record that shows that the expenses review period. In the absence of data on Department deduct these additional claimed by NFC were incurred actual bad debt that Koyo wrote off export selling expenses from USP for during the review period, we cannot exclusively to support NBC sales and the final results. conclude that there is a relationship asserts that it is reasonable to assume INA objects to Torrington’s request on between Koyo’s reported doubtful debt that NFC’s selling expense were the grounds that deducting the indirect reserve and actual sales. Therefore, for incurred to support all aspects of sales. selling expenses at issue from ESP these final results we have disallowed Nachi contends that the Department Koyo’s reported doubtful debt reserve as thoroughly verified the fact that NFC would result in an overstatement of a HM indirect selling expense. incurred indirect selling expenses to INA’s U.S. indirect selling expenses. Because we do not consider Koyo’s support sales made by NBC and that INA contends that it incurs the HM doubtful debt reserve to be an actual Torrington has not presented any indirect selling expenses at issue for HM selling expense, we agree in evidence to contradict the Department’s selling the merchandise to customers for principle with Koyo that doubtful debt findings. Accordingly, Nachi concludes whom INA has direct selling reserves should not be treated as U.S. that the Department should allow responsibility. INA further contends selling expenses either. After examining Nachi’s claimed indirect selling that its U.S. subsidiary incurs similar Koyo’s financial statements, however, expenses for these final results. expenses in selling to unrelated we found that Koyo did not quantify its Department’s Position: We disagree customers for whom it has direct selling doubtful debt reserve for U.S. sales. with Torrington. In AFBs I, we denied responsibility. Because both INA and its Accordingly, for these final results we as HM indirect selling expenses the U.S. subsidiary incur indirect selling were not able to exclude doubtful debt parent company’s selling expenses expenses in making sales to their reserves from Koyo’s pool of U.S. because it did not incur the expenses in unrelated customers, INA asserts that indirect selling expenses. question specifically on sales to its HM the HM indirect selling expenses at Comment 33: Koyo maintains that the subsidiary. In contrast, in this review issue are not related to U.S. sales made Department’s computer program we verified that NFC incurred the by its subsidiary. Accordingly, INA contains an error that sets the value of indirect selling expenses in question on concludes that the Department should HM indirect selling expenses to zero behalf of NBC and that these expenses not deduct these expenses from ESP for whenever the Department resorts to CV supported NBC’s sales to its HM these final results. as the basis for FMV. Koyo asserts that customers. Accordingly, we have Department’s Position: We agree with because it reported indirect selling allowed NFC’s reported selling expenses INA. During our verification at INA’s expenses for CV, the Department should for its sales to NBC as HM indirect headquarters in Germany, we found that revise its computer program to deduct selling expenses for these final results. INA properly reported all expenses that these expenses from CV for these final Comment 35: Nachi argues that in it incurs specifically for export sales to results. recalculating Nachi’s export selling its U.S. subsidiary. Further, we found Torrington rejects Koyo’s argument expenses incurred in Japan on U.S. no evidence that INA incurred the because deducting indirect selling sales, the Department mistakenly treated indirect selling expenses at issue to expenses in certain instances would all transfer prices as being reported in support sales to unrelated customers in yield distorted results. Torrington U.S. dollars despite the fact that Nachi the United States; rather, INA incurs further argues that Koyo has not alleged reported certain transfer prices in yen. these expenses in Germany in making or demonstrated that the Department Therefore, Nachi requests that the sales to customers outside the United committed a clerical error in making Department make the necessary States. Therefore, we conclude that the adjustments to CV. Therefore, exchange rate conversions for those indirect selling expenses in question are Torrington concludes that the transfer prices reported in yen. not related to U.S. sales. Accordingly, 10918 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices we have not deducted these expenses that the Department always amends its selling expenses are not related to sales from INA’s USP for these final results. calculation methods when existing of subject merchandise. Accordingly, Comment 37: NTN and NTN-Germany methods are found to be inaccurate, Torrington requests that the Department contest the Department’s rejection of while Federal-Mogul states that the deny NTN’s claimed reductions to U.S. NTN’s claimed reduction to NTN’s Department has not denied NTN’s and indirect selling expenses for the final reported total U.S. indirect interest NTN-Germany’s right to participate in results. expenses for that portion of the total the proceeding because they may still In response to Torrington’s interest expenses attributable to cash seek judicial review of the Department’s arguments, NTN states that the deposits of estimated antidumping final results. Accordingly, Torrington Department has verified NTN’s method duties. NTN and NTN-Germany argue and Federal-Mogul conclude that the of reporting these adjustments in that the Department’s failure to provide Department properly denied NTN’s and previous reviews, and has accepted an explanation for its decision to deny NTN-Germany’s claimed adjustment to NTN’s claimed adjustments in each of their claimed reduction to U.S. interest U.S. indirect selling expenses for the previous reviews of AFBs. NTN expenses violated the Department’s interest paid on borrowing to finance further argues that the record supports regulations by prohibiting NTN and cash deposits of estimated antidumping its contention that the expenses in NTN-Germany from effectively duties. question are not related to sales of commenting on the methods that the Department’s Position: We disagree subject merchandise. Accordingly, NTN Department used to calculate NTN’s and with NTN and NTN-Germany. Cash concludes that the Department should NTN-Germany’s preliminary dumping deposits of estimated antidumping grant NTN’s reported adjustments to margins. NTN and NTN-Germany duties are provisional in nature, because U.S. indirect selling expenses for these further argue that the Department’s they may be refunded, with interest, to final results. denial of this adjustment contravenes respondents at some future date. Department’s Position: We agree with the Department’s established practice of Because the cash deposits are NTN. The record contains no evidence permitting this adjustment in previous provisional in nature, so too are any to refute NTN’s claims that NTN incurs reviews of the antidumping duty orders interest expenses that respondents may the expenses in question almost on both AFBs and tapered roller incur on borrowing to finance cash exclusively for sales of non-subject bearings. Citing Shikoku Chemicals deposits. To the extent that respondents merchandise, and that any such Corp. v. United States, 795 F. Supp. 417 receive refunds with interest on cash expenses that NTN may incur on sales (CIT 1992), NTN and NTN-Germany deposits, the interest that respondents of subject merchandise are insignificant. assert that it has the right to rely on the receive on the refunded deposits will Therefore, we have permitted NTN to Department’s established practice in offset any interest expenses that deduct these expenses from its total preparing its questionnaire responses. respondents may have incurred in pool of U.S. indirect selling expenses for Accordingly, NTN and NTN-Germany financing the cash deposits. Therefore, these final results. conclude that the Department’s failure we did not allow NTN’s and NTN- Comment 39: NTN and NTN-Germany to adhere to its regulations and its Germany’s claimed offsets to reported object to the Department’s violation of judicial precedent in not interest expenses in the United States to determination to re-allocate their allowing NTN and NTN-Germany to account for that portion of the interest reported U.S. selling expenses using rely on established calculation methods expenses that respondents estimate to their resale prices to the first unrelated require the Department to allow NTN’s be related to payment of antidumping customer. NTN and NTN-Germany and NTN-Germany’s claimed reduction duties. argue that because the Department to total U.S. interest expenses. Further, we reject NTN’s and NTN- failed to articulate reasons for its Torrington and Federal-Mogul Germany’s arguments that we cannot rejection of their allocation method, the support the Department’s rejection of deny their claimed adjustment because Department deprived them of the NTN and NTN-Germany’s claim. we deprived them of their right to opportunity to comment on the Federal-Mogul contends that because participate in this proceeding. The Department’s determination. NTN and the Department considers cash deposits Department has the authority to revise NTN-Germany further argue that the of estimated antidumping duties to be the methods that it uses to calculate Department violated judicial precedent provisional in nature, any interest dumping margins when it determines by abandoning the method of allocating expenses that NTN and NTN-Germany that existing methods yield inaccurate U.S. selling expenses that it used in the incurred on money borrowed to make results. In addition, NTN and NTN- three previous reviews of AFBs. cash deposits of estimated duties are Germany had the opportunity to make Moreover, NTN and NTN-Germany also provisional in nature, and could affirmative arguments in support of claim that there is no evidence that the ultimately be offset by interest received their claimed offsets in the case briefs Department’s method of allocating U.S. on refunded cash deposits. Torrington that they submitted subsequent to our selling expenses over resale prices is adds that interest expenses, including issuance of the preliminary results of more accurate than NTN’s and NTN- any incurred on financing cash deposits, these reviews. Therefore, we are not Germany’s allocation of these expenses are related to all NTN and NTN- constrained by prior practice to grant over transfer prices. Accordingly, NTN Germany’s U.S. sales and, therefore, NTN’s and NTN-Germany’s claimed and NTN-Germany request that the should be treated like other types of adjustment to U.S. interest expenses for Department use in its analysis NTN’s indirect selling expenses. Torrington interest incurred to finance cash and NTN-Germany’s U.S. selling further argues that even if NTN and deposits of antidumping duties, and expenses as they reported them in their NTN-Germany’s claimed offsets were have rejected the claim for these final questionnaire responses for these final permissible, they failed to demonstrate results. results. that they actually incurred interest Comment 38: Torrington objects to In response, Torrington and Federal- expenses on borrowing to finance cash NTN’s claimed reductions to U.S. Mogul state that transfer pricing is deposits of estimated antidumping indirect selling expenses. According to suspect because it is completely within duties. Finally, Torrington and Federal- Torrington, NTN has provided no the control of respondents and, Mogul reject NTN and NTN-Germany’s evidence that the expenses that it has therefore, subject to manipulation. procedural arguments. Torrington states excluded from its reported U.S. indirect Torrington further argues that the Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10919 Department’s reallocation is rational Germany incurred on U.S. sales prior to Because the record contains no evidence because there is no correlation between importation on the basis of resale prices explaining or supporting the difference the selling expenses in question and to the first unrelated U.S. customer. between the allocation ratios, NTN’s transfer prices. As a result, According to Torrington, because Torrington suggests that the Department Torrington and Federal-Mogul support respondents control transfer pricing, consider for the final results allocating the Department’s reallocation of NTN’s allocation of expenses based on transfer the export selling expenses incurred in and NTN-Germany’s U.S. selling prices affords respondents the Japan to U.S. sales using a ratio based expenses on the basis of resale prices to opportunity to manipulate the on sales. the first unrelated customer in the Department’s analysis by shifting NTN rejects Torrington’s argument, United States. expenses away from certain U.S. stating that the Department verified the Department’s Position: We agree with products. In this context, Torrington accuracy of NTN’s reported export Torrington and Federal-Mogul. First, we states that its own analysis of NTN’s and selling expenses, and that the disagree with NTN’s and NTN- NTN-Germany’s transfer prices and Department has accepted NTN’s Germany’s arguments that we denied production costs suggests that their allocation method in each of the them the opportunity to comment on transfer prices may not be reasonable. previous AFB reviews. Therefore, NTN our rejection of their allocation method Therefore, Torrington requests that the concludes that the Department should and violated judicial precedent in Department reallocate the remainder of not reallocate its export selling expenses reallocating the expenses in question. NTN’s and NTN-Germany’s U.S. selling for these final results. As stated above, NTN and NTN- expenses on the basis of resale prices for Department’s Position: We agree with Germany had the opportunity to make the final results. NTN. Torrington’s analysis is suspect affirmative arguments in support of In rebuttal, NTN and NTN-Germany because it appears to be based on sales their allocation methods in the case assert that Torrington’s analysis fails to of only one class or kind of merchandise briefs that they submitted subsequent to demonstrate that their transfer prices are and on NTN’s U.S. resale prices rather our issuance of the preliminary results unreasonable. NTN further argues that than the value of NTN’s exports to the of these reviews. Further, as stated the pre-sale expenses that it incurred in United States. Further, Torrington has above, we have the authority to revise Japan are attributable to sales by NTN to provided no evidence that its proposed our calculation methods when we its U.S. subsidiary. Therefore, NTN and allocation method yields a more determine that existing methods yield NTN-Germany assert that the accurate measure of the amount of inaccurate results. Department should accept its allocation NTN’s export selling expenses that are When allocating expenses over sales of these expenses using transfer prices attributable to U.S. sales. Because NTN value, we attempt to use the most for these final results. is able to identify specific employees accurate measure of that value. Department’s Position: We agree with Although in certain instances we permit NTN and NTN-Germany. Although we who are responsible for export sales to respondents to allocate certain types of prefer to allocate expenses using resale NTN’s U.S. subsidiary, NTN’s allocation expenses using transfer prices, we prefer prices to unrelated parties, we may method yields a reasonable measure of to allocate expenses using resale prices permit respondents to allocate expenses the export selling expenses attributable to unrelated parties because such prices using transfer prices when it is to U.S. sales. Therefore, in the absence are not completely under respondents’ reasonable to do so. In this instance, of evidence that the salary data that control and, therefore, provide a more such an allocation is reasonable because NTN used in its allocation are reliable measure of value that is not the expenses at issue are movement inaccurate, we have accepted NTN’s subject to potential manipulation by charges that NTN and NTN-Germany allocation method for these final results. respondents. Thus, although we have no incurred on sales, made at transfer Comment 42: Federal-Mogul evidence that NTN systematically prices, to a related party in the United questions NTN’s classification of manipulated its transfer prices, our States. Further, because Torrington’s ‘‘warehouse expenses’’ and allocation of the specific expenses in analysis does not focus on the transfer ‘‘miscellaneous expenses’’ incurred in question using resale prices provides a prices and costs of specific products, we the United States as indirect selling more reliable measure of per-unit find that the analysis fails to expenses. Federal-Mogul argues that, expenses than does an allocation using demonstrate that NTN’s and NTN- although warehouse and miscellaneous transfer prices. Further, the allocation of Germany’s transfer prices are expenses may be indirect selling the expenses in question using resale unreasonable or that they systematically expenses, NTN failed to provide any prices to unrelated customers is manipulated their transfer prices to shift evidence to substantiate its claim that appropriate in this instance because the expenses away from certain U.S. sales. these expenses were not directly related U.S. affiliate of NTN and NTN-Germany Therefore, we have not reallocated the to U.S. sales. Accordingly, Federal- incurred these expenses in the United expenses in question for these final Mogul requests that the Department States making U.S. sales to unrelated results. treat these expenses as direct selling customers. It is not appropriate to Comment 41: Torrington challenges expenses for the final results of this allocate these expenses on the basis of the method that NTN used to allocate to review. the U.S. affiliate’s purchase costs; U.S. sales the export selling expenses NTN responds that it provided rather, the expenses should be allocated that NTN incurred in Japan. According detailed explanations of all its expenses over its sales. Because we prefer to to Torrington, NTN’s method of in its questionnaire responses, and that allocate expenses using resale prices, allocating these expenses according to the Department has accepted NTN’s and because the expenses in question salaries of export department personnel classification of miscellaneous and are attributable to U.S. sales to unrelated appears to understate the amount of warehouse expenses as indirect selling customers, we have allocated the export selling expenses attributable to expenses in each of the previous AFB expenses in question over resale prices U.S. sales. Specifically, the allocation reviews. Therefore, NTN concludes that for these final results. ratio that NTN developed using salaries the Department should continue to treat Comment 40: Torrington asserts that is significantly less than the ratio that miscellaneous and warehouse expenses the Department erred in failing to would be derived by comparing U.S. as indirect selling expenses for these reallocate expenses that NTN and NTN- export sales to total export sales. final results. 10920 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Department’s Position: We agree with movement expenses for the final results reported its general R&D expenses in NTN. The record contains no evidence of this review. accordance with the statute and the that these expenses are directly related NSK responds that the Department Department’s instructions. According to to specific U.S. sales. Therefore, we has no obligation to presume that NSK, it incurs general R&D expenses in have continued to treat them as indirect warehouse expenses are movement analyzing domestic customers’ intended selling expenses for these final results. expenses. NSK further argues that the uses of bearings or in assisting them in Comment 43: Torrington maintains Department never challenged NSK’s identifying the appropriate product for that NPBS’ allocation of export selling claim that the warehouse expenses at a particular application; because of the expenses based on the number of issue were indirect selling expenses. need to work directly with customers in personnel responsible for export sales is Therefore, NSK concludes that the providing general R&D services, NSK unreliable. Torrington argues that the Department should continue to treat states that it does not provide such Department should reallocate these warehouse expenses as indirect selling services to export customers. Thus, expenses based on the relative value of expenses for these final results. because NSK incurs general R&D U.S. sales to total export sales, as it did Department’s Position: We agree with expenses for domestic customers only, in the final results of AFBs III (at 39749). NSK. The record contains no evidence and because the expenses are related to NPBS responds that its allocation that NSK incurred the warehouse NSK’s selling function, NSK concludes method is reasonable. According to expenses in question for storage of that the Department should deduct them NPBS, it allocates expenses incurred in merchandise in transit from one as indirect selling expenses from FMV Japan to all export sales based on the location to another, as was the case in for these final results. number of personnel responsible for Nihon. Moreover, Federal-Mogul has Department’s Position: We agree with export sales, and then allocates the provided no evidence that any other NSK. We consider NSK and its related circumstances are present that would export selling expenses to U.S. sales distributors to be one company for warrant treating the warehouse based on the ratio of U.S. sales to total purposes of this review and, therefore, expenses in question as movement export sales. Therefore, NPBS contends consider all indirect selling expenses expenses. As a result, we cannot that its allocation method is reasonable incurred by NSK and its related conclude that these expenses are and consistent with the Department’s distributors for the distributors’ sales to movement expenses. Accordingly, we position in the final results of AFBs III. unrelated customers to be related to have continued to treat them as indirect As a result, NPBS concludes that the these sales. Further, we verified that selling expenses for these final results. NSK incurs general R&D expenses to Department should not reallocate its Comment 45: Torrington challenges support NSK’s overall sales and export selling expenses for these final two aspects of NSK’s claimed HM marketing efforts, and that NSK does not results. indirect selling expenses. First, incur general R&D expenditures for Department’s Position: We agree with Torrington argues that NSK improperly export customers. Accordingly, we have NPBS. To the extent that NPBS is able claimed deductions from FMV for included all expenses that NSK incurred to identify specific employees who are indirect selling expenses incurred by in making sales to its related sales responsible for export sales, it is NSK’s HM subsidiaries as well as by companies in Japan, and all of NSK’s acceptable for NPBS to determine that NSK. Citing AFBs I, Torrington argues claimed general R&D expenses, among portion of its total pool of indirect that the Department previously has NSK’s HM indirect selling expenses for selling expenses attributable to export rejected respondents’ attempts to claim these final results. sales based on the ratio of export-related deductions from FMV for indirect Comment 46: Torrington asserts that employees to total employees because it expenses incurred by both the parent NSK should not allocate indirect selling provides a reasonable measure of the company and its sales subsidiary. expenses and G&A expenses for ESP selling effort that NPBS devotes to Torrington further argues that NSK has sales on the basis of resale prices. export sales. Further, because NPBS not demonstrated that the research and According to Torrington, NSK’s used the ratio of U.S. export sales to development (R&D) expenses that reallocation was not in compliance with total export sales to allocate export comprise a significant portion of NSK’s the Department’s instructions in its selling expenses to U.S. sales, we find HM indirect selling expenses are supplemental questionnaire to NSK. that NPBS’ allocation method is actually related to NSK’s selling Torrington further argues that NSK’s reasonable and consistent with AFBs III. functions. Therefore, Torrington allocation method distorts the Therefore, we have used NPBS’ reported concludes that the Department should Department’s calculations by assigning export selling expenses in our eliminate R&D expenses from NSK’s the highest deductions for such calculations for these final results. claimed HM indirect selling expenses expenses to sales with the highest per- Comment 44: Federal-Mogul or, at a minimum, allow as a HM unit resale prices. Therefore, Torrington questions NSK’s classification of indirect selling expense only that believes that the Department should use ‘‘warehouse expenses’’ incurred in the portion of R&D expenses attributable to the highest amount deducted for any United States as indirect selling HM sales. U.S. sale to make these adjustments for expenses. Citing Nihon Cement Co., Ltd. NSK responds that because the all U.S. sales. Alternatively, Torrington v. United States, Slip. Op. 93–80 (May Department considers NSK and its argues that the Department should 25, 1993), Federal-Mogul contends that related distributors to be one entity, the reallocate indirect selling expenses and warehouse expenses may be movement indirect selling expenses of both NSK G&A over the cost of goods sold, in expenses under certain circumstances. and its related distributors are properly order to ensure that the expenses in In this context, Federal-Mogul argues attributed to the HM sales subject to this question are allocated to each part that although warehouse expenses may review. NSK further argues that the number without distortion. be indirect selling expenses, NSK failed Department has accepted NSK’s method Citing Nacco Materials Handling to provide any evidence to substantiate of reporting indirect selling expenses in Group, Inc. v. U.S., Slip Op. 94–34 its claim that these expenses were not previous AFB reviews, and that the (March 1, 1994), NSK argues that the movement expenses. Accordingly, Department verified NSK’s reported Department should continue to accept Federal-Mogul requests that the indirect selling expense data in this its method of reporting these expenses Department treat these expenses as review. Moreover, NSK argues that it because, as explained in NSK’s Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10921 supplemental questionnaire response, it Department’s Position: We agree with incurred by the parent company in is accurate and reliable. NSK further Torrington and Federal-Mogul. The Japan should be allocated to the Thai argues that the Department accepted Department is required by 19 CFR operations. According to Torrington, NSK’s allocation method in previous 353.60 to make currency conversions in there is no merit to NMB/Pelmec’s AFB reviews, and verified the expenses accordance with Customs procedures argument that the R&D expenses in question in this review. Therefore, established by section 522 of the Tariff identified by the Department at NSK concludes that the Department Act. This section states that ‘‘(t)he verification are not related to the subject should not reallocate NSK’s indirect Federal Reserve Bank of New York shall merchandise and should not be added selling expenses and G&A for these final decide the buying rate and certify the to COP and CV. The record does not results. rate to the Secretary (of the Treasury).’’ support NMB/Pelmec’s contention that Department Position: We agree with Therefore, we have used the Federal the unreported R&D costs were incurred NSK. In its response to our Reserve Bank’s exchange rates as the solely for rod-end, spherical and journal supplemental questionnaire, NSK basis for RHP’s currency hedging bearings. explained in full the sales price-based adjustment for these final results. Torrington further contends that, even method that it used to allocate the if NMB/Pelmec’s unsubstantiated 5. Cost of Production and Constructed factual contention were correct, it is expenses in question. As in previous Value reviews, we find that NSK’s allocation irrelevant whether or not these types of method is reasonable. Further, there is 5A. Research and Development bearings are presently being manufactured in the Thai facilities. It is no evidence that an allocation of Comment 1: Torrington contends that, indirect selling expenses based on cost recognized that the same basic although RHP treated all R&D as G&A technology and production processes of goods sold, as proposed by expenses, these expenses were at least Torrington, is any more accurate or are utilized for the various types of in part product-specific. Torrington bearings. For the final results, reasonable than a sales price-based references two response exhibits listing allocation. Therefore, consistent with Torrington argues that the Department product R&D expenses for new products should include the allocated portion of past AFB reviews, for these final results to support its view that the Department we have accepted NSK’s indirect selling the R&D expenses in question. should reject RHP’s argument that it was Department’s Position: The expenses as NSK reported them in its unable to report product-specific R&D. Department agrees with Torrington’s questionnaire responses. Torrington notes that developing new argument that the respondent failed to 4H. Miscellaneous Charges products is clearly a product-specific demonstrate that the benefits of activity and should have been reported Minebea Japan’s R&D efforts are limited Comment 47: RHP contends that the as such. Torrington concludes that the to nonsubject merchandise. NMB/ Department erred in using Federal Department should reclassify all R&D Pelmec’s argument that the financial Reserve exchange rates rather than expenses and include them in the total report only discusses R&D that relates to RHP’s reported exchange rate in for the COM for the final results. nonsubject products is flawed. The recalculating RHP’s claimed currency RHP explains that while its R&D same report discusses how the Minebea hedging adjustment. RHP states it facility was responsible for developing Group developed a new washing system provided all the information that the new products, no new products were for ball bearings that it intends to have Department requested regarding RHP’s sold during the POR, and thus, there is installed in all their plants worldwide hedging adjustment, and that RHP’s no basis for adjusting RHP’s reported by the end of March 1993. Furthermore, reported exchange rates accurately R&D costs. we find irrelevant NMB/Pelmec’s reflect the rates that RHP received. RHP Department’s Position: We disagree argument that the list of current R&D further argues that the Department with Torrington. The exhibits in RHP’s projects that the Department reviewed provided no justification for its cost section show general areas of R&D did not contain R&D specifically related determination not to use RHP’s actual directed at the development of new to bearings. We verified through exchange rates. Therefore, RHP asserts bearings and general improvements to Minebea Japan’s financial statements that the Department should use the data certain aspects of all bearings. The that it amortizes the cost of its R&D over that RHP submitted concerning its exhibits do not indicate that R&D costs a 5-year period. Accordingly, the actual corporate exchange rates to were incurred for any specific bearing. current list of R&D projects does not calculate its currency hedging Comment 2: NMB/Pelmec argues that reflect the capitalized costs of prior year adjustment for these final results. the R&D expenses that are not related to projects currently being expended as an Torrington and Federal-Mogul argue the subject merchandise should not be operating cost. Therefore, it is in rebuttal that the Department must added to the COP and CV. In its Section appropriate to allocate R&D costs to apply the exchange rate specified by the D response to the Department’s NMB/Pelmec and we have included Department’s regulations. Torrington questionnaire, NMB/Pelmec explained these expenses in the COP and CV. continues that it is the respondents’ that R&D expenses were reported as part burden to demonstrate their entitlement of factory overhead. The only R&D 5B. Profit for Constructed Value to an adjustment. In this context, activities noted in the 1992 Minebea Comment 3: Torrington argues that Torrington argues that the Department Co.’s annual report relate to ‘‘Rod-End, sales to related parties that are not at did not verify RHP’s corporate exchange Spherical and Journal Bearings.’’ These arm’s length should be excluded for rates, and that RHP did not explain how types of bearings are manufactured at purposes of calculating statutory profits. its reported corporate rates would result facilities in the United Kingdom, the Torrington cites Final Determination of in a more precise adjustment than those United States and Japan, and are not Sales at Less Than Fair Value; Certain that the Department used in its manufactured by the same facilities that Stainless Steel Wire Rods from France, calculations. Therefore, Torrington and produce the subject merchandise. 58 FR 68865 (December 29, 1993), Federal-Mogul conclude that the Therefore, these expenses should not be where the Department held that ‘‘all Department should not modify its included in the COP and CV. home market sales to related parties that calculation of RHP’s currency hedging Torrington rebuts NMB/Pelmec’s fail the arm’s-length test’’ should be adjustment for these final results. argument by stating that R&D expenses excluded from the profit calculation. 10922 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Torrington claims that the change in to related parties was reflective of an Comment 4: Torrington contends that approach was prompted by the fact that amount for profit usually reflected on below-cost sales should be excluded for related-party sales are excluded when sales of the merchandise. To do so, we purposes of calculating statutory profits. FMV is based on HM sales. Torrington compared profit on sales to related Torrington argues that the same also cites Final Determination of Sales parties that failed the arm’s-length test rationale for the decision in Certain at Less Than Fair Value; Certain Hot- to profit on sales to unrelated parties. If Stainless Steel Wire Rods from France Rolled, Cold-Rolled, Corrosion-Resistant the profit on sales to related parties applies equally to below-cost sales that and Cut-to-Length Carbon Steel Flat varied significantly from the profit on are disregarded under 19 U.S.C. Products from Korea, 58 FR 37176 (July sales to unrelated parties, we 1677b(b) and contends that if sales 9, 1993), as a recent example of this disregarded related-party sales for the below cost are excluded for price-to- practice. Finally, Torrington contends purposes of calculating profit for CV. price comparisons, these sales cannot be that this exclusion is in accordance with We first calculated profit on sales to included for determining profit for the 19 U.S.C. 1677b(e)(2). unrelated parties on a class or kind calculation of CV. Respondents assert that sales to basis. If the profit on these sales was Torrington also argues that below-cost related parties which are not at arm’s less than the statutory minimum of eight sales excluded under 19 U.S.C. 1677b(b) length are in the ordinary course of percent, we used the eight percent are not in the ordinary course of trade. trade and should be included in the statutory minimum in the calculation of The petitioner contends that the calculation of the profit component of CV. If the profit on these sales was equal definition of CV specifies that statutory CV. They also contend that the to or greater than the eight percent profits should be calculated on the basis Department has consistently rejected statutory minimum, we calculated profit of sales in the ordinary course of trade. Torrington’s argument in prior AFB on the sales to related parties that failed 19 U.S.C. 1677b(e)(1)(B). Thus, below- reviews. FAG argues that, although the the arm’s-length test and compared it to cost sales, when made in substantial Department has reconsidered this issue the profit on sales to unrelated parties quantities over an extended period of in Certain Stainless Steel Wire Rods as described above. Based on this time, must be disregarded in calculating from France and declined to include methodology, we found only one CV profit. Torrington further points out that the such related-party sales in the profit instance in which the profit on sales to United States has taken the position that component of CV, such change in policy unrelated parties was greater than eight disregarded below-cost sales are not to is unwarranted given the lack of any percent—specifically, sales of CRBs by be considered sales in the normal course statutory mandate to disregard related- INA. party sales that are in the ordinary of trade as referred to in Article VI of the Profit on INA’s sales of CRBs to course of trade. FAG argues that should General Agreement on Tariffs and Trade unrelated parties varied significantly in the Department reject such related-party (GATT) and the Antidumping Code. comparison to profit on its sales of CRBs sales, the Department should then Finally, Torrington maintains that its to related parties. Therefore, we perform the equivalent of a ‘‘10–90–10 view of ordinary course of trade conclude that the profit on INA’s sales test,’’ as it does in disregarding below- conforms to international practice and is cost sales where FMV is based on price. to related parties did not fairly reflect supported by the Final Act of the Department’s Position: We agree in the amount usually reflected on HM Uruguay Round, dated December 15, part with Torrington. Contrary to sales of this merchandise. Accordingly, 1993, in which parties to the negotiation Torrington’s contention, there is no we used INA’s profit on sales to agreed to the principle that CV should basis for automatically excluding, for unrelated parties in the calculation of incorporate actual profits earned on the purposes of calculating profit for profit in determining CV for CRBs. sales in the ordinary course of trade. CV, sales to related parties that fail the With regard to FAG’s contention that Respondents maintain that it would arm’s-length test. the Department should apply a 10–90– be incorrect for the Department to Section 773(e)(2) of the Tariff Act 10 test in this situation, we note that the disregard below-cost sales in the provides that a transaction between 10–90–10 test is a practice we calculation of CV because such action is related parties may be ‘‘disregarded if, established to implement the statutory not supported by a proper reading of the in the case of an element of value requirement, as provided in section statute. Furthermore, respondents required to be considered, the amount 773(b) of the Tariff Act, that HM sales maintain that the international representing that element does not fairly at less than COP be disregarded if, agreement cited by Torrington is not reflect the amount usually reflected in among other things, they have been relevant to the administration of current sales in the market under made in substantial quantities. The 10– U.S. antidumping law. Respondents consideration.’’ The arm’s-length test, 90–10 test is not germane to the issue claim that the statute and Departmental which is conducted on a class or kind of whether the element of profit fairly practice implicitly recognize that sales basis, determines whether sales prices reflects the amount usually reflected in below cost are in the ordinary course of to related parties are equal to or higher sales in the market under consideration, trade and should be included in than sales prices to unrelated parties in which is provided for under section calculating profit for CV. the same market. This test, therefore, is 773(e) of the Tariff Act. Furthermore, we Department’s Position: We disagree not dispositive of whether the element have not based our determination to with Torrington’s contention that the of profit on related party sales is disregard related-party sales that fail the calculation of profit should be based somehow not reflective of the amount arm’s-length test for the purposes of only on sales that are priced above the usually reflected in sales of the calculating CV on whether such sales COP. Section 773(e)(1)(B) of the Tariff merchandise under consideration. are in the ordinary course of trade. Act specifically imposes a variety of However, related-party sales that fail the Rather, as discussed above, our decision requirements on the calculation of profit arm’s-length test do give rise to the to disregard such sales is based on in determining CV. Namely, the profit possibility that certain elements of whether, pursuant to section 773(e)(2) of should be equal to that usually reflected value, such as profit, may not fairly the Tariff Act, the amount for profit on in sales: (1) Of the same general class or reflect an amount usually reflected in such sales was reflective of an amount kind of merchandise; (2) made by sales of the merchandise. We considered for profit usually reflected on sales of producers in the country of exportation; whether the amount for profit on sales the merchandise. (3) in the usual commercial quantities; Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10923 and (4) in the ordinary course of trade. therefore, should not be used as profit purchased from related suppliers must Thus, the statute does not explicitly for CV. be removed from the administrative provide that below-cost sales be Department’s Position: With the record. NSK further requests that disregarded in the calculation of profit. exception of those firms which had counsel for Torrington and for Federal- The detailed nature of this sub-section related-party sales at prices which were Mogul return this information to suggests that any requirement less than arm’s-length prices, we counsel for NSK. concerning the exclusion of below-cost disagree with Torrington’s contention Torrington and Federal-Mogul argue sales in the calculation of profit for CV that profit should be computed on the that the Department properly applied 19 would be explicitly included in this basis of the sample sales reported or the U.S.C. 1677b(e)(3) by collecting cost provision. Accordingly, it would be average profit rate of all sales, data from related-party suppliers. inappropriate for the Department to read whichever is greater. We requested Torrington and Federal-Mogul maintain such a requirement into the statute. See information only on sales of such or that because respondents engaged in AFBs III (at 39752). similar merchandise. Because the profit below-cost sales, the Department had Furthermore, contrary to Torrington’s on the sales of such or similar reasonable grounds upon which to assertions, under current law, as merchandise may not be representative collect cost data from related suppliers. expressed in section 771(15) of the of the profit for the general class or kind Torrington argues that given that the Tariff Act, the definition of ‘‘ordinary of merchandise, we requested profit foreign producers do sell below cost, it course of trade’’ does not exclude or information based on the class or kind is reasonable to infer that their losses even mention sales below-cost. Until the of merchandise. are passed back to related-party changes resulting from the GATT 1994 In the case of firms which needed suppliers, who are forced to transfer agreements are implemented by the profit adjustments to eliminate sales materials and components at a loss. United States, we must follow the above made to related parties which were not Torrington argues that 19 U.S.C. section of the Tariff Act. at arm’s length, we found it necessary to 1677b(b), which provides the standard make the adjustment based on the Consequently, we have used the for analyzing below-cost sales, does not reported HM sales, which was the only greater of the rate of profit provided in imply that any particular party has to information available. the response or the statutory minimum submit the evidence of below-cost With respect to Torrington’s proposed transfer prices of inputs and, therefore, of eight percent unless we applied a BIA applications for firms that withheld different profit rate resulting from does not suggest that the burden of profit data in this review, we found no proof should be placed upon the calculations in those situations where cases where respondents withheld such HM related-party sales were found not petitioner, as suggested by NSK. data. Federal-Mogul and Torrington claim to be at arm’s length. See Comment 3. that the best evidence concerning Comment 5: Torrington argues that 5C. Related-Party Inputs related-party production cost is not since the Department requested profit Comment 6: NSK and Koyo claim that accessible to domestic parties and that data for total sales made during the POR the Department violated the the burden to submit the evidence and for the sample sales, it should antidumping law by never establishing should be placed upon the respondents. compute respondents’ profits on the the grounds for collecting cost data from Torrington and Federal-Mogul maintain basis of the sample sales reported or the related-party suppliers. NSK argues that that NSK’s position would essentially average profit on all sales, whichever is the Department must have a specific nullify 19 U.S.C. 1677b(e)(3). greater. Torrington states that given that and objective basis for suspecting that Department’s Position: We disagree the Department has relieved the transfer price paid to a particular with NSK and Koyo that the Department respondents of reporting all sales for the related supplier for a major input is violated the antidumping law by period through the use of sampling, it is below that supplier’s costs before the requesting cost data from related appropriate to use the higher of the two Department can collect cost data from suppliers. In calculating CV, the available rates. However, Torrington that party. Citing 19 USC 1677b(e)(3), Department does not necessarily accept argues that if a single rate is adopted, it NSK claims that the Department the transfer prices paid by the should be the sample sales profit rate violated the antidumping law by not respondent to related suppliers as the since this rate is a representative profit establishing ‘‘reasonable grounds to appropriate value of inputs. Related tailored to the U.S. sample weeks. believe or suspect’’ that the transfer parties for this purpose are defined in Torrington further contends that for price paid to related-party suppliers was section 773(e)(4) of the Tariff Act. In respondents that withheld data, the below cost. NSK claims that the quoted accordance with section 773(e)(2) of the Department should apply the highest language of this provision matches 19 Tariff Act, we generally do not use profit rate earned by any other USC 1677b(b), which grants the transfer prices between such related respondent during the POR. For Department the authority to conduct parties unless those prices reflect the respondents that did not provide data, cost investigations. On this premise market value of the inputs purchased. Torrington believes the Department NSK argues that the ‘‘same threshold To show that the transfer prices for its should apply 19 U.S.C. 1677e(c) to standard must be applicable to both inputs reflect market value, a supply the missing information. provisions.’’ Koyo argues that not only respondent may compare the transfer Alternatively, Torrington argues that for did the Department not have any prices to prices in transactions between all sales that would otherwise be statutory authority to request COP unrelated parties. A respondent may compared with CV, the Department information for inputs that it purchased provide prices for similar purchases should apply the dumping margin from related suppliers, but also that from an unrelated supplier or similar calculated in the original LTFV there have been no allegations by sales by its related supplier to unrelated investigation as BIA. petitioners in this review, or in any purchasers. If no comparable market Respondents maintain that profit on prior AFBs proceeding, that such parts price for similar transactions between any sample of sales, including sales of were purchased at less than COP. NSK related parties is available, we may use such or similar merchandise, is not and Koyo claim that since the the actual COP incurred by the related representative of profit on a general Department has violated the supplier as an indication of market class or kind of merchandise and, antidumping law, all cost data for parts value. If the transfer price is less than 10924 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices the market value of the input, we may should accept all transactions between the commercial value of that input. In value the input using the best evidence related parties when the business the case of major inputs, section available, which may be the COP. pattern demonstrates a competitive 773(e)(3) of the Tariff Act requires the NSK provided no information relationship. Department to use the COP of that input regarding prices between unrelated Alternatively, if the Department if such cost is greater than the amount parties for inputs it purchased from concludes that it may determine the that would be determined for such input related suppliers. Therefore, in market value at which parts should be under section 773(e)(2). accordance with section 773(e)(2) of the purchased from related suppliers simply We agree with NSK that, under Tariff Act, we required the actual COP on price-to-price comparisons, then section 773(e)(2) of the Tariff Act, the of those inputs to determine whether NSK argues that it cannot be penalized Department should only adjust related the transfer prices between NSK and its to the extent that its related supplier suppliers’ prices in situations in which related suppliers reflected the market costs exceed an unrelated supplier’s there were no arm’s-length prices value of the inputs. Where the transfer price. Under section 773(e)(2) of the available and the price-to-cost prices were less than the COP (i.e., Tariff Act, the Department cannot comparisons (in lieu of price-to-price market value), we used the COP as the require that a related supplier’s price be comparisons) reveal that the suppliers’ best evidence available for valuing the above its COP if the fair market value costs exceed its prices. NSK did not input. Similarly, Koyo did not provide established by an unrelated supplier’s provide any comparable arm’s-length information regarding prices between price is below the related supplier’s prices. Therefore, for these final results, unrelated parties for some inputs it COP. Therefore, under those we have compared the reported transfer purchased from related suppliers. In circumstances in which both the related price of complete bearings and those instances we also required the and unrelated suppliers’ prices fall components purchased from related actual COP of those inputs to determine below the related supplier’s costs, the suppliers with the actual COP and used whether the transfer prices reflected the Department should adjust the related the higher of the two for CV. market value of the inputs. Where the party’s price only to the extent it falls Comment 8: Torrington alleges that transfer prices were less than the COP, below fair market value measured by the NMB/Pelmec Singapore has not we used the COP as the best evidence unrelated supplier’s price. demonstrated that arm’s-length prices available for valuing the input. NSK further argues that if the were paid to Minebea Japan for the Under section 773(e)(3) of the Tariff Department determines market value at equipment used by NMB/Pelmec Act, if the Department has reason to which parts should be purchased from Singapore. Therefore, the Department believe or suspect that the price paid to related suppliers on a price-to-cost should not use the prices reported by a related party for a major input is comparison when price-to-price NMB/Pelmec for the final results. below the COP of that input, we may comparisons do not exist, then the NMB/Pelmec Singapore states that it investigate whether the transfer price is Department should adjust NSK’s costs reported in the supplemental Section D in fact lower than the supplier’s actual for only those parts purchased at prices response that machinery manufactured COP of that input even if the transfer below the COP. In these instances, NSK by Minebea Japan is purchased at price reflects the market value of the claims that the Department’s current market value, and gave an example of input. If the transfer price is below the adjustment is too broad and that the how the price for one of the machines related supplier’s COP for that input, we Department should use the related was determined. NMB/Pelmec may use the actual COP as the value for supplier’s actual COP submitted to the Singapore claims that there is no reason that input. Department. Finally, NSK contends that to reject the prices paid by NMB/Pelmec We found in the previous review that if the Department continues to disregard Singapore for the machinery from both companies had purchased major the related supplier’s cost data, the Minebea Japan. inputs from related parties at prices Department should amend its Department’s Position: NMB/Pelmec below COP. Therefore, in accordance adjustment to exclude finished bearings Singapore was unable to provide prices with normal practice, we determined purchased from other suppliers from the between related parties for sales of that we had reasonable grounds to adjustment equation. identical equipment. As an alternative, believe or suspect that both NSK and Department’s Position: Under section it submitted with its response to the Koyo purchased major inputs from 773(e)(2) of the Tariff Act, the Department’s Section D supplemental related suppliers at prices below the Department is directed to disregard a questionnaire copies of documents COP of those inputs during this review transaction between related parties ‘‘if illustrating the COP and sales period. See AFBs III (at 39754). the amount representing an element of information on the transfer of five inner- Comment 7: NSK argues that the value, required to be considered in the ring raceway grinding machines to Department should use NSK’s purchase calculation of CV, does not fairly reflect Pelmec Singapore. The information price for parts purchased by NSK from the amount usually reflected in sales in submitted indicates that the machines each related supplier. NSK claims that, the market under consideration.’’ Given were transferred from Minebea Japan to according to section 773(e)(2) of the this requirement, we disagree with NSK NMB/Pelmec Singapore at a mark-up in Tariff Act, the Department should reject that we should not reject every addition to COP. Therefore, the prices for parts purchased from related transaction in which the prices from the Department has concluded that NMB/ suppliers only when it appears that related supplier do not reflect the Pelmec Singapore’s related-party these prices have been manipulated and amounts usually reflected in sales equipment purchases can be considered that ‘‘* * * the amount representing between unrelated parties. Although arm’s-length transactions. that element does not fairly reflect the competitive factors may temporarily Comment 9: NMB/Pelmec Thailand amount usually reflected in sales in the force related suppliers to sell below states that the Department’s conclusion home market under consideration.’’ market value, this does not relieve us of that transfer prices for bearings Given the discretionary language of our responsibility to capture the full components are below cost is based on section 773(e)(2), NSK contends that the market value usually reflected in sales numerous errors. The Department stated Department should not reject every of the input. Lacking information as to in its analysis memorandum for the transaction that simply falls below an what the market value is, we rely on the preliminary results dated February 28, unrelated supplier’s price, but instead related supplier’s cost as a measure of 1994, that, based on a sample of four Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10925 bearing components, it determined that the United States. As a consequence of 5D. Inventory Write-Off related-party transfer prices ‘‘may not be the Minebea Group’s practice of Comment 11: Torrington states that reflective of fair value.’’ As such, the purchasing and reselling materials and RHP had write-offs and write-downs Department increased NMB/Pelmec’s bearings for the benefit of NMB/Pelmec during the POR, and that the company COP and CV data by the amount by Thailand, Minebea’s reported sales and charged these costs to all RHP stock which it determined that the bearings cost of sales account for the cost of these instead of to the particular models component transfer prices were below related-party material purchases twice. involved. Torrington suggests that write- cost. NMB/Pelmec Thailand argues that When Minebea Japan sells component offs and write-downs of ball bearing before comparing transfer prices to parts to NMB/Pelmec Thailand, it models may have been charged to non- costs, the Department increased the records a sale and cost of sale in its scope merchandise. Torrington notes reported costs for four items: interest, financial statements. Then, that write-downs and write-offs are by R&D, headquarters expense, and correspondingly, when Minebea Japan nature model-specific and should be Karuizawa’s G&A expenses. repurchases and sells the finished NMB/Pelmec Thailand argues that its charged to specific models. Torrington bearings which include the previously Karuizawa plant’s G&A costs and its argues that the Department should transferred components, it records a sale Minebea headquarters expenses should reallocate these costs by charging all and cost of sale in its financial not be added to the component costs costs to the bearing model with the because these expenses have already statement. This sequence of events highest sales revenue in the United been taken into account. Since the constitutes double-counting in Minebea States during the POR for which CV Department adds the headquarters Japan’s own financial statements, i.e., serves as FMV. expenses when calculating CV value, a sales of components and finished RHP agrees with Torrington that downward adjustment needs to be made bearings. Such double-counting occurs inventory write-offs and write-downs at this stage to account for the fact that because Minebea Japan does not occurred during the POR. RHP states, some of the component costs have consolidate its financial statements with however, that it acceptably charged already been increased by this amount. those of NMB/Pelmec Thailand. these write-offs and write-downs against Similarly, NMB/Pelmec Thailand argues Therefore, the Department has adopted a reserve on its financial reports. that if the Karuizawa plant’s G&A a similar methodology in applying its Department’s Position: We agree with expenses are added to component costs, adjustments to rectify the transfer price RHP. RHP accounted for the write- then the markup should be deducted deficiencies it found during verification. downs and write-offs in accordance with GAAP in the United Kingdom. from the reported costs. NMB/Pelmec Comment 10: Torrington argues that GAAP does not require that companies further argues that since the Department certain related-party transfer prices that increased the reported costs for bearing write down or write off inventory on a NTN reported in its CV questionnaire model-specific basis. RHP appropriately components by the amount of Minebea response do not constitute a permissible Japan’s consolidated interest costs, the off-set the reserve rather than recognize basis for calculating CV. For the final an additional expense. In addition, RHP Department has double-counted this results, Torrington urges the Department expense because these costs were realized a miscellaneous gain due to an to calculate ‘‘arm’s-length’’ prices for overaccrual for write-downs and write- already included in the reported CV certain inputs using information that figures. Finally, NMB/Pelmec states that offs in previous periods. NTN provided or, if the Department is R&D has also been double-counted since unable to do so, to reject NTN’s CV data 5E. Interest Expense Offset these costs were included in CV. Torrington states that the Department in favor of BIA. Comment 12: Federal-Mogul argues properly concluded that transfer prices NTN responds that it provided all the that SNR’s claim for an interest income for NMB/Pelmec’s bearing components information that the Department offset to financing expenses in the CV are below cost. Torrington states that requested regarding related-party and COP calculations should be there is no merit to NMB/Pelmec’s inputs, and that it indicated the disallowed because SNR failed to contention that the Department products that contained inputs distinguish between interest income committed numerous errors. The purchased from parties related to NTN. from bearing manufacturing and interest verification team determined that as Therefore, NTN concludes that the income from investments. In this Kuruizawa is involved with these Department should not use BIA to respect, Federal-Mogul argues that purchases, its G&A costs must be determine the dumping margins for any SNR’s interest earned from ‘‘late included in the COP along with the U.S. sales that are matched to CV for payment for goods’’ is properly additional general expenses incurred by these final results. classified as ‘‘interest revenue’’ and Minebea. According to Torrington, the should thus be used to adjust sales price respondents failed to provide Department’s Position: We agree with upwards or to offset credit expenses. calculations to illustrate that the NTN. NTN provided the data that we Further, Federal-Mogul asserts that Department’s methodology results in requested for related-party inputs and SNR’s claim for interest on advance double-counting and that adding R&D the information necessary to make any payments to suppliers is not interest expenses was unjustified. adjustments to related-party prices. earned from bearing manufacturing Department’s Position: We found at Further, we find that adjustments to operations. verification that related parties supply NTN’s related-party prices are SNR responds that its reported the majority of materials used by NMB/ unnecessary. Although certain interest income was all derived from Pelmec Thailand in its production of the purchases that NTN made from related- operations, specifically short-term subject merchandise. It was also shown parties were not at arm’s-length prices, deposits, interest on late payment for at verification that a sample of related- these inputs represent a small fraction bearings, and interest on advance party transfers either did not match the of NTN’s total inputs and, therefore, payments to suppliers. SNR states that price from an unrelated party or were have an insignificant effect on the it did not derive any of its interest below the COP. Additionally, Minebea submitted CV data. As a result, we have income from non-operational activities Japan purchases NMB/Pelmec used NTN’s related-party prices in our such as the sale of land or negotiable Thailand’s finished bearings for sale to CV calculations for these final results. securities. Accordingly, SNR claims 10926 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices there is no basis to deny its reported reported any interest income from these these expenses do not relate to the offset. activities. Therefore, we are satisfied ordinary operations of the company. Department’s Position: We agree with that the interest income is related to Since such activities and related SNR. The interest earned on short-term production activities and the investment expenses at a minimum promote NMB/ deposits, on advance payments to of working capital. Pelmec’s name, we have revised NMB/ suppliers and on late payments is Pelmec’s calculation of G&A expenses to 5F. Other Issues derived from manufacturing and sales include these costs. operations. The Department’s practice is Comment 15: NMB/Pelmec Thailand Comment 17: Torrington argues that to accept a reduction of total interest argues that the Department improperly the Department found at verification expense by such short-term interest recalculated the G&A expenses portion that certain expenses, i.e., bonus for income because such income is earned of the reported COP and CV data to directors, bonus for auditors, exchange from working capital, which by include additional Minebea Japan loss and miscellaneous expenses, were definition is related to manufacturing headquarters expenses. According to not included in the costs submitted by and sales operations. Therefore, we NMB/Pelmec, some of these expenses Koyo. Torrington contends that the accepted the interest offset as reported were unrelated to the production of the Department should make the by SNR. subject merchandise. Accordingly, these appropriate adjustments to COP and CV Comment 13: Federal-Mogul claims expenses should not be included in the for the final results. SKF’s interest income offset should be COP and CV calculations. Koyo argues that the Department disallowed because the source of this Torrington rebuts NMB/Pelmec’s improperly reclassified its non- offset was not provided. Federal-Mogul argument by stating that the Department operating expenses and payments out of asserts that the interest income found at verification that Minebea retained earnings as production qualifying as an offset to interest Japan’s G&A expenses incurred were not expenses. Specifically, the Department expense must be derived from bearing fully allocated to the Thai operations. incorrectly reclassified bonus payments manufacturing operations. Torrington asserts that the evidence on to auditors and directors paid out of SKF argues that total interest expense the record does not support NMB/ retained earnings, exchange losses, and was reduced by interest income earned Pelmec’s contention and that the all expenses booked as ‘‘miscellaneous solely on short-term investments (cash Department has improperly allocated non-operating.’’ The reclassification of and marketable securities). In addition, G&A expenses to the Thai operations. bonuses for directors and auditors SKF argues that it illustrated its interest Department’s Position: It is contradicts prior Department treatment calculation and the details were verified appropriate to allocate a portion of the of these expenses. Koyo states that the by the Department. SKF asserts the total headquarters expenses to NMB/ Department in four previous tapered Department’s practice is to require a Pelmec Thailand. NMB/Pelmec lists roller bearing (TRB) reviews found that respondent to show that interest income headquarters expense as a general bonuses for directors and statutory used to offset interest expense in the expense, which are period costs that auditors’ fees were similar to a dividend calculation of COP relates to a firm’s relate to the operation as a whole. We payment and, accordingly, not a general operations, and that this agree with Torrington that the record production cost. Koyo also argues that practice was affirmed by the CIT in The evidence does not support the the Department erroneously reclassified Timken Co. v. United States, Slip Op. respondent’s contention that some of the exchange losses included in Koyo’s 94–1 at 12–20 (January 3, 1994). the accounts that make up headquarters non-operating expense account as Department’s Position: We agree with expense should not be allocated to the production costs. Koyo contends that its SKF. The Department verified that the Thai operations. exchange losses are related to interest income offset was attributed to Comment 16: NMB/Pelmec Thailand international sales operations, not short-term investments of its working argues that the Department incorrectly domestic production. Since all capital. Therefore, interest expense was adjusted G&A expenses for certain production expenses are incurred and appropriately reduced by this amount. extraordinary expenses which were paid in yen, there can be no production- Comment 14: Torrington observes that unrelated to the ordinary operations and related exchange losses. NPBS reported interest expenses for should not be included in the COP and Department’s Position: During COP net of interest income. Torrington CV calculations. According to NMB/ verification, Koyo’s management claims, however, that NPBS failed to Pelmec, these extraordinary expenses provided explanations of the costs that demonstrate that the interest income in consisted primarily of expenses related were included as certain non-operating question was derived from short-term to the company’s 10th anniversary expenses on the financial statements. investments directly related to celebrations in Thailand and should not Based on the discussions, we found that production of merchandise. have been added. certain general expenses were not Accordingly, Torrington asserts that the Torrington asserts that NMB/Pelmec’s included in the submission. These costs Department should recalculate NPBS’ argument that the firm’s 10th included miscellaneous expenses and interest-expense factor without anniversary celebration was an bonuses for the board of directors and including interest income. extraordinary loss is incorrect since by auditors which are normal costs NPBS responds that its interest the nature of the expense, it will recur incurred by companies. With respect to income offset includes income derived in the future. In addition, such events foreign exchange losses, these costs from short-term investments related to are typically an occasion to promote were also considered to be a general the production of subject merchandise products and develop customer expense because they did not relate to and income from investments of relationships. Thus, this expense does sales. working capital. Accordingly, NPBS not constitute an extraordinary item Comment 18: Torrington argues that argues that its offset is properly and, at the very least, should be deemed the Department noted at verification supported. a selling cost. that Koyo under-reported certain other Department’s Position: We agree with Department’s Position: We agree with expenses when it individually adjusted NPBS. NPBS reported that it has Torrington that these expenses are not factory overhead expenses allocated investments in several types of extraordinary expenses. We find no through its cost centers based on an securities and real estate, but has not merit to NMB/Pelmec’s arguments that efficiency variance. Torrington contends Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10927 that the Department’s verification team centers that are used to calculate the in technical service expenses, but that observed that the efficiency variance basic cost of individual models Koyo included this expense in SG&A had a direct effect on the specific produced at those cost centers. expenses. Torrington argues that the product costs that are processed through Koyo further contends that because Department should reclassify this Koyo’s cost centers and that application the manufacturing variance is used to expense as a technical service expense. of this favorable variance resulted in adjust for the difference between the Department’s Position: We disagree lower factory overhead expenses basic costs of the models produced at a with Torrington. Since the training of allocated to the subject merchandise. given plant and the actual costs personnel cannot be tied directly to Torrington argues that the Department incurred there, if the Department sales, it was appropriately included as should make the appropriate decides to reject one element in the part of SG&A. adjustments to COP and CV in the final calculation of the basic costs (in this Comment 21: Torrington argues that results. case, the adjustment to reflect the the questionnaire requires respondents Koyo argues that the Department difference between standard and actual to report a weighted-average erred in inflating Koyo’s COP because of labor hours), then that element must be manufacturing cost when the subject the existence of efficiency variances in included instead in the calculation of merchandise is produced at more than Koyo’s basic labor cost. Koyo contends the manufacturing variance. In one facility. Torrington contends that that the Department’s decision to adjust summary, Koyo argues that the fact that since Koyo deviated from the its reported costs is the result of a a variance calculated on a plant-wide questionnaire instructions, the misunderstanding of the manner in basis was used to adjust expenses for Department should apply the highest which Koyo’s basic cost is calculated individual models does not support prior margin to all sales of those part and the role of the efficiency variance in rejection of the manufacturing variance numbers manufactured by more than those calculations. Koyo explains that and that the Department should one supplier. its basic cost system employs a two-step eliminate its revision of Koyo’s reported Koyo claims that it reported the process to determine as accurately as costs of production. weighted-average COM for all of the Department’s Position: We agree with possible the actual labor hours used to models in its responses. Koyo also states Koyo. As this efficiency adjustment produce a given product in a given that all of the information requested by attempts to determine more accurately period. First, Koyo’s production the Department has been provided and the amount of labor costs associated engineers determine the amount of time, that there is no basis upon which to with individual cost centers based on i.e., the ‘‘basic hours’’ theoretically apply BIA. required to perform each process at each actual experience, we find that Koyo’s Department’s Position: We agree with cost center on the basis of time and adjustment was reasonable. Koyo that it reported its weighted- motion studies. Second, at the end of a Accordingly, the Department accepted average COM for all of the models in its given period, Koyo’s cost accountants Koyo’s submitted data with respect to supplemental response. compare the number of hours the labor efficiency adjustment. theoretically necessary to operate a Comment 19: Federal-Mogul claims Comment 22: Torrington argues that particular cost center, based on that that F&S failed to respond adequately to the Department should reject FAG- period’s ‘‘basic hours,’’ to the number of requests for HM cost data. When the Germany’s cost data because FAG only hours actually required to operate that Department requested COP data provided costs for completed bearings cost center during that period. The ratio following Federal-Mogul’s allegation of and not for the individual material of actual to basic hours is the so-called below-cost sales, F&S did not provide elements as required by the ‘‘efficiency variance,’’ which is used to adequate COP data for all sales. Federal- questionnaire. Torrington further argues calculate the labor cost element of the Mogul states that, as partial BIA, the that FAG/Barden did not provide cost model-specific basic costs for the next Department treats sales with missing data for all models sold in the HM. period. Koyo explains that dividing the COP data as sales below cost. However, Torrington argues that while CV data previous period’s basic hours by the Federal-Mogul contends that F&S’ were provided for Barden-made models efficiency variance simply derives the failure to provide adequate COP data at sold in the United States, COP data for number of actual hours incurred in the the Department’s request warrants Barden’s HM sales were not provided. previous period, which is then used to application of total BIA. Torrington argues that since the calculate the labor cost for the next F&S argues that, with regard to HM Department initiated a COP period. Koyo maintains that its method cost data, it provided COP and CV investigation regarding FAG, it should of updating its models’ basic cost has information for all models sold in the have included its affiliate Barden. been repeatedly verified by the U.S. market. F&S claims that it has been FAG argues that its cost responses Department without any suggestion that responsive to all requests by the were accurate and acceptable as its method of capturing and updating Department for information. reported because its model-specific the costs at its cost centers fails to Department’s Position: We disagree COPs and CVs were correctly reported identify accurately the actual costs with Federal-Mogul. F&S has provided in accordance with Departmental incurred at those cost centers. sufficient and complete COP data. There precedent. Also, FAG argues that no Accordingly, there is no justification for were identical HM model matches for below-cost allegation has been made modifying this calculation in the all U.S. sales. Because F&S provided against Barden, and the Department did review. COP data for all HM models used for not request COP data from Barden. Koyo further argues that the comparison purposes, and we had no Department’s Position: We agree with Department’s position that the need for COP data for other models sold respondents. We have accepted FAG’s efficiency variances adjust a model- in the HM which were not used for cost data in the format provided for this specific standard by an overall rate comparison, we accepted F&S’ response. review, because we were reasonably which may or may not accurately state Comment 20: Torrington contends able to use the data for our analytical the individual model’s standard cost is that the Department found at purposes in this review. Also, petitioner wrong. The efficiency variances are not verification that expenses for training has provided no other basis for the an ‘‘overall rate’’—to the contrary, they personnel in the use of certain testing Department to reject FAG’s cost are specific rates for groups of cost machinery should have been included responses. 10928 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices With respect to Torrington’s argument NTN’s COM by reallocating certain costs to calculate COP and CV for these final concerning a below-cost test for to all products, and by adjusting only results is appropriate and supported by products produced by Barden, the certain portions of NTN’s reported substantial evidence. Department did not formally request the COM. Third, our limited resources prohibit COP data from Barden. The original Torrington responds that NTN is verification of all the data submitted by below-cost allegation was made before improperly attempting to revise the respondents. Verification is intended to the companies were collapsed for the Department’s verification report and to provide an examination of purposes of these reviews, and only raise issues that the Department did not representative data rather than a involved products produced by an examine at verification. Torrington complete review of all submitted data. unrelated company and sold by FAG further argues that the Department’s Therefore, it is our longstanding U.K. The Barden HM sales are distinct verification report identifies significant practice to verify selected information in that they are sales of self-produced flaws in NTN’s reporting methods, and and draw general conclusions regarding merchandise, not resales of purchased concludes that these methods do not all respondents’ data based on our products. Furthermore, none of the accurately capture cost differences verification findings. We followed this products purchased by FAG is similar to across NTN’s product lines. Finally, longstanding practice in conducting our those produced by Barden. Accordingly, Torrington argues that the Department COP and CV verification at one of if sales by FAG U.K. were disregarded would be justified in rejecting NTN’s NTN’s factories. Moreover, NTN has because they were sold below cost, there COP and CV responses if they contained failed to provide any evidence to is no possibility that HM sales of the factual errors that the Department suggest that the data obtained from this Barden-made products will be matched found at verification. Given the factory is not representative of to a U.S. sale in place of the product Department’s verification findings, manufacturing costs at NTN’s other purchased and resold by FAG. Torrington rejects NTN’s arguments and plants. In the absence of such evidence, Comment 23: NTN objects to the supports the Department’s revisions to we conclude that our verification Department’s preliminary decision to NTN’s reported COP and CV. findings from the selected NTN factory increase NTN’s reported COM. NTN Department’s Position: We disagree provide a reasonable basis for reaching argues that the Department’s analysis with NTN. First, the COM information conclusions regarding NTN’s COP and memorandum contains certain factual that NTN challenges does pertain to cost CV data. errors and misinterprets certain information which is subject to this Fourth, NTN misrepresents our information in the record. Specifically, review. NTN argues that the information findings regarding standard rates. Our NTN contends that: (1) The used to support the adjustment to COM findings relate to the input factors used Department’s findings are based on was from outside the POR. The in the standards, not the rates applied information that does not pertain to the information referred to by NTN supports to the input factors. Although NTN has COM data subject to this review; (2) the the standard costs used during the POR revised some input factor amounts Department relied on general and is the underlying data for certain associated with the production of information when more specific aspects of the submitted costs. Therefore subject merchandise, we found at information was available; (3) the it is relevant to this review. NTN relied verification that NTN has not revised Department applied findings based on on pre-POR costs as the basis for these amounts for the majority of the data from one factory to all of NTN’s revisions to its standard costs. NTN inputs used for the subject merchandise, other factories; (4) the Department’s revised certain elements of its standard while it has revised the input amounts conclusions regarding standard costs for costs for certain product types during for non-subject merchandise. As subject and non-subject merchandise are the POR, but not for all product types. demonstrated by our verification not supported by record evidence; and The majority of standard costs that findings, the practice of revising input (5) the non-subject merchandise that the remained unchanged were for non- amounts for only certain parts creates Department examined at verification subject merchandise. Since standard distortion when allocating costs. does not represent a significant portion cost revisions are based on pre-POR Accordingly, we have adjusted NTN’s of NTN’s costs. For these reasons, NTN costs, we tested selected non-subject submitted data to eliminate these asserts that the Department should not costs versus actual costs for the pre-POR distortions. make any adjustments to its reported period. We found that the non-subject Fifth, although the non-subject COM. standard costs were overstated when merchandise in question may only NTN further argues that in the event compared to actual costs. NTN applied represent an insignificant portion of that the Department determines to a non-product-specific plant-wide NTN’s costs at the selected plant, our adjust NTN’s reported COM, it should variance to all products. The application verification findings regarding non- revise the methodology that it used in of a plant-wide variance shifts costs subject merchandise are relevant the preliminary results. NTN contends between products. We adjusted the because they reveal two flaws in the that the Department’s revision submitted costs for subject merchandise methods that NTN used to calculate artificially increases the adjustment to to account for the inaccurate standard COP and CV. As described above, our NTN’s reported COM because the costs of non-subject merchandise. examination of subject and non-subject Department reallocated certain costs as Second, NTN’s allegation that we merchandise revealed that NTN had a percentage of non-subject merchandise ignored specific information in favor of available cost information that was more only, rather than as a percentage of all more general information is unfounded. accurate and specific than the products. NTN further contends that the We found at verification that NTN information that NTN elected to submit evidence in the record does not warrant routinely calculates actual costs in a to the Department. Our comparison of the Department’s adjusting NTN’s total more specific manner than that used to subject and non-subject merchandise reported COM, because the calculate costs in its questionnaire also revealed that NTN’s standard costs Department’s verification report and responses. Because we prefer to use the contain distortions because NTN has exhibits demonstrate the accuracy of most specific information possible to updated only portions of the standard certain portions of NTN’s reported determine a respondent’s costs, our use input amounts. The relative significance COM. As a result, NTN requests that the of NTN’s own method of calculating of the costs that NTN incurred for the Department revise its adjustment to actual costs, as examined at verification, non-subject merchandise at issue does Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10929 not obscure the significance of the total interest expense as a percentage of adjustments. Adjustments were only distortions that we found in NTN’s cost of sales in our calculations. reported up until June 1993 due to time method of reporting costs for subject constraints. Torrington states that the 6. Discounts, Rebates and Price and non-subject merchandise. Based on Department should apply a partial BIA Adjustments these findings, we conclude that an rate, i.e., the Department should not adjustment to NTN’s reported COP and As a general matter, the Department adjust FMV for the reported price CV is warranted for these final results. only accepts claims for discounts, ‘‘decreases.’’ Finally, we disagree with NTN’s rebates, and price adjustments as direct NMB/Pelmec Singapore and Thailand contention that our adjustment to COP adjustments to price if actual amounts argue that they reported billing and CV is excessive. As described are reported for each transaction. Thus, adjustments up until June 1993 since above, we determined that it was discounts, rebates, or price adjustments the deadline for Section A of the appropriate to adjust NTN’s reported based on allocations are not allowable questionnaire was August 10, 1993, and COP and CV to correct a misallocation as direct adjustments to price. Allocated the response had to be prepared prior to of costs between subject and non-subject price adjustments have the effect of that date. The respondent states that it merchandise. Further, our calculation of distorting individual prices by diluting was unlikely that any significant the adjustment reflects the methods that the discounts or rebates received on quantity or billing adjustments relating we used in conducting our verification some sales, inflating them on other to sales during the POR after June 1993 and is based on data obtained from NTN sales, and attributing them to still other occurred. In addition, even if there were during verification. Accordingly, we sales that did not actually receive any at such adjustments, they could have find no basis for revising our calculation all. Thus, they have the effect of served as decreases or increases to the of the adjustment to NTN’s reported partially averaging prices. Just as we do overall margin. In sum, NMB/Pelmec COP and CV for these final results. not normally allow respondents to argues that their method for reporting report average prices, we do not allow Comment 24: NSK contends that the quantity and billing adjustments was average direct additions or subtractions Department departed from well- reasonable and accurate. to price. Although we usually average Department’s Position: We agree with established agency practice by revising FMVs on a monthly basis, we require respondent. The reporting of all HM NSK’s reported net financing expense. individual prices to be reported for each billing adjustments during the POR was NSK claims that the allocation sale. not possible because the billing methodology used to determine its Therefore, we have made direct adjustments had not yet occurred by the reported net financing expense adjustments for reported HM discounts, deadline for filing the response. We conforms to the methodology used to rebates, and price adjustments if (a) they verified NMB/Pelmec Singapore’s calculate NSK’s net financing expense were reported on a transaction-specific reported billing adjustments and found as outlined in a memorandum issued by basis and were not based on allocations, them to be reported in accordance with the Office of Accounting for the final or (b) they were granted as a fixed and our questionnaire instructions, and results of the 1990–1991 AFBs constant percentage of sales on all therefore have accepted the billing administrative review. NSK also cites transactions for which they are reported. adjustments as reported. Television Receivers, Monochrome and If these adjustments were not fixed and Comment 2: Torrington argues that Color, from Japan; Final Results of constant but were allocated on a NMB/Pelmec’s quantity and billing Antidumping Administrative Review, 56 customer-specific or a product-specific adjustments for the United States FR 34,180, 34,184 (July 26, 1991) and basis, we treated them as if they were should not be accepted for purposes of Porcelain-on-Steel Cooking Ware From indirect selling expenses. We did not the final results. Torrington states that Mexico; Final Results of Antidumping accept as direct deductions discount or since sales adjustments were only Duty Administrative Review, 58 FR rebate amounts based on allocations reported through June 1993, a partial 32,095, 32,100 (June 8, 1993). unless the allocations calculate the BIA rate should be applied. In addition, Federal-Mogul contends that NSK actual amounts for each individual sale, at verification, the Department failed to substantiate its short-term as in the case with a fixed percentage discovered a ‘‘special billing which did interest income offset claim. Therefore, rebate program. This is consistent with not reflect total purchases and was not the Department’s decision to revise the policy we established and followed offset by a billing adjustment credit NSK’s net finance expense claim is in the second and third reviews. See memo.’’ reasonable and consistent with past AFBs II (at 28400) and AFBs III (at NMB/Pelmec states that for the same Department practice in AFBs reviews. 39759). In addition, the Department reasons BIA is not justified with regard See AFBs III (at 39756–57). does not accept a methodology which to the calculation of FMV, it is not Department’s Position: The allows for the inclusion of discounts, justified with respect to USP. This Department has not departed from its rebates, and price adjustments paid on special billing involved a relatively well-established practice of determining out-of-scope merchandise in calculating small amount, and there is no financing costs. NSK constructed short- adjustments to FMV. See Torrington I, at justification for applying the BIA rate as term interest income by calculating a 1579. proposed by Torrington. ratio based on consolidated short-term For USP adjustments, we deducted all Department’s Position: We verified investments to total investments and U.S. discounts, rebates, or price quantity and billing adjustments in the applying the resultant percentage to adjustments if actual amounts were United States. We found that quantity interest income. This methodology may reported on a transaction-specific basis. and billing adjustments were properly not reflect actual short-term interest If these expenses were not reported on reported, with one exception. At income, because the interest rates a transaction-specific basis, we used verification, we discovered a earned on short-term investments may BIA for the adjustment and treated the discrepancy regarding a relatively small differ from those earned on long-term adjustment as a direct deduction from billing adjustment. However, because investments. Additionally, NSK did not USP. the discrepancy involved was an demonstrate that the reported short-term Comment 1: Torrington alleges that isolated incident, we have accepted interest income was derived from NMB/Pelmec Singapore and Thailand NMB/Pelmec’s quantity and billing business operations. We therefore used did not fully report HM billing adjustments as reported. See NMB/ 10930 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Pelmec ESP Verification Report, paid out for sales lower than that post-sale price adjustments must be February 10, 1994. prearranged targets if it is considered tied to in-scope merchandise as Comment 3: Torrington asserts that essential to maintain the customer determined by the CIT. See Torrington NMB/Pelmec was unable to trace early relationship.’’ I. Torrington argues that RHP did not payment discounts to particular sales RHP notes that for the POR, all but demonstrate these rebates pertained to invoices for its ESP sales, because these one distributor met its sales targets in in-scope merchandise. Torrington discounts were unknown at the time of the United Kingdom. RHP states that concludes that the Department should sale (i.e., NMB/Pelmec did not know this distributor just missed its target, disallow all downward billing which customers were going to pay and that RHP decided to pay an adjustments because the record is not early and thus receive this discount) ‘‘incentive rebate’’ anyway. RHP clear. and were credited to the customer’s suggests that the ‘‘radical adjustments’’ RHP responds that it reported all accounts receivable balance only at the proposed by Torrington are billing adjustments as requested by the time payment was received. Since early inappropriate given the fact that the Department. RHP reiterates its assertion payment discounts should be tied to amount RHP paid to this one distributor that billing adjustments occur for a each specific invoice, Torrington argues is a de minimis amount of the total variety of reasons, and that billing that they should not be allowed. ‘‘incentive rebate’’ paid. adjustments are generally corrections of Torrington also believes that NMB/ Department’s Position: We agree with data input errors. RHP also states that Pelmec may have allocated early RHP. As required, RHP reported they can ‘‘reflect retroactive price payment discounts on out-of-scope transaction-specific rebates. adjustments in response to market merchandise. Therefore, the Department Torrington’s allegation that the conditions.’’ RHP claims that these price should apply a partial BIA rate to all ‘‘incentive rebate’’ that RHP paid for one adjustments were compatible with its U.S. sales for which an allocated distributor who just missed its sales continuous negotiations with HM discount was reported. target was not ‘‘contemplated at the time customers. RHP concludes that since all NMB/Pelmec claims that the record of sale’’ is not accurate. Our general of the price adjustments were made in does not support Torrington’s statement. policy is to allow rebates only when the the normal course of trade, and The ESP verification report terms of sale are predetermined. This is incorporated in RHP’s response on a demonstrates that the Department to prevent respondents, after they transaction-specific basis, the officials examined the early payment realize that their sales will be subject to Department should not question RHP’s discounts and determined that they administrative review, from granting billing adjustments. were properly allocated to scope rebates in order to lower the dumping Department’s Position: We agree with merchandise. margins on particular sales. We are RHP and have allowed the claimed Department’s Position: We agree with satisfied that RHP is not engaged in this billing adjustments. First, RHP reported NMB/Pelmec. We verified early practice. First, RHP establishes the both positive and negative billing payment discounts and determined that terms of the rebates for each distributor adjustments on a transaction-specific NMB/Pelmec accurately reported and that is eligible for this type of rebate basis and on in-scope merchandise only. properly tied the discounts to particular before the sales are made. Second, all Second, most of these billing invoices and to in-scope merchandise. but one customer met their sales targets, adjustments reflect corrections of data See NMB/Pelmec ESP Verification while one customer very nearly met its input errors, not post-sale discounts or Report, February 10, 1994. Therefore, sales target. Third, as RHP explains, rebates. Finally, the remaining billing we have adjusted ESP for early payment competitive pressure drives the rebate adjustments reflect RHP’s normal discounts. program, which explains why RHP’s business practice of conducting ongoing Comment 4: Torrington contends that rebated policy is that ‘‘[r]ebates are paid price negotiations with its HM RHP stated that it sometimes paid out for sales lower than the prearranged customers. ‘‘incentive rebates’’—rebates for sales targets if it is considered essential to Comment 6: Torrington states that lower than the prearranged targets on maintain the customer relationship.’’ RHP claimed HM discounts in the HM sales. Referencing the Department’s See RHP’s Supplemental Questionnaire OTHDISH field that were actually Antidumping Manual, Torrington states Response to Sections A–C at 10 rebates, because these ‘‘discounts’’ were that to qualify for an adjustment, rebates (December 17, 1993). RHP granted this negotiated subsequent to shipment. ‘‘must be contemplated at the time of customer a rebate as part of its normal Torrington notes that the Department sale.’’ Torrington argues that RHP did business practice, because this customer did not make a deduction for these not demonstrate that these rebates met had virtually met the pre-established alleged ‘‘discounts’’ in the preliminary this standard. Torrington suggests that sales target and because of the determination. Torrington further states the Department identify these rebates competitive pressure of the industry. that the Department was correct in and disallow any adjustment. If the Thus, we are allowing this adjustment denying this adjustment, because HM Department is unable to identify these for the final results. rebates must be ‘‘contemplated and rebates, Torrington suggests that the Comment 5: Torrington contends that quantifiable’’ at the time of sale, and Department should reject ‘‘all home- RHP claimed adjustments to price for RHP’s alleged HM discounts were not. market incentive type rebates,’’ because certain post-sale price adjustments RHP states that only zeros appear in it was an error to report the which the Department should not have OTHDISH field, and therefore, that no ‘‘uncontemplated amounts’’ without allowed as direct adjustments for the adjustment was warranted. distinguishing them from the ‘‘allowable preliminary results. Torrington Department’s Position: We agree with amounts.’’ considers these adjustments to be RHP that no adjustment is warranted In its rebuttal brief RHP offers a rebates and notes that all rebates in the because no values were reported in this clarification of its rebate program: ‘‘In HM must be contemplated at the time of field. the U.K. home market, RHP pays sale. Torrington contends that RHP did Comment 7: Torrington argues that ‘incentive rebates’ to distributors that not demonstrate that these post-sale since Koyo’s HM billing adjustments are meet agreed sales targets. These price adjustments were ‘‘contemplated directly related to particular invoices ‘incentive rebates’ are calculated on an at the time of sale,’’ and thus should not and specific models, and Koyo failed to annual basis. On occasion, rebates are be allowed. Torrington further states report these adjustments on an invoice- Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10931 and product-specific basis, and because total customer-specific shipments, specific model to the same customer in Koyo’s reporting did not permit the including shipments of out-of-scope a given month. The rebate was not Department to determine whether the merchandise. Therefore, we have allocated across different models, billing adjustments related solely to disallowed this rebate. See Torrington I. different customers, or different months. subject merchandise, the Department Comment 9: Torrington argues that if We have accepted this rebate as a direct should deny these adjustments entirely the Department allows Nachi’s rebates adjustment to price because the limited instead of allowing them as indirect 3, 6, and 7 as adjustments to FMV, then allocation Nachi performed has no selling expenses. the Department should at least treat distortive effect on FMV because HM Koyo responds that it reported its these rebates as indirect expenses. In prices are weight-averaged by month post-sale price adjustments as indirect addition, Torrington asserts that the and model. selling expenses in accordance with the Department should treat rebate 4 as an Comment 10: Torrington argues that Department’s policy as explained in the indirect expense. Torrington states that the Department should disallow entirely final results for the fourth the Department only treats rebates as SKF-Germany’s reported HM billing administrative review. direct adjustments to price if they were adjustment number two, which is ‘‘not Department’s Position: We agree with calculated on a transaction-specific associated with a specific transaction.’’ Torrington and have disallowed Koyo’s basis or if they were granted as a fixed While it was proper, according to post-sale price adjustments because percentage of sales on all transactions Torrington, for the Department not to Koyo did not demonstrate that the for which they were reported. treat the adjustment as direct, allocated price adjustments pertained to Torrington contends that rebates 3, 4, 6, Torrington holds that the Department subject merchandise only. See and 7 do not meet the Department’s must disregard these billing adjustments Torrington I. Although we verified that standards for direct adjustments to entirely because they may not be Koyo’s billing adjustments were FMV. Finally, Torrington notes that the exclusively associated with subject reported on a customer-specific basis, Department treated rebates 3, 6, and 7 merchandise. Torrington maintains that Koyo provided no means of identifying as indirect expenses in the previous SKF has had ample opportunity to and segregating price adjustments paid review. demonstrate the sale-specific nature of to those customers on out-of-scope Nachi argues that the Department this claimed adjustment, yet has failed merchandise. correctly treated rebates 3, 4, 6, and 7 to do so. Alternatively, Torrington Comment 8: Torrington argues that as direct adjustments to price. With asserts that if the Department treats the Department should disallow several regard to rebate 3, Nachi points out that billing adjustment number two as an of Nachi’s HM rebate claims, classified the Department’s verification report indirect selling expense, the Department as rebates 3, 5, 6, and 7, because the described the rebate as ‘‘a fixed should reduce the pool of the billing Department cannot use rebates paid on percentage of price and * * * reported adjustments by a factor representing the out-of-scope merchandise to adjust on a transaction-specific basis.’’ See ratio of in-scope to out-of-scope FMV. Torrington contends that it is not Nachi Verification Report, at 7 merchandise during the POR. clear from Nachi’s responses or from the (February 28, 1994). With regard to SKF-Germany holds that its HM Department’s verification report that rebate 4, Nachi states that the rebate was billing adjustment number two should these rebates were calculated only on paid on sales of specific models and be treated as a direct adjustment to the basis of sales of in-scope allocated over all sales of a specific price. If the Department does not agree merchandise. model to the same customer in a given with this categorization, SKF-Germany Nachi responds that it reported all month. Nachi claims that it had to argues that HM billing adjustment rebates on a customer-specific basis for perform this minor allocation because number two should be treated as an eligible products only. Furthermore, there was no way to determine which indirect selling expense, as the Nachi contends that the Department particular sales of a specific model were Department has done in the preliminary thoroughly verified all Nachi’s HM subject to the rebate. However, the results of this review and in the final rebate programs and found no rebate was not allocated across different results of the past two administrative discrepancies. Therefore, Nachi models, different customers, or different reviews. concludes that, as in past reviews, the months. Therefore, Nachi argues that, at SKF specifically argues that Department should continue to allow a minimum, if rebate 4 does not qualify Torrington’s arguments are Nachi’s rebate claims. as direct adjustment to price, it should contradictory. Having acknowledged Department’s Position: We agree with qualify as a direct selling expense that billing adjustment number two Nachi with respect to rebates 3, 6, and because it was directly related to sales. captures adjustments concerning 7. We thoroughly verified each of these With regard to rebate 6, Nachi argues multiple invoices, Torrington then rebate programs. Rebate 3 was granted that the Department has verified that the complains that SKF-Germany has not as a fixed percentage of price and rebate was granted as a contractually reported this adjustment on a sale- reported on a transaction-specific basis. fixed percentage of sales covered by the specific basis. SKF-Germany, as it has Rebates 6 and 7 were granted as fixed agreement. With regard to rebate 7, held since the inception of this review, percentages of price. We found no Nachi also argues that it was granted as argues that it cannot report this rebates reported on sales that did not a fixed percentage of invoice price. adjustment on a sale-specific basis, and incur rebates, and no rebates incurred Therefore, Nachi believes that the has therefore reported it on a customer- on sales of out-of-scope merchandise Department should continue to classify specific basis. SKF-Germany states also allocated to sales of scope products. See all four rebate programs as direct that the Department verified this Nachi-Fujikoshi Home Market Sales adjustments to price. adjustment to its satisfaction and found Verification Report, February 28, 1994. Department’s Position: We agree with no discrepancies. SKF-Germany We agree with Torrington with Nachi that rebates 3, 6, and 7 were concludes that Torrington’s arguments respect to Rebate 5. This rebate was reported, as they were granted, either on ignore Koyo Seiko Co. v. United States, reported on a monthly- and customer- a transaction-specific basis, or as a fixed 796 F. Supp. 1526 (CIT 1992) (Koyo specific basis (rather than a transaction- percentage of price. We verified that Seiko), in which the CIT specifically specific basis) by dividing the total rebate 4 was paid on sales of specific affirmed the Department’s methodology amount of that customer’s rebate by the models and allocated over all sales of a of including customer-specific 10932 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices adjustments in indirect selling indirect selling expense, rather than a its billing adjustments for these final expenses. direct selling expense. results. Department’s Position: We agree with SKF-Germany argues that in the Department’s Position: We agree with Torrington and have disallowed SKF’s preliminary results of this review the Federal-Mogul that SKF-France cannot billing adjustment number two claim Department properly treated SKF’s HM take upon itself the authority to because SKF did not demonstrate that rebate number two as a direct determine what constitutes an the allocated billing adjustments adjustment to price, just as in each of insignificant adjustment to FMV. pertained to subject merchandise only. the three prior reviews. SKF-Germany However, at verification we confirmed See Torrington I. SKF provided no contends that no new evidence exists that the billing adjustments in question means of identifying and segregating which would cause the Department to represent decreases to FMV. Therefore, billing adjustments paid on non-scope depart from its established practice. we agree with SKF-France that the merchandise. SKF-Germany maintains that rebate two, omission of these billing adjustments SKF’s reliance on Koyo Seiko is which guarantees a specific reseller had a detrimental affect rather than misplaced. In that case the CIT upheld profit, is paid on the basis of the resale beneficial effect on its margin the Department’s treatment of certain performance of SKF-Germany’s calculations. Thus, we have accepted allocations as indirect selling expenses. customers. Because rebate two, as SKF-France’s billing adjustments for The CIT in Koyo Seiko was not verified by the Department, is paid as a these final results. presented with and did not address the fixed percentage of all resales by SKF- Comment 14: Torrington argues that issue of the proper treatment of Germany’s customers, SKF-Germany the Department’s preliminary decision allocations which may include out-of- calculated customer-specific factors for to deny FAG-Germany an adjustment for scope merchandise. The CIT in each rebate to a customer by allocating 1993 HM rebates based on the fact that Torrington I did address this issue and actual rebates paid over SKF-Germany’s FAG failed to report either actual or held that the Department could not sales to its customer. estimated 1993 U.S. corporate rebates is properly use a methodology which insufficient. Torrington argues that Department’s Position: We agree with included discounts, rebates, and price FAG’s failure to report 1993 corporate Torrington and have disallowed SKF’s adjustments ‘‘on out of scope rebates is a fundamental deficiency billing adjustment two because SKF did merchandise in calculating adjustments which calls for the application of a not demonstrate that the allocated to FMV and ultimately the dumping ‘‘second-tier’’ BIA to those U.S. billing adjustments pertained to subject margins.’’ transactions in which FAG failed to merchandise only. See Torrington I. See Comment 11: Torrington argues that properly report a corporate rebate. our discussion of this issue at Comment the Department should disallow entirely Torrington contends that the SKF-Germany’s reported HM early- 10. Department’s preliminary response may payment cash discounts because they Comment 13: Federal-Mogul urges the reward FAG for its failure to report 1993 were not reported on a transaction- Department to apply BIA to SKF- U.S. corporate rebates if the HM rebates specific basis. Torrington holds that the France’s HM billing adjustments. denied do not apply to the same types Department must disregard these billing Federal-Mogul notes that SKF-France of sales as those found in the U.S. adjustments entirely because they may considered any billing adjustments market or are not of the same magnitude not be exclusively associated with which amounted to less than five as the U.S. corporate rebates which subject merchandise. percent of the gross unit price or 1000 went unreported. FAG-Germany granted SKF-Germany maintains that the French francs to be insignificant and did HM rebates to only a small number of Department should treat the HM cash not report such adjustments. Federal- customers and generally at lower rates discount as a direct adjustment to price. Mogul argues that SKF-France cannot than the U.S. corporate rebates. Finally, Alternatively, SKF-Germany argues that take upon itself the authority to Torrington asserts that when deciding the Department, in accordance with determine what constitutes an what BIA approach to use for the final Koyo Seiko, should continue to treat insignificant adjustment to FMV. results, the Department should also these cash discounts as indirect selling Federal-Mogul suggests that a proper consider the fact the FAG never clearly expenses. SKF-Germany states that, as BIA would be to increase FMV by 4.99 stated in its responses that it had not noted in the Department’s verification percent of the HM price. reported estimated 1993 corporate report, HM cash discounts were SKF-France contends that based on rebates. reported on a customer-specific, not the verified record, neither an FAG-Germany asserts that its rebates sale-specific, basis. adjustment to SKF’s prices nor use of were accurately reported given the Department’s Position: We agree with BIA is warranted. SKF-France argues nature of the rebate programs in each Torrington and have disallowed SKF’s that according to Departmental market and that the use of BIA is cash discounts because SKF did not regulations insignificant adjustments unwarranted. The companies reported demonstrate that the allocated price which have an ad valorem effect of less estimated 1993 rebates differently for adjustments pertained to subject than 0.33 percent may be disregarded the HM and U.S. market because clear merchandise only. See Torrington I. See (19 CFR 353.59(a)). SKF-France asserts differences exist between their HM and our discussion of this issue at Comment that the Department verified that U.S. rebate programs. Therefore, the 10. unreported billing adjustments are Department erred in denying rebate Comment 12: Torrington argues that insignificant, and in fact de minimis, adjustments in the HM on 1993 sales in the Department should disallow entirely under the Department’s regulations. order to remain consistent with FAG- SKF-Germany’s reported HM rebate Additionally, SKF-France notes that US’ methodology of not reporting 1993 number two because this rebate is since all unreported billing adjustments rebates. neither transaction-specific nor product- represent credit memos to the customer, Department’s Position: We agree with specific but customer-specific, and may the unreported adjustments had a Torrington that disallowing an thus include amounts associated with detrimental rather than beneficial effect adjustment for FAG-Germany’s non-subject merchandise. Alternatively, on SKF-France’s margin calculations. estimated 1993 HM rebates is not the Torrington argues that the Department Therefore, SKF-France contends that the most appropriate means to account for should treat this adjustment as an Department should continue to accept respondents’ failure to report estimated Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10933 1993 U.S. rebates. Accordingly, as BIA verification. See FAG KGS Germany adjustment was erroneously treated as a for these final results we used the verification report (at 7). Since we direct deduction to FMV in the previous highest 1992 U.S. corporate rebate rate cannot distinguish which billing review, we have reclassified NPBS’ CBC to calculate corporate rebates for 1993 adjustments were reported on a rebate as a HM indirect selling expense. U.S. sales to customers that received transaction-specific basis, we treated all Comment 18: Torrington argues that rebates in 1992. We also made negative billing adjustments as indirect INA calculated improperly several of its adjustments to FMV for estimated 1993 expenses. adjustments to HM price. According to HM rebates as reported by respondents. With respect to FAG-Germany’s Torrington, although INA calculated Comment 15: FAG-Germany argues additional arguments concerning adjustment factors for certain expenses that the Department improperly treated differences in the treatment of positive by dividing the total expense by a total certain HM expenses which FAG had and negative billing adjustments, we sales value that was net of discounts reported on a customer-specific basis— disagree that both must be treated in the and rebates, INA then multiplied this namely third-party payments, early same manner. The treatment of positive adjustment factor by a price that was not payment discounts and negative billing billing adjustments as direct net of discounts and rebates to calculate adjustments—as indirect selling adjustments is appropriate, because per-unit expenses. Because the sales expenses. FAG-Germany maintains that treating these adjustments as indirect amounts used to calculate expense it calculated and reported these would provide an incentive to report adjustment factors do reflect discounts expenses in the same manner that it did positive billing adjustments on a and rebates, Torrington concludes that in previous reviews and the LTFV customer-specific basis in order to multiplying the adjustment factor by a investigation and that its allocations are minimize their effect on the margin price which does not reflect discounts reasonable and accurate. The calculations. That is, by treating positive and rebates overstates the per-unit Department has a longstanding policy of billing adjustments, which would be adjustments to HM price. Accordingly, allowing a respondent to report upward adjustments to FMV, as indirect Torrington requests that the Department expenses using a reasonable allocation expenses, there may be no upward recalculate per-unit amounts for the methodology when the respondent does adjustment to FMV. Consequently, expenses in question by multiplying the not maintain records enabling it to respondents would have no incentive to adjustment factors by a price net of all conform with preferred Departmental report these adjustments as requested discounts and rebates. methodologies and the methods (i.e., on a transaction-specific basis). INA responds that Torrington’s employed are rational. The Comment 16: FAG argues that the argument is based on the incorrect Department’s treatment of billing Department erroneously excluded 1993 assumption that the sales figures that adjustments is particularly unjust in rebates granted in the HM from the INA records in its accounting system are that only negative billing adjustments margin calculation and that these net of all discounts, rebates, and price were treated as indirect selling expenses rebates should be included in total adjustments. According to INA, the while positive billing adjustments were indirect selling expenses. sales amounts that it records in its left as direct adjustments to price. Federal-Mogul and Torrington assert accounting system are not net of cash Torrington maintains that the that the Department was correct in discounts and rebates, which are Department acted properly in treating disregarding FAG-Germany’s HM recorded separately from sales in these expenses as indirect selling rebates because, as FAG-Germany has different accounts. INA states that it expenses because FAG reported them on itself acknowledged, FAG-Germany did used the sales amounts from its a customer-specific basis only. not report estimated corporate rebates accounting system to allocate the Department’s Position: We disagree for 1993 U.S. sales. Torrington and expenses at issue. Because these sales with FAG-Germany. FAG-Germany does Federal-Mogul assert that the amounts are not net of cash discounts not dispute the fact that these expenses Department should in fact resort to and rebates, INA concludes that its were allocated and reported on a second-tier BIA margins for 1993 calculation of per-unit expenses using customer-specific basis. The rationale transactions. net invoice prices, which are not for the treatment of customer-specific Department’s Position: For these final reduced by amounts for cash discounts allocations as indirect adjustments was results, we have made adjustments for and rebates, is appropriate. set forth in AFBs III (at 39759), and FAG’s 1993 HM rebates. See response to Department’s Position: We agree with reiterated in the statement of our policy Comment 14. INA. At verification, we confirmed that at the beginning of this section. This Comment 17: Torrington maintains INA records in its accounting system rationale applies to third-party that the NPBS case-by-case (CBC) rebate sales values that are not reduced by cash payments as well as discounts and is not directly tied to a sale and, as such, discounts and rebates. Cash discounts billing adjustments. should be reclassified as an indirect and rebates are recorded separately in We note that FAG-Germany originally expense. INA’s accounting system. Therefore, we did not describe its methodology for NPBS rebuts that the results of the last determine that the sales values that INA reporting HM billing adjustments. See review should stand as precedent, and used in its allocations capture HM FAG section C response. When asked that the Department should continue to prices that are not reduced by discounts about the HM billing adjustment classify these rebates as direct expenses. and rebates. Accordingly, we determine reporting methodology in the Department’s Position: We agree with that INA properly calculated per-unit supplemental questionnaire, FAG- Torrington. Although NPBS and its expenses by multiplying its reported Germany inaccurately responded that customers agree on an absolute amount allocation ratios by sales prices that are ‘‘[b]illing adjustments were reported on for the CBC rebate before the sale not reduced by cash discounts and a transaction-specific basis.’’ See FAG (which is the numerator in their rebates. section A–C supplemental response (at formula), neither knows the exact Comment 19: Torrington asserts that 49). The fact that the majority of HM amount of sales that will be made that the Department should revise NTN- billing adjustments were not reported month (the denominator) until after the Germany’s reported HM rebates. on a transaction-specific basis but were fact. As such, the rebate is an allocated Torrington argues that the Department instead reported using customer-specific amount and not directly tied to a should recalculate NTN-Germany’s allocations was not discovered until particular sale. Although this rebates, based on the Department’s 10934 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices finding at verification that NTN- discounts. In the preliminary adjustments. Accordingly, NTN requests Germany’s method of calculating rebates determination we treated these that the Department calculate per-unit results in rebate percentages that discounts as indirect selling expenses. U.S. or HM selling expenses by differed from those stipulated in NTN- In accordance with our discount and deducting billing adjustments from the Germany’s rebate agreements. rebate policy discussed at the beginning sales prices that it uses to calculate per- Torrington further argues that the of this section, we have continued to unit expenses. Department should deny NTN- treat NTN-Germany’s HM discounts as Torrington responds that the record Germany’s claimed rebates for 1993, indirect selling expenses for the final does not specifically demonstrate that because the Department found at results of these reviews. the U.S. and HM sales amounts used in verification that certain customers Comment 21: NTN asserts that the the Department’s allocations are net of would not qualify for the reported Department erred in classifying NTN’s billing adjustments. Therefore, rebates based on 1993 sales. HM discounts as indirect selling Torrington requests that the Department NTN-Germany replies that its expenses. According to NTN, it did not modify its calculations as requested by reported rebates are reasonable, because report its discounts by aggregating NTN only if the Department is able to it calculated rebate percentages based discounts granted on specific sales and determine that the sales amounts at on information available in its then allocating them over all sales to a issue are net of billing adjustments. accounting records at the time that it particular customer. Rather, NTN states Department’s Position: We agree with prepared its questionnaire response. that it reported its discounts on both a Torrington. There is no evidence in the NTN-Germany further argues that the product- and customer-specific basis. As record of this review that describes the Department was able to verify the a result, NTN requests that the manner in which NTN recorded billing additional data on rebates that NTN- Department treat its reported discounts adjustments in its accounting system. In Germany did not have at the time that as direct adjustments to price for the the absence of such information, we it prepared its questionnaire responses. final results of this review. cannot confirm that the sales values that As a result, NTN-Germany argues that Torrington and Federal-Mogul reply NTN used to allocate its expenses were even if the Department does not accept that NTN’s method of reporting HM net of billing adjustments. As a result, NTN-Germany’s reported HM rebates for discounts does not satisfy the we have not deducted billing these final results, the Department Department’s criteria for considering adjustments from the sales prices that should revise NTN-Germany’s discounts to be direct adjustments to we used to calculate per-unit expenses calculations rather than reject NTN- price. Torrington states that the for these final results. Germany’s claim in its entirety. Department’s verification report Comment 23: Torrington argues that Department’s Position: We agree with indicates that NTN allocates discounts NTN-Japan failed to report all HM NTN-Germany. We verified that NTN- to AFBs and non-subject merchandise. billing adjustments on a transaction- Germany’s reported data on HM sales Similarly, Federal-Mogul asserts that specific basis. Citing Torrington I at and rebates were accurate, complete and NTN did not report discounts on a 1579, Torrington contends that contemplated at the time of sale. transaction-specific basis, and provided adjustments to FMV must be tied to Further, because NTN-Germany did not no evidence that it granted discounts as sales of subject merchandise, rather than have data on calendar year 1993 sales a fixed percentage of all HM sales. As merely allocated over all sales. Because and rebates at the time that it prepared a result, Federal-Mogul claims that NTN NTN-Japan used an aggregate method of its questionnaire response, we find that may have overstated its reported HM reporting some billing adjustments, the method that it used to report its HM discounts for certain sales. Because Torrington concludes that the rebates was reasonable. Accordingly, for NTN’s method of reporting home market Department should deny NTN’s claims these final results we have used in our discounts was not sufficiently specific, for HM billing adjustments or should, at analysis the data that NTN-Germany Torrington and Federal-Mogul conclude a minimum, treat billing adjustments as reported for rebates on HM sales. that the Department properly treated indirect selling expenses. Comment 20: Torrington argues that NTN’s HM discounts as indirect selling NTN responds that it complied, to the the Department should revise its expenses. extent possible, with the Department’s treatment of NTN-Germany’s HM Department’s Position: We agree with instructions for reporting billing discounts, because NTN-Germany Torrington and Federal-Mogul. adjustments, and that there is no improperly calculated its discounts. According to the policy stated above evidence that any deviations from this According to Torrington, NTN- and in previous reviews in these cases, reporting method had any impact on the Germany’s calculation of average we will treat discounts as direct Department’s calculation of NTN’s discounts per-customer is inappropriate, adjustments to price only if they are dumping margins. NTN further argues given the Department’s finding at reported on a sale-specific basis or if that it did not report any billing verification that NTN-Germany paid they are granted as a fixed and constant adjustments made for sales of non- discounts on an invoice-specific basis. percentage of all sales. Because NTN’s subject merchandise. Therefore, NTN As a result, Torrington requests that the reported HM discounts are reported on concludes that the Department should Department deny entirely NTN- a product- and customer-specific basis, continue to treat NTN’s reported billing Germany’s claim for HM discounts or, at and pertain only to scope merchandise, adjustments as direct adjustments to a minimum, treat them as indirect we have treated them as indirect selling price for these final results. selling expenses for the final results. expenses for the final results of these Department’s Position: We agree with Department’s Position: Because we reviews. NTN. During our verification of NTN’s verified the accuracy and completeness Comment 22: NTN argues that the HM sales, we found no discrepancies in of the customer-specific data that NTN- Department made a clerical error in NTN’s reporting of billing adjustments Germany used to calculate its reported failing to consider billing adjustments to home market sales. Thus, we have no HM discounts and because the when calculating per-unit U.S. and HM reason to believe or suspect that NTN discounts pertain to subject selling expenses. According to NTN, the failed to report accurately or completely merchandise only, it would be sales amounts over which the its HM billing adjustments, or that inappropriate to deny the adjustment to Department allocated certain U.S. and NTN’s method of reporting may have NTN-Germany’s HM prices for HM selling expenses were net of billing included billing adjustments made on Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10935 sales of non-subject merchandise. uniformly involved sales of in-scope indirect selling expense because it was Accordingly, we have treated NTN’s merchandise; (4) because NSK allocated not reported on a transaction-specific reported HM billing adjustments as stock transfer commissions (COMMH2) basis. direct adjustments to price for these over all sales, the Department has no We agree with Federal-Mogul’s claim final results. assurance that the commissions paid that REBATEH1 and REBATEH2 should Comment 24: NSK claims that certain with respect to non-scope merchandise not be considered as direct adjustments rebate, discount and commission are not allocated to subject sales; to HM price. Because REBATEH2 was programs should be treated as direct therefore, this adjustment should not be reported as a customer-specific expenses and not as indirect expenses treated as a direct expense. Federal- allocation of all distributor incentive because they either meet the Mogul argues further that the rebates paid on all sales, NSK has not Department’s definition of a direct Department should treat NSK’s reported demonstrated that the reported expense of the sales in question (see return rebates (REBATEH1) and REBATEH2 does not include rebates Final Results of Antidumping Duty distributor incentive rebates paid on non-scope merchandise. Administrative Reviews and Revocation (REBATEH2) not as direct adjustments Therefore, we have disallowed this in Part of an Antidumping Duty Order, to FMV, but rather, as indirect selling adjustment. REBATE1H was reported on 58 FR 39729, 39759 (July 26, 1993)) or expenses because they were not a product- and customer-specific basis, they meet the ‘‘reasonable relationship’’ reported on a transaction-specific basis. not on a transaction-specific basis. requirement for a deduction in price in Department’s Position: We agree with Therefore, we have treated this rebate as calculating FMV (see Smith-Corona Torrington with respect to REBATEH4, an indirect adjustment to HM price. Group, SCM Corporation v. United COMMH2, and OTHDISH and have Comment 25: Petitioner claims that States, 713F.2d 1568 (Fed. Cir. 1983)). disallowed these adjustments because NSK’s method for estimating after-sale These adjustments should be accepted we do not accept adjustments to FMV rebates for 1993 U.S. sales fails to as direct adjustments to price for the which include discounts, rebates, or account for the fact that customers following reasons: (1) Post-sale price commissions paid on out-of-scope purchase a greater volume of adjustments (PSPAs), reported as merchandise. See Torrington I. See also merchandise during the final months of REBATEH3, are reported on a part- Comment 10. Although NSK supplied a program year to qualify for a sales- number and customer-specific basis; (2) information in its December 16, 1993, volume rebate. Petitioner contends that lump sum post-sale adjustments Supplemental Response, at 7–8, NSK should have compared data for the (REBATEH4) are reported on a demonstrating that early payment eight months of 1992 to the data for the customer-specific basis and adjustment discounts (OTHDISH) granted for four same eight months of 1993, or rates have been demonstrated to be the distributors had remained relatively alternatively, could have reported full- same for scope and non-scope stable during the POR, NSK did not year 1993 actual rebates. With this in merchandise; (3) early payment demonstrate that early payment mind, Torrington holds that the discounts (OTHDISE) are reported on a discount percentages were stable for all Department should assume that all distributor-specific basis, and each customers for which an early payment eligible customers qualified for 1993 customer that receives the discount discount was reported. Similarly, with rebates and should make adjustments to typically pays within the same number respect to lump-sum rebates all U.S. sales. of days each month. Therefore, the (REBATEH4), NSK submitted NSK contends it properly reported discount is equally applicable to both information in its December 16, 1993, U.S. rebates. Torrington cites no support scope and non-scope products Supplemental Response, at 14–16, for its statement that ‘‘customers often throughout the POR. (4) Stock transfer indicating that the percentage of scope purchase a greater volume of commissions (COMMH2) are reported merchandise sales to total sales for five merchandise during the final months of on a distributor-specific basis and the customers remained stable during the a program year in order to obtain a sales commission rate is a fixed percentage POR and, therefore, lump-sum rebates volume rebate.’’ NSK claims there is not for all products and all customers. have been reasonably allocated to scope support on the record for this statement. Torrington contends that: (1) PSPAs merchandise. However, an analysis of Additionally, NSK notes the Department reported as REBATEH3 are not reported five customers’ sales does not has a regulation prohibiting the on a transaction-specific basis and sufficiently demonstrate that all voluntary submission of new therefore do not qualify as a direct customers for which lump sum rebates information following verification. See adjustment to price (see Antifriction were reported had stable purchasing 19 CFR 353.31(ii). NSK Corp., was Bearings, 58 Fed. Reg. at 39,759), and histories with respect to scope and non- verified on December 7 through that because of certain reporting errors scope merchandise. December 9, 1993, and could not submit by NSK, the Department should not With respect to Torrington’s claim new information following the make any adjustment for REBATEH3; that PSPAs, reported as REBATEH3, preliminary determination. (2) although NSK claims that customers should be rejected because of reporting Department’s Position: We agree with receiving lump-sum PSPA rebates, errors, we determined at verification NSK. Torrington has provided no reported as REBATEH4, purchase that the value of unreported PSPAs evidence on the record that supports its virtually the same proportion of scope which were unfavorable to NSK (a claim that customers purchase a greater merchandise to total purchases, NSK reduction of FMV) was more than 50 volume of merchandise during the final has not provided any evidence that percent greater than unreported price months of a program year. We have lump sum rebates are related to in-scope increases. Furthermore, the value of the accepted NSK’s estimation methodology products. Therefore, the Department unreported price increases was an for 1993 rebates as reasonable and should make no adjustment for insignificant percentage of total bearings accurate. REBATEH4; (3) the Department has sold in the HM during the POR. Because neither the assurance that the amounts this error in computer logic used to 7. Families, Model Match and claimed for OTHDISH are related to compile PSPA data affected an Differences in Merchandise sales of in-scope merchandise or insignificant portion of total HM sales, Comment 1: Federal-Mogul states specific invoices that were paid early, we have accepted NSK’s REBATEH3. that, after finding that the most similar nor the basis that the transactions REBATEH3 has been treated as an HM model was sold below cost in more 10936 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices than 90 percent of the HM sales of that improper comparisons between the determining whether an imported part model, and over an extended period of entered value of the bearings and related is significant for purposes of 19 USC time, the Department may not resort to party transfer prices. Torrington 1677a(e)(3). NSK states that if the CV without first determining whether contends that, instead, the value of Department wishes to use a rigid there are other similar models to serve imported bearings should be based upon quantitative test to determine whether as a price-based comparison. This the ESP or PP of such or similar the imported content is significant, then position results from the fact that the bearings sold at arm’s length. This value it must publish, for public comment, a statute expresses a preference for price- would then be compared to the resale proposed rule to that effect. Until such based comparisons over CV. price of the finished merchandise, a rule is properly adopted, the Department’s Position: We disagree which is not subject to manipulation by Department must analyze, prior to with Federal-Mogul. Although section related parties. Where the importer does performing a section 772 analysis, all 773(a) of the Tariff Act expresses a not resell bearings, or resells only a relevant factors to determine whether preference for using the price of such or small quantity, the U.S. prices for the the imported amount contained in non- similar merchandise as the FMV before model in question should be based on scope and in-scope finished products is resorting to CV, section 773(b) directs sales by another manufacturer or the significant. NSK further argues that the Department to resort immediately to manufacturer who produced the model where the finished product is CV if, after disregarding sales below in question. merchandise of the type covered by the cost, the remaining sales of a particular Koyo argues that the Department order, the Department should use the model or family are inadequate as the should reject Torrington’s arguments. weighted-average margin for the basis of FMV. Contrary to Federal- Koyo contends that Congress recognized imported finished product as the margin Mogul’s assertions, therefore, the statute that there would be situations in which for insignificant imported parts. does not require the exhaustion of all the value added in the United States NMB/Pelmec argues that Torrington is possible family matches (similar would be so great that it would be missing the point of the Department’s merchandise) before resorting to CV. See inappropriate to apply the further- one-percent test and its use of the AFBs III (at 39765). processing provision of the antidumping entered value and the resale price. NMB law (19 USC 1677a(e)(3)). This argues that the Department established 8. Further Manufacturing and Roller exception is clearly authorized by the the one-percent test as a ‘‘bright-line’’ Chain legislative history of the antidumping standard for determining whether the Comment 1: Torrington contends that statute, and there is no evidence on the further-manufactured product contains the Department should reconsider and record to demonstrate that the more than an ‘‘insignificant amount’’ of discontinue the practice, known as the Department’s application of the ‘‘Roller the imported in-scope merchandise. ‘‘Roller Chain’’ rule, whereby Chain’’ rule in this review is improper. NMB contends that using a different antidumping duties are not assessed on Koyo also disagrees with Torrington’s value, other than entered value, would U.S. imports of subject merchandise argument that the Department should not increase the accuracy of the one- used by a related party as a minor not use the entered value of the subject percent test. NMB further asserts that if component (less than one percent) in a merchandise in applying the ‘‘Roller the Department should change the further manufactured article which is Chain’’ test. The entered value (rather threshold, it should increase it from one then sold to an unrelated party. See than the resale value of the bearings in percent to a more realistic level. Roller Chain, Other Than Bicycle, from the United States, as suggested by Department’s Position: Section 772 Japan, 48 FR 51801 (November 14, Torrington) provides the correct basis (e)(3) of the Tariff Act requires that, 1983). Torrington argues that whether or for the one-percent test because the where subject merchandise is imported not a significant percentage of the purpose of that test is to determine the by a related party and further processed finished product is accounted for by the value of the subject merchandise as before being sold to an unrelated party subject import, a USP can reasonably be imported in relation to the value of the in the United States, we reduce ESP by determined from the transfer price or by finished product as finally sold to an any increased value, including other means (e.g., the ESP on sales to unrelated party in the United States. additional material and labor, resulting other customers, or the lowest export FAG argues that, contrary to from a process of manufacture or price to any U.S. customer). Torrington’s opinion, imports of subject assembly performed on the imported Additionally, Torrington contends that merchandise do not escape the merchandise after importation but Congress did not intend to limit the antidumping duty order. Full before its sale to an unrelated party. In antidumping law to imports accounting antidumping duties are deposited on the ESP transactions, therefore, we typically for a ‘‘significant percentage’’ of the full value of the entered (subject) back out any U.S. value added to arrive value of the completed product. merchandise. This differs significantly at a USP for the subject merchandise. Torrington argues that the Department from exempting a respondent from See, e.g., Final Determination of Sales at has broad authority, under the reporting sales of such merchandise. Less Than Fair Value: Certain Small antidumping statute, to ensure that FAG contends that the only time a Business Telephone Systems and imports of bearings incorporated into respondent might not pay antidumping Subassemblies Thereof from Korea, 54 further processed articles in the United duties on imported merchandise further FR 53141, 53143 (December 27, 1989). States do not escape the imposition of processed in the United States occurs The legislative history of this antidumping duties. According to when certain operations are undertaken provision suggests that the practice of Torrington, the ‘‘Roller Chain’’ rule has in an FTZ, which does not apply to subtracting the value added by the created a substantial vehicle for FAG. further processing operations in the circumvention of the antidumping duty NSK argues that the Department United States should be employed only order and should be abandoned. cannot arbitrarily adopt a numerical where the manufactured or assembled Torrington argues that, assuming the standard for evaluating whether an product contains more than an Department continues to apply the imported component in a further insignificant amount by quantity or ‘‘Roller Chain’’ test, it should change the manufactured product is significant. value of the imported product. See S. methodology used for applying the one- NSK claims the Department must Rep. No. 1298, 93d Cong. 2d Sess. 172– percent test to avoid illogical and analyze all relevant factors before 73, 245, reprinted in 1974 U.S.C.C.A.N. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10937 7185, 7310. Conversely, when the entry from assessment of antidumping The NMB/Pelmec refutes Torrington’s quantity or value of the imported duties. Any decision to exclude subject argument by stating that it provided the product is insignificant in comparison merchandise from assessment of Department with all the information to that of the finished product, we are antidumping duties based on a ‘‘Roller necessary to perform the appropriate not required to calculate a USP for the Chain’’ analysis is made on a case-by- dumping comparison for further- imported merchandise. Therefore, we case basis during administrative manufactured sales. In addition, the conclude that Congress did not intend reviews. See AFBs I (at 31703). Department did not ‘‘discover that a that a USP be calculated in these In order to apply the ‘‘Roller Chain’’ bearing manufactured in Singapore was situations and hence that no dumping principle, we must examine ESP incorrectly reported in the Thai duties are due. See H. Rep. No. 571, 93d transactions involving subject response.’’ Cong. 1st. Sess. 70 (1973). merchandise during the POR to Department’s Position: We agree with Based on section 772(e)(3) of the determine whether the amount of the respondent. Although the invoice did Tariff Act (19 USC 1677a(e)(3)) and the subject merchandise is an insignificant not always show the correct country of applicable legislative history, we part of the amount of the finished origin, the shipping document did. We developed a practice whereby we do not product sold to the first unrelated verified country of origin during the calculate and do not assess antidumping customer in the United States. We agree ESP verification and found it to be duties on subject merchandise imported with Koyo that the entered value, rather correctly reported. In addition, contrary by a related party and further processed than the resale value of the bearings as to Torrington’s allegations, we did not where the subject merchandise suggested by Torrington, provides a discover that a bearing manufactured in comprises less than one percent of the more appropriate basis for the one- Singapore was incorrectly reported in value of the finished product sold to the percent test. Although resale prices of the Thailand response. See NMB/Pelmec first unrelated customer in the United identical models sold to unrelated ESP verification report, February 10, States. See AFBs III (at 39732, 39737). parties could be used in some instances 1994. See Roller Chain I at 51804. In in the numerator in place of entered Comment 3: Torrington argues that by situations such as this one, in which the value, such prices are not always manipulating transfer prices, NMB/ statute provides general guidance and available for each model, nor for all Pelmec could create exclusions from the leaves the application of a particular companies. In those instances where no antidumping duty order based on the methodology to the administering resale price is available, we would have ‘‘Roller Chain’’ analysis. Torrington authority, we are given significant to rely on entered values anyway. contends that it is inappropriate to use discretion in determining the precise Moreover, we formulated the one- entered value as the basis for valuation methodology to be applied in each case. percent ‘‘Roller Chain’’ threshold based of subject merchandise. Instead, the Inasmuch as our statutory interpretation on the ratio of the entered value to the value should be derived from the ESP, is not an unalterable rule, it does not resale price of the further-manufactured less any value added. 19 USC constitute rule-making without item. If we had chosen to use the resale 1677a(e)(3). Torrington states that the compliance with the Administrative price in calculating this ratio, we might Department should use the average ESP Procedure Act. See Zenith Elec. Corp. v. have chose a ratio higher than one- by part number for purposes of the one- United States, 988 F.2d 1573, 1583 (Fed. percent. This is because the resale price percent ‘‘Roller Chain’’ test. Cir. 1993). The application of a one- will normally be higher than the entered NMB/Pelmec argues that using a percent threshold, based on a value, as it would include the mark-up value other than the entered value comparison of entered value of the of the related importer. Regarding would not make the one-percent ‘‘Roller imported product to the sale price of the Torrington’s claim that the transfer price Chain’’ test any more accurate. finished product, constitutes such a use can be manipulated, we note that the Department’s Position: We disagree of the Department’s discretion. U.S. Customs Service must ensure that with Torrington. The use of entered We disagree with Torrington’s such price represents a reasonable value is appropriate because it is the assertion that the ‘‘Roller Chain’’ rule commercial value. Thus, we conclude best indication of the imported value of has created a vehicle for circumvention that our use of entered value in the subject merchandise included in the of the antidumping duty order. The ‘‘Roller Chain’’ ratio is reasonable. finished product, and the purpose of the antidumping statute provides for the Comment 2: Torrington argues that ‘‘Roller Chain’’ test is to determine the assessment of antidumping duties only NMB/Pelmec-Singapore and NMB/ value of the subject merchandise as to the extent of the dumping that occurs. Pelmec-Thailand’s (NMB/Pelmec) imported in relation to the value of the If there can be no determination of any ‘‘Roller Chain’’ sales databases are finished product as finally sold to an dumping margin where the imported inaccurate. Torrington states that the unrelated party in the United States. See merchandise is an insignificant part of U.S. sales verification report indicates comment 1. In addition, Torrington’s the product sold in the United States, that ‘‘the invoice does not always show concerns about manipulation of transfer then there is no dumping to offset and, the correct country of origin.’’ See NMB/ prices are unfounded. The U.S. Customs therefore, antidumping duties are not Pelmec ESP verification report, February Service will not accept transfer prices as appropriate. Furthermore, the ‘‘Roller 10, 1994. Furthermore, Torrington entered value if these prices do not Chain’’ principle acts only to exclude alleges that the Department discovered reflect the commercial value of the subject merchandise from assessment of at verification that a bearing merchandise. antidumping duties during the POR. We manufactured in Singapore was Comment 4: Torrington argues that continue to require cash deposits of incorrectly reported in the Thai the Department should reject Koyo’s estimated antidumping duties for all response. Torrington argues that during request for exclusion under Roller Chain future entries, including entries of the POR, NMB/Pelmec had only one I since the company reported estimated bearings potentially excludable from ‘‘Roller Chain’’ sale of the subject resale prices of finished and further assessment under the ‘‘Roller Chain’’ merchandise. Therefore, the evidence processed products without providing principle. This is because we have no on record, as indicated by the supporting documentation. Torrington way of knowing at the time of entry transaction randomly selected at further contends that Koyo used whether the ‘‘Roller Chain’’ principle verification, reveals that NMB/Pelmec’s weighted-average entered values for its will operate to exclude any particular ‘‘Roller Chain’’ database is inaccurate. ‘‘Roller Chain’’ calculations without 10938 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices demonstrating that the use of weighted- effectively administering the Torrington argues that, although average values is reasonable. Also Koyo antidumping duty order with respect to NPBS’ suggested correction seems did not indicate that only in-scope Honda. reasonable, they have failed to merchandise was included in its Honda states that Torrington has not demonstrate that the data are calculations. offered any specific data to support its comparable. Instead, Torrington offers In rebuttal, Koyo contends that it contention and that Torrington’s an example demonstrating that the CV provided in its submission of November arguments have been previously and COP data are not comparable. 23, 1993, a detailed explanation of its rejected by the Department. Honda Department’s Position: We agree with methodology for determining whether argues that an antidumping duty order Torrington. Although Torrington cites the weighted-average entered values of is clearly not meant to apply to parts an example allegedly showing that the Koyo’s in-scope products that were imported by a company for use in its CV data and COP data are not incorporated into non-scope products own manufacturing operations unless comparable, Torrington fails to realize by its affiliates exceeded one percent of the imported parts constitute a that the example is based on data from the sales value of the non-scope significant amount of the value of the the wrong files and is cited from the merchandise. products manufactured in the United wrong submission (October 19, 1993, Department’s Position: We agree with States. versus corrected data from December 30, respondent. Koyo provided sufficient Department’s Position: We agree with 1993). Notwithstanding these facts, information in its letter of November 23, Honda. The majority of Honda’s imports Torrington is correct in asserting that 1993, to demonstrate the applicability of constituted less than one percent of the the data are not compatible without the ‘‘Roller Chain’’ rule to certain value of the finished product sold to the modification. See NPBS Final Analysis identified sales. Notably, Koyo first unrelated customer in the United memo, June 2, 1994. submitted examples of all calculations States. The ‘‘Roller Chain’’ standard is These modifications, made for the necessary to determine the one-percent clearly established (see Comment 1 of final results, are necessary to account threshold. Furthermore, there is no this section) and, by this standard, the for a difference in interest expenses and evidence on the record to indicate that majority of Honda’s imports will not be the exclusion of packing expenses. The the estimated resale prices submitted by assessed antidumping duties for entries difference in interest expenses can be Koyo are unreliable. In addition, while during the POR. Furthermore, corrected by multiplying it by a certain the best evidence of the value of the Torrington has provided no specific ratio. The exclusion of packing expenses finished product sold to an unrelated evidence demonstrating that cannot be corrected but, since it results party is the actual price, an estimated circumvention is occurring. in a lower COPFM, it increases the price is suitable if verified, as was done Comment 7: NMB/Pelmec-Thailand dumping margin. This is to the in this instance. See AFBs III (at 39766). states that the Department should not detriment of NPBS. Therefore, we are Comment 5: Torrington claims that use BIA for its further-manufactured satisfied that modifying the CV data in Koyo reported only those imported in- sales. NMB/Pelmec sold a small number the aforementioned manner will result scope products that were further- of bearings to a related company, which in an acceptable surrogate for COPFM. processed into merchandise within the were further manufactured. The Comment 9: Torrington explains that scope of the order and that Koyo did not companies reported CV data for the NSK used a FIFO system to link report any sales of products further bearings that were further manufactured imported bearing parts to finished processed into non-scope merchandise. and, therefore, the Department should bearings. Thus, imported parts could be Torrington contends that the not use BIA. matched to a finished bearing that was Department should continue to apply a Torrington argues that respondents sold even before the parts were partial BIA rate for any model that did not submit complete and accurate imported. This created a situation exceeds the one-percent ‘‘Roller Chain’’ information, and, as such, it is irrelevant whereby imported parts were assigned rule, as well as apply the highest margin whether or not CV was provided for the resale prices and an ESP was calculated calculated for Koyo in the LTFV or prior further-manufactured models. In light of regardless of whether those parts were reviews for any sale that has not been the evidence on record, the Department actually consumed during the POR. reported. should not accept the contentions of Torrington notes that the only Department’s Position: We disagree. NMB/Pelmec for purposes of the final solution to this problem is to trace parts There is no evidence on the record to results. directly to finished bearings or to take suggest that Koyo has failed to report Department’s Position: We agree with account of the entire inventory of parts any sales of in-scope merchandise respondent. For our preliminary results, from all sources, applying the FIFO further-processed into non-scope we incorrectly assigned a BIA margin to method to parts inventory until all of merchandise. two further-manufactured sales due to a the parts are used up. The prices for Comment 6: Torrington objects to the program error. For the final results, we finished bearings should be based upon fact that the Department has excluded corrected the margin program. Since the BIA, which is the lowest USP for the vast majority of Honda’s imports NMB/Pelmec properly reported CV data each relevant part number. based on the ‘‘Roller Chain’’ rule. for the bearings that were further NSK states it formulated its Torrington states that, in Honda’s case, manufactured, we did not use BIA for methodology for reporting Section E the dumping law is not ensuring that these transactions. data in conjunction with the Japanese-origin AFBs used in U.S. Comment 8: NPBS requests that the Department’s Office of Accounting. This automobile production are sold at fair Department correct the omission of methodology was fully disclosed in the value. Instead, Torrington contends that variable COPFM (home market cost of second, third, and present reviews. NSK the order is merely guaranteeing that production) used in allocating profit to notes that the Department has accepted Honda’s ‘‘aftermarket’’ spare parts sales further-manufactured bearing units by as reasonable and proper NSK’s in Japan and the United States are made modifying several lines of the computer assumptions and methodology in the at comparable prices since spare parts program. NPBS states that, due to second and third reviews. See AFBs III, are the only non-‘‘Roller Chain’’ sales differing product codes, the margin 58 FR 39766. made by Honda. As a result, Torrington program failed to recognize this variable Department’s Position: We have claims that the Department is not in the further-manufactured data file. concluded that NSK’s FIFO Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10939 methodology used for reporting Section process of further manufacturing in the 68865 (December 29, 1993). Torrington E data is in accordance with the U.S. United States. Therefore, NSK contends argues that in the third review, NSK GAAP, and thus, an appropriate method that the Department should use the made the same claim, which the of valuation. This methodology was weighted-average margin for complete Department rejected because of lack of reviewed during the further- imported bearings to determine the supporting evidence on the record. manufacturing verification of NSK’s margin for these parts. Torrington suggests that the Department Section E response and was found to be Torrington responds that the should reject the claim now for the same acceptable. Administrative Procedure Act permits reason. Comment 10: NSK contends that the agencies to promulgate ‘‘interpretative Department’s Position: Cost of Department should have based the rules’’ without formal rulemaking, citing manufacturing includes materials, labor, dumping margin for imported parts 5 USC 553(b). Because the ‘‘Roller and overhead associated with producing ‘‘further manufactured’’ in the United Chain’’ test is clearly an interpretative the product in question. Repacking States on the margin for imported rule, there is no prohibition against material and labor costs associated with finished bearings of the same class or applying the one-percent test on a case- packing or movement are not kind. NSK states the imported content by-case basis in this proceeding. considered part of manufacturing costs. contained in the bearings sold in the Department’s Position: We disagree Therefore, we have not classified NSK’s United States does not justify requiring with NSK that the Department should repacking expenses as a cost of NSK to respond to Section E of the not calculate dumping margins for manufacturing for the final results. Department’s questionnaire, nor does it merchandise further manufactured in Comment 12: Torrington notes that support the Department’s calculating the United States by NSK. As explained changes to FAG-Germany’s packing margins for these imported parts. in previous reviews (see AFBs II at labor and material expense factors NSK asserts that the Department’s use 28360 and AFBs III at 39737), the outlined in the analysis memo were not of an arbitrary one-percent threshold for Department disregards antidumping included in the margin program used to analyzing further manufactured duties on those parts and bearings that calculate the preliminary results. In products is unlawful rulemaking. The comprise less than one percent of the addition, Torrington contends that the Department may only reduce ESP by the value of the finished product sold to the exchange rate factor was applied twice value of further-manufacturing first unrelated customer in the United to the adjustment for marine insurance. performed in the United States if ‘‘the States. However, NSK’s data indicate FAG-Germany contends that the product ultimately sold to an unrelated that the subject merchandise sold to its preliminary computer program does purchaser contains a significant amount related party in the United States contain the appropriate adjustment by quantity or value of the imported comprises more than one percent of the factors for FAG’s U.S. packing labor and product.’’ See S. Rep. No. 1298, 93d value of the finished good produced by material expenses. Additionally, FAG- Cong. 2d Sess. 172–73, reprinted in the related party. Because this imported Germany notes that the double 1974 U.S.C.C.A.N. 7185, 7310. In most merchandise is subject to antidumping application of the exchange rate to the cases, the imported content is a very duties, the Department cannot disregard adjustment for marine insurance was small percentage of the total sales of this merchandise in its analysis necessary to correct a conversion error manufacturing cost, and thus NSK or the adjustments to USP provided for committed by FAG in its computer believes the imported portion of its in section 772(e)(3) of the Tariff Act. response. U.S.-produced bearing is insignificant. Thus, we reject NSK’s claim that NSK’s Department’s Position: We agree with NSK maintains the Department has imported parts and bearings should not FAG-Germany. We included in the not provided guidance as to the be subject to further-manufacturing margin program the necessary standards that it follows when analysis, or any analysis at all. We also corrections to FAG-Germany’s packing determining whether the imported disagree with NSK’s argument that the expenses. In addition, we intentionally content is significant in the context of one-percent threshold is arbitrary and applied the exchange rate to the marine further manufactured in-scope products. that it represents unlawful rule-making. insurance adjustment twice to NSK claims that since the Department See Comment 1. compensate for an exchange rate error has not lawfully promulgated a rule We further disagree with NSK’s committed in FAG-Germany’s submitted codifying the ‘‘Roller Chain’’ principle, argument that the imported parts are not data. it must examine each factual situation subject to a process of assembly or on a case-by-case basis. NSK further manufacture. Because the addition of a 9. Level of Trade argues that in this review the part to an otherwise unfinished bearing Comment 1: NTN and NTN-Germany Department has not addressed any constitutes a process of assembly, we argue that the Department incorrectly qualitative or quantitative factors to have adjusted ESP sales prices by the reallocated their reported U.S. selling support its decision to compute margins amount of value added, in accordance expenses to all U.S. sales without regard on NSK’s further-manufactured product. with section 772(e)(3) of the Tariff Act to level of trade. NTN further argues that NSK states that the Department (19 USC 1677a(e)(3)). the Department’s reallocation of HM should not perform a further- Comment 11: NSK claims that the selling expenses without regard to level manufactured analysis of imported parts Department incorrectly classified its of trade was erroneous. According to that are not subject to a process of repacking material and labor costs as NTN and NTN-Germany, certain further-manufacturing in the United costs of U.S. manufacturing, a expenses that are incurred only for sales States. Section 772(e)(3) of the Tariff Act methodology which conflicts with the to specific customer categories are not (19 USC 1677a(e)(3)) only authorizes a Department’s previous rulings wherein applicable to all sales. As a result, NTN further manufacturing analysis where ‘‘a movement and packing expenses have and NTN-Germany contend that the process of manufacture or assembly is been classified separately from the cost Department’s reallocation of these performed on the imported of manufacture in determining the value expenses across all levels of trade merchandise’’ in the United States. added to a product in the United States. improperly allocates certain expenses to Many of the parts imported by NSK are See, e.g., Final Determination of Sales at sales for which NTN and NTN-Germany merely ‘‘applied’’ or ‘‘attached’’ to Less Than Fair Value: Certain Stainless did not incur such expenses. Therefore, finished parts and are not subject to a Steel Wire Rods From France, 58 FR NTN and NTN-Germany request that the 10940 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Department abandon its reallocation prices differ significantly for each level expenses were not unique to, nor and use instead, in its final analysis, the of trade. NTN further argues that if the disproportionally attributable to, any expenses as reported by NTN and NTN- Department decides to compare sales level of trade. Because NTN failed to Germany in their questionnaire across levels of trade for the final adequately quantify its claim for a level- responses. results, then the Department should of-trade adjustment, we have not made In rebuttal, Torrington and Federal- alleviate the distortions caused by such any such adjustment for these final Mogul respond that NTN and NTN- comparisons by making a level-of-trade results. Germany failed to provide any evidence adjustment based on differences in Comment 3: Torrington objects to to justify their method of allocating prices or, alternatively, differences in NTN’s claim that ‘‘aftermarket’’ expenses according to levels of trade. indirect selling expenses for each level customers constitute a distinct level of According to Torrington, NTN and of trade, as set forth by NTN in its trade. First, Torrington argues that NTN-Germany should have justified questionnaire responses. NTN’s selling expenses do not vary their method because it differs from the In rebuttal, Torrington and Federal- across levels of trade. Torrington further Department’s customary practice and Mogul assert that the CIT has upheld in argues that the results of the appears to shift expenses away from numerous instances the Department’s Department’s comparison of weighted- sales at certain levels of trade. This selection of the most similar average prices at different levels of trade reallocation of U.S. expenses also merchandise without regard to levels of is insufficient to conclude that NTN conflicts with NTN’s failure to allocate trade. Torrington and Federal-Mogul makes sales to customers at three its HM expenses according to levels of further argue that NTN has no basis for distinct levels of trade, and that NTN trade. Federal-Mogul argues that the its claim for a level-of-trade adjustment. has failed to provide any evidence U.S. expenses that NTN allocated were Federal-Mogul contends that NTN has demonstrating a correlation between indirect selling expenses that apply not demonstrated that it is entitled to a prices and selling expenses. Finally, equally to all sales. Federal-Mogul level-of-trade adjustment because it has Torrington argues that because of the further argues that the Department’s failed to establish that price differentials limited number of U.S. aftermarket verification report indicates that NTN’s are due to differences in levels of trade. sales, the majority of NTN’s HM identification of certain HM indirect Federal-Mogul further contends that aftermarket sales are not matched to selling expenses with sales to certain NTN’s methods of quantifying level-of- U.S. sales. As a result, Torrington levels of trade may be inaccurate. trade adjustments are inappropriate concludes that the Department should Accordingly, Torrington and Federal- because NTN cannot determine the reject NTN’s classification of certain Mogul support the Department’s amount of price differentials or selling sales as aftermarket sales, and should reallocation of NTN’s and NTN- expenses attributable to differences in reclassify these sales as either OEM or Germany’s U.S. selling expenses, and levels of trade. Torrington adds that the distributor sales for the final results. NTN’s HM selling expenses, without manner in which NTN reported its HM NTN responds that the Department regard to level of trade. indirect selling expenses nullifies the examines the function of the class of Department’s Position: We agree with effect of any level-of-trade adjustment. customer in reaching conclusions Torrington and Federal-Mogul. The As a result, Torrington and Federal- regarding a respondent’s identification methods that NTN and NTN-Germany Mogul conclude that the Department’s of levels of trade. According to NTN, used to allocate the expenses in comparison of sales across levels of Torrington provided no evidence question bear no relationship to the trade and denial of NTN’s request for a regarding customer function or other manner in which they incur them. Such level-of-trade adjustment are reasonable. factors that would preclude the expenses are fixed period costs that do Department’s Position: We agree with Department from accepting NTN’s not vary according to sales value or the Torrington and Federal-Mogul. As we classification of certain customers as number of employees who allegedly sell stated in AFBs III (at 39767), we are aftermarket customers. NTN further each type of merchandise. Further, we required by 19 CFR 353.58 to compare argues that the number of sales made to find NTN’s and NTN-Germany’s merchandise at different levels of trade customers at a particular level of trade allocations according to levels of trade if sales at the same commercial level of is irrelevant in identifying levels of to be misplaced because the types of trade do not permit an adequate trade because the Department’s expenses that they allocated are indirect comparison. Accordingly, when we regulations mandate comparisons of selling expenses that typically relate to were unable to compare NTN’s U.S. sales made at the same level of trade. all sales. In this context, NTN and NTN- sales to HM sales at the same level of Department’s Position: We agree with Germany failed to demonstrate that they trade, we attempted to find matches at NTN. As we stated in the final results incur any specific types of expenses that the next most similar level of trade. of the previous administrative review of are unique to a particular level of trade. We also reject NTN’s request for a this case, we initially base our level-of- Further, as stated in the verification level-of-trade adjustment. In order for trade classifications on the function of report, certain Japanese indirect selling the Department to make a level-of-trade the class of customer reported by expenses that NTN claimed apply to adjustment, respondents must quantify respondents. See AFBs III (at 39767). sales to a specific level of trade apply to any price differences that are These classifications may be rebutted by other sales as well. Because we have no attributable to differences in levels of such other factors as differences in evidence that NTN and NTN-Germany trade. NTN has failed to demonstrate prices that discredit a respondent’s incur different selling expenses for what portion, if any, of those price classifications. NTN submitted different levels of trade, we have not differences is attributable to differences information in its questionnaire revised our reallocations of their selling in levels of trade. Further, we reject responses for this review that explained expenses for these final results. NTN’s claim that we should use the differences in the function of its Comment 2: NTN argues that the differences in indirect selling expenses OEM, distributor and aftermarket Department should compare U.S. and to make a level-of-trade adjustment. customers. Torrington offered no HM sales at the same level of trade. NTN allocated a common pool of evidence that NTN’s aftermarket According to NTN, comparing sales at expenses to all sales, irrespective of customers did not perform functions different levels of trade distorts the levels of trade, using relative sales distinct from those of NTN’s other calculation of dumping margins because values. This demonstrates that such classes of customers, or that NTN’s Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10941 prices to aftermarket customers did not customer category and class (BBs and pre-sale inland freight in PP situations. differ from NTN’s prices to other classes CRBs). This analysis revealed that the In support, Nachi cites The Torrington of customers. Further, because we quantities and weighted-average prices Company v. United States, No. 94–38, examine customer function and other for sales to customer category 1 (sales Slip Op. at 8 (March 4, 1994), where the factors in determining levels of trade, directly between NSK and OEM CIT held that in Ad Hoc Committee, the we agree with NTN that the number of customers) are similar to sales to CAFC ‘‘limited its decision to the sales to customers at a given level of customer category 4 (sales to calculation of FMV in purchase price trade is irrelevant to rendering distributors for resale to OEMs) but situations only.’’ In addition, Nachi determinations regarding the existence significantly different from the notes that Ad Hoc Committee leaves of distinct levels of trade. Therefore, we quantities and weighted-average prices undisturbed the Department’s previous conclude that NTN’s aftermarket of sales to aftermarket customers and practice of treating pre-sale inland customers constitute a distinct level of distributors (customer category 2 and 3, freight charges as indirect selling trade and have compared aftermarket respectively). Therefore, based on this expenses. Therefore, Nachi states that if sales in the United States first to data, we have collapsed sales to the Department incorrectly determines aftermarket sales of such or similar customer categories 2 and 3, and that pre-sale inland freight should not merchandise in Japan. collapsed categories 1 and 4, to form be directly deducted from FMV, the Comment 4: NSK argues that the two levels of trade for HM sales. Department should at least treat this Department incorrectly classified expense as an indirect selling expense. customer category 4 sales—sales 10. Packing and Movement Expenses FAG also contends that the through distributors to OEMs for OEM Comment 1: Torrington and Federal- Department properly adjusted FMV for use—as sales to the aftermarket level-of- Mogul argue that FMV should not be pre-sale inland freight. FAG points out trade. According to NSK, category 4 adjusted for pre-sale inland freight that while the CAFC held that the sales should be matched to OEM level costs, whether compared to PP sales or Department improperly rationalized its of trade sales under either of the to ESP sales. Torrington contends that adjustment to FMV for pre-sale freight methods of analysis used by the movement expenses should be deducted on its inherent authority to fill gaps in Department: (1) Correlation of price to from FMV only if they are directly the statute, the CAFC in Ad Hoc level of trade; or (2) function of the first related to home market sales. Torrington Committee did not rule as to whether unrelated customer. NSK contends that claims that the Department has begun to the Department could have justified its these distributors act as purchasing allow home market deductions for all deduction to FMV under some other agents for large OEM corporations and inland freight expenses without statutory authority or whether the purchase bearings for immediate resale distinguishing between pre- and post- statute permitted an adjustment to FMV to OEMs, and in some cases NSK ships sale expenses. Therefore, Torrington for pre-sale freight where USP was directly to the OEM. In addition, NSK concludes that the Department’s based on ESP. FAG argues that the CIT claims that the price to level of trade approach is without statutory basis and has also rejected Torrington’s comparison submitted in the Section C has been found unlawful by the U.S. contention that pre-sale freight expenses response confirms that category 4 sales Court of Appeals for the Federal Circuit are neither selling expenses nor indirect are at the OEM level of trade. Finally, (CAFC). expenses. In addition, FAG maintains NSK argues that, in the TRB reviews, Torrington and Federal-Mogul also that if the Department decides in the Department correctly recognized maintain that there is no basis for Torrington’s favor on this issue, then the that category 4 sales were at the OEM treating pre-sale inland freight Department should also exclude pre- level of trade and accordingly matched differently when FMV is compared to sale movement charges as an adjustment them to OEM U.S. sales. ESP than when FMV is compared to PP. to USP. SKF argues that the Department Torrington contends that NSK’s sales They point out that the CAFC has must maintain its practice of deducting designated as category 4 meet neither of disallowed deduction of pre-sale HM pre-sale inland freight from FMV the two tests cited by NSK as relevant. transportation costs from FMV in PP when USP is based on ESP, which has Torrington claims that the Department comparisons, and they argue that the similarly been reduced by pre-sale requested that NSK substantiate its Court’s decision also applies to ESP inland freight. claim that it sells at four different levels comparisons because the statute does FAG, NTN, and NMB/Pelmec state of trade and that pricing is reflective of not provide for an adjustment to FMV that the Department’s decision to adjust the different levels of trade. According in ESP comparisons that would FMV to account for pre-sale inland to Torrington, NSK submitted an distinguish the rationale applied in Ad freight costs is supported by the recent analysis which collapsed the four levels Hoc Committee. Furthermore, Federal- CIT decision in Federal-Mogul v. United of trade into two levels, but did not Mogul argues that pre-sale States, 17 CIT lll, Slip Op. 94–40 demonstrate that pricing and selling transportation costs cannot be linked to (March 7, 1994). Given the Department’s practices differed among four individual particular sales, and that the broad authority to make circumstance of levels of trade. Furthermore, Torrington Department lacks the authority to adjust sale (COS) adjustments, FAG, NTN, contends that the Department should FMV for such expenses under the ESP NSK, and NMB/Pelmec argue that the retain the level-of-trade classifications offset provision. Department may legitimately make COS from the preliminary results because Nachi, Koyo, NSK, SKF, NPBS, and adjustments to FMV to account for pre- NSK failed to demonstrate the first NMB/Pelmec argue that the Department sale inland freight costs. NSK adds that unrelated customer in category 4 sales is should continue its practice of treating the Department’s regulations do not the OEM customer. pre-sale inland freight charges as a require that all adjustments to FMV be Department’s Position: We agree with direct adjustment to FMV in ESP related to particular sales. See 19 CFR NSK. We initially consider customer comparisons. They contend that the 353.56(a)(1). function to determine our level-of-trade Federal Circuit’s opinion in Ad Hoc Department’s Position: We have classification. In its section C response, Committee does not apply when FMV is determined that, in light of the CAFC’s NSK provided an analysis of quantities compared to ESP transactions because decision in Ad Hoc Committee, the and weighted-average prices by the CAFC made only a limited ruling on Department no longer can deduct home customer category and model and by the Department’s authority to adjust for market pre-sale movement charges from 10942 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices FMV pursuant to its inherent authority and ocean freight expenses on a Department’s Position to Comment 1, to apply reasonable interpretations in product- and invoice-specific basis for above. areas where the antidumping law is ESP transactions. In addition, Comment 4: Torrington states that silent. Instead we will adjust for those Torrington contends that NMB/Pelmec RHP reported a single amount for expenses under the COS provision of 19 failed to separate air freight expenses domestic inland insurance, marine CFR 353.56 and the ESP offset provision from ocean freight expenses. Therefore, insurance, and U.S. inland insurance. of 19 CFR 353.56(b) (1) and (2), as Torrington argues that the Department Torrington notes that RHP allocated appropriate, in the manner described should resort to BIA by applying the aggregate amounts across RHP’s sales on below. highest U.S. movement expenses the basis of value and contends that When USP is based on PP, we will reported by respondents. RHP allocated marine insurance and only adjust for home market movement NMB/Pelmec states that it is not U.S. inland insurance to home market charges through the COS provision of 19 possible to link specific air and ocean sales. Torrington argues that this CFR 353.56. Under this adjustment, we shipments to individual U.S. allocation decreases home market prices capture only direct selling expenses, transactions because all merchandise while increasing USP. Torrington recalls which include post-sale movement goes into U.S. inventory before it is sold. that its October 1, 1993 comments noted expenses and, in some circumstances, Department’s Position: We agree with this deficiency and that RHP failed to pre-sale movement expenses. NMB/Pelmec Thailand and Singapore. correct its error. Torrington asserts that Specifically, we will treat pre-sale In the case of ESP transactions made by this failure alone justifies the use of movement expenses as direct expenses NMB/Pelmec, there is often no direct BIA. Torrington suggests two possible if those expenses are directly related to link between shipments and resales. applications of BIA: the Department the home market sales of the Therefore, because we verified NMB/ could use the amounts reported by merchandise under consideration. Pelmec’s air and ocean freight expenses another U.K. respondent, or the entire Moreover, in order to determine and found them to have been reasonably amount could be allocated to U.S. sales. whether pre-sale movement expenses allocated, we have accepted NMB/ Torrington justifies the second are direct, the Department will examine Pelmec’s freight expense calculations. alternative by stating that it would be each respondent’s pre-sale warehousing Comment 3: Torrington states that the fair to allocate nothing to home market sales as the home market expenses were expenses, because the pre-sale Department’s verification report movement charges incurred in overstated because marine insurance confirms that NMB/Pelmec Thailand positioning the merchandise at the was included. reported movement expenses incurred warehouse are, for analytical purposes, RHP responds that it purchases a on bearings shipped to Singapore and inextricably linked to pre-sale single freight insurance policy that re-entered in Thailand (termed ‘‘Route warehousing expenses. If the pre-sale covers its shipments world-wide, B’’ sales in the response). Torrington warehousing constitutes an indirect regardless of destination, and that this argues that freight expenses incurred in expense, the expense involved in insurance covers all production and transporting bearings to Singapore and moving the merchandise to the acquisitions until the time of delivery. then back to Thailand should not be warehouse must also be indirect; RHP notes that while Torrington argues allowed as an adjustment to FMV conversely, a direct pre-sale that RHP should not have allocated the warehousing expense necessarily because such transportation expenses fixed insurance expense based on its implies a direct pre-sale movement are by definition ‘‘pre-sale’’ freight sales turnover, the Department has expense. We note that although pre-sale costs. Torrington also contends that the verified and accepted RHP’s practice in warehousing expenses in most cases ‘‘Route B’’ sales should be excluded the past three administrative reviews. have been found to be indirect from the home market database. RHP concludes that there is no reason expenses, these expenses may be NMB/Pelmec Thailand responds that to modify well-established practice. deducted from FMV as a COS only part of the freight expenses Department’s Position: We have adjustment if the respondent is able to incurred on ‘‘Route B’’ sales are pre-sale accepted RHP’s reported freight demonstrate that the expenses are expenses because freight charges insurance expenses—which cover directly related to the sales under incurred for shipping merchandise back domestic inland insurance, marine consideration. to Thailand are incurred after sales are insurance, and U.S. inland insurance— When USP is based on ESP, the made. Furthermore, NMB/Pelmec for the final results. Because RHP Department uses the COS in the same Thailand argues that the Ad Hoc purchased a single policy that covers all manner as in PP situations. Committee decision does not preclude shipments world-wide, RHP allocated Additionally, under the ESP offset the deduction of pre-sale freight the expense over all of its sales provision set forth in 19 CFR 353.56(b) expenses. See Comment 1 above. activities, based on sales value. We find (1) and (2), we will adjust for any pre- Department’s Position: We agree with RHP’s allocation methodology to be sale movement charges found to be NMB/Pelmec Thailand. As we found in reasonable. indirect selling expenses. AFBs II (at 39770), ‘‘Route B’’ sales (i.e., Comment 5: Torrington argues that We have followed the above bearings shipped to Singapore and then the Department incorrectly made methodology for these final results. back to Thailand) are home market sales adjustments for Koyo’s ocean freight However, in the case of NPBS, pre- and made in the normal course of trade. As and U.S. inland freight from port to post-sale inland freight expenses were verified by the Department in this warehouse because Koyo reported these not distinguished. Rather, NPBS review, ‘‘Route B’’ sales incur both pre- expenses on a customer-specific basis reported both expenses as post-sale sale freight expenses (to ship the rather than tying them to specific inland freight. Therefore, for the final merchandise to Singapore) and post-sale transactions. results, we have treated all of NPBS’ freight expenses (to return the Department’s Position: We accepted inland freight expenses as pre-sale merchandise to Thailand). Therefore, Koyo’s allocation of these expenses as movement charges. we have deducted NMB/Pelmec’s post- reasonable. We verified these expenses Comment 2: Torrington asserts that sale movement expenses from FMV for and found no evidence that Koyo’s NMB/Pelmec Thailand and NMB/ the final results. For our treatment of allocation methodology is Pelmec Singapore failed to report air pre-sale freight expenses, please see the unrepresentative of its actual Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10943 experience. In the case of ESP certain customers. Therefore, Nachi Comment 8: Federal-Mogul claims transactions, there is often no direct link asserts that the cost in question is that the Department erroneously between shipments and resales. See the clearly a selling expense. Furthermore, deducted packing from SNR’s home Department’s Position to Comment 2, Nachi contends that by dividing NBC’s market sales. Federal-Mogul asserts that above. total expenses by total NBC sales, only SNR’s General Conditions of Sale stated Comment 6: Torrington argues that that portion of NBC’s expenses that terms of sale were ex-factory, since Koyo allocated air freight attributable to deliveries of subject packing excluded, except by special expenses over all bearings shipped from merchandise was allocated to sales of agreement. Federal-Mogul further states Japan rather than reporting them on a subject merchandise. With regard to that the Department should not deduct per-unit and transaction-specific basis, Federal-Mogul’s argument, Nachi argues packing costs, material or labor, from the Department should apply a partial that it has not double-counted NBC’s SNR’s home market prices. Federal- BIA rate, i.e., the highest movement van expenses because they were not Mogul argues that SNR did not describe expenses reported by Japanese reported elsewhere in Nachi’s response any special agreements which would respondents. and because they were pulled out of demonstrate that packing was included. In rebuttal, Koyo argues that the Nachi’s indirect selling expense SNR responds that the General Department has accepted its allocation calculation along with other freight Conditions of Sale referenced by of air freight expense in prior reviews. charges. Federal-Mogul were only basic terms Koyo maintains that the Department Department’s Position: Although we and conditions, and that SNR has accepted these expenses because there disagree with Torrington and Federal- allocated its packing costs only across was no evidence on the record to Mogul’s reasoning, we agree that sales where packing was included, as in suggest that Koyo’s allocation Nachi’s ‘‘other direct selling expenses’’ previous reviews. Thus the methodology was not representative of should be disallowed. NBC’s van fleet Department’s calculation, which its actual experience. expenses, which Nachi has categorized deducted home market packing, was Department’s Position: We disagree as ‘‘other direct selling expenses,’’ are correct and the Department should not with Torrington. As stated in the more accurately described as home make any changes for the final results. Department’s Position to Comment 2, market freight expenses. Even though Department’s Position: We disagree above, there is often no direct link they are in-house freight costs rather with Federal-Mogul that packing was between shipments and resales in the than movement services purchased from erroneously deducted from SNR’s sales. case of ESP transactions. The expenses an independent contractor, they are Although SNR’s General Conditions of in question were verified by the nonetheless movement expenses. Thus, Sale state that prices were ex-works and Department and were found to have Nachi has categorized its home market that packing was not included, this is been reasonably allocated. freight expenses as either ‘‘other direct not inconsistent with SNR’s reported Comment 7: Torrington argues that selling expenses’’ or domestic inland terms of sale. SNR reported two the Department should disallow Nachi’s freight expenses. Both categories of categories of home market terms of sale home market ‘‘other direct expenses,’’ transportation expenses were incurred in both the narrative response and the which the Department has treated as on NBC sales. computer database. For the first indirect expenses for the preliminary Because NBC is unable to identify category, SNR stated that its customers results. Torrington claims that Nachi’s which particular sales were transported pay for packing. For the second reported expense, the cost of operating by van and which were transported by category, SNR stated that it incurs the the fleet of vans owned by Nachi’s contractors, Nachi has allocated each packing costs. See SNR’s Section C national sales subsidiary, Nachi Bearing category of expenses over total NBC Response (September 21, 1993). Because Company (NBC), is a part of general sales and applied the resulting factors to there is no evidence on the record to overhead that Nachi has not shown each reported NBC sale. Normally, this indicate that SNR’s reported terms of relates entirely to customer deliveries. would be no different from the net effect sale are not reflective of the actual terms Furthermore, Torrington states that that would have resulted if Nachi had of its sales, we are continuing to deduct Nachi has not identified which NBC pooled all NBC movement charges HM packing for the final results. sales were shipped via the van fleet, or under the same category of expenses. Comment 9: Torrington argues that even demonstrated that any bearings at However, Nachi allocated its van fleet the Department should resort to BIA all were shipped via the van fleet. expenses over NBC sales by sales value because RHP failed to report all relevant Finally, Torrington argues that Nachi rather than by bearing weights. In the packing expenses in its questionnaire has failed to segregate the expenses case of movement charges that cannot response. Torrington notes that the incurred on shipments of subject be traced on a transaction-specific basis, amounts RHP reported in its merchandise and those incurred on non- the proper way to allocate the expenses supplemental questionnaire response subject merchandise. between shipments of subject and of were estimates and appear to be Federal-Mogul argues that Nachi has non-subject merchandise is by the standard costs. Torrington contends that double-counted home market inland weight of the merchandise, unless a standard costs are not acceptable for freight expenses because ‘‘other direct respondent can show that the expenses dumping calculations. Torrington expenses’’ (which include the cost of were incurred on a different basis. concludes that the Department should customer deliveries made with NBC’s Because Nachi allocated home market apply BIA to RHP’s U.S. packing van fleet) and ordinary inland freight inland freight charges based on bearing expenses. charges are both reported for several weights, we have accepted Nachi’s RHP responds that contrary to transactions. Therefore, Federal-Mogul reported home market inland freight Torrington’s allegations, the packing asserts that Nachi’s home market freight charges. However, Nachi’s allocation of costs reported in its supplemental claims should be denied. NBC’s van fleet expenses based on sales response were actual costs, and thus, no Nachi states that the Department value distorts the actual amount of adjustments to RHP’s packing expenses verified that its ‘‘other direct selling expense incurred on each transaction. are warranted. expenses’’ consist of the cost incurred Therefore, we have not adjusted FMV Department’s Position: While we by NBC in renting vans and purchasing for Nachi’s reported ‘‘other direct selling agree with Torrington that there were gasoline for deliveries of bearings to expenses’’ for the final results. gaps in RHP’s original questionnaire 10944 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices response, RHP provided a full method of calculating the per-unit used to allocate its packing costs explanation and quantification of its movement charges at issue for these included INA’s transfer prices to its U.S. packing material and labor costs in the final results. subsidiary. Further, Torrington failed to supplemental questionnaire response. Department’s Position: We agree with demonstrate that INA’s transfer prices See RHP Section B Response (September INA. At verification, we conducted two were unreasonable or that INA 21, 1993) and RHP Supplemental separate tests of INA’s method of systematically manipulated its transfer Questionnaire Response (December 16, reporting per-unit movement charges on prices to shift expenses away from 1993). We agree with RHP that it U.S. sales, and determined that INA’s certain U.S. sales. In the absence of such reported its actual packing materials method yielded representative results. evidence, INA’s allocation of packing and labor costs. Torrington has not Further, neither Torrington nor Federal- expenses over transfer prices is provided any support for its allegation Mogul has demonstrated that its reasonable. As a result, we have that RHP reported standard costs and proposed calculation method would accepted INA’s use of transfer prices to not actual costs. Therefore, there is no yield more accurate results than INA’s calculate per-unit packing material and need to apply BIA to RHP’s packing method. Accordingly, we have used the labor expenses incurred in Germany. expenses. per-unit charges reported by INA in our Comment 12: Federal-Mogul contends Comment 10: Torrington and Federal- calculations for these final results. that NTN improperly calculated charges Mogul argue that INA’s method of Comment 11: Torrington objects to the for shipping merchandise from Japan to calculating per-unit ocean freight, U.S. method used by INA to calculate per- the United States. According to Federal- inland freight, and U.S. brokerage and unit amounts for packing material and Mogul, NTN combined ocean freight handling charges understates the per- packing labor expenses incurred in and air freight expenses that it incurred unit amounts incurred for each expense. Germany. Torrington states that the for shipments to the U.S., and allocated Specifically, Federal-Mogul contends record does not clearly indicate whether these expenses over all U.S. sales. that INA’s calculation of per-unit the sales amount over which these Federal-Mogul states that because air expenses using a simple average expenses were allocated includes INA’s freight is more expensive than ocean obscures the fact that INA must have prices to its U.S. subsidiary or the U.S. freight, NTN’s calculation method incurred significantly higher per-unit subsidiary’s resale prices. If the sales understates the shipping charges for expenses for air shipments than for sea amount includes the subsidiary’s resale certain U.S. sales. Therefore, Federal- shipments. Torrington states that INA’s prices, then Torrington argues that INA Mogul concludes that the Department method of calculating average charges is improperly calculated per-unit expenses should separate ocean freight and air based on shipments that are not using its transfer prices to its U.S. freight charges and allocate them to the representative of all INA’s sales, and subsidiary. If the sales amount includes respective sales to which they apply. understates per-unit charges by giving transfer prices, then Torrington NTN rejects Federal-Mogul’s disproportionate weight to high value challenges INA’s calculations on the argument on the grounds that it is shipments with low per-unit freight grounds that transfer prices are subject impossible to trace specific ESP sales to costs. In order to account for this to manipulation and, therefore, do not specific air or sea shipments from Japan. disparity, Federal-Mogul requests that form an appropriate basis for the As a result, NTN concludes that the the Department revise INA’s calculation allocation of expenses. In either case, Department has no basis for revising of per-unit amounts for these expenses Torrington requests that the Department NTN’s reported air and ocean freight by using a single weighted average revise INA’s calculations of per-unit charges for ESP sales for these final derived from the per-unit amounts for packing materials and labor expenses results. air shipments and for sea shipments, for the final results. Department’s Position: We agree with respectively. Alternatively, Torrington INA responds that the sales amount NTN. Because we do not require requests that the Department revise used to allocate the packing expenses in respondents to tie individual ESP sales INA’s reported per-unit movement question included INA’s sales to its U.S. to specific shipments, we also do not charges by calculating a simple average subsidiary at transfer prices. INA further require respondents to report sale- of the per-unit charges for each asserts that its allocation of expenses specific air or ocean freight expenses for shipment in INA’s sample. over its total sales value represents a individual ESP sales. In the absence of INA responds that the Department has quantifiable and verifiable basis for the information required to tie air accepted in each previous review the allocating the expenses in question. As freight charges to specific U.S. sales, we method used in this review to calculate a result, INA concludes that the have accepted for these final results the the per-unit movement charges at issue. Department should accept the packing air and ocean freight charges as reported INA further argues that the Department material and packing labor expenses as by NTN. concluded that INA’s reporting method reported. Comment 13: Torrington argues that yielded representative results after Department’s Position: We agree with NSK repackaging expenses were conducting two separate tests at INA. At verification we examined the improperly allocated to all sales because verification to determine whether INA’s total home market sales values that were NSK has admitted that repackaging does methodology was reasonable. Finally, used to allocate various charges and not occur on all orders. NSK INA contends that Federal-Mogul has expenses. We were able to disaggregate Supplemental Response, at 6 (December not demonstrated that the methodology the total home market sales values into 3, 1993). Citing Timken, 673 F. Supp. at that it proposes would yield more their constituent elements and trace 512–513, Torrington asserts that the accurate results than the methodology these elements to audited financial Department should not permit used by INA, and that Torrington’s statements. During this process, we respondents to achieve a reduction of method of calculating a simple average found a separate account that INA uses USP if they have withheld data. would result in a per-unit expense that, to record sales to its U.S. subsidiary. We Therefore, Torrington contends that the when multiplied by the weight of the saw no evidence to suggest that INA Department should allocate repacking shipments, would yield total charges far recorded anything other than its transfer expenses over sales at the distributor in excess of those actually incurred. prices to its U.S. subsidiary in this level for the final results. Therefore, INA concludes that the account. Accordingly, we have NSK maintains it properly allocated Department should not modify INA’s determined that the total sales value repackaging expenses to all U.S. sales. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10945 NSK reported that ‘‘the expenses NMB/Pelmec Thailand does not used NMB/Pelmec’s HM as the basis for accumulated * * * included bar code dispute Torrington’s allegations that the calculation of FMV. labels, shrinkwrap and other materials there was not a sufficient basis to test Comment 2: RHP contends that the generally consumed in NSK’s whether HM related-party sales were at Department should not have collapsed warehouses for both OEM and arm’s length. However, NMB/Pelmec RHP and NSK Europe during the POR distributor orders.’’ NSK’s Thailand rebuts Torrington’s argument and that the use of BIA with respect to Supplemental Section B Response, at 6. that the Department should have used the U.S. sales of NSK Europe products NSK states all sales receive some sort of third-country sales as the basis for FMV. was not appropriate. RHP argues that repackaging. However, NSK states that if NMB/Pelmec explains that HM viability the Department has been unwilling to the Department finds that NSK’s was accurately calculated on a weight collapse companies in the past except repackaging expenses were not properly basis for complete bearings and bearing where the relationship is considered so allocated to all sales, NSK would not parts as instructed by the Department’s significant that price manipulation may object to the Department yielding to questionnaire. exist. RHP notes that the Department Torrington’s request that such expenses Department’s Position: We agree with will not generally collapse entities be allocated only to aftermarket sales. Torrington that NMB/Pelmec Thailand’s which have separate manufacturing Department’s Position: The related-party sales in the HM should not facilities and sales operations. RHP repackaging expenses reported by NSK be used in the calculation of FMV. contends that since it became affiliated include materials consumed in the However, we do not agree with with NSK Europe in 1990, RHP has repackaging of both OEM and Torrington that NMB/Pelmec Thailand maintained the arm’s-length aftermarket sales. Therefore, we did not have a viable home market and relationship that they had before they consider NSK’s allocation of such that we should therefore use third- became affiliated. RHP notes that during expenses as reasonable and accurate and country sales as the basis for FMV. the POR, RHP and NSK Europe were have accepted them as reported. NMB/Pelmec Thailand properly ‘‘separately managed and administered, Comment 14: NSK claims that the reported that its HM was viable using maintained separate facilities and Department incorrectly classified its operations and did not share significant sales to both related and unrelated repacking material and labor costs as pricing information or marketing parties as requested in our costs of U.S. manufacturing, a strategies.’’ RHP maintains that both questionnaire. See the Department’s methodology which conflicts with the RHP and NSK Europe have remained questionnaire at 104. Although certain Department’s previous rulings wherein independent despite common HM sales may ultimately be determined movement and packing expenses have parentage, which is why RHP contends to be unusable for comparison purposes, been classified separately from the cost that this situation does not present ‘‘a such as when sales made to related of manufacture in determining the value strong possibility of price parties are not made at arm’s-length added to a product in the United States. manipulation.’’ RHP argues that it is a prices, the arm’s-length test is separate See, e.g., Final Determination of Sales at common practice within the bearing Less Than Fair Value: Certain Stainless from the HM viability test. That we industry for manufacturers to purchase Steel Wire Rods From France, 58 FR cannot use NMB/Pelmec Thailand’s products from other manufacturers to 68865 (December 29, 1993). related-party sales does not change the expand their product line. RHP Torrington argues that in the third fact that the HM was viable. We contends that its purchases of bearings review, NSK made the same claim, establish viability once at the beginning from NSK Europe is not inconsistent which the Department rejected because of our analysis, before the arm’s-length with their separateness, because these of lack of supporting evidence on the test for related-party sales, based on the dealings were at arm’s length. record. Torrington suggests that the response to Section A of the Torrington states that RHP essentially Department should reject the claim now questionnaire. If we establish that the has restated the same arguments that the for the same reason. HM is viable, we instruct respondent to Department rejected in prior reviews Department’s Position: Cost of furnish HM sales. and has not provided ‘‘new’’ manufacturing includes materials, labor, It would be administratively information to refute the Department’s and overhead associated with producing infeasible to reestablish the appropriate previous findings. Torrington contends the product in question. Repacking market for purposes of calculating FMV that RHP and NSK Europe should material and labor costs associated with each time we determine a group of HM continue to be collapsed for the final packing or movement are not sales to be unsuitable for comparison. If results. Torrington further argues that considered part of manufacturing costs. we were to retest for viability after the Department was justified in Therefore, we have not classified NSK’s determining that certain related-party imposing BIA on RHP’s sales of NSK repacking expenses as a cost of sales were unsuitable, we would cause Europe products in the United States, manufacturing for the final results. undue delays in the completion of the because both RHP and NSK Europe review. This problem would be possess information crucial to the 11. Related Parties exacerbated when we consider other analysis of these transactions, and NSK Comment 1: Torrington states that at reasons that HM sales may be unsuitable Europe failed to provide section C and verification of NMB/Pelmec Thailand for comparison, such as when there are D information for this administrative the Department determined that there models sold below cost or when the review. was not a sufficient basis to test whether adjustment for differences in Department’s Position: We agree with HM related-party sales were made at merchandise (difmer) exceeds the 20- Torrington. As we have stated in both arm’s length. Therefore, Torrington percent cap. The determinations of AFBs II and AFBs III, our usual practice argues, because the Department must whether models are sold below cost or is ‘‘to collapse related parties if the rely on a small portion of reported HM whether they exceed the 20-percent nature of their relationship allows the sales, i.e., sales to unrelated parties, as difmer cap are made at a more advanced possibility of price and cost the basis of FMV, the Department stage of our analysis than the HM manipulation.’’ See AFBs III at 39772. should use third-country sales for viability test. Thus, we have no basis to RHP has provided no new information determining NMB/Pelmec Thailand’s disregard NMB/Pelmec’s HM sales, and, in this review to suggest that the nature FMV. accordingly, for these final results we of its relationship with NSK Europe has 10946 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices changed. Therefore, we have Torrington also asserts that SKF has not related, we have continued to determined that RHP and NSK Europe failed to submit any data demonstrating exclude these sales for the final results. have a significant financial relationship, that its prices to related and unrelated See SKF Sverige AB Verification Report, and that the nature of their relationship parties are comparable and thus has not February 23, 1994, and Rhone Poulenc with their parent company, NSK-Japan, met its burden. Torrington and Federal- Inc. v. United States 899 F. 2d 1185 (Fed permits the price and cost manipulation Mogul further point out that SKF has Cir. 1990). that requires that we consider these provided no evidence on the record Comment 4: NTN challenges the companies as a consolidated entity. See regarding any particular related-party Department’s decision to exclude from AFBs II (at 28393) and AFBs III (at sales or the price comparability of its its analysis certain HM sales to related 39772). related-party sales. parties. According to NTN, the Because NSK Europe did not provide Department’s Position: We disagree Department excluded related-party sales the sales and cost information (Sections with SKF. 19 CFR 353.45 provides that from its analysis without having first C and D) necessary for this review, we the Department ordinarily will include articulated any standard for determining were unable to properly calculate the related-party sales in the calculation of whether sales prices to related parties FMVs for particular RHP U.S. sales. FMV only if it is satisfied that the sales were comparable to sales prices to Because we know that RHP reported the were made at arm’s-length prices, i.e., unrelated parties. NTN also objects to entire universe of U.S. sales, we applied that the prices of such sales are the Department’s use of weighted- BIA to those U.S. sales for which the comparable to the prices at which the averages in its comparison of sales FMVs were potentially affected by the seller sold such or similar merchandise prices to related and unrelated parties lack of information concerning NSK to unrelated parties. For purposes of because weighted-average prices to Europe’s HM sales and cost. See AFBs applying this provision, § 353.45 also related and unrelated parties can differ III (at 39773). As the BIA rate we refers to section 771(13) of the Tariff Act even if the per-unit invoice prices are applied RHP’s highest rate for each class for the definition of related parties. We identical. Finally, NTN argues that the or kind: 48.14 percent for BBs, which preliminarily determined that SKF- Department failed to account for the was RHP’s BB margin from the third Sweden made HM sales to customers impact of different payment terms and administrative review, and 48.29 for related to it as described in section differences in sales quantities on sales CRBs, which was RHP’s CRB margin 771(13)(D) of the Tariff Act. prices to related and unrelated parties. from the second administrative review. Accordingly, we conducted an analysis As a result, NTN concludes that the to determine whether these sales were Department should revise its test for Comment 3: SKF-Sweden argues that made at arm’s-length prices. Because we determining whether related party the Department eliminated a number of determined that these sales were not prices are comparable to unrelated party HM transactions based on the erroneous made at arm’s-length prices, we prices for the final results. conclusion that such transactions excluded them from our calculations of Torrington and Federal-Mogul claim reflected preferential prices to related FMV. (We note that SKF-Germany also that NTN has failed to meet its burden parties. SKF asserts that there is no made HM sales to related parties, but of proving that sales prices to related direct or indirect ownership or control that we determined these sales were parties are comparable to those to between the companies, and that the made at arm’s-length prices. Therefore, unrelated parties. Torrington further relationship between the parties noted we did not exclude them from our argues that the Department’s method of by the Department at verification has no calculation of FMV for SKF-Germany.) comparing weighted-average prices to influence on price. SKF also states that On reexamination of the evidence on related and unrelated parties is a the Department’s comparison of average the record, however, we determined that reasonable and efficient method of prices is insufficient to test the arm’s- one of these HM customers in fact did comparing prices given the large length nature of the transactions not meet the definition of a related party number of respondents and HM sales because the Department included as specified in section 771(13) of the transactions. Moreover, Torrington companies with no common ownership Tariff Act. Therefore, for these final asserts that NTN failed to demonstrate interests and companies with ownership results we retained sales to this that payment and quantity terms would interests of less than 20 percent, did not customer by SKF-Sweden in calculating have any effect on the Department’s individually analyze the companies FMVs and did not include these sales in analysis, while Federal-Mogul argues involved, and did not consider the our arm’s-length analysis for related- that the Department’s arm’s-length test relative quantities involved. party sales. accounts for the additional factors cited Torrington maintains that the In determining whether prices to by NTN. As a result, Torrington and Department will use sales to related related parties are in fact arm’s-length Federal-Mogul request that the parties as a basis for FMV only if it is prices, we rely on a comparison of Department continue to exclude HM satisfied that the price is comparable to average unrelated-party prices for each sales of BBs and CRBs to related parties the price at which the producer or model to average related-party prices for from its analysis for these final results. reseller sold such or similar the same models. When average prices Department’s Position: We agree with merchandise to unrelated parties, and to unrelated parties are predominantly Torrington and Federal-Mogul. Because that the only valid criterion in this higher than average prices to related we deduct credit and conduct our determination is price. Torrington parties for the class or kind of analysis by level of trade, our arm’s- argues that there is a regulatory merchandise, we disregard sales to length test accounts for differences in presumption that related-party sales related parties for that class or kind. payment terms and, to the extent that should be excluded in a calculation of Because SKF has provided no evidence they are reflected in sales to different FMV. Federal-Mogul and Torrington to refute our findings that the average levels of trade, differences in quantities state that the burden is on the prices of certain models sold to related of sale. Further, our use of weighted respondent, not the Department, to parties are not comparable to the averages in our comparisons of sales overcome this presumption by average prices of these models sold to prices to related and unrelated parties is demonstrating affirmatively that related- unrelated parties, other than reference warranted because it provides the most party transaction prices are comparable to statements by company personnel at accurate means of measuring, for each to prices to unrelated parties. verification that these companies were model, NTN’s preponderant pricing Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10947 practices for related and unrelated Accordingly, Torrington and Federal- not USP. Section 751(a)(2)(A) of the customers. The failure to weight our test Mogul support the Department’s Tariff Act (19 USC 1675(a)(2)(A)) by quantity would give disproportionate exclusion from its calculation of FMV of requires the Department to calculate the weight to sales of small quantities, NTN’s sample sales and sporadic, small- amount of duty payable on ‘‘each entry which would result in distortions. quantity sales. of merchandise’’ into the United States. Therefore, we have not revised our Department’s Position: We agree with Torrington states that this provision arm’s-length test for these final results. Torrington and Federal-Mogul. As we should be compared with section Finally, we reject NTN’s arguments stated in the final results of the previous 773(a)(1)(A) of the Tariff Act (19 USC that we have not established any review, the fact that NTN identified 1677b(a)(1)(A)), which requires FMV to standard for assessing the comparability sales as sample sales does not be calculated on the basis of sales in the of sales prices to related and unrelated necessarily render them outside the ‘‘ordinary course of trade.’’ parties. As discussed in Comment 3 ordinary course of trade. Thus, our Federal-Mogul also rejects the idea of above, our longstanding practice has verification of the designation of certain a COS adjustment, arguing that the cost been to exclude related-party sales from sales as samples merely demonstrates to produce the merchandise cannot our analysis if the sales prices to related that NTN recorded such sales as reasonably be used to quantify any parties are lower than those to unrelated samples in its own records. This difference between a sample sale and a parties. See AFBs III. Because NTN’s designation, however, does not indicate sale with a price because the cost to sales prices to related parties for BBs that NTN made such sales outside the produce the merchandise remains the and CRBs were lower than sales prices ordinary course of trade. We also reject same whether the producer sells it at a to unrelated parties, we have excluded NTN’s claim that small quantity sales of profit, sells it at a dumped price, or sales of these products to related parties products with sporadic sales histories gives it away. from our calculation of FMV for these fall outside the ordinary course of trade. Department’s Position: The final results. Infrequent sales of small quantities of Department agrees with Federal-Mogul certain models is insufficient evidence and Torrington. As set forth in AFBs II 12. Samples, Prototypes, and Ordinary to establish that NTN made these sales (at 28395), other than for sampling, Courses of Trade outside its ordinary course of trade there is neither a statutory nor a Comment 1: NTN argues that the because such sales histories are typical regulatory basis for excluding any U.S. Department should not use sample sales of certain types of products. Therefore, sales from review. The Department must or sporadic, small quantity sales of because NTN failed to demonstrate that examine all U.S. sales within the POR. certain products in its calculation of samples and sporadic, small-quantity See Final Results of Antidumping FMV. NTN states that these sales are not sales fall outside the ordinary course of Administrative Review; Color Television in the ordinary course of trade. NTN trade, we have included them in our Receivers From the Republic of Korea, further states that the Department analysis for these final results. 56 FR 12701, 12709 (March 27, 1991). verified NTN’s recording of sample sales Comment 2: FAG-Germany and FAG- Although we have made COS in its accounting system, and the sales UK contend that the Department adjustments as required by section 773 data that NTN used to classify certain improperly used zero-priced U.S. of the Tariff Act and 19 CFR 353.56, we other sales as being outside the ordinary sample and prototype sales in the disagree with FAG’s argument that a course of trade. Because the Department calculation of USP because such sales further COS adjustment should be made excluded sample sales and sporadic, are not made in the ordinary course of if the U.S. sample sales are not excluded small-quantity sales from its analysis in trade and are therefore similar to the from the analysis. This adjustment is Final Results of Antidumping Duty type of sales the statute permits the not warranted under sections 772 and Administrative Review; Tapered Roller Department to exclude in the HM. 773 of the Tariff Act. FAG’s argument Bearings and Parts Thereof, Finished Additionally, FAG claims the that a COS adjustment should be made and Unfinished, from Japan, 57 FR 4960 Department is not required to review when a zero-price U.S. sale is compared (February 11, 1992), NTN urges the each and every U.S. sale. either to HM sales in which value was Department to exclude such sales from Alternatively, FAG argues that if the received or to CV, which includes its analysis in the final results of this Department compares the U.S. zero- profit, suggests that a COS adjustment review. price sample sales to HM sales in which should be made because of the marked Torrington and Federal-Mogul reject value was received, the Department difference in the prices of the U.S. sale NTN’s argument regarding sample sales should make a COS adjustment to ($0) and the comparable HM sale. because NTN has provided no evidence account for the different circumstances However, differences in prices do not regarding the circumstances under which the sales were made. FAG constitute a bona fide difference in the surrounding the sample sales in argues that the Department should circumstances of sale. Furthermore, it question. In the absence of such adjust FMV in the amount of the would clearly be contrary to the purpose evidence, Torrington and Federal-Mogul expenses directly associated with the of the dumping law to make a COS assert that NTN has failed to meet its U.S. sample sale and suggests reducing adjustment in order to compensate for burden of proof in demonstrating that FMV by the amount of the COP of the price discrimination. Moreover, we do such sales fall outside the ordinary U.S. sample sale. not deduct expenses directly related to course of trade. Similarly, Torrington Federal-Mogul and Torrington U.S. sales from FMV either in PP or ESP and Federal-Mogul assert that a pattern contend that, in order to assure the comparisons. In making COS of infrequent sales of small quantities of validity of the Department’s sample, the adjustments in PP comparisons, U.S. specific products is insufficient to Department must not drop these U.S. selling expenses are added to FMV, establish that such sales fall outside the sample and prototype sales from its while in ESP comparisons U.S. selling ordinary course of trade. In this context, analysis. Federal-Mogul and Torrington expenses are neither added to nor Torrington and Federal-Mogul note that further maintain that the arguments deducted from FMV; they are deducted the Department’s verification of NTN’s regarding the ordinary course of trade from USP. Finally, regarding FAG’s claims focused solely on the method are completely irrelevant because the argument that we should use the COP of that NTN used to prepare its response ordinary course of trade provision U.S. merchandise (SAMPCOPE) as the rather than NTN’s sales practices. applies only to the calculation of FMV, basis for such an adjustment, the difmer 10948 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices methodology accounts for appropriate agrees with NSK that the costs of these The ‘‘cap’’ was devised at a time differences in merchandise. samples should not be included as part when the Department was not Comment 3: NSK asserts that zero- of NSK’s indirect selling expenses effectively calculating the tax in each price samples and prototype sales because we are considering these market on the basis of adjusted prices. should be excluded from the U.S. sales transactions as sales and are comparing It was intended to keep differences in database because the record them to FMV. Therefore, we have expenses which were eliminated demonstrates that the provision of these deducted the costs of samples from through adjustments to the price in each samples are not sales but rather NSK’s indirect selling expenses. market from continuing to affect the promotional expenses. NSK contends 13. Taxes, Duties and Drawback dumping margin by remaining in the that the ‘‘ordinary course of trade’’ basis upon which the tax in each market analysis has been applied by the Comment 1: Federal-Mogul maintains was determined. The Department’s Department to exclude certain U.S. sales that the Department’s new tax current practice of effectively using from its analysis, citing Ipsco, Inc. v. methodology is still legally flawed in adjusted prices in each market as the tax United States, 714 F. Supp. 1211, 1217 that it fails to ‘‘cap’’ the amount of tax base automatically achieves this (CIT 1989). NSK contends that if the added to USP at the amount of tax purpose. The imputed U.S. tax will Department does not exclude zero-price added to or included in the price of the exceed the tax on the home market sales samples from the U.S. sales database, foreign market comparison model. to which they are compared only where then the Department should deduct the Federal-Mogul cites 19 USC 1677 the adjusted U.S. price is higher than cost of these samples from NSK’s (d)(1)(C), which requires that forgiven the adjusted home market price—that is, indirect selling and G&A expenses. taxes be added to USP ‘‘but only to the for non-dumped sales. A tax cap is Torrington argues that the statute extent that such taxes are added to or irrelevant for such sales, because no requires analysis of each U.S. entry in included in the price of such or similar duties are assessed upon them. the context of administrative reviews. merchandise when sold in the country Consequently, the absolute margins Section 1675(a)(2)(A) of the Tariff Act of exportation,’’ and claims that this obtained under the Department’s (19 USC 1675(a)(2)(A)) and the IPSCO provision explicitly requires such a cap. current approach are identical to those decision, which NSK cites to support its Federal-Mogul further argues that if the which would be obtained after imposing claim, did not exclude all sales from addition to USP is not capped by the a tax cap. USP which are made outside the amount of tax paid on HM sales, a Although applying a tax cap may ordinary course of trade. Federal-Mogul situation could arise where the tax affect weighted-average margins, and argues that the Department should added to USP exceeds the actual taxes hence deposit rates, we decline to re- continue to reject exclusion of NSK’s paid on HM sales. apply the tax cap solely to achieve this zero-value U.S. transactions as it has FAG, SKF, and RHP contend that if additional purpose. The Department done in the last two AFBs the Department were to add the actual includes U.S. prices that exceed foreign administrative reviews. Torrington also amount of taxes paid on HM sales to the market prices in the denominator of the contends that the Department should net U.S. invoice price, a ‘‘cap’’ would not deduct the cost of these samples not be necessary. SKF further argues deposit rate equation. It would be from NSK’s indirect selling and G&A that under the Department’s current inconsistent to include that portion of expenses because NSK has not provided method of accounting for taxes, the tax the U.S. price that exceeds the home support on the record for the amounts added to USP exceeds that added to market price in that denominator, but to that it claims should be deducted. FMV only when USP itself is higher remove the tax on this amount. Just as Department’s Position: As set forth in than FMV. Therefore, SKF concludes we treat the tax on ocean freight AFBs II (at 28395) and AFBs III (58 FR that capping is unnecessary because the consistently with ocean freight itself, at 39744), other than for sampling, there Department’s method does not reduce where we include the full adjusted U.S. is neither a statutory nor a regulatory dumping margins. Finally, Koyo argues price in the denominator of the deposit basis for excluding any U.S. sales from that if the Department accepts Federal- rate equation, we must also leave the tax review. The statute requires the Mogul’s argument that the tax added to on that full U.S. price in that Department to analyze all U.S. sales USP should be capped, the Department denominator. within the POR. See 19 USC also should cap the amount of tax Comment 2: FAG, SNR, SKF, RHP, 1675(a)(2)(A). See also Final Results of attributed to the adjustments to USP. NSK, and Koyo contend that the method Antidumping Administrative Review; Department’s Position: We disagree that the Department used to account for Color Television Receivers From the with Federal-Mogul. The Department’s VAT in the preliminary results of this Republic of Korea, 56 FR 12701, 12709 methodology consists of applying the review is improper. (March 27, 1991). The Department home market tax rate to the U.S. price FAG argues that the Department’s agrees with Torrington that Ipsco is at the same point in the chain of methodology violates statutory and inapplicable to this case because that distribution at which the home market judicial requirements because the VAT case concerns a LTFV investigation in tax base is determined and then rate is not applied to USP and FMV which the Department has the reducing the tax in each market by that where the HM tax authorities apply the discretion to eliminate unusual U.S. portion of the tax attributable to VAT to home market sales. FAG claims sales, as opposed to an administrative expenses which are deducted from each that all laws governing the assessment review in which section 751(a)(2)(A) of price. For example, because we deduct of the VAT require that the tax be the Tariff Act (19 USC 1675(a)(2)(A)) ocean freight from U.S. price, ocean applied to the net invoice price of goods requires analysis of ‘‘each U.S. entry’’ freight is also eliminated from the U.S. sold in the HM. Therefore, FAG except in cases where the agency tax base. This is consistent with the contends that the Department should utilizes ‘‘averages or generally decision of the CIT in Federal-Mogul v. apply the VAT amount collected in the recognized sampling techniques’’ United States, 834 F. Supp. 1391 (CIT foreign market to a net U.S. invoice pursuant to section 777A of the Tariff 1993). The effect of these adjustments is price instead of applying VAT to an ex- Act (19 USC 1677f–l). As a result, we the same as initially calculating the tax factory price in both the U.S. and home have not excluded any of NSK’s U.S. in each market on the basis of adjusted markets. U.S. invoice price is at the sales. However, the Department also prices. same point in the stream of commerce Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10949 as the price to which VAT is applied in to add actual amounts of foreign market Zenith held that ‘‘[b]y engaging in the HM. taxes to USP. According to Torrington, dumping, the exporters themselves are SKF, RHP, SNR, Koyo, and FAG claim the CIT in Hyster simply instructed the responsible for the multiplier effect. The that the current methodology is flawed Department to ‘‘consider’’ adjusting USP multiplier effect does not create a because it results in the so-called for taxes in a manner ‘‘consistent with dumping margin where one does not ‘‘multiplier effect’’ through which Zenith and title 19.’’ Therefore, already exist.’’ See Zenith Electronics absolute dumping margins are increased Torrington concludes that the method Corp. v. United States, 988 F2d at 1581– solely because USP is adjusted by the that the Department used to account for 82 (1993). Furthermore, in Federal- rate of the VAT tax instead of the taxes in the preliminary results of these Mogul Corp. v. United States, 834 F. amount. Thus, respondents propose that reviews is consistent with judicial Supp. 1391 (October 7, 1993), the CIT the Department adjust USP by the precedent. held that Zenith made clear that tax amount of the VAT applicable to the Department’s Position: We disagree neutrality is irrelevant to the proper relevant HM sales and then add this with respondents’ contentions that we application of the statute. Therefore, the amount to both FMV and USP, as violated current administrative practice Department is under no obligation instructed by the CIT in Hyster Co., and recent judicial precedent by failing either to adjust for VAT by the absolute a.k.a. Nacco Handling Group Inc., et. al. to apply the VAT rate to USP and FMV amount of VAT that is assessed in the v. United States, 848 F. Supp. 178 (CIT at the same point in the chain of HM or to make the VAT adjustment tax 1994) (Hyster). commerce. We made an addition to USP neutral. NSK contends that the Department for VAT in accordance with section We determine that our calculation of should add taxes to USP whenever such 772(d)(1)(C) of the Tariff Act. In making the amount of tax added to USP is taxes are assessed in the HM, but that this adjustment, we followed the appropriate. Applying the rate to USP it should not add taxes to FMV or instructions that the CIT issued in simply calculates the amount of tax that otherwise calculate FMV so as to Federal-Mogul. Specifically, we added would be applied in the HM if the include taxes whether FMV is based on to USP the result of multiplying the product were sold in the HM at the same HM price, third-country sales, or CV. foreign market tax rate by the price of price as it is in the United States. The NSK argues that the ‘‘plain language’’ of the U.S. merchandise at the same point ‘‘multiplier effect’’ only occurs if FMV the statute does not define FMV to in the chain of commerce that the is higher than USP. We are under no include taxes imposed in the home foreign market tax was applied to obligation to change our method of market. Furthermore, NSK states that if foreign market sales. adjusting for VAT in order to account Congress had meant to include taxes in Contrary to respondents’ claim that for a firm’s pricing practices when they every calculation of FMV, the statute at we did not apply the foreign VAT rate differ between the HM and the United a minimum would have defined third- to the USP at the same point in the States. country prices and CV to include such stream of commerce as applied by the We disagree with NSK’s argument taxes. foreign market authority, we in fact did that the Department should not add Federal-Mogul and Torrington apply the tax rate to USP at the same taxes to FMV or otherwise calculate contend that the Department’s current point in the chain of commerce, that is, FMV so as to include taxes when FMV method of accounting for VAT is lawful. the invoice price net of price is based on HM price. Taxes imposed in Federal-Mogul maintains that adjustments such as discounts and the foreign market are an integral part of respondents have not provided any rebates. We also adjusted the tax the final price paid by the customer and basis for the Department to change its amount calculated for USP and the are only ‘‘added’’ when reference is position on this issue. According to amount of tax included in FMV. made to a tax-exclusive price. Federal-Mogul, the CIT ruled Specifically, we deducted those Furthermore, section 772(d)(1)(C) of the unequivocally in Federal-Mogul Corp. v. portions of the foreign market tax and Tariff Act directs us to adjust for any United States, 834 F. Supp. 1391 (CIT the hypothetical U.S. tax that are the taxes which are rebated or uncollected 1993), appeals docketed, Nos. 94–1497, result of expenses that are included in by reason of exportation to the extent 1104 (Fed. Cir. 1994), that the the foreign market price used to that such taxes are added to or included Department may not make the statutory calculate the foreign market tax and in in the price of such or similar tax adjustment by adding the foreign the USP used to calculate the U.S. tax. merchandise when sold in the country market tax amount to USP. Federal- Because these expenses are later of exportation. This direction can only Mogul further argues that the CIT found deducted to calculate FMV and USP, imply that taxes would be included in that any suggestion to the contrary in these adjustments are necessary to the prices used by the Department in its footnote 4 of Zenith Electronics Corp. v. prevent our new methodology for calculation of FMV. For the foregoing United States, 988 F.2d 1573 (CIT 1993) calculating the USP tax from creating reasons, we have not amended our (Zenith) ‘‘was dicta and was at odds dumping margins where no margins treatment of U.S. and HM taxes for these with both the body of the appellate would exist if no taxes were levied upon final results. court’s opinion and with the statute.’’ foreign market sales. By making these Comment 3: FAG-Germany contends Torrington states the Department adjustments to the taxes added to USP that the Department improperly applied should not adjust for VAT by adding the and included in FMV, margins are not a VAT rate of 14 percent, instead of 15 amount of the foreign market VAT to dependent on differences in expenses. percent, for 1993 sales. USP. Torrington contends that the We agree with petitioner that Hyster Department’s Position: We disagree Department has correctly applied the does not order the Department to adjust with FAG. We correctly applied the 15 VAT that would have been applied to a for VAT by applying the absolute percent VAT rate for 1993 sales in the HM sale, by determining what tax rate amount of the HM VAT to USP. Rather, preliminary calculations. See FAG KGS would be applied to an f.o.b origin, ex- Hyster states that Zenith ‘‘permits preliminary margin program at lines factory price. Torrington maintains that Commerce to adjust USP by the amount 1370–1372. the Department’s methodology is of the ad valorem tax,’’ and directs the Comment 4: Torrington alleges that consistent with section 1677a(d)(1)(C). Department to ‘‘consider any further NMB/Pelmec made ‘‘Route B’’ and In this context, Torrington argues that adjustments to USP consistent with bonded warehouse sales in order to Hyster does not require the Department Zenith and title 19.’’ The CAFC in avoid the payment of import duties on 10950 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices imported raw materials. Torrington duties.’’ Far East Machinery, 699 F. years to amend the antidumping law to argues that to the extent that the Supp. at 311. This ensures that a rebate provide for the deduction of resale Department relied on bonded is received by the manufacturer only if profits from ESP sales. However, not warehouse or ‘‘Route B’’ sales, no import duties were paid or accrued. The one has become law. RHP feels this is adjustment should be made to USP for second prong requires the foreign an issue of fundamental importance and duty drawback. In addition, even with producer to show that it imported a should only be modified by statutory respect to actual local sales, Torrington sufficient amount of raw materials amendment. asserts that the Department should (upon which it paid import duties) to Koyo, NTN, and FAG argue that disallow NMB/Pelmec’s claimed account for the exports, based on which Torrington’s claim that the Department adjustment since NMB/Pelmec failed to it claimed rebates. Id. Under this prong, should deduct resale profits from ESP demonstrate that: (1) It imported the duty drawback adjustment to USP is must be rejected. The three respondents sufficient inputs to account for the limited to the amount of duty actually point out that the CIT has already alleged rebates of import duties that it paid. repeatedly rejected the argument, noting received; (2) it actually paid, and At verification, we determined that that the Department’s practice of received rebates of, import duties on NMB/Pelmec satisfied both prongs of refusing to deduct profits from ESP is in these inputs, and (3) it actually paid our test. Specifically, we verified (1) accordance with the antidumping law. import duties on merchandise sold in that Thailand’s duty drawback system See Timken Co. v. United States, 673 F. the HM and passed the duties on to makes rebates of import duties Supp. 495, 518–21 (1987). Additionally, customers in the form of increased HM dependent upon payment of these the same arguments were rejected in prices during the POR. Therefore, duties, and (2) that NMB/Pelmec paid previous reviews by the Department. Torrington concludes that the import duties on materials incorporated FAG also states that in Federal-Mogul v. Department should disallow NMB/ into subject merchandise, and that it United States, 19 CIT, Slip Op. 93–17 at Pelmec’s claim for a duty drawback imported a sufficient amount of raw 23, the CIT stated, ‘‘It is well established adjustment to USP. materials to account for the amount of that profit is correctly a part of the ITA’s NMB/Pelmec states that it did not duty drawback claimed. calculation of USP.’’ Thus, FAG argues claim a duty drawback adjustment for Further, in Huffy, the CIT held that that these judicial decisions do not give those U.S. sales that were compared to section 1677a(d)(1)(B) allows the the Department the discretion to deduct bonded warehouse or ‘‘Route B’’ HM Department to presume that HM prices resale profits from ESP. sales. With respect to direct HM sales, include the cost of import duties. See NSK contends that the Department NMB/Pelmec asserts that the Avesta Sheffield v. United States, Slip appropriately declined to deduct profit Department verified that NMB/Pelmec Op. 93–217 (CIT 1993). Therefore, on resale transactions in calculating made duty payments on imported when, as in this case, the record ESP. NSK asserts that the literal components used to manufacture demonstrates that import duties were language of the statute does not permit merchandise sold in the HM. Therefore, paid on raw materials, the Department the deduction of so-called resale profit. NMB/Pelmec concludes that the is not required to determine whether NSK also holds that retention of so- Department should allow NMB/ duties were passed on to customers in called profit in calculating ESP leads to Pelmec’s claimed adjustment to USP for the form of increased HM prices. a fair result. Even if the Department duty drawback for these final results. Finally, NMB/Pelmec did not claim disregarded both the statute and case Department’s Position: We disagree an addition to USP for duty drawback law, NSK claims strong reasons remain with Torrington. We apply a two- for those U.S. sales that were compared for not deducting purported resale profit pronged test to determine whether a to FMV based on HM ‘‘Route B’’ sales from ESP. Profit is included in the FMV respondent has fulfilled the statutory or bonded warehouse sales. Therefore, side of the antidumping equation. To requirements for a duty drawback we have allowed NMB/Pelmec’s claim deduct profit from the USP side would adjustment. In accordance with section for a duty drawback adjustment to USP lead to a disequilibrium and result in a 1677a(d)(1)(B) of the statute, a duty for these final results. false comparison as the CIT recently drawback adjustment will be made if observed. See Federal-Mogul Corp. v. the Department determines (1) import 14. U.S. Price Methodology United States, 813 F. Supp. 856, 866 duties and rebates are directly linked to Comment 1: Torrington asserts that (CIT 1993). and dependent upon one another, and resale profits should be deducted from SKF argues that resale profits should (2) the company claiming the ESP. Torrington contends that the intent not be deducted from USP on ESP sales, adjustment can demonstrate that there of exporter’s sales price is to determine and that Torrington’s argument has been are sufficient imports of raw materials to the net amount returned to the foreign consistently rejected by the Department, account for the duty drawback received exporter. Torrington asserts that, under the CIT, and Congress. SKF maintains on exports of the manufactured product. the Department’s interpretation of ESP, that the relevant section of the Act does The CIT consistently has accepted this related parties receive special not include an adjustment for resale application of the law. See Far Eastern advantageous treatment that is contrary profits, and that Congress has recently Machinery, 688 F. Supp. at 612, aff’d. to Congressional objectives and specifically rejected an attempt to on remand, 699 F. Supp. at 311; Carlisle purpose. For example, in the case of an provide for such a deduction. See H.R. Tire & Rubber Co. v. United States, 657 unrelated reseller, the Department Conf. Rep. No. 576, 100th Cong., 2d F. Supp. 1287, 1289 (1987); Huffy Corp. deducts the full commissions paid, Sess. 629, reprinted in 1988 v. United States, 10 CIT 215–216, 632 F. which must cover the agent’s expenses U.S.C.C.A.N. 1547, 1662. Therefore, one Supp. (Huffy). and a reasonable profit. However, in the cannot infer that Congress intended to The Department’s two-pronged test case of a related reseller, the Department include this provision in the statute. meets the requirements of the statute. deducts the selling expenses associated SKF also claims that there is no The first prong of the test requires the with the resale, but not a reasonable evidence supporting Torrington’s theory Department ‘‘to analyze whether the profit earned on the transaction. that resale profits must be deducted in foreign country in question makes RHP points out that partly due to order to equalize PP and ESP. SKF entitlement to duty drawback Torrington’s efforts, several bills have contends that such a deduction would dependent upon the payment of import been introduced in Congress in recent penalize importers who raise their Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10951 prices in order to eliminate dumping. average methodology for both USP and Italy, 54 FR 13091 (March 30, 1989). SKF holds that the CIT has upheld the FMV in order to achieve representative Since the merchandise under review is Department’s practice of not deducting results as required by the antidumping not a perishable product, there is no resale profits on ESP sales. See Federal- law. reason to change our current Mogul Corp. v. United States, 813 F. Torrington and Federal-Mogul methodology, which has been upheld by Supp. 856, 866 (1993). disagree with Koyo’s argument that the Court of Appeals. See Koyo Seiko v. Department’s Position: As stated in comparing weighted-average USPs with United States, 20 F.3d 1156 (Fed. Cir. AFBs III (at 39777), we disagree with a weighted-averaged FMV is reasonable 1994). Torrington that resale profits should be and in accordance with Departmental Comment 4: Torrington argues that deducted from ESP. We find no precedent and the law. Torrington’s the Department should reclassify statutory authority for making this reasoning is that averaging U.S. price Honda’s sales to the United States as PP adjustment. Furthermore, the CIT has would ‘‘encourage and reward price transactions, rather than treating Honda upheld the Department’s practice of not discrimination, the very practice that as a reseller of AFBs. Although deducting resale profits on ESP sales. antidumping law is designed to Torrington acknowledges that the See Federal-Mogul Corp. v. United combat.’’ In response to Koyo’s Department found no evidence at States, 813 F. Supp. 856, 866 (1993). argument that the Department should verification that Honda’s suppliers were Comment 2: Koyo, RHP, SNR, NSK, credit foreign manufacturers for aware of the ultimate destinations of and FAG claim that the Department’s ‘‘negative dumping margins,’’ their merchandise, Torrington asserts practice of deducting U.S. direct selling Torrington argues that this ‘‘would that Honda’s Japanese suppliers must expenses from USP, in ESP situations, allow dumping to continue so long as have known that Honda had substantial instead of adding them to FMV is other sales were made at prices manufacturing activities in the United unlawful. Respondents cite judicial sufficiently high to mask dumped States and that, therefore, many of their precedent in support of their position sales.’’ In support of this position AFBs were destined for the United that direct selling expenses should be Torrington cites the ruling in Serampore States. added to FMV. For example, NSK Industries Pvt., Ltd. et al. v. United Honda responds that it is a reseller of maintains that the Department’s States, 11 CIT 866, 874, 675 F. Supp. AFBs, rather than a manufacturer, and methodology violates the ruling of the 1354, 1360–61 (1987). Torrington also that Honda’s suppliers in Japan did not CIT in NSK Ltd. v. United States, Slip maintains that the Department generally know, or have reason to know, that Op 93–216 (CIT 1993). Respondents only averages USPs in the case of specific AFBs were ultimately destined claim that the Department should treat perishable products or other for the U.S. market. According to direct selling expenses as COS merchandise characterized by price Honda, no AFBs were ordered directly adjustments to be added to FMV in volatility. Torrington notes that AFBs by any of its U.S. affiliates from its order to comply with recent CIT rulings. are not perishable; therefore, Koyo’s Japanese suppliers. Furthermore, Honda Department’s Position: The CAFC has citation to the Fresh Cut Flowers from states that its orders of AFBs from its upheld the Department’s practice of Mexico case, a precedent with respect to suppliers did not indicate, by way of deducting U.S. direct selling expenses perishable goods, is inappropriate. timing of shipments or orders, the terms from USP in ESP situations. See Koyo Federal-Mogul maintains that the of sale, or any other factors, the ultimate Seiko Co. v. United States, 36 F.3d 1565 Department should not average USP in destination of the AFBs. Honda also (Fed. Cir. 1994). Therefore, we have this review because it has rejected contends that these conclusions were continued to deduct direct selling Koyo’s request to do so in the past and fully verified by the Department and expenses from ESP in these reviews. Koyo’s arguments have not changed. confirmed in the Department’s Comment 3: Koyo contends that the Department’s Position: As stated in verification reports. Department’s failure to average USPs in AFBs III (at 39779), we disagree with Honda notes that Torrington does not the same manner as it averaged FMV Koyo’s assertion that we must average dispute Honda’s statements or the was an abuse of discretion and contrary USPs on the same basis as FMV to Department’s findings. Honda further to law. Koyo argues that the Department ensure an ‘‘apples-to-apples’’ points out that the standard for has distorted the dumping margins comparison. In addition, we agree with suppliers’ knowledge concerning the through its comparison of single Torrington that averaging USP is ultimate destination of merchandise ‘‘is transaction prices in the United States unacceptable in most cases because it high.’’ See Television Receivers, with average prices weighted over the would allow a foreign producer to mask Monochrome and Color, from Japan; entire review period in the home dumping margins by offsetting dumped Final Results of Antidumping market. Koyo maintains the ‘‘inequity’’ prices with prices above FMV. For Administrative Review, 58 FR 11216 of this methodology is largely example, a foreign producer could sell (February 24, 1993). As a result, Honda attributable to the Department’s practice half its merchandise in the United states that the fact that Honda’s of not crediting manufacturers with States at less than FMV, and the other suppliers were aware that some AFBs negative dumping margins on U.S. sales half at more than FMV, and arrive at a would be exported to the United States at prices ‘‘above those in the foreign zero dumping margin while still because Honda has U.S. manufacturing market.’’ Koyo states that pursuant to 19 dumping. operations is insufficient to justify U.S.C. 1677(f)(1) the Department is Except in limited instances in which reclassifying Honda’s sales as PP required to use averaging to establish we have conducted reviews of seasonal transactions. both USP and FMV when such merchandise with very significant price Department’s Position: We agree with averaging techniques yield fair and fluctuations due to perishability (see, Honda that it should be treated as a representative results. Koyo notes that e.g., Final Results of Administrative reseller. This issue was examined the Department used weighted-averaged Review; Certain Fresh Cut Flowers from extensively at verification. See Honda U.S. prices in Final Results of Mexico, 55 FR 12696, 12697 (April 5, Motors Verification Report at 3 and 4, Administrative Review; Certain Fresh 1990)), we have not averaged U.S. March 4, 1994. The standard for the Cut Flowers from Mexico, 55 FR 12696, prices. See Final Results of ‘‘knowledge test’’ is high. See Television 12697 (April 5, 1990). Koyo requests Antidumping Administrative Review; Receivers, Monochrome and Color, from that the Department use its annual Pressure Sensitive Plastic Tape from Japan; Final Results of Antidumping 10952 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Administrative Review, 58 FR 11216 preliminary results were issued. States accounted for 100 percent of the (February 24, 1993). Based on this Torrington cites evidence discovered by export market for the in-scope product. standard, we concluded that Honda’s the Department at verification, such as FAG notes that, where the Department suppliers did not have reason to know the fact that FAG sold to one exporter cannot say with objective certainty that that their sales to Honda would be from its export, rather than domestic, 100 percent of a reseller’s goods go to exported to the United States. Therefore, price list, and other information a known destination, the Department we continue to classify Honda as a provided for the record by the petitioner has not determined that the supplier reseller. that implies that the inclusion of these ‘‘should have known’’ the disposition of sales in the HM database would be the goods. FAG argues that even beyond 15. Accuracy of the Home Market having a high standard for imputing Database improper. Torrington further argues, however, that if the Department knowledge, the Department requires Comment 1: Torrington argues that all declines to reject FAG’s response and objective information that can be reported HM sales destined for export use punitive BIA, the Department corroborated by the administrative should be purged from respondents’ HM should at least reclassify as U.S. sales all record, citing Television Receivers, sales listings. Citing 19 U.S.C. 1677a(b), FAG HM sales to customers fairly Monochrome and Color, From Japan: (section 772(b) of the Tariff Act), known to export AFBs. Final Results of Antidumping Torrington claims that sales by foreign Torrington also argues that the Administrative Review, 58 FR 11211 manufacturers or producers that result Department acted properly in excluding (February 24, 1993) (Television in exports to the United States are by certain FAG sales to such HM Receivers) and Oil Country Tubular definition PP transactions and that there customers. Torrington contends that the Goods From Canada: Final Results of is no requirement in the statute that the Department has a statutory basis for this Antidumping Duty Administrative foreign manufacturer knew, or should action and that the Department Review, 55 FR 50739 (December 10, have known, that the sale was an export established the validity of its factual 1990) (OCTG). FAG claims that the sale. The statute only refers to the findings at verification. See FAG Department cannot satisfy the high knowledge of a manufacturer or Verification Report, February 23, 1994. burden of proof for imputing knowledge producer in the context of sales to a Torrington maintains that the by means of telephone calls to ‘‘reseller’’ for exportation to an preliminary results call into question all customers. FAG maintains that the intermediate country. In addition to sales to German wholesalers/exporters information gathered from these phone identifying reported HM sales which calls amounts to hearsay, and that the and contends that the Department were destined for the United States, information cannot be corroborated by should presume all sales to such Torrington holds that it is equally the administrative record. important to ensure that FMV is based customers are destined for export, FAG contends that its test for only on sales for consumption in the adding that the Department has the determining whether a sale should be HM. Therefore, where there is evidence discretion to exclude all questionable classified as a HM sale, which involves that particular sales were not for HM sales. checking whether VAT was charged and consumption, such sales should be FAG maintains that the Department paid on the sale, is the most objective purged from the HM sales listing even unlawfully removed sales to two HM method for making such a if there is insufficient evidence to customers from FAG’s HM database, determination, and is the best indication suggest that the sales were for export to and that FAG properly reported all HM of what FAG knew at the point of sale the United States. Torrington further sales. FAG argues that the Department’s regarding the destination of the argues that, at the least, the Department test for determining whether FAG merchandise. FAG argues that the should adopt presumptions that shift should have known that such sales were Department verified that all HM sales the burden of establishing whether sales for export, and not for HM reported by FAG included VAT. are for exportation from the Department consumption, was arbitrary and FAG also argues that the term to respondents. capricious. This test involved telephone ‘‘exporter’’ has been so loosely used as Torrington argues in particular that all interviews with customers to determine to have no meaning, and further argues reported HM sales which were made to whether FAG had knowledge that the that, even if sales to these alleged known German wholesalers/exporters, merchandise sold to those customers exporters can be isolated, it is unclear also referred to as ‘‘indirect exporters,’’ would be exported. FAG contends that whether all such sales were actually should be disregarded in calculating HM sales can be excluded only under exported. FAG maintains that the FMV. Torrington claims it has made a section 772(b) of the Tariff Act (19 USC method proposed by Torrington, as well substantial effort to demonstrate to the 1677 a(b)). Under that provision, the as the one utilized by the Department, Department a pattern whereby German Department must first establish that the is subjective and unverifiable. producers sell bearings at lower prices respondent had knowledge at the time SKF argues that its data have been to German resellers who are exporters. of the sale that the merchandise was thoroughly verified and that there is no The inclusion of such sales in the HM intended for export, then must compelling evidence on the record to database tends to lower FMV. determine that the United States was the indicate that any of its HM sales were Furthermore, the Department should destination of the export sale. FAG made at low prices to German resellers assume the questionable sales were further argues that the Department has known to export. actually sales to the United States. consistently maintained that the INA noted that HM sales which it Torrington claims that FAG was standard for imputed knowledge is high. claimed as export sales were made to uncooperative in this proceeding or may FAG cites Fuel Ethanol From Brazil: companies that were known by INA to have even impeded the Department’s Final Determination of Sales at Less be exporters and were classified as such search for truth in this matter, and urges Than Fair Value, 51 FR 5572 (February in INA’s records. INA states that the the Department to apply BIA to FAG’s 14, 1986) (Fuel Ethanol), in which the Department verified that such sales entire response. Torrington contends Department imputed knowledge to the were not included among INA’s that FAG continued to claim a complete supplier that exports were destined for reported HM sales. INA noted, however, lack of knowledge of sales to exporters the United States because the reseller that two customers classified as until just several days before the did not sell in the HM and the United exporters also resell within Germany. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10953 All sales to these two customers were sales. In addition, one FAG subsidiary companies in developing countries reported as HM sales because INA had sold to one of these two ‘‘indirect sometimes to conduct business in no way of knowing which particular exporters’’ from its export, rather than foreign currencies. Further, the NMB/ bearings were resold in Germany and domestic, price list. We also visited and Pelmec companies claim that nothing which were exported. interviewed one of these resellers and has changed since AFBs III (at 39783), Department’s Position: In accordance found that it only sells in export when the Department determined that with section 772(b) of the Tariff Act, markets. This reseller claimed that its there was no evidence that the NMB/ transactions in which the merchandise suppliers, including FAG, know that it Pelmec companies had any reason to was ‘‘purchased * * * for exportation does not resell within Germany. For know that U.S. dollar-denominated to the United States’’ must be reported these reasons, we conclude that these sales, or sales to Thai affiliates of U.S. as U.S. sales in an antidumping sales were for export and not for companies, consisted of merchandise proceeding. However, we have not domestic consumption. Therefore, these destined for the United States. In found in this review sufficient evidence sales cannot be included in FAG’s HM addition, the NMB/Pelmec companies to conclude reasonably that any alleged sales. note that where they knew that a sale to HM sales are in fact U.S. sales under We do not agree with FAG’s assertion a domestic customer was actually section 772(b). Therefore, we have not that the collection of VAT is destined for export, the Department reclassified any respondent’s HM sales confirmation that a sale is for HM verified that such sale was excluded as U.S. sales in these reviews. consumption. Collection of VAT on the from the HM database. Section 773(a) of the Tariff Act sale between FAG and its customer does Department’s Position: We agree with provides that FMV be based on sales not preclude the customer from the NMB/Pelmec companies. We ‘‘for home consumption.’’ Therefore, reselling the merchandise for verified sales made in U.S. dollars and sales which are not for home exportation and ultimately receiving a Singapore dollars, and found no consumption, even if they are not VAT rebate on the resale of the evidence to indicate that the NMB/ classifiable as U.S. sales under section merchandise. Thus, collection of VAT Pelmec companies had any reason to 772(b), are not appropriately classified by FAG is not a determinant of the know or to believe that its U.S. dollar- as HM sales for antidumping purposes. ultimate destination of the merchandise. or Singapore dollar-denominated In these reviews, except for certain sales FAG’s reference to Fuel Ethanol is transactions were destined for the reported as HM sales by one company, only relevant to the question of whether United States. we did not find sufficient evidence to certain sales should be regarded as U.S. Comment 3: Torrington claims that conclude reasonably that reported HM sales. We agree with FAG that there is NMB Pelmec/Thai’s bonded warehouse sales were not ‘‘for home consumption’’ not sufficient evidence to reclassify any sales and Route B sales of AFBs should as required by section 773(a). of its reported HM sales as U.S. sales. be excluded from the HM sales listing With respect to German wholesalers/ However, this does not mean that such because the Department determined in exporters specifically, at verification we sales are automatically sales ‘‘for home the original investigation that such sales determined that, except for certain FAG consumption’’ as required by section properly represented third country sales, there were no distinguishing 773(a) of the Tariff Act. Furthermore, sales. Torrington states that due to the characteristics by which to differentiate Television Receivers and OCTG also exemption of VAT and import duties, it sales by German manufacturers to concerned the issue of whether certain can be inferred that all such sales are alleged exporters from other HM sales, sales should be regarded as U.S. sales, ultimately being exported. Finally, and we found insufficient evidence to not whether certain sales should be Torrington argues that such sales are not indicate that respondents’ HM sales to regarded as sales for home in the ordinary course of trade. customers that Torrington alleges to be consumption. NMB/Pelmec Thai states that the wholesalers/exporters were destined for In Television Receivers and OCTG, the Department has consistently treated export. unrelated reseller sold the product in bonded warehouse sales as HM sales We do not agree with Torrington’s both Canada and the United States. since AFBs I. Further, NMB/Pelmec argument that all sales made to so-called Therefore, the producer did not know asserts that the Department has treated wholesalers/exporters should be treated the ultimate destination of the Route B sales as HM sales in the past as U.S. sales, because we do not have merchandise at the time of sale to the three administrative reviews. It claims sufficient reason to conclude that such unrelated reseller. OCTG at 50740. In that such sales fit the statutory sales were for export to the United this case, where unrelated German definition of sales made in the ordinary States, nor even that they were for resellers both export and resell within course of trade. NMB/Pelmec also export at all. We also do not agree that Germany, we determined that the claims that Torrington has not offered rejection of FAG’s response and use of manufacturer did not know the ultimate any new evidence as to why the BIA is warranted. However, we do agree destination of the merchandise. Such Department should treat Route B sales that there is sufficient evidence to sales were retained in the HM database. differently than it has in the past. conclude that certain sales reported by Therefore, based on the above Department’s Position: We agree with FAG as home market sales were in fact circumstances, no further changes have NMB/Pelmec Thai. We have treated export sales. been made to either the HM or the U.S. such sales as HM sales consistently in With respect to FAG, for these final databases with regard to HM sales to the past three reviews, and find the facts results we excluded reported HM sales alleged wholesalers/exporters. in this review to be the same. With to two customers. For these sales, the Comment 2: Torrington argues that respect to the sales in question, we find evidence indicates that the merchandise U.S. dollar- or Singapore dollar- that the first sale to an unrelated party in question was destined for export and denominated HM sales in Singapore occurred in Thailand. Route B sales are thus not for home consumption. We and/or Thailand should be excluded sales made through NMB/Pelmec Thai’s found at verification that FAG referred from the HM database, because such related selling agent, Minebea Singapore to these customers as ‘‘indirect sales are not HM sales. Branch (MSB). We verified that MSB’s exporters’’ and that FAG excluded sales The NMB/Pelmec companies rebut sales, which represent the first sale to an to other ‘‘indirect exporters’’ based on Torrington’s argument by stating that it unrelated party, are to customers in its conclusion that these were export is not unusual for multinational Thailand. Therefore, we conclude that 10954 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices they are properly classified as HM sales. verification report demonstrates that the and that INA deliberately manipulated See AFBs II (at 28422) and AFBs III (at HM models for which INA failed to its reporting of the physical 39783). We also verified NMB/Pelmec provide DLRs not only belonged to the characteristics of its bearings in order to Thai’s reported home market sales and same family, but were, in fact, identical lower its dumping margins. find that such sales were in the ordinary to the bearings for which INA reported Accordingly, we have not rejected INA’s course of trade. See verification reports DLRs. Finally, Torrington asserts that reported HM sales database for these for NMB/Pelmec Singapore and the Department’s verification findings final results. Thailand. support Torrington’s allegations that Comment 4: Referring to Nachi’s INA reported models whose 16. Miscellaneous Issues supplemental questionnaire response (at characteristics are not listed in INA’s 16A. Verification 4), Torrington notes that Nachi has catalogs and that do not appear to be Comment 1: Federal-Mogul challenges admitted to assisting certain customers logical. For these reasons, Torrington the Department’s statement that it found in obtaining Japan Bearing Institute (JBI) concludes that INA deliberately no discrepancies during the verification Inspection certificates for a portion of attempted to manipulate the that it conducted at INA’s U.S. Nachi’s HM sales. Torrington claims Department’s analysis and, therefore, subsidiary. According to Federal-Mogul, that JBI inspection certificates are that the Department should determine certain data contained in the prepared for merchandise destined for INA’s dumping margins using first-tier verification exhibits do not correspond export. Thus, all sales for which JBI BIA for these final results. with those contained in INA’s inspection certificates were completed INA acknowledges that it improperly questionnaire responses. Specifically, should be deleted from the HM created certain bearing families as a Federal-Mogul states that: (1) The database. Further, Torrington asserts result of a computer programming error. Deutsche mark values of certain that JBI certificates may identify According to INA, however, this error shipments differ from those in the destinations which would serve as has an insignificant impact on the responses; (2) the gross and net weights additional evidence that JBI inspected- Department’s calculations. First, INA merchandise is destined for export. asserts that the matches for the specific of one shipment differ from those in the Nachi contends that simply because models that the Department examined at responses; and (3) the per-unit freight merchandise is JBI inspected does not verification were not affected by missing charge for the one sea shipment that necessarily mean it is destined for load ratings, because the Department INA included among the sample used to export, and that Nachi has no way of made identical rather than family calculate per-unit movement expenses knowing which, if any, JBI-inspected matches for one of the products at issue, during the verification is less than the bearings were exported. and because INA made no sales of the per-unit amount that INA reported in its Department’s Position: We agree with other product during the sample weeks. questionnaire response for the same Nachi. We previously determined that INA further argues that its own analysis shipment. As a result, Federal-Mogul JBI inspection certificates merely attest demonstrates that only a handful of U.S. requests that the Department increase to the quality of the inspected sales were matched to HM families for INA’s reported ocean freight expenses merchandise. See Final Results of which INA failed to report certain by the percentage difference between Redetermination Pursuant to Court bearings. Finally, INA provides the ocean freight charge contained in Remand, Federal-Mogul Corp. and the explanations of each product for which the verification exhibit and that Torrington Company v. United States, Torrington challenged INA’s reporting contained in INA’s questionnaire Slip Op. 93–180 (September 14, 1993). of physical characteristics. For these response. We thoroughly examined the Japanese reasons, INA contests Torrington’s INA explains that differences in the laws that mandated which information request that the Department reject INA’s Deutsche mark values reported in the was to be included on the certificates. reported HM sales and use BIA to verification exhibits and the Reporting the final destination was only determine INA’s dumping margins for questionnaire responses are the result of required for certain commodities for this review. rounding, and are insignificant. In which quality standards are applied Department’s Position: We agree in explaining the discrepancy between the based on destination. AFBs were not part with Torrington. At verification, we gross and net weights reported in the included among such commodities. The found that INA failed to report DLRs for verification exhibits and the certificates are not country-specific nor certain bearings that it sold in the HM. questionnaire responses, INA sale-specific. Inspection certificates INA subsequently acknowledged that it acknowledges that it incorrectly indicate brand, model number and improperly created certain bearing calculated the total gross and net quantity inspected, but are of no help in families in responding to the HM sales weights reported in the verification determining whether sales reported as portion of our questionnaire. exhibits. According to INA, however, HM sales were destined for export. Accordingly, we have identified the the weights reported for this shipment Torrington has presented no new bearing families that INA created in the questionnaire response are evidence to indicate that respondents incorrectly by matching models accurate. Finally, INA explains that the knew, or should have known, that reported without DLRs in INA’s difference between the freight charges reported HM sales were destined for summary HM sales database with reported in the verification exhibits and export because JBI inspection models reported in INA’s HM sales the questionnaire responses is the result certificates were completed. database that we determined to be in the of the fact that the charges shown in the Comment 5: Torrington asserts that same family based on family verification exhibit include harbor INA’s HM sales database is incomplete. characteristics excluding DLRs, and maintenance and merchandise Torrington states that the Department used BIA to determine the dumping processing fees, which are not included found at verification that HM models for margins for those U.S. sales that we in the freight charge reported in the which INA failed to report dynamic compared to those families. There is no response. Because the information load ratings (DLRs) were not reported in evidence in the record, however, to reported in INA’s responses is accurate, their proper families and were deleted support Torrington’s arguments that INA concludes that the Department is from the HM sales listing. Torrington other aspects of INA’s reporting of not required to make any adjustments to further alleges that the Department’s physical characteristics are erroneous INA’s reported freight charges. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10955 Department’s Position: We agree with information, which should be rejected. certain company related to NSK, and INA. During our verification at INA’s The Department should not correct the were not sold in the U.S. market during U.S. subsidiary, we examined numerous alleged error unless it is apparent from sample weeks. Torrington alleges the documents relating to INA’s reported the record that it existed prior to the database used by the Department and movement charges, and found no preliminary results. the entries suspended by Customs may discrepancies between the source Department’s Position: The be unreliable if NSK identified documents and the information reported Department agrees with Koyo. We something less than all CRBs. Also, in INA’s questionnaire responses. reviewed the record and found that the Torrington claims NSK was required to Further, although there may be minor typographical error was in the database report all sales of CRBs and to discrepancies between the source at the time of its submission. Therefore, implement a reporting methodology that documents and the worksheets that INA the error has been corrected for these systematically identifies and tracks prepared for us at verification, the final results. those entries. worksheets are merely prepared for the Comment 4: FAG-Germany requests Torrington contends that because of verifier’s convenience. As the actual that the Department exclude from the the alleged misreporting, the ITA should source documents and the questionnaire final margin calculations U.S. sales to base its final determination on BIA. The responses were in agreement, errors in related customers which they best information should be the highest the worksheets are irrelevant to the inadvertently reported. FAG-Germany rate calculated for NSK in any prior adequate verification of INA’s identified the sales in question and review or the original LTFV movement expenses. Further, regarding noted that information already on the determination. the differences in Deutsche mark values, record supports its position that these NSK argues that Torrington has we note that the difference is small and sales are to related U.S. customers and misquoted NSK’s response. NSK’s the result of rounding. Finally, with therefore should not be included in the response actually states that almost all respect to the freight charge at issue, we Department’s final margin calculations. bearings classified as CRBs, but which verified that the difference was due to Torrington contends that such NSK considers needle roller bearings, harbor maintenance and merchandise revisions are allowable only where the were produced by the related party in processing fees which were included in underlying data have been verified and question. NSK asserts that it properly the verification exhibit. These fees were the changes are small. reported all U.S. sales of CRBs with a not included in the freight charges Department’s Position: The customer ratio of length to diameter of less than reported to the Department, but rather codes already submitted on the record four to one. were broken out and reported by FAG-Germany support the position Department’s Position: We agree with separately. As a result, we have not that these sales were made to related NSK. NSK’s response does not give any made any adjustments to INA’s reported U.S. customers. While the specific sales indication that its reporting of CRB sales freight charges for these final results. in question were not examined at in the United States was incomplete. verification, we did verify randomly Moreover, the Department verified the 16B. Database Problems chosen sales made by FAG-Germany completeness of NSK’s U.S. database, Comment 2: Nachi argues that in the and found no discrepancies which and is satisfied with the reliability and Department’s recalculation of its export would undermine our confidence in the completeness of the database. selling expenses incurred in Japan on accuracy of the reported customer U.S. sales, the Department mistakenly codes. We also note that FAG-Germany 16C. Home Market Viability treated all transfer prices as U.S. dollar properly reported all subject resales Comment 6: Torrington states that the values when certain transfer prices were made by related customers in the U.S. Department discovered at verification reported in yen. during the POR. that NMB/Pelmec Singapore and NMB/ Torrington responds that before We note that the CIT has upheld the Pelmec Thailand submitted sales in making a correction to Nachi’s export Department’s authority to permit third countries rather than to third selling expense calculation, the corrections to a respondent’s countries. For purposes of the final Department must determine which submission where the error is obvious results, ITA should ensure that the HM transfer prices were reported in dollars from the record, and the Department can is viable based on NMB’s revised data. and which transfer prices were reported determine that the new information is NMB/Pelmec argues that it reported in yen. correct. See NSK Ltd. v. United States, sales in third countries rather than to Department’s Position: We agree with 798 F. Supp. 721 (CIT 1992). Adopting third countries due to the Department’s Nachi that some transfer prices were not Torrington’s argument would amount to instructions in prior reviews. properly treated. We have been able to a rule that such corrections can never be Department’s Position: We determine which transfer prices were made after verification. This is clearly determined at verification that both reported in dollars and which were inconsistent with our practice and the NMB/Pelmec Singapore and NMB/ reported in yen by using the codes holdings of the CIT. Pelmec Thailand reported sales in third reported in Nachi’s currency variable FAG-Germany’s errors were obvious countries rather than to third countries field on the computer tape. We have from the record once brought to our due to prior instructions from the made the appropriate corrections for attention. It is in accordance with our Department. We verified that there was these final results. longstanding practice to exclude U.S. only a minor difference in the number Comment 3: Koyo maintains that after sales to related customers in favor of of sales made to third countries versus reviewing the preliminary results of resales by such customers to unrelated in third countries and ensured that the review, it found that it had made a parties. Therefore, we have removed HM was viable in both Singapore and clerical error in reporting the family FAG-Germany’s sales to related U.S. Thailand based on the revised data. name for one cylindrical roller bearing customers from the margin calculations Comment 7: Torrington alleges that (CRB) transaction. The other seven for these final results. NMB/Pelmec Thailand’s questionnaire transactions of this CRB model correctly Comment 5: Torrington argues that response reveals that the ratio of total list the family name. NSK’s response indicates that ‘‘almost HM sales quantity of AFBs to the total Torrington argues that Koyo’s all’’ bearings that meet the ITA’s number of AFBs sold in third countries proposal constitutes untimely, new definition of CRBs were produced by a only shows a viable HM when sales of 10956 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices parts are excluded. In addition, it is less Thus, when accessories are imported bearings, mounted or unmounted, and than the five percent threshold if parts separately, the antidumping duty is parts thereof.’’ See Final Determinations are included. Torrington states that the applied only to the value of the bearing, of Sales at Less Than Fair Value; Department should separately calculate and not to the value of the entirety as Antifriction Bearings (Other Than the viability for ball bearing parts. it is sold in the U.S. market. Torrington Tapered Roller Bearings) and Parts NMB/Pelmec states that their HM is notes that SKF in particular takes Thereof From Japan, 54 FR 19102 (May viable according to the methodology advantage of this distinction by 3, 1989). The language makes no which was outlined in the Department’s importing housed bearing units in specific statement that housings and questionnaire. In the supplemental disassembled form. Torrington also like accessories were considered during questionnaire, NMB/Pelmec was specifically points out NPBS as one of the LTFV investigation, nor were such instructed by the Department to the companies importing housings and accessories specifically included in the calculate HM viability on a weight basis, ball bearing inserts separate from its orders. if using quantities of complete bearings bearings in order to evade the order. In a scope ruling in this case, the yielded a different result than using Torrington makes the point that by Department determined that ‘‘eccentric quantities of complete bearings and simply changing the packaging of the collars are not integral parts of a bearing parts. Following the Department’s shipment, and assembling the various and are * * * outside the scope of the instructions, NMB/Pelmec reported a accessories on the bearing after entry, antidumping duty orders.’’ Furthermore, viable HM using this calculation SKF avoided the antidumping duty the Department found that eccentric methodology. order insofar as it applies to housed collars were not ‘‘constituent part(s) of Department’s Position: We agree with bearings. Torrington claims that when completed bearing(s) which are NMB/Pelmec. NMB/Pelmec was such parts are imported together, the irreplaceable in their function,’’ that instructed by the Department in the clear implication is that the importer is ‘‘(a)n eccentric collar is an attachment to supplemental questionnaire to calculate attempting to evade the antidumping the bearing, not a part of a completed HM viability on a weight basis, if using duty order. The CAFC sanctioned a bearing,’’ and that ‘‘the function of quantities of complete bearings yielded comprehensive construction of the locking a bearing to the shaft (could) be a different result than using quantities ‘‘class or kind’’ subject to an performed by other accessories such as of complete bearings and parts. NMB/ antidumping duty order in Mitsubishi concentric collars, sleeves, or set- Pelmec reported a viable HM using this Elec. Corp. v. United States, 898 F.2d screws.’’ Based on this evidence, the calculation methodology. Moreover, we 1577, 1582 (Fed. Cir. 1990), to avoid Department determined that an verified the information used in this attempts to evade the antidumping duty ‘‘eccentric collar,’’ when imported calculation. See NMB/Pelmec Thailand order. unattached, is an accessory to a bearing, Verification Report, February 10, 1994. Torrington concludes that where the not a bearing part, and is, therefore, Thus, Torrington’s allegation that NMB/ imported accessories and parts arrive outside the scope of the antidumping Pelmec Thailand did not demonstrate together with the bearings, housings, duty orders.’’ See memorandum dated that the HM is viable is inaccurate. We and other parts, the Department should May 14, 1993, ‘‘Final Scope Ruling— determined that the HM was viable instruct Customs to suspend liquidation Antidumping Duty Orders on based on a weight basis, since using and collect antidumping duty deposits Antifriction Bearings (Other Than quantities of complete bearings yielded and duties with respect to the entirety. Tapered Roller Bearings) from Japan.’’ a different result than using quantities The mere repackaging of a housed When such accessories are assembled of complete bearings and parts. bearing with locking collar or sleeves with an antifriction bearing and We note that our methodology and with other accessories should not imported into the United States, we implements the ruling of the CIT in serve to exempt all of the accessories treat them as one unit because they are NMB Singapore Ltd. v. United States, from the antidumping duty order. imported as one unit, and because 780 F. Supp. 823, 826 (CIT 1992). The SKF argues that it has already been addition of the accessory does not CIT held that the Department must take determined that pillow blocks and remove the bearing from the class or into account the difference between accessories are not covered by the scope kind of merchandise. This does not complete bearings and bearing parts in of the order and the fact that they may mean that such accessories are, in and determining viability. The CIT noted be used in AFB applications upon of themselves, subject to the orders. The that while bearings of different sizes are importation is irrelevant. housings, collars, and sleeves that are comparable, bearing parts are not NPBS responds that the housings are mentioned by the petitioner, like similar to complete bearings of any size imported separately and as such are not eccentric collars, are attachments to the (Id. at n.2). The Department implements included in the scope of the order. bearings that are not essential to the this decision by basing viability on Furthermore, there is no avoidance antifriction property of the bearings; weight where sales of parts are issue since the price of the completed thus, they do not constitute either sufficient to affect viability. bearing is reduced by the costs of the bearings or bearing parts by themselves. imported housing, as well as by further- Therefore they are not subject to the 16D. Scope Ruling manufacturing costs incurred in the order. Based on the foregoing argument, Comment 8: Torrington argues that United States and an allocated share of we conclude that importing such items individual components of disassembled profit. not attached to the bearing is not, as bearings, such as locking collars and Department’s Position: Locking petitioner contends, an evasion of the housings, are within the scope of the collars, adaptor sleeves, housings and order. antidumping duty order. However, such accessories to antifriction bearings, Comment 9: FAG-Germany argues petitioner asserts that prior scope when not assembled to those bearings, that the Department improperly rulings have created a situation wherein are not within the scope of the orders. included in its preliminary margin bearing accessories, when imported The orders apply only to ‘‘ball bearings, calculations U.S. sales of needle roller separately from a bearing, are excluded mounted or unmounted, and parts bearings with roller length-to-diameter from the order, while those same thereof * * * cylindrical roller ratios between three to one and four to accessories are included in the order bearings, mounted or unmounted, and one. FAG states that although the when imported attached to a bearing. parts thereof * * * (and) spherical plain Department made a scope determination Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10957 on December 23, 1991 in another case regarding the fact that the Department results and generate any additional data establishing this standard, it was not would consider CRBs with roller length- they wish. until September 2, 1992, four months to-diameter ratios of less than four to 16F. Termination Requests into the fourth period of review, that the one to be covered in this review. Department formally notified parties Comment 12: GMN argues that the 16E. Pre-Final Reviews that the four to one standard would be Department’s rejection of GMN’s applied in all circumstances for Comment 10: RHP, SNR, IKS, and termination request is unreasonable and distinguishing needle roller bearings FAG request that the Department constitutes an abuse of agency from CRBs. Hence, FAG claims that it authorize and implement pre-final discretion. GMN admits that it made a was not forewarned that such disclosure of computer programs and late request to withdraw its request for merchandise would become part of the printouts. Respondents claim that in review and to terminate this review. margin calculation and standards of due prior administrative reviews the This review was requested by GMN in process of law were violated. correction of clerical errors has been order to obtain revocation of the order Torrington holds that the Department delayed until many months after the against it. GMN declared bankruptcy on properly included all CRBs, including final determination. Respondents December 1, 1993, but still tried to those with roller length-to-diameter maintain that the delay occurred complete the review and the sales ratios equal to or less than four to one. because an action was filed in the CIT verification during the week of January Torrington states that the respondents depriving the Department of jurisdiction 10, 1994. The only domestic competitor, were aware of the scope determination to correct the relevant errors. RHP Torrington, did not object to GMN’s 10 months before they received the proposes that the Department either request. Federal-Mogul, an interested questionnaire for the fourth review. delay publication pending analysis or party although not a competitor, filed an Department’s Position: We agree with publish tentative final results so that objection. GMN responded to this Torrington. In several prior scope clerical errors can be corrected. objection, but Federal-Mogul did not rulings, including one requested by Department’s Position: As noted in respond to GMN’s rebuttal. According to FAG, the Department stated that ‘‘the the previous review (see AFBs III (at GMN, the use of the BIA rate is in no ratio of 4 to 1 is the common industry 39786)), in the interest of issuing the way reflective of GMN’s recent history. standard to distinguish a needle roller final results in a timely manner, the GMN notes that because the request for bearing from a cylindrical roller bearing. Department cannot implement this step. review was made by GMN itself, and its Accordingly, we have determined for Furthermore, it is unnecessary. Because existing deposit rate was zero percent, purposes of this scope proceeding that there were few changes made between its late request for withdrawal from the the ratio of 4 to 1, as selected by the ITC the preliminary results and the final review could only be motivated by the in its final determination, is the results, the Department finds that bankruptcy. By allowing Federal-Mogul dispositive ratio in defining the physical granting this request would cause ‘‘veto power’’ over GMN’s request, the characteristics of a needle roller unnecessary delay in the release of the Department abdicated its statutory right bearing.’’ See memorandum dated final results. to exercise discretion in such matters. December 23, 1991, ‘‘Final Comment 11: SNR and FAG request If the Department rejects GMN’s Determination on the Request by FAG that upon final disclosure the request to withdraw, and if the for Exclusion of Certain Engine Crank Department give parties a complete Department maintains that it cannot Shaft and Engine Main Shaft Pilot printout of all positive margin sales calculate a margin for GMN without Bearings from the Scope of used by the Department in its final further verification, GMN suggests that Antidumping Duty Orders: Ball determination. SNR and FAG maintain we sever GMN’s review and place it on Bearings, Cylindrical Roller Bearings, that prompt release of complete a separate schedule. and Spherical Plain Bearings and Parts printouts is essential for their analysis Department’s Position: The Thereof From the Federal Republic of of the Department’s results. Department has determined that it Germany.’’ Conversely, those roller Department’s Position: In response to would be inappropriate to terminate this bearings with roller length-to-diameter SNR and FAG’s request that additional review for GMN. Our decision is based ratios of less than 4 to 1 are properly data be printed out for final disclosure, on the fact that GMN’s request to classified as cylindrical roller bearings we must decline to change our terminate the review was submitted and are therefore subject to the procedure. It is not practical to print out during the verification process, an antidumping duty orders, as was stated every bit of data that might be generated advanced stage of the review process, in a later memorandum. See by our computer programs. Therefore, and that we were unable to complete memorandum dated June 1, 1993, we have chosen to print out as much sales and cost verifications successfully. ‘‘Final Scope Ruling—Antidumping data as is necessary to ensure that the Moreover, GMN was aware that it would Duty Orders on Antifriction Bearings programs are functioning as intended. be unable to complete verification, and (Other than Tapered Roller Bearings) While FAG and SNR may wish to thus that its margin would probably be from Germany: INA Walzlager.’’ This examine certain additional data, other based on BIA when it requested the determination has been upheld by the interested parties may wish to examine termination. We also note that Federal- CIT. See Koyo Seiko Co. Ltd. v. United still other data. In that printing out Mogul objected to termination of the States, Slip. Op. 93–191 (CIT 1993). additional data is not needed to ensure review. Additionally, the Department’s scope the accuracy of our results and it is Although GMN substantially ruling issued in December of 1991 to burdensome to the Department to tailor cooperated with our review, we FAG clearly adopted an industry printouts for individual parties, we consider the inability of a respondent to standard which was applicable to all must decline requests that additional complete a verification in progress to be cylindrical roller bearings. This data be printed. Furthermore, we note a serious matter. Though GMN’s occurred well before the POR. that all parties have access to the same pending bankruptcy may have played a Moreover, the September 2, 1992, original data used by the Department role in GMN’s inability to complete the clarification was issued long before and complete copies of our computer verifications, we cannot determine what FAG’s questionnaire responses were programs. Therefore, parties have the other factors may have hindered the due. Therefore, there was no ambiguity ability to duplicate the Department’s verifications. We note that, at the 10958 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices hearing, GMN’s counsel acknowledged Department should not change the when calculating ad valorem that GMN was aware of its financial treatment of NSK sales. assessment rates. However, purchase troubles long before the verification. Department’s Position: We agree with price sales are assessed on a per-unit, Respondents should not be given Torrington that there was a flaw in not ad valorem, basis. incentive to request reviews and then RHP’s preliminary program. However, 16I. Revocation withdraw their requests if verifications the flaw merely created duplicate appear to be going poorly. This is one listings of NSK Europe models and was Comment 18: Torrington asserts that of the reasons why 19 CFR 353.22(a)(5) not the reason that no RHP U.S. sales the Department should deny SKF- generally requires that review requests matched to HM sales by NSK Europe. France’s request to revoke the be withdrawn no later than 90 days after Rather, no sales were matched because antidumping duty orders spherical plain the date of publication of the initiation there were no comparable families of bearings (SPBs). Torrington notes that notice. Federal-Mogul’s objection only bearings, i.e., similar merchandise, sold revocation is permissible only if the indicates that other parties have an by NSK Europe. In response, we requesting company is unlikely to sell interest in the outcome of an modified the program to match NSK below FMV in the future. Torrington administrative review, which supports Europe’s sales with RHP’s U.S. sales by contends the circumstances indicate the Department’s decision not to model instead of by family. The fact that that this is doubtful, since SKF-France terminate this proceeding. no NSK Europe models matched with is part of a larger multinational RHP models further demonstrates that organization which has preliminarily 16G. Programming RHP and NSK did not sell comparable received dumping margins for SPBs in Comment 13: Torrington argues that merchandise. other countries. RHP’s the Department’s preliminary Comment 15: FAG UK/Barden alleges SKF responds that Torrington has SAS programs for RHP improperly that the Department incorrectly presented no legal basis on which to assigned a zero margin to sales with a identified domestic brokerage and deny revocation. SKF argues that since USP of less than zero. Torrington handling expenses (DBROKHE) using neither the antidumping law nor the continues that it is possible to have a the variable name for domestic presale Department’s regulations mandate a U.S. sale with a value of less than zero. inland freight (DPRSFRE). different standard for revocation for Torrington asserts that the Department Department’s Position: We disagree multinational corporations, Torrington’s should calculate margins on all U.S. with FAG UK/Barden. Our analysis of argument concerning SKF’s sales including those with a value less the firm’s response, including its format multinational activity for purposes of than zero. sheets, leads us to conclude that FAG revocation is irrelevant. RHP states that it has no objection to reported its brokerage and handling Department’s Position: Under 19 CFR the Department adjusting the program expenses in the field DPRSFRE. 353.25(a)(2)(i), the Department may so that sales with an adjusted price of Therefore, we have deducted brokerage revoke an order in part if it finds sales less than zero are included. and handling expenses as DPRSFRE. at not less than FMV for a period of at Department’s Position: Torrington Comment 16: Torrington asserts that a least three consecutive years. The misunderstood our program. The lines clerical error occurs at line 990 in FAG results in this review, combined with of the program which are quoted in its UK’s program where the margin is set to the results in the two prior reviews, case brief do not improperly assign all zero whenever USP is less than zero. satisfies this requirement for SKF- sales with a negative USP a zero margin. FAG UK argues that there is no France in the antidumping duty Generally, margins were calculated for clerical error at line 990 of the program, proceeding SPBs. Additionally, such sales as appropriate. However, for and that the setting of PCTMARG equal respondent has agreed, pursuant to 19 certain U.S. sales RHP provided no FMV to zero where USP is less than zero, in CFR 353.25(a)(2)(iii), to the immediate information and, accordingly, we any event, has no impact on the margin. reinstatement of the order if determined BIA dumping margins for Department’s Position: We disagree circumstances develop indicating that such sales by applying the appropriate with Torrington that there is a clerical they have resumed dumping the subject BIA rate to the USP of each of those error. Without this line of the program, merchandise. We are satisfied that the sales. For these sales, negative margins U.S. sales with dumping margins and respondents is not likely to sell the would be generated by applying the BIA negative U.S. prices would show a merchandise in the future at less than rate to a negative USP. Therefore, the negative percentage margin. This FMV, and we agree with respondents lines of the program in question merely programming eliminates this anomaly. that the requirements for revocation set to zero the margins for any U.S. sales The setting of the PCTMARG variable at have been met. to which a BIA rate should be applied line 990 has no effect on the calculation 16J. No Sales During Period of Review but which have a negative USP. of the dumping margin. Comment 14: Torrington contends Comment 17: Torrington states that, Comment 19: Kaydon, a U.S. producer that while RHP’s program should assign in PP transactions, the UNTCUSE of ball bearing products, urges the a BIA rate to RHP’s U.S. sales of models variable (customs value) in the program Department to reconsider its that would be matched with HM sales for FAG-Germany is defined as preliminary finding that Hoesch and by NSK Europe, it appears that there are UNITPRE—OCNFRE—MARNINE, and Rollix had no U.S. sales of subject errors in the treatment of NSK’s sales that UNITPRE was modified to include merchandise during the review period. which prevented the application of BIA an amount representing VAT, to allow Kaydon asserts that it has provided to those U.S. sales. Torrington argues comparison with a VAT-inclusive FMV. evidence to the Department which that the program did not properly Torrington argues that the VAT amount indicates that the respondents sell classify these NSK sales in the RHP should be removed from UNTCUSE. merchandise in the U.S. market which preliminary program. Department’s Position: We disagree are properly characterized as bearings RHP states that it attempted to find with Torrington that any change is subject to the order rather than slewing the alleged errors, but has been unable necessary. This variable is not used for rings. According to Kaydon, sales of to do so. RHP argues that because it did PP sales in either the margin calculation these products, or substantially similar not find any errors and Torrington has or in the calculation of assessment rates. products, may have taken place during not identified specific errors, the The UNTCUSE variable is only used the POR but remain unreported due to Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10959 the respondents insistence that the [A±475±801] reviews of the antidumping duty orders merchandise are slewing rings and on antifriction bearings (other than therefore fall outside the scope of the Antifriction Bearings (Other Than tapered roller bearings) and parts orders. Kaydon argues that if the Tapered Roller Bearings) and Parts thereof (AFBs) from Italy (59 FR 9463). Department concludes that these Thereof From Italy; Final Results of We gave interested parties an products are bearings, not slewing rings, Antidumping Duty Administrative opportunity to comment on our and if respondent made sales of these Reviews and Revocation in Part of an preliminary results. Antidumping Duty Order products during the POR, the At the request of certain interested Department should consider Hoesch AGENCY: International Trade parties, we held a public hearing on and Rollix’s responses as inadequate Administration, Import Administration, general issues pertaining to the reviews and should seek further information Department of Commerce. of the orders covering AFBs from all regarding the merchandise sold by these ACTION: Notice of final results of countries on March 28, 1994. respondents during the POR. antidumping duty administrative Hoesch and Rollix believe that reviews and revocation in part of an Revocation In Part Kaydon’s request is not appropriate. antidumping duty order. Respondents claim that a scope In accordance with § 353.25(a)(2) of determination rather than an SUMMARY: On February 28, 1994, the the Department’s regulations (19 CFR administrative review is the proper Department of Commerce (the 353.25(a)(2)), the Department is context for considering scope issues. Department) published the preliminary revoking the antidumping duty order According to the respondents any scope results of its administrative reviews of covering cylindrical roller bearings from questions Kaydon had with respect to the antidumping duty orders on Italy with respect to SKF. the merchandise in question should antifriction bearings (other than tapered SKF has submitted, in accordance have been raised within the context of roller bearings) and parts thereof (AFBs) with 19 CFR 353.25(b), a request for from Italy. The classes or kinds of a scope determination request. revocation of the order with respect to merchandise covered by these reviews Therefore, respondents claim that its sales of the merchandise in question. Hoesch and Rotek’s (a related affiliate in are ball bearings and parts thereof and cylindrical roller bearings and parts SKF has also demonstrated three the United States) filing of its own scope consecutive years of sales at not less determination request preclude thereof. The reviews cover three manufacturers/exporters. The review than foreign market value (FMV) and consideration of the same issues in period is May 1, 1992, through April 30, has submitted the required these final results. Furthermore 1993. certifications. It has agreed in writing to respondents claim that the evidence Based on our analysis of the its immediate reinstatement in the Kaydon presented to support its comments received, we have made order, as long as any producer or allegations fails to justify any changes, including corrections of certain reseller is subject to the order, if the investigation by the Department of inadvertent programming and clerical Department concludes under 19 CFR unreported sales. errors, in the margin calculations. 353.22(f) that the firm, subsequent to the Department’s Position: We have Therefore, the final results differ from revocation, sold the merchandise at less confirmed through the U.S. Customs the preliminary results. The final than FMV. Furthermore, it is not likely service that neither Hoesch nor Rollix weighted-average dumping margins for that SKF will sell the subject have entered subject merchandise into the reviewed firms for each class or kind merchandise at less than FMV in the the U.S. market during the POR. of merchandise are listed below in the future. Therefore, the Department is Furthermore, there is no information on section entitled ‘‘Final Results of revoking the order on cylindrical roller the record to support Kaydon’s assertion Review.’’ bearings from Italy with respect to SKF. that these respondents, or related The Department also is revoking the Scope of Reviews affiliates in the United States, have antidumping duty order on cylindrical made sales of subject merchandise roller bearings from Italy with respect to The products covered by these during the POR. Finally, we agree with SKF. reviews are AFBs and constitute the respondents that a scope determination EFFECTIVE DATE: February 28, 1995. following ‘‘classes or kinds’’ of rather than an administrative review is FOR FURTHER INFORMATION CONTACT: The merchandise: ball bearings and parts the proper context for considering scope appropriate case analyst, for the various thereof (BBs) and cylindrical roller issues. Therefore, we will address the respondent firms listed below, at the bearings and parts thereof (CRBs). For a scope issues raised by Kaydon through Office of Antidumping Compliance, detailed description of the products the process of a scope inquiry which has International Trade Administration, covered under these classes or kinds of been requested by both Kaydon and Import Administration, U.S. Department merchandise, including a compilation of Hoesch. of Commerce, 14th Street and all pertinent scope determinations, see [FR Doc. 95–4615 Filed 2–27–95; 8:45 am] Constitution Avenue, NW., Washington, the ‘‘Scope Appendix’’ to ‘‘Antifriction DC 20230; telephone: (202) 482–4733. BILLING CODE 3510±DS±P Bearings (Other Than Tapered Roller Charles Riggle (Meter), Jacqueline Bearings) and Parts Thereof from Arrowsmith (SKF), Michael Rausher France, Germany, Japan, Singapore, (FAG), or Michael Rill. Sweden, Thailand, and the United SUPPLEMENTARY INFORMATION: Kingdom; Final Results of Antidumping Duty Administrative Reviews, Partial Background Termination of Administrative Reviews, On February 28, 1994, the Department and Revocation in Part of Antidumping published in the Federal Register the Duty Orders,’’ which is published in preliminary results of its administrative this issue of the Federal Register. 10960 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Sales Below Cost in the Home Market Cash Deposit Requirements original less-than-fair-value (LTFV) The Department disregarded sales To calculate the cash deposit rate for investigation, but the manufacturer is, below cost for the following firms and each exporter, we divided the total the cash deposit rate will be the rate classes or kinds of merchandise: dumping margins for each exporter by established for the most recent period the total net USP value for that for the manufacturer of the merchandise; and (4) the cash deposit Country Company Class or kind of exporter’s sales for each relevant class merchandise or kind during the review period under rate for all other manufacturers or each order. exporters will continue to be the ‘‘All Italy ...... FAG ...... BBs. Others’’ rate for the relevant class or SKF ...... BBs. In order to derive a single deposit rate for each class or kind of merchandise for kind and country made effective by the final results of review published on July Changes Since the Preliminary Results each respondent (i.e., each exporter or manufacturer included in these 26, 1993 (see Final Results of Based on our analysis of comments reviews), we weight-averaged the Antidumping Duty Administrative received, we have made the following purchase price (PP) and exporter’s sales Reviews and Revocation in Part of an changes in these final results. Antidumping Duty Order, 58 FR 39729, • Where applicable, certain price (ESP) deposit rates (using the USP of PP sales and ESP sales, respectively, July 26, 1993). These rates are the ‘‘All programming and clerical errors in our Others’’ rates from the relevant LTFV preliminary results have been corrected. as the weighting factors). To accomplish this where we sampled ESP sales, we investigations. Any alleged programming or clerical These deposit requirements, when first calculated the total dumping errors with which we do not agree are imposed, shall remain in effect until margins for all ESP sales during the discussed in the relevant sections of the publication of the final results of the review period by multiplying the Issues Appendix. next administrative reviews. • Pursuant to the decision of the sample ESP margins by the ratio of total United States Court of Appeals for the weeks in the review period to sample Assessment Rates Federal Circuit in Ad Hoc Committee of weeks. We then calculated a total net The Department shall determine, and AZ–NM–TX–FL Producers of Gray USP value for all ESP sales during the the Customs Service shall assess, Portland Cement v. United States, 13 review period by multiplying the antidumping duties on all appropriate F.3d 398 (CAFC 1994) (Ad Hoc Comm.), sample ESP total net value by the same entries. Because sampling and other we have allowed a deduction for pre- ratio. We then divided the combined simplification methods prevent entry- sale inland freight in the calculation of total dumping margins for both PP and by-entry assessments, we will calculate foreign market value only as an indirect ESP sales by the combined total USP wherever possible an exporter/importer- selling expense under 19 CFR 353.56(b), value for both PP and ESP sales to specific assessment rate for each class or except where such expenses have been obtain the deposit rate. kind of antifriction bearings. shown to be directly related to sales. We will direct Customs to collect the resulting percentage deposit rate against 1. Purchase Price Sales Analysis of Comments Received the entered Customs value of each of the With respect to PP sales for these final All issues raised in the country- exporter’s entries of subject results, we divided the total dumping specific case and rebuttal briefs by merchandise entered, or withdrawn margins (calculated as the difference parties to these administrative reviews from warehouse, for consumption on or between FMV and USP) for each are addressed in the ‘‘Issues Appendix’’ after the date of publication of this importer by the total number of units which is appended to this notice of final notice. sold to that importer. We will direct results. General issues pertaining to Entries of parts incorporated into Customs to assess the resulting unit these and all other reviews of the orders finished bearings before sales to an dollar amount against each unit of covering AFBs from various countries unrelated customer in the United States merchandise in each of that importer’s may be found in the ‘‘Issues Appendix’’ will receive the exporter’s deposit rate entries under the relevant order during to ‘‘Antifriction Bearings (Other Than for the appropriate class or kind of the review period. Although this will Tapered Roller Bearings) and Parts merchandise. result in assessing different percentage Thereof from France, Germany, Japan, Furthermore, the following deposit margins for individual entries, the total Singapore, Sweden, Thailand, and the requirements will be effective upon antidumping duties collected for each United Kingdom; Final Results of publication of this notice of final results importer under each order for the Antidumping Duty Administrative of administrative review for all review period will be almost exactly Reviews, Partial Termination of shipments of AFBs entered, or equal to the total dumping margins. withdrawn from warehouse, for Administrative Reviews, and 2. Exporter’s Sales Price Sales Revocation in Part of Antidumping Duty consumption on or after the date of Orders,’’ which is published in this publication, as provided by section For ESP sales (sampled and non- issue of the Federal Register. 751(a)(1) of the Act: (1) The cash deposit sampled), we divided the total dumping rates for the reviewed companies will be margins for the reviewed sales by the Final Results of Reviews the rates shown above, except that for total entered value of those reviewed We determine the following firms whose weighted-average margins sales for each importer. We will direct percentage weighted-average margins to are less than 0.50 percent, and therefore Customs to assess the resulting exist for the period May 1, 1992, de minimis, the Department shall not percentage margin against the entered through April 30, 1993: require a deposit of estimated Customs values for the subject antidumping duties; (2) for previously merchandise on each of that importer’s Company BBs CRBs reviewed or investigated companies not entries under the relevant order during listed above, the cash deposit rate will the review period. While the 1 FAG ...... 2.74 ( ) continue to be the company-specific rate Department is aware that the entered Meter ...... 6.02 (1) SKF ...... 3.79 0.00 published for the most recent period; (3) value of sales during the period of if the exporter is not a firm covered in review (POR) is not necessarily equal to 1 No U.S. sales during the review period. this review, a prior review, or the the entered value of entries during the Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10961 POR, use of entered value of sales as the 751(a)(1) of the Act (19 U.S.C. extra-period warranty expenses as BIA. basis of the assessment rate permits the 1675(a)(1)) and 19 CFR 353.22. Furthermore, Federal-Mogul argues that Department to collect a reasonable Dated: February 1, 1995. the assignment and use of U.S. warranty approximation of the antidumping expenses as an adjustment to CV Paul L. Joffe, duties which would have been appears to represent a reasonable determined if the Department had Deputy Assistant Secretary for Import application of BIA for purposes of Administration. reviewed those sales of merchandise quantifying a known, but unreported actually entered during the POR. Issues Appendix selling expense directly related to In the case of companies which did • Abbreviations Meter’s U.S. sales. not report entered value of sales, we • Comments and Response Department’s Position: The calculated a proxy for entered value of adjustment for warranty expenses sales, based on the price information Company Abbreviations included in our preliminary calculation available and appropriate adjustments FAG-Italy—FAG Italia S.p.A.; FAG was a clerical error. Meter reported no (e.g., insurance, freight, U.S. brokerage Bearings Corp. warranty expenses on U.S. sales during and handling, U.S. profit, and any other Federal-Mogul—Federal-Mogul this POR, and there is no evidence that items, as appropriate, on a company- Corporation such expenses were incurred during the specific basis). Meter—Meter S.p.A. POR. Therefore, we have not imputed For calculation of the ESP assessment SKF—Italy—SKF Industrie; RIV–SKF warranty expenses and have not rate, entries for which liquidation was Officina de Villar Perosa; SKF deducted these expenses for the final suspended, but which ultimately fell Cuscinetti Speciali; SKF Cuscinetti; results. outside the scope of the orders through RFT Comment 2: Federal-Mogul notes that operation of the ‘‘Roller Chain’’ rule, are Torrington—The Torrington Company Meter limited its reported direct selling included in the assessment rate expense (DSE) for CV to its imputed Other Abbreviations denominator to avoid over-collecting. credit expense, which Meter calculated (The ‘‘Roller Chain’’ rule excludes from COP—Cost of Production by applying to the COM a percentage the collection of antidumping duties COM—Cost of Manufacturing factor based on its short-term interest bearings which were imported by a CV—Constructed Value rate and the average number of days related party and further processed, and ESP—Exporter’s Sales Price from shipment to payment. Federal- which comprise less than one percent of FMV—Foreign Market Value Mogul claims that this methodology the finished product sold to the first HM—Home Market understates the expense because the unrelated customer in the United States. POR—Period of Review percentage factor should be multiplied See the section on Further PP—Purchase Price by the sale price, i.e., the value on Manufacturing and the ‘‘Roller Chain’’ USP—United States Price which credit would be extended in the Rule in the Issues Appendix to AFBs I—Antifriction Bearings (Other HM. Federal-Mogul adds that by ‘‘Antifriction Bearings (Other Than Than Tapered Roller Bearings) and Parts understating this portion of the general Tapered Roller Bearings) and Parts Thereof from the Federal Republic of expense element of CV, it also Thereof from France, Germany, Japan, Germany; Final Results of Antidumping understates the profit element, which Singapore, Sweden, Thailand, and the Duty Administrative Review, 56 FR Meter quantified as eight percent of United Kingdom; Final Results of 31692 (July 11, 1991) materials, labor and general expenses. Antidumping Duty Administrative AFBs II—Antifriction Bearings (Other Federal-Mogul argues that the Reviews, Partial Termination of Than Tapered Roller Bearings) and Department should increase Meter’s Administrative Reviews, and Parts Thereof From France, et al.; reported DSE by the ratio of Meter’s Revocation in Part of Antidumping Duty Final Results of Antidumping Duty total sales to its cost of goods sold Orders,’’ which is published in this Administrative Reviews, 57 FR (COGS). The revised DSE should then issue of the Federal Register.) 28360 (June 24, 1992) be combined with the revised G&A This notice also serves as a final AFBs III—Final Results of Antidumping expense amounts and the other reminder to importers of their Duty Administrative Reviews and elements of Meter’s general expenses for responsibility under 19 CFR 353.26 to Revocation in Part of an CV, and Meter’s statutory profit should file a certificate regarding the Antidumping Duty Order, 58 FR also be recalculated accordingly. reimbursement of antidumping duties 39729 (July 26, 1993) Department’s Position: We agree with prior to liquidation of the relevant Federal-Mogul that Meter’s Comments and Responses entries during this review period. methodology for calculating its imputed Failure to comply with this requirement Comment 1: Meter noted in its credit expense for CV was flawed, and could result in the Secretary’s Section B questionnaire response that it that the percentage factor should be presumption that reimbursement of did not incur any warranty expense multiplied by the sale price. In the antidumping duties occurred and the during the POR, yet the Department absence of HM sale prices, we subsequent assessment of double improperly deducted warranty calculated a ratio of Meter’s total sales antidumping duties. expenses. to its COGS from Meter’s 1992 financial This notice also serves as the only Federal-Mogul responds that, while statements, and multiplied that ratio by reminder to parties subject to Meter claimed to have incurred no Meter’s reported DSE. We used the administrative protective orders (APO) warranty expenses during this POR, revised DSE to recalculate G&A of their responsibility concerning the Meter’s historical U.S. warranty expenses and Meter’s profit. return or destruction of proprietary experience suggests that the absence of Comment 3: Federal-Mogul argues information disclosed under APO in warranty expenses is improbable. Given that in quantifying its reported G&A accordance with 19 CFR 353.34(d). the fact that Meter claimed to have expenses for CV, Meter netted out Failure to comply is a violation of the incurred such expenses in 1988, 1989, negative expense amounts for ‘‘Net Gain APO. 1990, 1991, and the first four months of on Foreign Exchange’’ and ‘‘Customs These administrative reviews and this 1992, as well as after the POR, Federal- Reimbursement.’’ These amounts are notice are in accordance with section Mogul urges the Department to resort to attributable only to purchases by foreign 10962 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices customers and merchandise exported by submitted separate manufacturing costs The U.S. and HM models in question Meter. Since the statute requires that the for each facility that produced subject were not identical in all characteristics. general expenses included in CV be merchandise during the POR. Petitioner Furthermore, we consider a bearing sold those ‘‘usually reflected in sales which argues that since Meter did not submit in the HM to be similar to a U.S. model are made by producers in the country of facility-specific manufacturing costs, the when the eight characteristics outlined exportation,’’ no reduction in Meter’s Department should reject submitted in our questionnaire are identical. G&A expenses may be made for gains on weighted-average grinding and assembly Because these eight characteristics were foreign exchange or for customs labor rates and, as BIA, use the higher not identical for these bearings, we do reimbursement. of the grinding and assembly rates not consider these bearings to be Meter argues that reported G&A experienced at each facility. identical or similar matches. expenses were taken directly from its Meter argues that the Department did Comment 7: FAG-Italy contends that audited financial statements and not ask for separate CV data for its labor the Department’s assessment rate allocated based on cost of sales. Meter rates in the old and new facilities. methodology is flawed, and states that contends that it is standard Department Furthermore, Meter argues that it the Department acted contrary to law in practice not to eliminate certain complied with the Department’s basing assessment rates on the Customs expenses from G&A that are unrelated to regulations in submitting weighted- entered values of those sales reviewed subject merchandise or a particular average costs to account for different by the Department for the POR, because market. Instead, the Department treats production facilities being used in the the sales actually reviewed by the G&A as general expenses of the same POR. Department for the POR may have company as a whole. Department’s Position: We agree with involved merchandise entered before Department’s Position: We agree in Meter. It is our policy that if a the POR. Instead, FAG-Italy claims that part with Federal-Mogul. Meter’s respondent produces subject the Department should base assessment ‘‘Foreign Exchange Gain or Loss’’ relates merchandise at more than one facility, rates on the Customs entered values of to trade accounts receivable on export the reported COM should be the merchandise actually entered during the sales transactions. At verification we weighted-average manufacturing costs POR, as submitted by respondent. FAG- found that the ‘‘Customs from all facilities. The costs reported by Italy maintains that the Department Reimbursement’’ related to returned Meter properly reflect the costs of both should determine assessment rates by merchandise. Accordingly both of the facilities. dividing total antidumping duties due above items are directly related to the Comment 6: Federal-Mogul contests (calculated as the difference between company’s sales revenues, not G&A Meter’s claim that each of Meter’s model statutory FMV and statutory USP for the expenses, and therefore were excluded numbers reported in the company’s HM sales reported for the POR) by the from the G&A calculation. database represents a unique product. entered values of the merchandise Comment 4: Federal-Mogul argues According to Federal-Mogul, certain actually entered during the POR (not by that Meter understated its factory models in Meter’s HM database are the entered values of the merchandise overhead cost for CV as outlined in the reported to be in different families, but actually sold during the POR). FAG-Italy cost verification report. Therefore, the the models are identical in all family argues that the Department’s current Department must adjust Meter’s criteria, and therefore, these models methodology can lead to a substantial submitted fixed overhead costs in order should be in the same family. In overcollection of dumping duties. to accurately compute CV for subject addition, Federal-Mogul states that two Both Torrington and Federal-Mogul merchandise. other HM models vary insignificantly argue that the Department’s Meter argues that the methodology it from reported U.S. models in one methodology is valid. Torrington notes used to report factory overhead criterion. For these reasons, Federal- that the Department concluded that the expenses was the same methodology the Mogul argues, the Department should current methodology is reasonable and Department directed Meter to use in the not accept Meter’s claim that there are that it constitutes an appropriate use of second review. The Department should no HM matches for any U.S. sales. the Department’s discretion to not penalize Meter for using an Meter claims that it correctly utilized implement sampling and averaging incorrect allocation methodology which the matching methodology prescribed techniques as provided for in section the Department suggested in the first by the Department and such 777A of the Tariff Act. See AFBs I at place. Therefore, resorting to BIA, as methodology accurately reflects Meter’s 31694. Torrington states that since the suggested by Federal-Mogul, would be business and production processes. U.S. sales used to calculate the dumping unreasonable. Department’s Position: We disagree margins are only a sample of the total Department’s Position: It was not with Federal-Mogul. When we reviewed U.S. sales during the POR, application Meter’s fixed overhead costs but rather Meter’s family designations we found of FAG-Italy’s proposed methodology Meter’s submitted variable overhead two U.S. models with identical family would lead to substantial costs that were understated. Variable characteristics that had been assigned undercollection of antidumping duties, costs were understated due to the fact different family designations. Likewise, unless the Department adjusts that that Meter inappropriately allocated we found two HM models which should methodology to take into account all these costs on the basis of total hours have been given the same family U.S. sales during the POR. incurred to produce all subject designation but were not. However, in Torrington also states that both the merchandise rather than the hours no instance were any HM models Department’s current methodology and incurred to produce only the U.S. identical or similar to U.S. models based FAG-Italy’s proposed methodology are merchandise. Therefore, we adjusted on our criteria for determining such or deficient in that neither method ‘‘ties Meter’s submitted variable overhead similar merchandise. Therefore, these entries to sales.’’ Torrington proposes costs in order to appropriately capture errors did not affect these results. two methods for dealing with the all costs. We also disagree with Federal- problem of reviewed sales that do not Comment 5: Federal-Mogul notes that Mogul’s argument that ‘‘insignificant’’ match to particular entries during the during the POR, Meter relocated its variations in family matching POR. First, Torrington suggests that the production facilities. Federal-Mogul characteristics, between HM and U.S. Department review entries rather than contends that Meter should have models, should have been disregarded. sales. Torrington points out that this Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10963 method is not ideal because it could value of those sales and adjusting the of this fact when setting its price. place the Department in the position of result by the average difference between Therefore, it would be inappropriate to reviewing entries made during the POR USP and entered value for those sales. make a COS adjustment for credit based that contained merchandise that was While we are aware that the entered entirely on the agreed terms of payment, sold after the POR. Second, Torrington value of sales during the POR is not since it would not take into account all proposes that the Department require necessarily equal to the entered value of of the circumstances surrounding a sale. respondents to submit adequate entries during the POR, use of entered Comment 9: Torrington contends that, information to trace each entry directly value of sales as the basis of the in the recalculation of COP for SKF- to the sale in the United States. assessment rate permits the Department Italy, the Department inadvertently Torrington observes that at present this to collect a reasonable approximation of excluded research and development method would be impossible because the antidumping duties that would have (R&D) expenses. the administrative record in this review been determined if we had reviewed According to SKF-Italy, R&D expenses does not permit tracing each sale to the those sales of merchandise actually were included in the recalculated entry. entered during the POR. general and administrative (G&A) Federal-Mogul states that the Comment 8: Federal-Mogul argues expenses. Department’s methodology is logical that the Department should disallow Department’s Position: We agree with because it establishes a link between the any additional credit expenses SKF-Italy that its R&D expenses were values calculated on the basis of the attributed to late payments made by included in the revised G&A expenses sales analyzed and the actual SKF-Italy’s HM customers. Citing included in the recalculation of COP. assessment values over time and, Federal-Mogul Corp. v. United States, Comment 10: Torrington argues that therefore, avoids the distortions that 824 F. Supp. 223 (1993), Federal-Mogul the Department should reject FAG- FAG’s alternative would engender. argues that, since COS adjustments are Italy’s cost data because FAG-Italy Department’s Position: We disagree only allowed for those factors which provided costs for only completed with the FAG-Italy. As stated in AFBs affect price or value, additional credit bearings and not for the individual III (at 39737), section 751 of the Tariff expenses incurred from a purchaser’s material elements as required by the Act requires that the Department unexpected failure to pay within the questionnaire. calculate the amount by which the FMV agreed-upon period cannot affect the FAG-Italy argues that its cost exceeds the USP and assess price which was set specifically in responses were accurate and acceptable antidumping duties on the basis of that contemplation of payment being made as reported because its model-specific amount. However, there is nothing in at the end of the agreed-upon credit COPs and CVs were correctly reported the statute that dictates how the actual period. While Federal-Mogul in accordance with Departmental assessment rate is to be determined from acknowledges that SKF-Italy submitted precedent. that amount. an upward adjustment to FMV which Department’s Position: We agree with In accordance with section 751, we reflects interest revenue collected from respondent. We have accepted FAG- calculated the difference between FMV customers due to late payments, it Italy’s cost data in this format for this and USP (the dumping margin) for all asserts that this does not properly offset review. Also, petitioners have provided reported U.S. sales. For PP sales we the late payment credit expenses since no basis for the Department to reject have calculated assessment rates based the interest revenue was calculated FAG-Italy’s cost responses. on the total of these differences for each using an allocation while the additional Comment 11: Torrington argues that importer divided by the total number of credit expenses are transaction specific. the Department’s decision to treat SKF- units sold to that importer. Therefore, SKF-Italy contends that its credit Italy’s early payment cash discounts as each importer is only liable for the expense calculations, which are based a direct expense is inconsistent with duties related to its entries. In ESP on the actual payment date, are Departmental practice and is an error as cases, we generally cannot tie sales to consistent with Departmental policy. a matter of law. Torrington notes that specific entries. In addition, the SKF-Italy cites the Department’s verification of SKF-Italy’s cash calculation of specific antidumping position in Final Results of discounts revealed that, for at least one duties for every entry made during the Antidumping Administrative Review; sale examined, certain discounts did not POR is impossible where dumping Certain Welded Carbon Steel Pipe and fall within the range of discounts SKF margins have been based on sampling, Tube Products from Turkey, 55 FR submitted in its original response even if all sales could be tied to specific 42230, 42231 (1990), and Final describing its early payment cash entries. Hence, for ESP sales, in order to Determination of Sales at Less than Fair discount program. Torrington contends obtain an accurate assessment of Value; Certain Tapered Journal Roller that the Department’s practice is to antidumping duties on all entries during Bearings and Parts Thereof From Italy, require that discounts be part of a the POR, we have expressed the 49 FR 2278, 2279–80 (1984), to support respondents standard business practice difference between FMV and USP as a its position. SKF-Italy states that interest and not intended to avoid potential percentage of the entered value of the revenue is a separate COS which has antidumping duty liability. Torrington examined sales for each exporter/ been verified and accepted by the argues that if the discounts offered in importer (ad valorem rates). We will Department in each of the three prior the HM are not made pursuant to direct the U.S. Customs Service to administrative reviews. specified terms contemplated at the assess antidumping duties by applying Department’s Position: The time of sale, they should be disallowed that percentage to the entered value of Department disagrees with Federal- because they could be designed to each of that importer’s entries of subject Mogul. Consistent with Departmental reduce the HM price and dumping merchandise under the relevant order policy, we adjust for credit expenses margins found. Torrington asserts that, during the POR. based on sale-specific reporting of based on the findings at verification, the This approach is equivalent to actual shipment and payment dates. See Department should reject SKF-Italy’s dividing the aggregate dumping AFBs I at 31724. This policy recognizes HM cash discounts offered on the basis margins, i.e., the difference between the fact that all customers do not always of terms of payment since they cannot statutory FMV and statutory USP for all pay according to the agreed terms of be deemed reliable. At the very least, sales reviewed, by the aggregate USP payment and that respondent is aware Torrington maintains, the Department 10964 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices should eliminate any discounts granted or estimated 1993 U.S. corporate rebates material expenses. Additionally, FAG- to customers which are greater than the is insufficient. Torrington argues that Italy notes that the double application of range of discounts described by SKF- FAG-Italy’s failure to report 1993 the exchange rate to the adjustment for Italy in its original response. corporate rebates is a fundamental marine insurance was necessary to SKF-Italy maintains that the deficiency which calls for the correct a conversion error committed by Department satisfactorily verified that application of a ‘‘second-tier’’ BIA to FAG-Italy in its computer response. customers received discounts as those U.S. transactions in which FAG- Department’s Position: We agree with specified in the payment terms set forth Italy failed to properly report a FAG-Italy. We included in the margin in SKF-Italy’s invoices. According to corporate rebate. Torrington contends program the necessary corrections to SKF-Italy, Torrington’s statements that the Department’s preliminary FAG-Italy’s packing expenses. In pertain to the Department’s verification response may reward FAG-Italy for its addition, we intentionally applied the of one of its sales traces. SKF-Italy failure to report 1993 U.S. corporate exchange rate to the marine insurance asserts that a complete examination of rebates if the HM rebates denied do not adjustment twice to compensate for an this sale reveals that, consistent with its apply to the same types of sales as those exchange rate error committed in FAG- reporting methodology, SKF-Italy did found in the U.S. market or are not of Italy’s submitted data. not claim a cash discount for this HM the same magnitude as the U.S. Comment 14: Federal-Mogul asserts transaction. Accordingly, SKF-Italy corporate rebates which went that the Department should consider the asserts that Torrington’s discussion of unreported. Torrington argues that, expenses associated with a bonded this issue is pointless. Furthermore, according to FAG-Italy’s responses, the warehouse maintained by SKF-Italy to SKF-Italy contends that Torrington is discount program in the HM more accommodate sales to one U.S. customer incorrect in arguing that only cash closely resembles U.S. corporate rebates as movement expenses and remove the discounts granted according to specified than the HM rebates denied by the expenses directly from the U.S. price. terms contemplated at the date of sale Department. Finally, Torrington asserts Federal-Mogul disagrees with the are allowed. SKF-Italy claims that by that when deciding what BIA approach position taken by the Department in reporting only actual cash discounts in to use for the final results, the earlier reviews that characterized SKF- both the HM and the United States, it Department should also consider the Italy’s bonded warehouse expenses as has remained consistent with fact the FAG never clearly stated in its indirect selling expenses because they Departmental practice as outlined in the responses that it had not reported were incurred prior to the date of sale. questionnaire. estimated 1993 corporate rebates. Federal-Mogul maintains that according Department’s Position: We agree with FAG-Italy asserts that its rebates were to the CIT decision in Nihon Cement petitioner that discounts should be part accurately reported given the nature of Co., Ltd. v. United States, 17 CITlll, of a respondent’s standard business the rebate programs in each market and Slip Op. 93–80 at 40 (1993), these practice and are not intended to avoid that the use of BIA is unwarranted. The warehousing expenses should be potential antidumping duty liability. companies reported estimated 1993 considered movement expenses because However, our HM verification findings rebates differently for the HM and U.S. do not support petitioner’s conclusions markets because clear differences exist the subject merchandise is merely that SKF-Italy’s reported cash discounts between their HM and U.S. rebate residing in the warehouse incident to were not made pursuant to the discount programs. Therefore, the Department bringing them from Italy to SKF-Italy’s program outlined in its response. erred in denying rebate adjustments in U.S. customer. Citing Carbon Steel Wire While verifying SKF-Italy’s HM sales the HM on 1993 sales in order to remain Rod from Trinidad and Tobago (48 FR response, we found one sale in which consistent with FAG-US’ methodology 43206, 43208), and NTN Bearing SKF-Italy had booked the difference of not reporting 1993 rebates. Corporation of America v. United between the amount due and the Department’s Position: We agree with States, 14 CIT 623, 747 F. Supp. 726 amount paid by the customer as a cash Torrington that disallowing an (1990), Federal-Mogul argues that since discount. This occurred despite the fact adjustment for FAG-Italy’s estimated the pre-sale warehousing expenses are that, pursuant to SKF-Italy’s cash 1993 HM rebates is not the most directly related to sales to the one discount program, the customer did not appropriate means to account for customer served by the warehouse they qualify for a cash discount. However, in respondent’s failure to report estimated qualify as movement expenses and accordance with its reporting 1993 U.S. rebates. Accordingly, as BIA should be removed directly from the methodology for its discount program, for these final results we used the U.S. price. SKF-Italy did not claim a cash discount highest 1992 U.S. corporate rebate rate SKF-Italy notes that the Department on this sale in the response submitted to calculate corporate rebates for 1993 rejected a similar argument in a prior to the Department. Our further U.S. sales to customers that received review (see AFBs II at 28398) and examination of SKF-Italy’s cash rebates in 1992. We also made contends that no valid reason has been discounts confirmed that SKF-Italy’s adjustments to FMV for estimated 1993 presented to support a different result. reported cash discounts were made HM rebates as reported by respondents. SKF-Italy maintains that according to pursuant to the terms listed on the sales Comment 13: Torrington notes that the CIT’s definition of warehousing invoice. Furthermore, we examined changes to FAG-Italy’s packing labor expense in the Nihon Cement case cited SKF-Italy’s entire HM sales listing and and material expense factors outlined in by Federal-Mogul (‘‘expenses associated found no cash discounts that exceeded the analysis memo were not included in with putting aside merchandise in a the discount program outlined in the the margin program used to calculate structure or room for use when response. Therefore, we have accepted the preliminary results. In addition, needed’’), the expenses associated with SKF-Italy’s cash discounts for these Torrington contends that the exchange SKF’s FTZ bonded warehouse constitute final results. rate factor was applied twice to the warehousing expenses and not Comment 12: Torrington argues that adjustment for marine insurance. movement expenses. SKF-Italy further the Department’s preliminary decision FAG-Italy contends that the argues that the number of customers to deny FAG-Italy an adjustment for preliminary computer program does served by a warehouse does not in any 1993 HM rebates based on the fact that contain the appropriate adjustment way transform the expenses into FAG-Italy failed to report either actual factors for its U.S. packing labor and movement expenses. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10965 Department’s Position: We disagree that the only valid criterion in this Because SKF has provided no evidence with Federal-Mogul. SKF-Italy’s determination is price. Torrington to refute our findings that the average decision to position its merchandise in argues that there is a regulatory prices of certain models sold to related an SKF warehouse in close proximity to presumption that related-party sales parties are not comparable to the a customer does not necessarily indicate should be excluded in a calculation of average prices of these models sold to that the warehousing expense is directly FMV. Federal-Mogul and Torrington unrelated parties, other than reference related to sales. Unlike the situation in state that the burden is on the to statements by company personnel at Carbon Steel Wire Rod, where respondent, not the Department, to verification that these companies were merchandise was shipped pursuant to overcome this presumption by not related, we have continued to specific orders, the record indicates that demonstrating affirmatively that related- exclude these sales for the final results. SKF-Italy stores its merchandise in the party transaction prices are comparable See SKF Sverige AB Verification Report, bonded warehouse in anticipation of to prices to unrelated parties. February 23, 1994, and Rhone Poulenc future sales. See Final Determination of Torrington also asserts that SKF-Italy Inc. v. United States, 899 F. 2d 1185 Sales at Less Than Fair Value; Brass has failed to submit any data (Fed Cir. 1990). Sheet and Strip from the Republic of demonstrating that its prices to related Comment 16: FAG-Italy contends that Korea, 51 FR 40833 (November 10, and unrelated parties are comparable the Department improperly used zero- 1986). Although SKF-Italy sells to only and thus has not met its burden. priced U.S. sample and prototype sales one customer from its bonded Torrington and Federal-Mogul further in the calculation of USP because such warehouse, the warehousing expenses point out that SKF-Italy has provided no sales are not made in the ordinary are incurred prior to date of sale and evidence on the record regarding any course of trade and are therefore similar regardless of whether the anticipated particular related-party sales or the to the type of sales the statute permits sales are made. As a result, the price comparability of its related-party the Department to exclude in the HM. warehousing expenses are not directly sales. Additionally, FAG-Italy claims the related to individual sales, and the Department’s Position: We disagree Department is not required to review warehousing costs are properly with SKF-Italy. 19 CFR 353.45 provides each and every U.S. sale. that the Department ordinarily will classified as an indirect expense. Alternatively, FAG-Italy argues that if include related-party sales in the Therefore, in accordance with our the Department compares the U.S. zero- calculation of FMV only if it is satisfied decision in AFBs II (at 28398), we have price sample sales to HM sales in which that the sales were made at arm’s-length determined that SKF-Italy’s bonded value was received, the Department prices, i.e., that the prices of such sales warehousing expenses are properly should make a COS adjustment to are comparable to the prices at which treated as indirect selling expenses (see account for the different circumstances the seller sold such or similar also Final Determination of Sales at Less under which the sales were made. FAG- Than Fair Value; Tapered Roller merchandise to unrelated parties. For purposes of applying this provision, Italy argues that the Department should Bearings and Parts Thereof, Finished adjust FMV in the amount of the and Unfinished From Japan, 52 FR section 353.45 also refers to section 771(13) of the Tariff Act for the expenses directly associated with the 30700 (August 17, 1990); NTN Bearing U.S. sample sale and suggests reducing Corp. of America, American NTN definition of related parties. We FMV by the amount of the COP of the Bearing Manufacturing Corp., and NTN preliminarily determined that SKF-Italy U.S. sample sale. Toyo Bearing Co., Ltd. v. U.S. and made HM sales to customers related to SKF-Italy contends that the Timken Co., 747 F. Supp. 726 (CIT them as described in section 771(13)(D) Department should have excluded from 1990)). of the Tariff Act. Accordingly, we Comment 15: SKF-Italy argues that conducted an analysis to determine its margin analysis, as outside the the Department eliminated a number of whether these sales were made at arm’s- ordinary course of trade, two Italian HM transactions based on the erroneous length prices. Because we determined prototype products sold into the U.S. conclusion that such transactions that these sales were not made at arm’s- market. SKF-Italy claims that, based on reflected preferential prices to related length prices, we excluded them from the commercial, sales and cost data parties. SKF-Italy asserts that there is no our calculations of FMV. provided in response to the direct or indirect ownership or control On reexamination of the evidence on Department’s questionnaire, SKF-Italy’s between the companies, and that the the record, however, we determined that claim for exclusion should be allowed. relationship between the parties noted one of these HM customers in fact did Federal-Mogul and Torrington by the Department at verification has no not meet the definition of a related party contend that, in order to assure the influence on price. SKF-Italy also states as specified in section 771(13) of the validity of the Department’s sample, the that the Department’s comparison of Tariff Act. Therefore, for these final Department must not drop these U.S. average prices is insufficient to test the results we retained sales to this sample and prototype sales from its arm’s-length nature of the transactions customer SKF-Italy in calculating FMVs analysis. Federal-Mogul and Torrington because the Department included and did not include these sales in our further maintain that the arguments companies with no common ownership arm’s-length analysis for related-party regarding the ordinary course of trade interests and companies with ownership sales. are completely irrelevant because the interests of less than 20 percent, did not In determining whether prices to ordinary course of trade provision individually analyze the companies related parties are in fact arm’s-length applies only to the calculation of FMV, involved, and did not consider the prices, we rely on a comparison of not USP. Petitioners claim that section relative quantities involved. average unrelated-party prices for each 751(a)(2)(A) of the Tariff Act (19 USC Torrington maintains that the model to average related-party prices for 1675(a)(2)(A)) requires the Department Department will use sales to related the same models. When average prices to calculate the amount of duty payable parties as a basis for FMV only if it is to unrelated parties are predominantly on ‘‘each entry of merchandise’’ into the satisfied that the price is comparable to higher than average prices to related United States. Torrington states that this the price at which the producer or parties for the class or kind of provision should be compared with reseller sold such or similar merchandise, we disregard sales to section 773(a)(1)(A) of the Tariff Act (19 merchandise to unrelated parties, and related parties for that class or kind. USC 1677b(a)(1)(A)), which requires 10966 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices FMV to be calculated on the basis of Federal-Mogul argues that the record exists between the amount of duties sales in the ‘‘ordinary course of trade.’’ contains no evidence that SKF-Italy’s paid and the amount of duty drawback Federal-Mogul also rejects the idea of claimed duty drawback relates to actual claimed. We again accepted SKF-Italy’s a COS adjustment, arguing that the cost import duties paid on the contents of reported duty drawback adjustment in to produce the merchandise cannot exported merchandise. Specifically, AFBs III. Because SKF-Italy used the reasonably be used to quantify any Federal-Mogul contends that SKF-Italy same method to report duty drawback in difference between a sample sale and a has provided no evidence to this review as it did in the previous sale with a price because the cost to substantiate a link between the amount reviews, and in the absence of evidence produce the merchandise remains the of import duties paid and the amount of to the contrary, we conclude that SKF- same whether the producer sells it at a duty drawback claimed, and that the Italy’s duty drawback claim for this profit, sells it at a dumped price, or amount of claimed duty drawback review satisfies both prongs of our test. gives it away. exceeds the amount of import duties Further, Federal-Mogul’s assertion Department’s Position: The that SKF-Italy actually paid. In this that SKF-Italy’s duty drawback claim Department agrees with Federal-Mogul context, Federal-Mogul further contends includes amounts for indirect taxes is and Torrington. As set forth in AFBs II that SKF-Italy’s claimed duty drawback unsubstantiated. Although Federal- (at 28395), other than for sampling, adjustment includes not only refunded Mogul cited the Italian duty drawback there is neither a statutory nor a import duties, but also refunded statute in support of its assertion, it regulatory basis for excluding any U.S. internal taxes, which are not properly provided no specific evidence that SKF- sales from review. The Department must included in a duty drawback Italy’s duty drawback claim included examine all U.S. sales within the POR. adjustment. any indirect taxes. Therefore, consistent See Final Results of Antidumping Furthermore, Federal-Mogul argues with AFBs I, AFBs II and AFBs III, we Administrative Review; Color that the Department should not accept have accepted SKF-Italy’s duty Television Receivers From the Republic this claim even under its authority to drawback adjustment for these final of Korea, 56 FR 12701, 12709 (March 27, adjust USP for rebated or uncollected results. 1991). taxes. According to Federal-Mogul, 19 Comment 18: FAG-Italy requests that Although we have made COS USC 1677a(d)(1)(C) permits an the Department exclude from the final adjustments as required by section 773 adjustment to USP only for taxes margin calculations U.S. sales to related of the Tariff Act and 19 CFR 353.56, we imposed directly upon the merchandise. disagree with FAG-Italy’s argument that customers which they inadvertently Federal-Mogul asserts, however, that reported. FAG-Italy identified the sales a further COS adjustment should be SKF-Italy’s claimed adjustment includes made if the U.S. sample sales are not in question and noted that information amounts for taxes imposed both directly already on the record supports its excluded from the analysis. This and indirectly upon the exported position that these sales are to related adjustment is not warranted under merchandise. Therefore, Federal-Mogul U.S. customers and therefore should not sections 772 and 773 of the Tariff Act. concludes that SKF-Italy does not be included in the Department’s final FAG-Italy’s argument that a COS qualify for any upward adjustment to margin calculations. adjustment should be made when a USP even if its ‘‘duty drawback’’ is Torrington contends that such zero-price U.S. sale is compared either considered to be a refund of taxes by to HM sales in which value was reason of exportation. revisions are allowable only where the received or to CV, which includes SKF-Italy claims that the duty underlying data have been verified and profit, suggests that a COS adjustment drawback adjustment it submitted in the changes are small. Since the should be made because of the marked this review remains consistent with its modifications have not been verified, difference in the prices of the U.S. sale submissions in the previous three Torrington opposes the modifications ($0) and the comparable HM sale. administrative reviews and the LTFV requested by FAG-Italy. However, differences in prices do not investigation. Additionally, SKF-Italy Department’s Position: The customer constitute a bona fide difference in the notes that the Department verified its codes already submitted on the record circumstances of sale. duty drawback adjustment methodology by FAG-Italy support the position that Furthermore, it would clearly be in the second review. According to SKF- these sales were made to related U.S. contrary to the purpose of the dumping Italy, the Department should continue to customers. While the specific sales in law to make a COS adjustment in order reject Federal-Mogul’s argument since it question were not examined at to compensate for price discrimination. lacks any persuasive reasoning which verification, we did verify randomly- Moreover, we do not deduct expenses would make the Department conclude chosen sales made by FAG-Italy and directly related to U.S. sales from FMV that its reasoning in prior reviews is not found no discrepancies which would either in PP or ESP comparisons. In applicable for these final results. undermine our confidence in the making COS adjustments in PP Department’s Position: We disagree accuracy of the reported customer comparisons, U.S. selling expenses are with Federal-Mogul. As discussed in codes. We also note that FAG-Italy added to FMV, while in ESP response to the previous comment, we properly reported all subject resales comparisons U.S. selling expenses are apply a two-pronged test to determine made by related customers in the U.S. neither added to nor deducted from whether to grant a respondent’s claimed during the POR. FMV; they are deducted from USP. adjustment to USP for duty drawback. We note that the CIT has upheld the Finally, regarding FAG-Italy’s argument We applied this test in addressing the Department’s authority to permit that we should use the COP of U.S. issue of SKF-Italy’s claimed duty corrections to a respondent’s merchandise (SAMPCOPE) as the basis drawback adjustment in AFBs II. In that submission where the error is obvious for such an adjustment, the difmer review, we verified SKF-Italy’s duty from the record, and the Department can methodology accounts for appropriate drawback adjustment and, based on determine that the new information is differences in merchandise. those verification findings, accepted the correct. See NSK Ltd. v. United States, Comment 17: Federal-Mogul asserts adjustment for the final results (see 798 F. Supp. 721 (CIT 1992). Adopting that the Department should reject SKF- AFBs II at 28420). Thus, we previously Torrington’s argument would amount to Italy’s claim for an upward adjustment have determined that under the Italian a rule that such corrections can never be to USP for duty drawback. First, duty drawback system, a sufficient link made after verification. This is clearly Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10967 inconsistent with our practice and the has resumed dumping the subject results to indicate that we disregarded holdings of the CIT. merchandise. Furthermore, the record, sales below cost with respect to sales of FAG-Italy’s errors were obvious from including our verification findings, in AFBs from Germany by two companies. the record once brought to our attention. the past three reviews does not indicate EFFECTIVE DATE: February 28, 1995. It is in accordance with our that SKF-Italy’s U.S. market for CRBs is FOR FURTHER INFORMATION CONTACT: longstanding practice to exclude U.S. fictitious. We also find that Torrington’s Richard Rimlinger or Michael Rill, sales to related customers in favor of argument fails to make the case that Office of Antidumping Compliance, resales by such customers to unrelated SKF-Italy is likely to sell below FMV in Import Administration, International parties. Therefore, we have removed the future merely because SKF is a Trade Administration, U.S. Department FAG-Italy’s sales to related U.S. multinational corporation. Torrington’s of Commerce, 14th Street and customers from the margin calculations argument merely points to a possibility Constitution Avenue, NW., Washington, for these final results. of evasion by SKF-Italy in the future, DC 20230; telephone (202) 482–4733. Comment 19: Torrington asserts that and does not present any evidence that the Department should deny SKF-Italy’s SKF-Italy is likely to engage in such SUPPLEMENTARY INFORMATION: request to revoke the antidumping duty behavior. If we find evidence of evasion, Background order regarding CRBs. Torrington notes we will take appropriate action. Finally, On February 3, 1995, the Department that revocation is permissible only if the since Torrington has made no other issued the final results of its requesting company is unlikely to sell arguments indicating that SKF-Italy is administrative reviews of the below FMV in the future. Torrington likely to resume dumping, we are contends the circumstances indicate satisfied that the respondent is not antidumping duty orders on AFBs from that this is doubtful, since SKF-Italy is likely to sell the merchandise in the France, Germany, Japan, Romania, part of a larger multinational future at less than FMV, and we agree Singapore, Sweden, Thailand, and the organization which has preliminarily with respondent that the requirements United Kingdom. The notice of these received dumping margins for CRBs in for revocation have been met. final results is published in this issue of the Federal Register. The classes or other countries. Furthermore, [FR Doc. 95–4616 Filed 2–27–95; 8:45 am] kinds of merchandise covered by these Torrington contends that the minuscule BILLING CODE 3510±DS±P amount of CRBs sold in the U.S. market reviews were BBs, CRBs, and SPBs. The by SKF-Italy during the POR is not reviews covered 29 manufacturers/ sufficient to show a pattern of continued [A±588±804, A±428±801] exporters and the period May 1, 1992, fair pricing and may even indicate a through April 30, 1993. fictitious market. Antifriction Bearings (Other Than Subsequent to the issuance of our SKF responds that Torrington has Tapered Roller Bearings) and Parts final results, Koyo alleged a clerical presented no legal basis on which to Thereof From Japan and Germany; error per its letter of February 7, 1995. deny revocation. SKF argues that since Amendment to Final Results of We determined there was a ministerial neither the antidumping law nor the Antidumping Duty Administrative error in the calculation of COP and CV Department’s regulations mandate a Reviews in the final results for AFBs from Japan different standard for revocation for AGENCY: Import Administration, sold by Koyo. Specifically, in those multinational corporations, Torrington’s International Trade Administration instances where Koyo reported finished argument concerning SKF’s Department of Commerce. or semi-finished bearings purchased from other suppliers, we included both multinational activity for purposes of ACTION: Notice of amendment to final the total cost of manufacturing (COM) revocation is irrelevant. results of antidumping duty and the acquisition cost of such bearings SKF-Italy also contends that even if administrative reviews. SKF-Italy’s sales could be considered in the calculation of COP and CV. This minimal, there is nothing in the SUMMARY: On February 3, 1995, the effectively doubled the COM for these Department’s regulations to indicate Department of Commerce (the purchased bearings since Koyo’s that minimal sales in a given year would Department) issued the final results of acquisition cost is its COM for these preclude revocation. Moreover, SKF- its administrative reviews of the bearings. We have therefore corrected Italy argues that since the level of sales antidumping duty orders on antifriction our calculation of Koyo’s COP and CV. at issue in this review is significantly bearings (other than tapered roller Sales Below Cost in the Home Market— greater than the quantity of sales upon bearings) and parts thereof (AFBs) from Germany which the Department made its initial France, Germany, Japan, Romania, LTFV determination, and upon which Singapore, Sweden, Thailand, and the With respect to AFBs from Germany, the order was based, it should be United Kingdom. The classes or kinds of the final results issued on February 3, considered an acceptable level on which merchandise covered by these reviews 1995, and published in this issue of the to base revocation. are ball bearings and parts thereof (BBs), Federal Register inadvertently failed to Department’s Position: Under 19 CFR cylindrical roller bearings and parts indicate that we disregarded certain 353.25(a)(2)(i), the Department may thereof (CRBs), and spherical plain sales below cost in the home market. revoke an order in part if it finds sales bearings and parts thereof (SPBs). The Those omitted were sales of SPBs by at not less than FMV for a period of at reviews covered 29 manufacturers/ FAG and BBs by Fichtel & Sachs. least three consecutive years. The exporters and the period May 1, 1992, Concerning AFBs from Germany, the results in this review, combined with through April 30, 1993. Based on Department disregarded sales below the results in the two prior reviews, corrections to the calculation of cost of cost for the following firms and classes satisfies this requirement for SKF-Italy production (COP) and constructed value or kinds of merchandise: in the antidumping duty proceeding for (CV), we are amending the final results Class or kind of CRBs. Additionally, the respondent has with respect to Japanese ball bearings Country Company merchandise agreed, pursuant to 19 CFR and cylindrical roller bearings sold by 353.25(a)(2)(iii), to the immediate one company, Koyo Seiko Co., Ltd. and Germany FAG ...... BBs, CRBs, reinstatement of the order if Koyo Corporation of U.S.A. (collectively SPBs. circumstances develop indicating that it Koyo). We are also amending our final INA ...... BBs, CRBs. 10968 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices Class or kind of Based on these results, we will direct antidumping duties prior to liquidation Country Company merchandise the Customs Service to collect cash of the relevant entries during this deposits of estimated antidumping review period. Failure to comply with SKF ...... BBs, CRBs, duties on all appropriate entries in this requirement could result in the SPBs. accordance with the procedures Secretary’s presumption that Fichtel & Sachs BBs. discussed in the final results of these reimbursement of antidumping duties reviews. occurred and the subsequent assessment Amended Final Results of Reviews These deposit requirements are of double antidumping duties. effective for all shipments of the subject As a result of our corrections, we have This notice is published in merchandise entered, or withdrawn determined the following percentage accordance with section 751(f) of the from warehouse, for consumption on or weighted-average margins to exist for Tariff Act of 1930, as amended (19 after the date of publication of this U.S.C. 1675(f)) and 19 CFR 353.28(c). the period May 1, 1992 through April notice and shall remain in effect until 30, 1993: publication of the final results of the Dated: February 17, 1995. next administrative reviews. Susan G. Esserman, Company BBs CRBs This notice also serves as a reminder Assistant Secretary for Import to importers of their responsibility Administration. Koyo ...... 14.28 3.54 under 19 CFR 353.26 to file a certificate [FR Doc. 95–4617 Filed 2–27–95; 8:45 am] regarding the reimbursement of BILLING CODE 3510±DS±P federal register February 28,1995 Tuesday Proposed Rule Alternative FuelTransportationProgram; 10 CFRPart490 Renewable Energy Office ofEnergyEfficiencyand Energy Department of Part III 10969 10970 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules DEPARTMENT OF ENERGY hearing should be addressed to: U.S. I. Introduction Department of Energy, Office of Energy Pursuant to title V of the Energy Office of Energy Efficiency and Efficiency and Renewable Energy, EE– Policy Act of 1992 (Act) (Pub. L. 102– Renewable Energy 33, Docket Number EE–RM–95–110, 486), the Department of Energy 1000 Independence Ave., SW, 10 CFR Part 490 (Department or DOE) today proposes Washington, DC 20585, (202) 586–3012. rules required by law to implement [Docket No. EE±RM±95±110] The public hearings will be held at the statutorily-imposed alternative fueled following locations: RIN 1904±AA64 vehicle acquisition requirements that 1. Chicago—University of Illinois at take effect by operation of law on Alternative Fuel Transportation Chicago, Chicago Circle Center Building September 1, 1995, when model year Program (Student Union), Room 605 (6th floor), 1996 begins. These statutory 750 S. Halsted Street, Chicago, IL. requirements establish that specified AGENCY: Office of Energy Efficiency and 2. Berkeley—Lawrence Berkeley percentages of vehicles acquired by Renewable Energy, Department of Laboratory, 1 Cyclotron Road, Building covered fleets must be alternative fueled Energy (DOE). 50 Auditorium, Berkeley, CA 94720. vehicles. These requirements apply to ACTION: Notice of Proposed Rulemaking The Lawrence Berkeley Laboratory certain alternative fuel providers and and Public Hearings. (LBL) Shuttle stops at Center Street and some State government fleets. The Shattuck Street as well as the BART SUMMARY: The Department of Energy statutory percentages for model year station and downtown public parking 1996 are 30 percent for affected today proposes rules required by the lots. Energy Policy Act of 1992 in order to alternative fuel providers and 10 3. Washington, DC—U.S. Department implement statutorily-imposed percent for affected State government of Energy, Forrestal Building, alternative fueled vehicle acquisition fleets, and these percentages increase Auditorium, 1000 Independence requirements that become effective by over time. This notice of proposed Avenue, SW, Washington, DC 20585. operation of law on September 1, 1995, rulemaking principally covers: (1) Copies of transcripts from hearings when model year 1996 begins. These Required interpretations of statutory and written comments may be inspected statutory requirements apply to certain provisions essential for affected entities and photocopied in the DOE Freedom of alternative fuel providers and some to determine whether and to what Information Reading Room, Room 1E– State government vehicle fleets. The extent the mandatory vehicle 190, (202) 586–6020, between the hours proposed rules principally cover: (1) acquisition requirements apply; (2) of 9:00 a.m. and 4:00 p.m. Monday Required interpretations necessary for procedures for exemptions and through Friday, except Federal holidays. affected entities to determine whether administrative remedies; and (3) a and to what extent the statutory For more information concerning program of marketable credits to reward requirements apply; (2) required public participation in this rulemaking voluntary acquisition of alternative procedures for exemptions and see the ‘‘Opportunity for Public fueled vehicles in excess of mandatory administrative remedies; and (3) a Comment’’ section found in the requirements or before the requirements program of marketable credits to reward Supplementary Information section of take effect, and to allow use of such whose who voluntarily acquire vehicles this proposed rule. credits as an alternative means of in excess of mandated requirements or FOR FURTHER INFORMATION CONTACT: For compliance. This notice also before the requirements take effect, and information concerning the proposed summarizes, and is accompanied by, a to allow use of such credits in order to rule: Mr. Kenneth R. Katz, Program detailed cost impact analysis for public demonstrate compliance with those Manager, Office of Energy Efficiency review. requirements. and Renewable Energy (EE–33), U.S. A. Background DATES: Written comments (8 copies and, Department of Energy, 1000 Independence Avenue SW., A primary goal of the Energy Policy if possible, a computer disk) on the Act of 1992 (the Act) (Pub. L. 102–486) proposed rule must be received by the Washington, DC 20585. (202) 586–6116. Josephine B. Patton, Esq., U.S. is to enact a comprehensive national Department on or before May 1, 1995. energy policy that strengthens U.S. Oral views, data, and arguments may Department of Energy, Office of General energy security by reducing dependence be presented at public hearings which Counsel (GC–72), 1000 Independence on imported oil. Currently, the United are scheduled as follows: Avenue SW., Washington, DC 20585. 1. March 23, 1995, beginning at 9:30 (202) 586–9507. States consumes seven million barrels of a.m. in Chicago, Illinois. For information concerning the public oil more per day than it produces. 2. March 30, 1995, beginning at 9:30 hearings and submitting written Section 502 of the Act (42 U.S.C. 13252) a.m. in Berkeley, California. comments: Andi Kasarsky, (202) 586– provides goals of a 10 percent 3. April 4, 1995, beginning at 9:30 3012. displacement in U.S. motor fuel a.m. in Washington, DC. consumption by the year 2000 and a 30 Requests to speak at a hearing should SUPPLEMENTARY INFORMATION: percent displacement in U.S. motor fuel be submitted to the Department no later I. Introduction consumption by the year 2010 through than 4 p.m. on: II. Section-By-Section Analysis the production and increased use of 1. March 20, 1995 for the March 23, III. Opportunity for Public Comment replacement fuels. Section 504 of the 1995 Chicago, Illinois, hearing. IV. Review Under Executive Order 12612 Act (42 U.S.C. 13254) allows the 2. March 27, 1995 for the March 30, V. Review Under Executive Order 12778 Secretary to revise these goals 1995 Berkeley, California, hearing. VI. Review Under Executive Order 12866 downward. According to the latest 3. March 30, 1995 for the April 4, VII. Review Under the Regulatory Flexibility projections by the Energy Information Act 1995 Washington, DC, hearing. Administration, the transportation The length of each oral presentation is VIII. Review Under the Paperwork Reduction Act sector will consume 13.1 million barrels limited to 10 minutes. IX. Review Under the National per day of petroleum in 2010. Of this ADDRESSES: Written comments (8 Environmental Policy Act total, about 7.4 million barrels per day copies) and requests to speak at a public X. Impact on State Governments of petroleum are projected to be used by Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10971 light duty vehicles. The Energy fueled vehicles. Title III also sets forth investigative and enforcement Information Administration also mandatory requirements for Federal authorities which also apply to estimates that 65 percent of our total fleet acquisitions of alternative fueled alternative fuel providers, state petroleum demand will be imported in vehicles, which began in fiscal year governments, and private and municipal 2010. 1993. fleets. In a separate notice, the The greatest gains in displacing Title IV includes a financial incentive Department will be proposing rules for petroleum motor fuel consumption by program for states, a public information the financial incentive program for the year 2010 are expected to occur by program, and a program for certifying States under section 409 of the Act. 42 replacing gasoline with alternative fuels alternative fuel technician training U.S.C. 13235. such as electricity, ethanol, hydrogen, programs. As provided by section 507, DOE will methanol, natural gas and propane, in a Title V provides for separate be initiating a statutorily required portion of the U.S. car and truck regulatory mandates for the purchase of rulemaking to determine whether a fleet population, which is projected to be in alternative fueled vehicles which apply requirement program is necessary for excess of 200 million vehicles in the to: (1) Alternative fuel providers; (2) private and municipal fleets, 42 U.S.C. year 2010. Currently, alternative fueled State government fleets; and (3) private 13257. Section 507 contains complex vehicles comprise a small fraction of the and municipal fleets. These mandates requirements for making such a total U.S. vehicle stock. According to set forth annual percentages of new light determination, and it is not clear at this the Energy Information Administration, duty motor vehicle acquisitions which time what determination will be made. of the 180 million light duty vehicles must be alternative fueled vehicles. The Nevertheless, private persons (other registered in 1992, 250,000 were minimum acquisition requirements are than alternative fuel providers) and alternative fueled vehicles. Of this total, phased-in, escalating from year to year municipal authorities may be interested about 221,000 were fueled by liquified until reaching a fixed percentage. The in reviewing and commenting on the petroleum gas (propane), about 24,000 acquisition schedules for alternative proposed rules in the general subpart A were fueled by compressed natural gas, fuel providers and State governments and subpart F (credit program) of this and about 3,400 were fueled by automatically take effect at the notice which could apply to private and methanol or ethanol. The remaining beginning of model year 1996. The municipal fleet owners if the quantity of vehicles was comprised of acquisition schedule for private and Department were to issue rules for a municipal fleets in section 507(a) is a electric vehicles and vehicles fueled by private and municipal fleet requirement tentative schedule which may only take liquified natural gas. In 1994, it is program. expected that 300,000 alternative fueled effect if confirmed in a DOE rulemaking. With respect to alternative fuel vehicles will be registered in the U.S. Such a rulemaking could conclude that providers, there is discretion in section and that the proportion of vehicles imposition of a vehicle acquisition 501(b) of the Act to reduce the operating on each fuel will be mandate on private and municipal fleets acquisition percentage requirements to approximately the same. (Alternatives to is not appropriate. as low as 20 percent for model years Traditional Transportation Fuels: An Title V also allows for credits for new 1997 and beyond, and to extend the Overview, DOE/EIA–0585/0, 1994) light duty alternative fueled motor To enable the Act’s displacement vehicles acquired beyond what is legally time to comply for up to two years. 42 goals to be met, alternative fuels must be required. These credits may be sold and U.S.C. 13251(b). The Department readily accessible and motor vehicles used by other persons or fleets subject currently does not intend to exercise its that operate on these alternative fuels to a vehicle acquisition mandate. discretion under section 501(b). The must be available for purchase. Thus, Finally, title V contains investigative Department seeks comment on the two important elements of reducing and enforcement authorities including conditions under which it should petroleum motor fuel consumption are: provisions for civil penalties and, in propose a rule to reduce the percentage a nationwide alternative fuels certain circumstances, criminal fines for requirements. There is no similar infrastructure and the availability of noncompliance with the statutory provision in section 507 authorizing alternative fueled vehicles for purchase mandates and implementing modifications to the vehicle acquisition at a reasonable cost by the general regulations. mandate on state governments. See 42 public in a wide variety of vehicle types Title VI of the Act contains a variety U.S.C. 13257(h), (o). and fueling options. of authorities to promote development 2. Who must comply and which and utilization of electric motor vehicles are covered. The vehicle B. Description of the Energy Policy Act vehicles. More specifically, subtitle A acquisition mandate applicable to Alternative Fuel Transportation provides for a commercial alternative fuel providers is set forth in Program’s Basic Provisions demonstration program, and subtitle B section 501 of the Act, 42 U.S.C. 13251. 1. General structure. Titles III, IV, V, provides for an infrastructure and There are a series of subsections in and VI of the Act contain the basic support systems development program. section 501 which, when read in provisions for regulatory mandates and This notice of proposed rulemaking conjunction with certain definitions in authorities, as well as various financial focuses principally on: (1) The general section 301 of the Act, make the task of incentives, all of which are aimed at definitions of title III applicable to determining who must comply and to displacing substantial quantities of oil alternative fuel providers, state what extent the vehicle inventory is consumed by motor vehicles. Title III governments, and private and municipal affected a complex matter. contains general definitions which set fleets; (2) procedures for obtaining The vehicle acquisition mandate forth legislatively mandated policy interpretive rulings applying the applicable to states in section 507(o) of essential to understanding: (1) What regulations to particular facts; (3) the the Act, 42 U.S.C. 13257, also has to be constitutes an alternative fueled vehicle; title V vehicle acquisition mandates read in conjunction with the definitions (2) who must comply with regulatory applicable to alternative fuel providers in section 301. While it is clear that the mandates to acquire such vehicles; and and to state governments; (4) the credit mandate in section 507(o) applies to (3) the extent to which a regulated program applicable to alternative fuel state governments as distinguished from entity’s inventory of vehicles is subject providers, state governments, and municipal governments, determining to mandates to acquire alternative private and municipal fleets; and (5) the the extent to which a State’s vehicle 10972 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules inventory is subject to the mandate is ‘‘covered person’’ means a person that Paragraph (a)(2) appears to be a also a complex matter. owns, operates, leases, or otherwise description of alternative fuel providers The beginning of an understanding of controls— subject to the vehicle acquisition who must comply with the regulatory (A) a fleet that contains at least 20 mandate. The proposed regulations mandates in title V, and of which motor vehicles that are centrally fueled interpret the underscored phrase vehicles are in the base number against or capable of being centrally fueled, and ‘‘principal business.’’ which the acquisition percentages are are used primarily within a The statutory refinement of which applied, lies in the partially overlapping metropolitan statistical area or a ‘‘covered persons’’ must comply and to statutory definitions of the terms ‘‘fleet’’ consolidated metropolitan statistical what extent continues in subsection and ‘‘covered person.’’ The statutory area, as established by the Bureau of the (a)(3) of section 501 which provides definition of ‘‘fleet,’’ in section 301(9), Census, with a 1980 population of that: provides that the term ‘‘fleet’’ means a 250,000 or more; and (A) In the case of a covered person group of 20 or more light duty motor (B) at least 50 motor vehicles within described in paragraph (2) with more vehicles, used primarily in a the United States. than one affiliate, division, or other metropolitan statistical area or The term ‘‘fleet’’ is used for making business unit, only an affiliate, division, consolidated metropolitan statistical determinations with regard to who must or business unit which is substantially area, as established by the Bureau of the comply, and to what extent, with the engaged in the alternative fuels business Census, with a 1980 population of more vehicle acquisition mandates in section (as determined by the Secretary by rule) than 250,000, that are centrally fueled or 507 on state governments, private shall be subject to this subsection. capable of being centrally fueled and are persons, and municipal governments. (B) No covered person or affiliate, owned, operated, leased or otherwise The term ‘‘covered person’’ is used for division, or other business unit of such controlled by a governmental entity or making such determinations with regard person whose principal business is— other person who owns, operates, or to the vehicle acquisition mandate on (i) transforming alternative fuels into otherwise controls 50 or more such alternative fuel providers in section 501 a product that is not an alternative fuel; vehicles, by any person who controls of the Act. or (ii) consuming alternative fuels as a such person, by any person controlled Under section 507, only a ‘‘fleet’’ is feedstock or fuel in the manufacture of by such person, and by any person obligated to comply. Congress appears a product that is not an alternative fuel under common control with such to have used the word ‘‘fleet’’ rather shall be subject to this subsection. person, except that such term does not than ‘‘covered person’’ to limit the affected portion of the vehicle inventory Paragraph (a)(3) of section 501 has include— two effects. First, it limits the vehicle (A) motor vehicles held for lease or to the vehicles in the ‘‘fleet.’’ By acquisition mandate of paragraph (a)(1) rental to the general public; contrast, under section 501(a), certain (B) motor vehicles held for sale by ‘‘covered persons’’ are obligated to to the vehicles owned, operated, leased, motor vehicle dealers, including comply, and consequently, the section or otherwise controlled by certain demonstration vehicles; 501 vehicle acquisition mandate affiliates, divisions or other business of (C) motor vehicles used for motor potentially applies to all vehicles in the major energy producing corporations. vehicle manufacturer product inventory throughout the United States Second, it excludes from coverage those evaluations or tests; and not just those vehicles in a ‘‘fleet’’ covered persons, affiliates, divisions, or (D) law enforcement motor vehicles; of a ‘‘covered person’’ who is subject to other business units that use an (E) emergency motor vehicles; the mandate. 42 U.S.C. 13251. However, alternative fuel to create a product other (F) motor vehicles acquired and used the potentially broad impact of section than an alternative fuel. It is possible for military purposes that the Secretary 501(a) is heavily qualified by the when the definitions of ‘‘affiliate’’ and of Defense has certified to the Secretary succeeding subsections of section 501, ‘‘covered person’’ are applied to an must be exempt for national security which limit the sweeping impact of entity, it may be both. However, merely reasons; section 501(a) both with regard to who being an affiliate does not necessarily (G) nonroad vehicles, including farm must comply and the extent of the mean that an entity must also be a and construction motor vehicles; or affected vehicle inventory. covered person. (H) motor vehicles which under Paragraph (a)(2) of section 501 limits Section 501(a)(5) provides for normal operations are garaged at application of the vehicle acquisition petitions for exemption in certain personal residences at night. mandate to a subset of covered persons circumstances for alternative fuel In the section-by-section analysis in consisting of: providers who otherwise would have to part II of this Supplementary (A) A covered person, whose comply. The exemptions are available Information, DOE explains proposed principal business is producing, storing, for those alternative fuel providers who regulatory provisions related to the refining, processing, transporting, can show that alternative fuels are not above-quoted statutory definition of distributing, importing, or selling at available in the operating area or that ‘‘fleet.’’ Among other things, DOE: (1) wholesale or retail any alternative fuel alternative fueled vehicles are not Lists all of the relevant metropolitan other than electricity; reasonably available. statistical areas and consolidated (B) A non-Federal covered person There is a parallel exemption metropolitan statistical areas; (2) defines whose principal business is generating, provision applicable to State ‘‘centrally fueled’’ and ‘‘capable of being transmitting, importing, or selling at governments in section 507(i). 42 U.S.C. centrally fueled’’; (3) discusses in some wholesale or retail electricity; or 13257(i). That provision also makes detail how the provisions for (C) A covered person— ‘‘financial hardship’’ a ground for aggregating vehicles are interpreted; and (i) Who produces, imports, or exemption. However, section 507 does (4) provides interpretive regulatory produces and imports in combination, not define ‘‘financial hardship,’’ and the language for some of the exclusions. an average of 50,000 barrels per day or legislative history is devoid of any The word ‘‘fleet,’’ with all its more of petroleum; and guidance as to what circumstances complexities, is embedded in the (ii) A substantial portion of whose would constitute ‘‘financial hardship.’’ definition of the term ‘‘covered person’’ business is production of alternative The Department would welcome at section 301(5) which provides that fuels * * *. comments from States making Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10973 recommendations as to how to interpret differences between the two pieces of energy equivalent basis. Reformulated and apply the term ‘‘financial hardship’’ legislation are more important. The gasoline is an enumerated ‘‘clean in practice. critical differences are: (1) The primary alternative fuel’’ in section 241 of the In the section-by-section analysis in goal of the EPA program is to Clean Air Act. 42 U.S.C. 7581. It is not part II of this Supplementary significantly improve air quality mentioned at all in the definition of Information, the Department through reduced emissions of pollutants ‘‘alternative fuel’’ in section 301 of the systematically distinguishes between and the primary goal of the DOE Energy Policy Act of 1992. Section proposed regulatory text that tracks the program is to strengthen national energy 301(2) provides that the term statutory language and proposed security by reducing dependence on ‘‘alternative fuel’’ means methanol, regulatory text that represents what the imported oil; (2) the lists of fuels denatured ethanol, and other alcohols; Department is proposing to add, such enumerated in the definitions of ‘‘clean mixtures containing 85 percent or more as, proposed procedures and alternative fuel’’ under section 241 of (or such other percentage, but not less interpretations. Members of the public the Clean Air Act and of ‘‘alternative than 70 percent, as determined by the are particularly encouraged to comment fuel’’ under section 301 of the Energy Secretary, by rule, to provide for cold on the proposed regulations in the latter Policy Act of 1992 are not identical, and start, safety, or vehicle functions) by category. Members of the public are the Department’s rulemaking discretion volume of methanol, denatured ethanol, reminded that many of the details of the to add to the section 301 list is limited and other alcohols with gasoline, or complex program described in this by stringent statutory standards; (3) the other fuels; natural gas; liquified proposal are specified in the statute, and EPA program applies to fleets as small petroleum gas; hydrogen; coal-derived thus are not within the Department’s as 10 vehicles while 20 is the minimum liquid fuels; fuels (other than alcohol) discretion to change. number of vehicles for a fleet as defined derived from biological materials; 3. Comparison to Environmental by section 301; (4) the EPA program electricity (including electricity from Protection Agency (EPA) Fleet applies to light duty motor vehicles (up solar energy); and any other fuel the Requirement Program. As many State to 8,500 gross vehicle weight rating) and Secretary determines, by rule, is and local officials and members of the heavy duty motor vehicles (up to 26,000 substantially not petroleum and would public are undoubtedly aware, there is gross vehicle weight rating) while the yield substantial energy security a fleet requirement program under the DOE program applies only to light duty benefits and substantial environmental provisions of the Clean Air Act, (42 motor vehicles; (5) the States will benefits. U.S.C. 7401 et seq.), that is somewhat administer the EPA program while DOE Each of the above-underscored similar to those in the Energy Policy Act will directly administer the Energy phrases sets forth limited authority for of 1992. Section 246 of the Clean Air Policy Act program; and (6) the EPA the Department to add fuels to the Act requires each State in which there program applies only to fleets in 22 definition of ‘‘alternative fuel.’’ Under is located all or part of an ozone non- ozone or carbon monoxide attainment area classified as extreme, either authority, the Department must nonattainment areas while the DOE undertake notice and comment severe, or serious under the Clean Air program applies to fleets in Act, or a carbon monoxide non- rulemaking under the Administrative approximately 121 areas including both Procedure Act, 5 U.S.C. § 553, to add a attainment area with a design value at nonattainment and attainment areas. fuel to the statutory list. The or above 16.0 parts per million, to The Department recognizes that fleet Department did not include in today’s submit a state implementation plan owners and operators who are subject to revision establishing a clean fuel vehicle the EPA and the DOE fleet requirement proposal a provision adding program providing that, beginning in programs would like to use the same reformulated gasoline to the definition model year 1998, certain percentages of vehicles and fuels to comply with both. of ‘‘alternative fuel.’’ The percentage of covered fleet vehicles be clean fuel In order to minimize differences, the petroleum in reformulated gasoline, at vehicles operating on clean alternative Department has reviewed EPA’s least 90 percent of the total volume, is fuels. 42 U.S.C. 7586. Section 241 of the rulemaking notice implementing its too large to warrant proposing to make Clean Air Act contains definitions for statutory provisions, 40 CFR part 88; 58 any of the necessary substantive the terms ‘‘clean alternative fuel,’’ FR 64679 (December 9, 1993), and determinations described above. To the ‘‘covered fleet,’’ and ‘‘covered fleet followed EPA’s lead where legally extent that reformulated gasoline is an vehicle’’ that contain some phrases later permissible and consistent with the alcohol/gasoline mixture, it does not used in the definitions in section 301 of Act’s policy goals. Nevertheless, there meet the minimum 70 percent alcohol the Energy Policy Act of 1992. Compare are some unavoidable differences that volume requirement described above. 42 U.S.C. 7581 with 42 U.S.C. 13211. will constrain the options of those fleet To the extent that reformulated gasoline For example, the definition of ‘‘covered owners and operators interested in is some other kind of mixture, the 90 fleet vehicle’’ in section 241 refers to using the same vehicles and fuels to percent petroleum volume precludes a motor vehicles ‘‘* * * in a covered fleet comply simultaneously with both determination that the mixture is which are centrally fueled (or capable of statutory requirements. Where relevant, ‘‘substantially not petroleum’’ and being centrally fueled). * * *.’’ the Department identifies the basis for would ‘‘substantially enhance energy [Emphasis added.] 42 U.S.C. 7581(6). those differences in parts of the security.’’ That phraseology is similar to the Supplementary Information that follow Members of the public are invited to definitions of ‘‘fleet’’ and ‘‘covered hereafter. Members of the public are comment on the Department’s person’’ in section 301 of the Energy invited to comment on ways the determination not to propose a rule that Policy Act of 1992 which refer to motor Department could lawfully make it would include reformulated gasoline as vehicles ‘‘* * * that are centrally fueled easier to comply with both statutory an ‘‘alternative fuel’’ under section 301. or capable of being centrally fueled requirements. II. Section-By-Section Analysis ** *.’’ 42 U.S.C. 13211(5)(A), 4. Reformulated gasoline. Although 13211(9). percentages can vary to a small degree, This part of the Supplementary While such similarities in statutory it is the Department’s understanding Information discusses those provisions text are significant and should not be that reformulated gasoline is comprised of the proposed regulations that are not ignored in formulating regulations, the of over 90 percent petroleum on an self-explanatory. 10974 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules A. Subpart A—General Subpart vehicles either centrally fueled or range is the distance a vehicle is able to Definition of ‘‘Fleet’’ capable of being centrally fueled, may travel on a round trip with a single result in a ‘‘fleet’’ or ‘‘covered person’’ refueling. The operational range should In order to promote easier that is subject to the acquisition be no less than 50 percent of the average understanding, DOE has divided the requirements of the Act. range of the existing fleet and in no statutory definition into two parts. The In determining whether 20 or more instance should be less than 300 miles. main paragraph in the statutory light duty motor vehicles within a MSA It is important to note that the fuel in definition appears in proposed § 490.2 or CMSA are centrally fueled or capable question is the fuel that the vehicle under the word ‘‘fleet.’’ This proposed of being centrally fueled, the currently operates on. DOE believes that regulatory definition of ‘‘fleet’’ cross organization must also consider this proposed definition will allow references proposed § 490.3, that situations where vehicles that are fleets and covered persons to easily describes the categories of vehicles centrally fueled or capable of being determine which vehicles are ‘‘capable excluded from the definition. centrally fueled are present in more of being centrally fueled.’’ DOE requests In the proposed definition of ‘‘fleet,’’ than one location within the MSA or comment on this definition of there is a cross reference to proposed CMSA. The number of vehicles at all operational range, and on the appendix A to subpart A which sets locations that are centrally fueled or operational range of alternative fueled forth a list of metropolitan statistical capable of being centrally fueled must vehicles which may be required to areas (MSAs) and consolidated be totaled. For example, if a fleet or comply with this program. metropolitan statistical areas (CMSAs), covered person has 12 vehicles at In defining the same phrase in 40 CFR as defined by the Bureau of the Census, location A that are centrally fueled or 88.302–94, EPA provided that the with the requisite 250,000 population as capable of being centrally fueled and 10 presence of one or more nonconforming of the 1980 census. The statutory vehicles at location B that are also vehicles in a fleet does not exempt an definition of ‘‘fleet’’ does not state centrally fueled or capable of being entire fleet from the requirements of this whether the list must be updated in centrally fueled, the organization has 22 program; those vehicles that are capable light of changes in the geographic areas vehicles in a MSA or CMSA that are of being centrally fueled will count designated by the Bureau of the Census centrally fueled or capable of being towards the 20-vehicle minimum fleet as MSAs and CMSAs which meet the centrally fueled. size. DOE agrees, but does not find a 1980 population requirement of the Act. In providing that contract fueling is a need to include a phrase to this effect The proposed rule allows DOE to method of being centrally fueled, retail in the definition of ‘‘capable of being update the list, but DOE may delete this credit card purchases by themselves are centrally fueled.’’ provision in the final rule to eliminate not considered to be a contractual The DOE proposed definition differs uncertainty. Members of the public are refueling agreement. However, from the EPA definition of ‘‘capable of invited to comment on this choice. commercial fleet credit cards are being centrally fueled,’’ at 40 CFR Consistent with the statutory considered to be a contractual refueling 88.302–94, because the DOE proposed language, the proposed definition agreement, since they are intended as a definition does not require that vehicles requires that there be a minimum of 20 special fuel arrangement for fleet covered must be capable of being light duty motor vehicles ‘‘used purchases alone. The intent of DOE’s centrally fueled 100 percent of the time. primarily’’ in a relevant statistical area. definition is to ensure that only those In developing its definition, EPA had to DOE is proposing to interpret those fleet-based agreements which provide consider the fueling characteristics of words to mean that the majority of the special fleet refueling benefits at a both light duty and heavy duty vehicles. vehicles’ total miles are accumulated particular facility or group of facilities EPA amended its proposed definition to within a covered statistical area. would qualify as central fueling. DOE reflect the 100 percent fueling With regard to fleet fueling does not intend the definition of requirement based on the comments of characteristics, the statutory and ‘‘centrally fueled’’ to pertain to fleet heavy duty engine manufacturers, who proposed regulatory definition of ‘‘fleet’’ service card agreements which include argued that vehicles purchased by heavy provide that the vehicles be ‘‘centrally a wide network of fuel providers, unless duty vehicle fleet operators in order to fueled or capable of being centrally the service card agreement effectively comply with the Clean Fuel Fleet fueled.’’ Proposed § 490.2 defines the operates as a commercial refueling Program would have to be dedicated to term ‘‘centrally fueled’’ as meaning that arrangement between a circumscribed a single fuel that may not be widely a vehicle is fueled 75 percent of the time subset of such refueling facilities and a available. It appears that if the heavy at a location that is owned, operated, or given fleet operator. duty vehicles had not been involved in controlled by a fleet or covered person Proposed § 490.2 defines the term the program that EPA would have or is under contract with the fleet or ‘‘capable of being centrally fueled’’ as settled on the 75 percent figure. DOE covered person. meaning a vehicle can be refueled at did not take these comments into It should be noted that simply least 75 percent of its time at a location, consideration when developing the because a fleet vehicle is not centrally that is owned, operated, or controlled by proposed definition because the Act has fueled does not mean it is exempt from the fleet or covered person, or is under no requirement for fleets to acquire counting, because the statutory contract with the fleet or covered heavy duty vehicles. Thus, separate requirement covers those vehicles that person. One method that DOE is heavy duty vehicle fueling are centrally fueled or are capable of proposing for determining central characteristics do not have to be being centrally fueled. It is possible that fueling capability is whether 75 percent considered. DOE requests comment on a vehicle that is not currently centrally of a vehicle’s total miles traveled are whether the 75 percent level is fueled could be centrally fueled. derived from trips that are less than the appropriate. Therefore, an organization which has operational range of the vehicle. As DOE’s proposed definition of determined that its vehicles are not defined by EPA, in its December 9, ‘‘capable of being centrally fueled’’ is centrally fueled must still determine if 1993, Federal Register notice on the based on EPA’s work. However, DOE the vehicles are capable of being final rule for the definitions and general requests comment as to whether further centrally fueled. If the vehicles are, then provisions for the Clean Fuel Fleet editing is necessary to clarify the the total of these vehicles, i.e., those Program, 58 FR 64684, the operational meaning of this phrase. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10975 The statutory definition of ‘‘fleet’’ company under contract to the fuel. These include flexible-fuel requires that a minimum of 20 vehicles manufacturer to convert Original vehicles that operate on a mixture of an be ‘‘owned, operated, leased, or Equipment Manufacturer vehicles, and alternative fuel and a petroleum-based otherwise controlled by a governmental is then offered by the Original fuel, and bi-fuel vehicles that can be entity or other person.’’ The proposed Equipment Manufacturer, with warranty switched to operate on either an regulatory definition of ‘‘fleet’’ coverage through the Original alternative fuel or a petroleum-based substantially tracks this language. Equipment Manufacturer, for sale to the fuel. The intent of this definition is to However, there is also a definition of general public. In the case of an after- include all vehicles that are capable of ‘‘lease’’ in proposed § 490.2 that market converted vehicle, the operating on an alternative fuel and a excludes rental agreements of less than conversion is performed by an after- petroleum-based fuel, regardless of what 120 days. This provision is consistent market converter, who provides the terminology is used to describe the with the EPA regulations. As EPA warranty for the vehicle conversion and vehicle. The Department is aware that explained, a person does not have the the conversion kit. the terms ‘‘bi-fuel’’ and ‘‘dual-fuel’’ are same level of control over a vehicle Proposed § 490.2 defines the term being used interchangeably to describe lease for a short period of time, and the ‘‘alternative fuel’’ consistent with the the same motor vehicle and does not 120-day period takes into account short definition for that term in section 301 of wish to further confuse the situation. term variations in fleet operations and the Act. The text of the statutory ‘‘Emergency vehicles’’ are excluded the number of fleet vehicles that ought definition of ‘‘alternative fuel’’ was from the definition of ‘‘fleet.’’ Proposed not to trigger the vehicle acquisition quoted earlier in this Supplementary § 490.2 adopts EPA’s definition for the mandates. 58 FR at 64687. DOE shares Information section in a discussion of term ‘‘emergency vehicle’’ in 40 CFR this view. reformulated gasoline. The terms of that § 88.302–94 which defines ‘‘emergency The proposed regulatory definition of definition do not restrict ‘‘alternative vehicle’’ as meaning any vehicle that is ‘‘fleet’’ further tracks the statutory fuels’’ to fuels used only for legally authorized by a governmental definition by requiring that a person transportation purposes. However, authority to exceed the speed limit to controls 50-light duty motor vehicles section 501(a)(3)(B) of the Act transport people and equipment to and regardless of where they are located. specifically exempts certain businesses from situations in which speed is The proposed definition of ‘‘fleet’’ uses that do not use ‘‘alternative fuels’’ for required to save lives or property, such the concept of ‘‘control’’ to establish the transportation purposes. That provision as a rescue vehicle, fire truck or guidelines for attributing vehicles to a is reflected in proposed § 490.303(b) ambulance. These vehicles normally ‘‘fleet’’ for the purposes of determining which is discussed in detail below in have red and/or blue flashing lights and whether the 50-vehicle minimum is this section-by-section analysis. sirens. DOE is relying on the speed limit satisfied. The concept is used with Proposed § 490.2 defines the term criterion because this is the way that regard to: (1) Control of vehicles; (2) ‘‘covered person’’ consistent with the many states define ‘‘emergency control by another person; (3) control of definition for that term in section 301 of vehicles.’’ The requirement for legal another person; and (4) being subject to the Act. authorization to exceed the speed limit common control together with another ‘‘Dealer demonstration vehicles’’ are may be problematic, however, for person. excluded from the definition of ‘‘fleet.’’ localities that authorize certain utility There is similar language in the Proposed § 490.2 follows the EPA vehicles to exceed the speed limit in definition of ‘‘covered fleet’’ which definition for the term ‘‘dealer special circumstances. However, those applies to the EPA fleet program demonstration vehicle’’ found at 40 CFR vehicles are not normally considered requirement. EPA has promulgated an § 88.302–94 which defines ‘‘dealer emergency vehicles in that their primary elaborate definition of ‘‘control’’ in 40 demonstration vehicle’’ as meaning any function does not include exceeding the CFR § 88.302–94 which reflects the vehicle that is operated by a motor speed limit to transport people and various ways in which the concept of vehicle dealer solely for the purpose of equipment to and from situations in ‘‘control’’ is used in the definition of promoting motor vehicle sales, either on which speed is required to save lives or ‘‘covered fleet.’’ The explanation of that the sales lot or through other marketing property. Their response to an definition appears at 58 FR 64686–7. or sales promotions, or for permitting emergency does not usually require DOE is proposing to adopt EPA’s potential purchasers to drive the vehicle them to exceed the speed limit, and they definition of ‘‘control.’’ for pre-purchase or pre-lease evaluation. are not usually equipped with red and/ The intent of this definition is to exempt Other Definitions or blue flashing lights and sirens for use the vehicles held on the lot of a motor when exceeding the speed limit. Proposed § 490.2 defines the term vehicle dealer as stock from which Therefore, those vehicle types are not ‘‘after-market converted vehicle’’ as a potential purchasers or lessees can considered excluded from the definition new or used conventional fuel Original choose. Vehicles held by dealers for of ‘‘fleet’’ unless, on a vehicle-by- Equipment Manufacturer vehicle that their own business purposes, such as vehicle basis, they are specifically and has been converted to operate on shuttle buses, loaner vehicles, or other legally authorized by a governmental alternative fuel by an after-market repair or business-related vehicles are authority to respond to emergencies as converter. This converter must be in not exempt, unless they are also offered described above. compliance with all Federal, state, and for retail sale as part of the dealer stock ‘‘Law enforcement vehicles’’ are local laws at the time of conversion. or are rotated through the fleet back to excluded from the definition of ‘‘fleet.’’ After-market converted vehicles differ the dealer stock. Proposed § 490.2 adopts EPA’s from Original Equipment Manufacturer As required by section 301(8) of the definition of the term ‘‘law enforcement converted vehicles with respect to Act, proposed § 490.2 defines the term vehicle’’ found at 40 CFR § 88.302–94 which company warranties the ‘‘dual fueled vehicle,’’ consistent with which defines ‘‘law enforcement conversion and its components. In the section 513(h)(1)(D) of the Motor vehicle’’ as meaning any vehicle which case of an Original Equipment Vehicle Information and Cost Savings is primarily operated by a civilian or Manufacturer converted vehicle, the Act, 15 U.S.C. § 2013, as a motor vehicle military police officer or sheriff, or by vehicle is converted prior to first sale by that is capable of operating on personnel of the Federal Bureau of a manufacturer-authorized conversion alternative fuel and on gasoline or diesel Investigation, the Drug Enforcement 10976 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules Administration, or other law annual models, which should facilitate Manufacturer for production control or enforcement agencies of the Federal compliance since fleets can make their quality control reasons. Government, or by state highway acquisition plans regarding alternative ‘‘Motor vehicles which under normal patrols, municipal law enforcement, or fueled vehicles when they make plans operations are garaged at personal other similar law enforcement agencies, for acquiring new model year vehicles. residences at night’’ is another category and which is used for the purpose of This definition is intended to clarify of vehicles excluded from the definition law enforcement activities including, which vehicles count toward the of ‘‘fleet.’’ Proposed § 490.2 tracks the but not limited to, chase, apprehension, required annual acquisitions under the language of section 301(h) of the Act. surveillance, or patrol of people engaged program. This definition is also Proposed § 490.2 defines the term in or potentially engaged in unlawful intended to ensure that all fleets and ‘‘Original Equipment Manufacturer activities. This definition is intended to covered persons acquire vehicles based Vehicle’’ as meaning a vehicle clarify the difference between law on the same annual period, which is engineered, designed and produced by enforcement vehicles and vehicles used important to facilitate enforcement of an Original Equipment Manufacturer. for other security purposes. Under this the programs. Thus, any new vehicles This term applies to conventionally definition, a vehicle is considered to be that are acquired by a fleet or covered fueled Original Equipment a law enforcement vehicle and is person between September 1 and Manufacturer vehicles as well as to exempt by virtue of its use for official August 31 are counted and used as the alternative fueled vehicles. Included in law enforcement purposes, as conveyed basis for determining the acquisition this definition are vehicles that were by local, state or federal government requirement of the same year, and are conventionally fueled Original mandate. Security vehicles do not considered of the same model year as Equipment Manufacturer vehicles, but usually comply with this definition, and the January that falls between them. were converted prior to sale by the as such are not excluded from the ‘‘Motor vehicles held for lease or Original Equipment Manufacturer, definition of ‘‘fleet’’ unless they are rental to the general public’’ are through a contract with a conversion contracted by a law enforcement agency excluded from the definition of ‘‘fleet.’’ company, to operate on an alternative for the purposes described above. Proposed § 490.3 follows EPA’s fuel and which are covered under the Proposed § 490.2 defines the term definition of this phrase found at 40 Original Equipment Manufacturer ‘‘lease’’ to mean use of a vehicle for CFR § 88.302–94 which defines ‘‘motor warranty. transportation purposes pursuant to a vehicles held for lease or rental to the rental contract or similar arrangement, general public’’ as meaning a vehicle Proposed Section 490.3 Excluded the term of such contract or similar that is owned or controlled primarily for Vehicles arrangement is for a period of 120 days the purpose of short-term rental or Proposed § 490.3 sets forth the or more, and such person has control extended-term leasing, without a driver, vehicles which may be excluded when over the vehicle. This definition closely pursuant to a contract. According to this counting to determine whether there are tracks EPA’s definition of ‘‘owned or definition, the vehicles must be owned a sufficient number of vehicles to operated, leased or otherwise controlled primarily for the purpose of renting or constitute a ‘‘fleet’’ as defined in by such person,’’ found at 40 CFR leasing them without a driver, proposed § 490.2. Some of the § 88.302–94. The intent of this effectively granting someone else exclusions are categories capsulized in definition is to include, for compliance control over them in exchange for a term such as ‘‘dealer demonstration purposes, any vehicles controlled by a money or other compensation. In vehicle,’’ ‘‘emergency vehicle,’’ and covered person, whether by ownership addition, this exchange must be based ‘‘law enforcement vehicle.’’ Those terms or lease. The 120-day period is slightly on a contract. Thus, a firm cannot be are defined in proposed § 490.2 and are longer than a calendar season, and is found to ‘‘lease’’ its vehicles to its discussed above. intended to reflect the fact that the employees unless the vehicles are leasing of vehicles can occur for short owned primarily for leasing them to the Proposed Section 490.4 General periods of time, including seasonal uses, general public and they are leased Information Inquiries and that such short term, temporary pursuant to formal contracts which give In other regulatory programs, DOE has leases should not be subject to the control of the vehicle to the lessee. learned that on occasion representatives conditions of the program. However, ‘‘Motor vehicles used for motor of regulated persons make informal fleets and covered persons leasing or vehicle manufacturer product inquiries, usually by telephone, and renting a vehicle for more than 120 days evaluations and test’’ are also excluded need a quick response from the program must include this vehicle in the from the definition of ‘‘fleet.’’ Proposed office even if the response is not binding company’s total count of new light duty § 490.3 follows EPA’s definition of the on DOE. Proposed § 490.4 would make motor vehicles acquired for the phrase ‘‘vehicle used for motor vehicle this device for obtaining information respective model year. manufacturer product evaluations and available to those who are subject to Proposed § 490.2 defines the term tests’’ at 40 CFR § 88.302–94. There the regulation under part 490. ‘‘model year’’ for the purposes of phrase is defined to mean vehicles that vehicle acquisition requirements as are owned and operated by a motor Proposed Section 490.5 Requests for September 1 of the previous calendar vehicle manufacturer, or motor vehicle an Interpretive Ruling year through August 31. This definition component manufacturer, or owned or For those who want a more closely tracks EPA’s definition of held by a university research authoritative answer as to how the ‘‘model year,’’ found at 40 CFR department, independent testing Department intends to construe and § 88.302–94. For purposes of laboratory, or other such evaluation apply its regulations to particular compliance, covered persons should facility, solely for the purpose of factual situations, and for whom other compute their vehicle acquisitions evaluating the performance of such procedures such as petitions for during the period beginning September vehicle for engineering, research and exemption are irrelevant, proposed 1 of each year through August 31. This development, or quality control reasons. § 490.5 would provide a useful option. definition of model year coincides with It is the intent of this provision to The uncertainties related to the complex the period in which most automobile exclude vehicles which are part of a provisions applicable to determining manufacturers introduce their new ‘‘fleet’’ used by an Original Equipment who must comply and the extent of Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10977 affected vehicle inventories prompted under subpart F also count toward Proposed Section 490.204 Process for DOE to devise proposed § 490.5. Any satisfaction of the mandate. Granting Exemptions interpretive ruling that the Department Proposed Section 490.203 Light Duty Section 507 (i)(1) of the Act provides issues would apply only to the person Alternative Fueled Vehicle Plan three categories under which a State who requested it. However, the may seek exemptions in whole or in Department will make copies of these The Act provides an alternative part from the annual acquisition rulings available for inspection and means of compliance for States. In lieu percentages. A State may seek copying in a public file in its Freedom of a State meeting the acquisition exemption if it can demonstrate that— of Information Reading Room in the requirements proposed by § 490.201 (1) Alternative fuels that meet the Forrestal Building at 1000 solely through acquisition of new State- normal requirements and practices of Independence Ave., SW, Washington, owned vehicles, a State may comply the principal business of the State fleet DC 20585. with a Light Duty Alternative Fueled are not available in the area where the Vehicle Plan submitted by the State and Proposed Section 490.6 Petitions for vehicles are to be operated; or approved by DOE. The Plan must Generally Applicable Rulemaking (2) Alternative fueled vehicles that demonstrate that there will be a meet the normal requirements and Proposed § 490.6 sets forth procedures sufficient number of light duty motor practices of the principal business of the for petitioning the Department to issue vehicles by State, local and private state fleet are not reasonably available new or amended rules of general fleets, which in aggregate meet or for acquisition because they are not applicability for part 490. These exceed the applicable vehicle offered for acquisition commercially on procedures implement rights available percentage for any given year. reasonable terms and conditions in any to members of the public under the DOE is proposing that any acquisition of the States; or Administrative Procedure Act. 5 U.S.C. or conversion of light duty alternative (3) The application of such 553(e). fueled vehicles for a State may be part requirements would pose an Proposed Section 490.7 Relationship of the Plan, irrespective of whether the unreasonable financial hardship. to Other Law vehicles are in the excluded categories Category 1 tracks section 507(i)(1) of of vehicles in the definition of ‘‘fleet’’ as the Act. Category 2 is based on section Proposed § 490.7 makes a declaratory enumerated in proposed § 490.3. This 507(i)(1) and would preclude arguments statement to avoid arguments that allows for law enforcement vehicles, or that the physical unavailability in a provisions of part 490, by their silence, other vehicles otherwise excluded from state is not a valid reason for exemption authorize acquisition of vehicles or the definition of ‘‘fleet’’ to be part of a when a vehicle can be ordered from conversion of vehicles in a manner that Light Duty Alternative Fueled Vehicle somewhere else in the United States. does not comply with other laws and Plan. Time delays in delivery of alternative regulations at the Federal, state, or local DOE is proposing that, until a Plan is fueled vehicles are generally not level. approved or unless DOE grants an acceptable as an excuse. States must be Subpart B—[Reserved] exemption, a State is subject to the fleet cognizant of the possible irregular percentage requirements in proposed Subpart C—Mandatory State Fleet manufacturer production schedules and § 490.201. This will be equally true in Program considerably longer lead times involved instances where a State plan participant in the acquisition of alternative fueled Proposed Section 490.201 Alternative (such as a municipality) fails to fulfill vehicles compared with conventional Fueled Vehicle Acquisition Mandate its commitments under the Plan. vehicles. It is the responsibility of the Schedule However, if the State is able to find a state to plan and schedule its ordering Proposed § 490.201 sets forth the substitute participant, then the State and acquisitions of alternative fueled requirements, subject to some may submit to DOE for approval an vehicles so as to comply with the exemptions, for the percentage of new amendment to the Plan. acquisition requirements for each model light duty motor vehicles for State fleets DOE is proposing in paragraph (b) of year. Regarding category 3, section that must be alternative fueled vehicles this section to require States to monitor 507(i)(1) allows only States, not when acquired under the Mandatory and verify on an ongoing basis the alternative fuel providers, the right to State Fleet Program. Beginning with the implementation of its Plan. This is to seek an exemption based on financial 1996 model year, September 1, 1995, ensure that all participants in the Plan hardship. Proposed paragraph (d)(3) any state fleet that is covered under this are indeed in compliance, and that at describes the few items of information subpart must comply with these the end of the model year, all that a State must submit to DOE when requirements, unless otherwise requirements will have been met. If for requesting an exemption based on provided in this subpart. whatever reasons a participant is unable financial hardship. (Earlier in this In cases where acquisition to fulfill its commitments, the State Supplementary Information, States were percentages result in something less should be able to find a substitute invited to comment on how DOE should than a whole number, DOE is proposing participant before the end of the year. interpret and apply the term ‘‘financial that these fractions be rounded up to the Paragraph (c) proposes to require a hardship.’’) next whole number. State to submit to DOE, for approval, its Proposed paragraph (g) provides that Light Duty Alternative Fueled Vehicle the Assistant Secretary for Energy Proposed Section 490.202 Plan no later than the June 1 prior to the Efficiency and Renewable Energy may Acquisitions Satisfying the Mandate model year covered by the Plan. A State grant a request for exemption. In order Proposed § 490.202 provides in should know by this deadline the to keep the procedures simple, the substance that an acquisition of an number of light duty motor vehicles it Assistant Secretary may act finally for alternative fueled vehicle, regardless of plans to acquire during the upcoming the Department, and there is no the year of manufacture, counts toward model year. DOE would like to receive requirement to obtain the specific satisfaction of the vehicle acquisition comments as to whether it is reasonable approval of the Secretary. If the mandate. Such a vehicle would be new to require all Plans be submitted by the Assistant Secretary denies the request to the fleet operator. Credits acquired June 1 prior to the model year. for exemption, proposed paragraph (g) 10978 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules further provides for a State right to Proposed Section 490.300 Purpose and alternative fuels, the important criterion appeal to the Department’s Office of Scope to look at is what is the organization’s Hearings and Appeals, whose decision Proposed § 490.300 defines the single largest source of sales-related would be final for the purpose of purpose and scope of part 490 Subpart gross revenue. For example, if an judicial review. Further discussion on D as implementing the statutory organization derives 35 percent of its the exemption process is found in requirements of section 501 of the sales-related gross revenue from section-by-section analysis for the Energy Policy Act of 1992, which sets alternative fuels and the next largest single source of sales-related gross Alternative Fuel Provider Vehicle forth a mandate for those alternative revenue comprises 25 percent of the Acquisition Mandate. fuel providers, who are classified as organization’s gross revenue, the The Act requires that the exemption covered persons, to acquire alternative organization’s principal business is process be reasonable and simple. The fuel vehicles at an escalating percentage alternative fuels. DOE invites comments on the proposed of their new vehicle acquisitions. process for States to request exemptions, Proposed § 490.301 defines the term in whole or in part. Proposed Section 490.301 Definitions ‘‘substantially engaged’’ to mean that a covered person, or affiliate, division, or Proposed § 490.301 sets forth the Proposed Section 490.205 Reporting other business unit thereof, regularly definitions for part 490, Subpart D. Requirements derives sales-related gross revenue from Proposed § 490.301 defines the term an alternative fuels business. To ‘‘alternative fuels business’’ as meaning Proposed § 490.205 will require each determine whether a covered person or an activity undertaken to derive revenue state that is subject to the vehicle affiliate, division, or other business unit from: (1) Producing, storing, refining, acquisition mandate to submit to DOE thereof is ‘‘substantially engaged’’ in the processing, transporting, distributing, an annual report. This report will assist alternative fuels business, it is importing, or selling at wholesale or DOE in determining if a state has met important to look at the involvement the retail any alternative fuel other than the requirements of this subpart as well covered person, affiliate, division, or as to determine how successfully the electricity; or (2) generating, other business unit has with the goals and requirements of this subpart transmitting, importing, or selling at alternative fuels business. Thus, only are being met. For further discussion on wholesale or retail electricity. This that affiliate, division, or business unit reporting requirements, see proposed definition tracks the language of section that meets the substantially engaged section 490.309. DOE invites comment 501(a)(2). criteria, as defined above, is subject to as to the reasonableness of these Proposed § 490.301 provides the acquisition requirements of this reporting requirements, as well as definitions for the terms ‘‘affiliate,’’ program. recommendations for additional, ‘‘division,’’ and ‘‘business unit’’ which The covered person is responsible for substitute or reduced requirements are used in section 501 of the Act and clearly defining the specific affiliate, which would achieve the desired proposed §§ 490.303 and 490.304. The division, or other business unit that is results. first two are dictionary definitions. substantially engaged and is therefore ‘‘Business unit’’ is defined to make clear subject to the acquisition requirements Subpart D—Alternative Fuel Provider the grouping of business activities must Vehicle Acquisition Mandate of this rule. If this designation is not be similar in autonomy to affiliates and made or is not made clearly, DOE will I. Background divisions. assume that the entire organization is Proposed § 490.301 defines the term subject to the acquisition requirements The Alternative Fuel Provider Vehicle ‘‘normal requirements and practices’’ as of this rule and will enforce it as such. Acquisition Mandate is intended to meaning the operating business Proposed § 490.301 defines the term cover a broad range of alternative fuel practices and required conditions under ‘‘substantial portion’’ to mean that at providers in a flexible, workable which the principal business of the least 2 percent of a covered person’s program that will allow for compliance covered person operates. In a request for refinery yield of petroleum products is in the most economical fashion an interpretive ruling or in a civil composed of alternative fuels. possible. The program allows alternative penalty proceeding, the burden would Alternative fuel is as defined in fuel providers flexibility in the be on the fuel provider to show that proposed § 490.2. This proposed acquisition of new alternative fuel actions to acquire alternative fuel definition was formulated using reliable vehicles via purchase, lease, or vehicles and/or obtain alternative fuel data compiled by the Energy conversion, and in the geographical are outside the normal practices of the Information Administration and placement of alternative fuel vehicles. It covered person’s principal business. published in its Petroleum Supply also provides a minimum of restrictions Proposed § 490.301 defines the term Annual 1993, Volume 1 (DOE/EIA– on how the alternative fueled vehicles ‘‘principal business’’ as meaning the 0340(93)/1). Table 19 provides aggregate are to be used. largest sales-related gross revenue data on refinery yield for the Petroleum The program specifies the criteria for producing activity. If an organization Administration for Defense districts and determining whether an alternative fuel derives a plurality of gross revenue from can be readily verified. provider is covered and under what sales-related alternative fuels activity The 2% threshold was chosen circumstances exemptions from the then the organization’s principal because it represents the average yield program will be granted. Only those business is alternative fuels. As it is for the production of alternative fuel by alternative fuel providers who are used above, plurality does not require petroleum refiners as reported by the classified as ‘‘covered persons’’ are that over 50 percent of an organization’s Energy Information Administration. subject to the requirements of this sales-related gross revenue be based on DOE believes that the use of this proposed regulation and only that activities related to alternative fuels. percentage in the definition of affiliate, division, or other business unit Sales-related in this context means that ‘‘substantial portion’’ allows for the which is substantially engaged in the the gross revenue does not come from initial identification of that group of alternative fuels business may be subject investments such as corporate stocks. covered persons described in Sec. to the acquisition mandate requirements In determining whether an 501(a)(2)(c) of the Act and provides a of the Act. organization’s principal business is sound basis for identifying those Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10979 affiliates, divisions, or other business if an alternative fuel provider, which is future municipal fleet mandate imposed units of such covered persons which are a covered person, is acquiring new light by rule under section 507 of the Act. substantially engaged in the alternative duty motor vehicles for a location that If an organization produces, imports, fuel business. is not in a subject MSA or CMSA, the or produces and imports in The Department considered including required percentage of these vehicles combination, an average of 50,000 some measure of the gross revenue must be alternative fueled vehicles. The barrels per day or more of petroleum, attributed to the production of MSA/CMSA requirement is used for and regularly derives gross revenue alternative fuels as an alternative in the classifying ‘‘covered persons,’’ not for from the production of alternative fuels, definition of ‘‘substantial portion.’’ The determining how many light duty that organization has a ‘‘substantial first measure that was considered was vehicles must be alternative fueled portion’’ of its business in alternative setting a minimum level of gross vehicles. The provisions of proposed fuels. To determine whether an revenue from the sale of alternative § 490.302(b) are not discretionary organization has a substantial portion of fuels that an organization would have to because they follow the wording of its business in alternative fuels it is equal or exceed to be classified as an section 501(a)(1) of the Act. 42 U.S.C. important to look at the organization’s alternative fuel provider. The second 13251(a)(1). involvement in the alternative fuels measure that was considered was Proposed paragraph (c) provides for business, not just the amount of gross establishing a minimum percentage, that rounding off to the next higher number revenue from alternative fuels reflects the percent of total gross if application of a percent to the base production or the level of investment in revenue attributed to the sale of number of new light duty vehicles alternative fuels production. DOE’s alternative fuels, that an organization acquired results in a requirement to determination of whether an would have to equal or exceed to be acquire a fraction of a vehicle. This organization has a substantial portion of classified as an alternative fuel provider. procedure is consistent with the its business in alternative fuels will be Unfortunately, the information available statutory objective of promoting the made on a case-by-case basis. Comment on these measures is too fragmented to acquisition of alternative fuel vehicles. is invited as to what criteria might be be the basis for proposed regulatory Proposed paragraph (d) states that used in making this determination. language. DOE seeks comment on only acquisitions satisfying the Paragraph (b) of proposed § 490.303 whether reliable information exists that mandate, as described in proposed deals with covered persons who are would allow establishment of a § 490.305, and/or Alternative Fueled excluded from having to comply with monetary measure (or any measure apart Vehicle credits will be counted toward this subpart. This section tracks the from the measure in the proposed rule) compliance with the acquisition language of section 501(a)(3)(B) of the for determining whether alternative schedule in proposed paragraph (a). Act. Two types of covered persons may fuels production comprises a substantial Proposed Section 490.303 Who Must be excluded from the requirements of portion of a company’s business. DOE Comply this regulation: (1) Those who transform also seeks comment recommending any alternative fuels into a product that is other alternative definitions for Proposed § 490.303 gives an answer to not an alternative fuel; and (2) those ‘‘substantial portion.’’ the question: who is a covered person who consume alternative fuels as a that must comply? This proposed feedstock or fuel in the manufacture of Proposed Section 490.302 Vehicle section tracks section 501(a)(2) of the a product that is not an alternative fuel. Acquisition Mandate Schedule Act. There are two components to this An example of an excluded person Proposed § 490.302 describes the determination. The first component described in paragraph (b)(1) would be vehicle acquisition schedule that involves determining whether the a manufacturer of windshield washer alternative fuel providers must comply organization fits the profile of an fluid. The manufacturer would be with if they are classified as covered alternative fuel provider as provided by classified as an excluded person persons. Proposed paragraph (a) section 501(a)(2) of the Act. The second because it blends an alternative fuel, requires that of the new light duty motor component eliminates from coverage methanol, in producing windshield vehicles acquired by alternative fuel those alternative fuel providers whose washer fluid, which is not an alternative providers, the following percentages principal business uses alternative fuel fuel. shall be alternative fueled vehicles for to create a product that is not an An example of an excluded person the following model years: alternative fuel. described in paragraph (b)(2) would be (A) 30 percent for model year 1996. Types of companies likely to be a company that burns natural gas to (B) 50 percent for model year 1997. covered persons subject to the provide a heat source for a (C) 70 percent for model year 1998. alternative fuel providers mandate manufacturing operation. (D) 90 percent for model year 1999 include, but are not limited to, private An example of an excluded person and thereafter. For example, if an and public electric and natural gas under paragraphs (b)(1) and (b)(2) alternative fuel provider purchases or utilities; natural gas distribution would be an entity whose principal leases 50 light duty motor vehicles in companies; pipeline companies; business is the production of alcoholic model year 1996, 30 percent, or 15, of petroleum companies; propane beverages. the vehicles have to be alternative producers, distributors, and suppliers; fueled vehicles. methanol providers; ethanol providers; Proposed Section 490.304 Which New Proposed paragraph (b) states that, and fuel transport companies. Light Duty Motor Vehicles Are Covered except as provided by § 490.304, these Municipal utilities possessing the Under section 501(a)(3)(A) of the Act, requirements apply to all new light duty required fleet size, fueling if the covered person has more than one vehicles acquired by a ‘‘covered characteristics, and located within the affiliate, division, or other business unit, person,’’ not just those vehicles specified geographical areas are only the vehicles of an affiliate, acquired for the fleets which initially classified as alternative fuel providers division, or business unit that is qualified the alternative fuel provider as under section 501(a)(2)(B). Therefore, ‘‘substantially engaged in the alternative a ‘‘covered person.’’ These requirements they are expected to comply with the fuels business’’ are subject to the vehicle also apply regardless of where the new requirements of the mandate under acquisition mandate. Proposed vehicles are to be located. For example, § 490.302 and will not be subject to any § 490.304 reflects the provisions of 10980 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules section 501(a)(3)(A), and should be read Proposed Section 490.307 Option for The second category of exemption is if in conjunction with the proposed Electric Utilities any covered person demonstrates to the definitions of ‘‘affiliate,’’ ‘‘division,’’ Proposed § 490.307 deals with the satisfaction of the Secretary that and ‘‘business unit’’ in § 490.301. statutory option for electric utilities. alternative fueled vehicles that meet the normal requirements and practices of Proposed Section 490.305 Proposed paragraph (a) tracks the the principal business of that person are Acquisitions Satisfying the Mandate provisions of section 501(c) of the Act, not reasonably available for acquisition Proposed § 490.305 deals with the which provides that a covered person whose principal business is generating, because they are not offered for three types of acquired vehicles that acquisition commercially on reasonable transmitting, importing, or selling, at will count toward compliance with terms and conditions in the United wholesale or retail, electricity has the proposed § 490.302, in addition to States. These exemptions would be option of delaying the alternative fuel alternative fueled vehicle credits under granted for one model year only. To vehicle acquisition schedule in section Subpart F. These categories provide receive exemptions for additional model 501(a) of the Act until January 1, 1998, flexibility for organizations in acquiring years, alternative fuel providers must re- if that covered person intends to comply vehicles to meet this regulation. An apply to the Secretary each year. Criteria with this regulation by acquiring alternative fueled light duty motor for granting exemptions will be based electric motor vehicles. DOE considered vehicle shall be considered newly on documentation that specifically delaying the date that electric utilities acquired, regardless of model year, if: relates to the availability of alternative (a) The vehicle is an Original would have to start acquiring vehicles fuels and alternative fueled vehicles. Equipment Manufacturer vehicle until the beginning of model year 1999 To determine whether alternative fuel capable of operating on alternative fuels which starts on September 1, 1998. But is ‘‘not available,’’ an alternative fuel and was not previously under the given that the California Air Resources provider must map out the operating control of the covered person; or Board requires that 2 percent of all area and base of operations for its fleet (b) The vehicle is an after-market vehicles sold in California by major auto of vehicles. Next it must locate on the converted vehicle and was not producers be Zero Emission Vehicles, map the alternative fueling facilities previously under the control of the (emission level currently only within its MSA or CMSA. Then, for covered person; or achievable by electric vehicles) starting each vehicle, it must determine whether (c) The vehicle is an Original September 1, 1997, DOE decided not to any location providing alternative fuel Equipment Manufacturer vehicle that propose a delay in the effective date of is in the area in which the vehicle is has been converted to operate on the 30 percent alternative fueled vehicle operated. If there is any location alternative fuels prior to the vehicle’s acquisition requirement. Also, the States providing alternative fuel within the first use in service. of New York and Massachusetts have vehicle’s operating area, alternative fuel A vehicle that meets the description enacted laws which adopt California is available. If there are no locations of paragraph (a) is one that is standards and timetables. providing alternative fuel, for any manufactured by an Original Equipment Proposed paragraph (b) provides the alternative fuel that meets the normal Manufacturer to be capable of operating date (January 1, 1996) by which requirements and practices of the on alternative fuels. For example, if a notification must be received by DOE covered person’s principal business, covered person acquires a 1993 flex-fuel for an electric utility to be eligible for within the vehicle’s operating area, then light duty motor vehicle during model this delayed schedule. That date is alternative fuel is ‘‘not available.’’ year 1996, this vehicle is classified as dictated by section 501(c) of the Act. The Act requires that the exemption being a new acquisition for that This notification should be in letter process be reasonable and simple. DOE organization. format and must explain the utility’s invites comment on the proposed A vehicle that meets the description commitment to electric vehicles. process for exemptions, in whole or in of paragraph (b) is one that has been Proposed paragraph (c) describes the part. converted by a licensed converter to be acquisition schedule that an electric It is anticipated that alternative fuel capable of operating on alternative fuels. utility must comply with if the electric will be available and accessible for A vehicle that meets the description of utility notifies the Secretary by the almost all alternative fuel providers, and paragraph (c) is a vehicle that upon required date. that it will be difficult for fuel providers to prove that alternative fuel is not acquisition by the organization is taken Proposed Section 490.308 Process for available. Since alternative fuel to a licensed converter for conversion to Granting Exemptions an alternative fueled vehicle and is providers stand to benefit greatly from never intended to be operated solely on Proposed § 490.308 deals with the the expanded use of alternative fuels petroleum-based fuel. It is important to requirements of section 501(a)(5) of the and the proliferation of alternative note that section 507(j) of the Act states Act which provides for a simple and fueled vehicles, it is also anticipated that no fleet owner shall be required to reasonable exemption process for those that they will help accelerate the acquire converted vehicles in order to covered persons seeking exemptions establishment of the alternative fuels meet compliance with this or any fleet either because alternative fuel is not infrastructure and be less likely to seek acquisition requirement. available or alternative fueled vehicles exemptions based on alternative fuels are not reasonably available. Proposed being ‘‘not available.’’ Proposed Section 490.306 Vehicle paragraph (a) describes the procedure To receive an exemption based on the Operation Requirements that a covered person needs to complete criteria in subparagraph (a)(2) a covered Proposed § 490.306 largely tracks the to receive an exemption. The first person must show that there are no provisions of section 501(a)(4), which category of exemption is if any covered alternative fueled vehicles available for requires that all alternative fueled person demonstrates to the satisfaction commercial acquisition on reasonable vehicles acquired pursuant to section of the Secretary that alternative fuels terms and conditions in any State. The 501 be operated solely on alternative that meet the normal requirements and covered person also must show good fuels, except when these vehicles are practices of the principal business of faith effort in attempting to obtain these operating in an area where alternative that person are not available in the area vehicles. DOE requests comment on the fuel is not available. where the vehicles are to be operated. extent to which vehicle cost, either Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10981 initial cost or life-cycle cost, should be performance requirements of the Proposed paragraph (c) sets forth the considered in determining whether business. procedure that a covered person must vehicles are available on ‘‘reasonable Proposed paragraph (b) sets forth the follow if it is applying alternative fueled terms.’’ types of documentation in support of vehicle credits against its acquisition If a covered person normally and exemption requests that should be requirements. historically acquires vehicles from one provided to DOE. Consistent with the requirements of 5 automobile dealer or from one Proposed paragraph (e) states that CFR Part 1320.6(f), proposed paragraph automobile manufacturer, but is unable exemption determinations are letter (d) would require that records related to to acquire alternative fueled vehicles of rulings binding for the covered person this reporting requirement be the model type needed from these same only and cannot be used to establish a maintained and retained for a period of sources, this is not sufficient to qualify precedent for other exemption requests. three years. for an exemption under subparagraph DOE will review each exemption DOE seeks comment on the reporting (a)(2) if appropriate alternative fueled request on a case-by-case basis. requirements, especially relating to the vehicles are available from other dealers In proposed paragraphs (f) and (g) information that is requested to be or manufacturers. Having to use another DOE is proposing an administrative included in the report. remedy for those aggrieved by the initial dealer or manufacturer is not classified Subpart F—Alternative Fueled Vehicle as outside the normal requirements and decision of the DOE Deciding Official, who will be the Assistant Secretary for Credit Program practices of the covered person, because Energy Efficiency and Renewable the same procedures that are currently Background Energy. In order to exhaust being employed by the covered person administrative remedies, it will be Section 508 of the Act requires DOE to obtain these vehicles can be used to necessary to appeal to DOE’s Office of to establish an alternative fueled vehicle obtain them from different sources. Hearings and Appeals. This procedure credit program that will allocate Having to wait slightly longer for has two virtues. It would be less alternative fueled vehicle credits to a delivery of alternative fueled vehicles expensive than pursuing a judicial fleet or covered person that is required than for conventionally fueled vehicles remedy immediately. It would also to acquire alternative fueled vehicles is not a sufficient reason for granting an ensure that DOE has made a record under Title V of the Act if that fleet or exemption. If, however, the time delay which is appropriate for judicial review covered person acquires alternative will result in a covered person violating in the event a petition for review is filed fueled vehicles in excess of the number the regulation, DOE will consider the in a Federal court. that fleet or covered person is required covered person to be in compliance to acquire or acquires alternative fueled with this regulation if the delivery delay Proposed Section 490.309 Annual vehicles prior to the date that fleet or was through no fault of its own. Thus, Reporting Requirements covered person is required to acquire if alternative fueled vehicles are ordered Proposed § 490.309 sets forth annual alternative fueled vehicles. An during the model year with expectations reporting requirements. An annual alternative fueled vehicle credit may be that they will be delivered by the end report to verify regulation compliance is used to comply with alternative fuel of the model year, but are not delivered required of all alternative fuel providers. provider or fleet program requirements until the next model year, the covered Proposed paragraph (a) sets forth where in a later year, or may be traded or sold person will be deemed to be in and by when annual reports should be for use to another fleet or covered compliance if it can provide DOE with sent. person who is required to acquire proof of order date and anticipated Proposed paragraph (b) describes the alternative fueled vehicles by Part 490. delivery schedule. On the other hand, if required information that would be The purpose of establishing a credit a covered person orders alternative included in this annual report. Most of program is to provide purchasing fueled vehicles and knows, at the time the requirements are self-explanatory; flexibility for the regulated fleet of the order, that it will not be receiving however, several of them deserve operators without sacrificing the these alternative fueled vehicles by the discussion for clarification purposes. program’s energy security goals. The end of the model year, it will be deemed Proposed subparagraph (b)(2) would general concept is that some fleet to be in noncompliance and no require covered persons to calculate the operators may, at times, find it attractive exemption will be granted. number of new light duty alternative to buy more alternative fueled vehicles Additionally, in determining whether fueled vehicles that they are required to than required, if in doing so they can get alternative fueled vehicles are acquire. To determine this number, a credit against future acquisition reasonably available, a covered person covered person would multiply the requirements, or can sell or transfer the must examine whether alternative number entered for proposed credits to another party. If the credits fueled vehicles of the appropriate type subparagraph (b)(1), by the acquisition program is properly implemented and are available in any alternative fuel percentage from § 490.302 or § 490.307 managed, there will be no decrease in configuration. Thus, the availability of that applies for that model year. For energy security compared to a program the type of vehicle a covered person example, in model year 1996, if the based strictly on compliance through needs that operates on the fuel that the number of new light duty motor acquisitions. covered person provides is not the vehicles acquired is 50, the number of Both section 246(f) of the Clean Air appropriate test for determining new light duty vehicles that are required Act (42 U.S.C. 7586(f)) and section 508 whether alternative fueled vehicles are to be acquired is 30 percent of 50, or 15 of the Act (42 U.S.C. 13258) allow for ‘‘not reasonably available.’’ The test for (50×.3=15). The number of new light awarding credits to entities that initiate determining whether alternative fueled duty alternative fueled vehicles clean fuel vehicle or alternative fueled vehicles are ‘‘not reasonably available’’ acquired, added to the number of vehicle programs sooner or in greater is whether there are alternative fueled alternative fueled vehicle credits numbers than required. But the laws vehicles available that operate on any applied, from proposed subparagraph differ in their goals: the goal of the alternative fuel and meet the normal (b)(5), should be greater than or equal to Clean Air Act Amendments is to requirements and practices of the the number calculated for proposed improve air quality while the goal of the business, including the vehicle subparagraph (b)(2). Act is energy security. Thus, the credit 10982 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules programs and implementing regulations Proposed Section 490.500 Purpose and required to be acquired they are not emanating from these acts also have Scope eligible to earn credits for early different goals and objectives. Proposed § 490.500 defines the acquisition which results in multiple The EPA has a program called the purpose and scope of part 490 subpart credits. Thus, DOE is proposing that the Clean Fuel Fleet Credit Program (40 CFR F as implementing the statutory acquisition of these vehicles in excess of § 88.304–94) that may be confused with requirements of Section 508 of the Act, the required number will generate only the Department’s Alternative Fueled which instructs the Secretary to allocate one credit per vehicle. Vehicle Credit program. In the Clean credits to fleets or covered persons that It is reasonable to expect that any Fuel Fleet Credit program, a fleet owner acquire alternative fueled vehicles in requirements placed on alternative obtains credits by implementing clean excess of the number required, or obtain fueled vehicles which are acquired to fuel vehicles earlier, in greater numbers, alternative fueled vehicles prior to the comply with alternative fuel provider or or which meet more stringent emission date when they are required to acquire fleet program requirements would also standards than those established by alternative fueled vehicles. apply to vehicles that generate credits. EPA. Clean Fuel Fleet credits can also Proposed Section 490.501 For example, the Act requires that be obtained for Clean Fuel Vehicle Applicability alternative fuel providers operate their alternative fueled vehicles solely on purchases in vehicle categories that are Proposed § 490.501 deals with the alternative fuels except when operating excluded from the Energy Policy Act applicability of the credit program to in an area where the appropriate definition of ‘‘fleet’’. These credits are fleets and covered persons. awarded based on a formula that alternative fuel is unavailable. A net compares the clean fuel vehicle Proposed Section 490.502 Creditable loss to energy security goals would emissions with conventional vehicle Actions occur if a credit-generating vehicle, such emissions. By contrast, under section Proposed § 490.502 describes the as an alternative fueled vehicle bought 508 of the Energy Policy Act, one credit actions associated with allocation of a year earlier than required by an is allocated for each alternative fueled alternative fueled vehicle credits by alternative fuel provider, did not also vehicle acquired in excess of the DOE. Proposed paragraphs (a) and (b) operate solely on alternative fuel. This required number. Also, the Energy are consistent with the language of requirement applies only to those Policy allocates one credit for each year section 508(a) of the Act, which alternative fueled vehicles that generate the alternative fueled vehicle is authorizes the Secretary to allocate credits to be used by covered persons acquired before the required date. credits to fleets or covered persons that who are alternative fuel providers. The acquire alternative fueled vehicles in Department is unaware of any possible Another area of difference between excess of the number they are required requirements which would apply to the two statutes is where they allow to acquire, or acquire alternative fueled vehicles purchased to demonstrate credits to be traded. Under the Clean Air vehicles in advance of the date they are compliance and not to vehicles Act, credit trading is only allowable required to. Once a fleet or covered purchased for credits. Therefore, DOE is within the same non-attainment area. person is required to acquire alternative proposing that any such requirements For example, fleet operators in the fueled vehicles the only way credits can apply equally to both types of vehicles. Baltimore non-attainment area can only be generated is by exceeding their buy, sell, or trade credits with other The Department considered whether required acquisition number. For to allow the acquisition of medium duty fleet operators in the Baltimore area. example, an alternative fueled vehicle and heavy duty alternative fueled Congress appears to have concluded acquired in excess of the number vehicles (those alternative fueled that it was not logical for non- required in model year 1996 cannot be vehicles with gross vehicle weight attainment areas to trade credits with claimed to be an early alternative fueled ratings of greater than 8,500 lbs.), by other areas, because the air quality in vehicle acquisition for model year 1999. covered persons and fleets, to generate the area where credits were purchased The excess alternative fueled vehicle credits. Many medium duty and heavy and used would not be improved as a will generate 1 alternative fueled duty vehicles are predominantly urban result of this transaction. On the other vehicle credit only, not 3 credits use vehicles, such as transit buses and hand, the Energy Policy Act credits can because it was acquired 3 years in delivery trucks, and could take be traded freely among those advance. Additionally, DOE is proposing that advantage of the anticipated fueling organizations that are required to infrastructure within these urban areas. acquire alternative fueled vehicles, one credit be allocated for the acquisition of a light duty alternative These vehicles possess larger capacity which are located within the United engines, which consume significantly States. However, there is an exception to fueled vehicle in a category listed in proposed § 490.3, such as motor more fuel than light duty vehicles and this trading provision, based upon the result in increased displacement of last sentence of section 508(d) of the vehicles held for lease or rental to the general public, law enforcement petroleum-based fuel. However, Act, which provides that vehicles vehicles, etc. Section 508(b) provides paragraph (b) of section 508 provides representing credits generated or the statutory basis for this proposal that credits can only be allocated for the transferred to alternative fuel providers because it refers to the allocation of acquisition of the same type of vehicles operate solely on alternative fuel. (42 credits for the acquisition of alternative that are required under the fleet U.S.C. 13258). This requirement is fueled vehicles in excess of the number mandates of Title V of the Act. The only discussed under § 490.506 of this required. Therefore, the acquisition of type of vehicles that are required to be Supplementary Information. Because light duty alternative fueled vehicles in acquired in Title V are light duty one of the major goals of the Act is the the excluded categories constitutes the vehicles. Thus, credits cannot be reduction of our Nation’s foreign oil acquisition of alternative fueled vehicles awarded for the acquisition of medium dependency, it makes little difference in excess of the number required duty and heavy duty vehicles because where in the United States this qualifies for the allocation of credits. the Act does not require any fleet or reduction takes place. Because these excluded vehicles are not covered person to acquire them. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10983 Proposed Section 490.503 Credit vehicle acquisition requirements or can updated credit account balance Allocation be traded. statement to gain independent private In the second example a state fleet benefit. Proposed § 490.503 deals with acquires 50 alternative fueled vehicles The charging of a fee for this service alternative fueled vehicle credit in model year 1995 and 15 alternative is authorized under 31 U.S.C. 9701, allocation. Proposed paragraphs (a) and fueled vehicles in excess of their which provides that each Federal (b) are consistent with the language of required acquisition number in model government agency may establish a section 508(a) of the Act, which year 1996. The state generates 50 credits charge for a service of a thing of value describes how credits are to be for acquiring alternative fueled vehicles provided by the agency if this service allocated. Before alternative fueled early and 15 credits for acquiring results in independent private benefit. vehicle credits are allocated they must alternative fueled vehicles in excess of This charge must be fair and based on be applied for using the procedure their required number. If the state the costs to the Government, the value described in proposed § 490.507. doesn’t trade away or use any credits, it of the service or thing to the recipient, Proposed paragraph (a) provides for will have 65 credits that it can use public policy or interest served, and the allocation of one credit for each against future acquisitions or can trade. other relevant facts. DOE asks for alternative fueled vehicle a fleet or A database will be established that comments related to the desirability of covered person acquires that exceeds will keep a record of credit allocations, providing updated credit account the number of alternative fueled trades and credit balances. balance statements and what value a vehicles that fleet or person is required fleet or covered person would place on Proposed Section 490.504 Use of to acquire. If a fleet or covered person this service. Alternative Fueled Vehicle Credits is required to acquire 10 alternative Proposed Section 490.506 Alternative fueled vehicles in a model year and they Consistent with the language of Fuel Vehicle Credit Transfers acquire 15 alternative fueled vehicles, section 508(c) of the Act, proposed they can apply for allocation of five § 490.504 states that a credit shall be Proposed § 490.506 deals with the alternative fueled vehicle credits. treated as the acquisition of a light duty transfer of alternative fueled vehicle Proposed paragraph (b) provides for alternative fueled vehicle. Each credits. Proposed paragraph (a)(1) states the allocation of one credit per alternative fueled vehicle credit will that any fleet may transfer an alternative alternative fueled vehicle for each year represent one light duty alternative fueled vehicle credit to any other fleet, the alternative fueled vehicle is fueled vehicle and can be applied which is required to acquire alternative acquired in advance of the date the fleet against the required alternative fueled fueled vehicles. In contrast, proposed or covered person is required to acquire vehicle acquisition number for one paragraph (a)(2) states that any fleet may alternative fueled vehicles. These model year only, designated by a fleet transfer an alternative fueled vehicle credits cannot be allocated until the or covered person, in lieu of the credit to an alternative fuel provider, date that a fleet is required to acquire acquisition of a light duty alternative who is a covered person, if the fleet alternative fueled vehicles. Thus, only fueled vehicle during that model year. provides certification to the covered covered persons and State fleets are person that the credit represents a Proposed Section 490.505 Credit vehicle that operates solely on presently eligible for credit allocation. Accounts Until such time as private and alternative fuel. This restriction on the Proposed § 490.505 deals with municipal fleets are required to acquire transfer of credits from a fleet to an Alternative Fueled Vehicle Credit alternative fueled vehicles, they cannot alternative fuel provider, who is a accounts. Proposed paragraph (a) states be allotted credits for early acquisition. covered person, is necessary because of that DOE will establish a credit account At that time, all alternative fueled the vehicle operational requirement for each fleet or covered person who vehicles acquired between October 24, placed on alternative fuel provider obtains an alternative fueled vehicle 1992, and the start date of the private vehicles. 42 U.S.C. 13251(a)(4). Section credit. 508(d) of the Energy Policy Act permits and municipal fleet mandate would be Proposed paragraph (b) states that eligible for credit allocation. alternative fuel providers to use credits each fleet or covered person will receive only if these operational requirements Proposed paragraph (c) provides for an annual credit account balance are met. 42 U.S.C. 13258(d). the allocation of credits to alternative statement after the receipt and recording Proposed paragraph (c) states that fuel providers and State governments of its annual activity report. This proof of credit transfer should be for alternative fueled vehicles acquired statement will reflect the credit account provided to DOE within seven days of from October 24, 1992, the date the activity that occurred in the previous the transfer date, and provides for the Energy Policy Act was enacted. model year and can be used as proof of use of a DOE form, or other written Credit allocation is best explained by the credit balance for an account. documentation containing the dated the following examples. In the first DOE is considering whether to signatures of the transferor and example a covered person acquires 10 provide updated credit account balance transferee. This provision allows for the alternative fueled vehicles in model statements to fleets and covered persons maintenance and verification of credit year 1994 and 15 alternative fueled upon request during the year and is also transfer activity. vehicles in model year 1995. Because considering whether to charge a the covered person is not required to nominal fee for this service. These Proposed Section 490.507 Credit acquire alternative fueled vehicles until updated credit account balance Activity Reporting Requirements model year 1996, each alternative fueled statements would provide written proof Proposed § 490.507 describes the vehicle acquired in model year 1994 of a fleet or covered person’s credit credit program’s activity reporting will generate 2 credits and each account balance as of the date they are requirements. An annual report is alternative fueled vehicle acquired in printed. These updated credit account required of all fleets or covered persons model year 1995 will generate 1 credit. balance statements may be required of a who have generated or traded Thus, the covered person generates 35 credit seller by a credit purchaser before alternative fueled vehicle credits to credits [(10×2)+(15×1)=35], which can proceeding with the credit transfer. record and track their credit activity. be used against future alternative fueled Thus, the credit seller can use this Proposed paragraph (a) sets forth where 10984 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules and by when annual reports should be Proposed Section 490.605 Statement of notice. Comments relating to the energy sent. Enforcement Policy security, environmental, or economic Proposed paragraph (b) describes the In rare instances, DOE may initiate effects that might result from the required information that would be enforcement with the object of ensuring adoption of the proposals contained in included in this annual report. Most of compliance and deterring future this notice are specifically invited and the requirements are self-explanatory, violations. This proposed section desired. Whenever applicable, full however, subparagraph (b)(4) deserves indicates that DOE will not proceed supporting rationale, data and detailed discussion for clarification purposes. with enforcement if there is a analyses should also be submitted. Proposed subparagraph (b)(4) would satisfactory compliance agreement. only allow a fleet or covered person to B. Written Comment Procedures report either the number of alternative Proposed Section 490.606 Proposed Written comments (eight copies) fueled vehicles acquired in excess of Assessments and Orders should be identified on the outside of acquisition requirements or the number This proposed section provides for the envelope, and on the comments of alternative fueled vehicles acquired issuance of proposed assessments of themselves, with the designation: in advance of the start date of the civil penalty and an order to pay which ‘‘Alternative Fuel Provider Vehicle acquisition requirements, not both of becomes a final order for the Acquisition Mandate and Alternative Fuel Vehicle Credit Program, NOPR, them. Once the first model year in Department if the recipient fails to Docket Number EE–RM–95–110’’ and which acquisition requirements apply appeal on a timely basis to the Office of must be received by the date specified has begun, credits can no longer be Hearings and Appeals. earned for early acquisition of at the beginning of this notice. In the alternative fueled vehicles. Proposed Section 490.607 Appeals event any person wishing to submit a written comment cannot provide eight Subpart G—Investigations and This proposed section provides for copies, alternative arrangements can be Enforcement administrative due process if the recipient of a proposed assessment and made in advance by calling Andi Proposed Section 490.601 Powers of order to pay wishes to contest the basis Kasarsky at (202) 586–3012. the Secretary therefore. The appeal must be filed in Additionally, the Department would Proposed § 490.601 sets forth the the Office of Hearings and Appeals on appreciate an electronic copy of the powers of the Secretary provided or before 30 days from the date of the comments to the extent possible. The specifically by section 513 of the Act. issuance of a proposed assessment and Department is currently using Some of these powers (e.g., subpoenas order. Most of the applicable procedures WordPerfect 5.1 for DOS. for witnesses or documents) can be used for the Office of Hearings and Appeals All comments received on or before either in a investigative effort begun are in subpart H of 10 CFR part 205. In the date specified at the beginning of with orders to show cause or in addition, paragraph (b) of proposed this notice and other relevant connection with a civil penalty § 490.607 provides that the appellant information will be considered by DOE proceeding. has the ultimate burden of persuasion before final action is taken on the which is appropriate because the proposed rule. All comments submitted Proposed Section 490.602 Special will be available for examination in the Orders appellant will in most cases have unequal access to the relevant evidence Rule Docket File in DOE’s Freedom of Proposed § 490.602 tracks the (its own records). Paragraph (b) also Information Reading Room both before provisions of section 505(b)(1) of the provides that a trial-type hearing on and after the closing date for comments. Motor Vehicle Information and Cost contested issues of fact may occur only In addition, a transcript of the Savings Act, 15 U.S.C. § 2005(b)(1). if the hearing officer concludes that proceedings of the public hearings will Those provisions are applicable under cross examination will materially assist be filed in the docket. Pursuant to the provisions of 10 CFR part 490 because section 505(b)(1) is in determining the facts in addition to 1004.11 any person submitting cross referenced in section 513 of the the evidence available in documentary information or data that is believed to be Act. Orders under this section could be form. There should not be extended confidential, and which may be exempt used to deal with a wide variety of hearings in order to fill the record with by law from public disclosure, should circumstances. One example would be evidence which is largely repetitious. the failure to submit a required report. submit one complete copy, as well as Another would be an order to show III. Opportunity for Public Comment two copies from which the information claimed to be confidential has been cause why civil penalty proceedings A. Participation in Rulemaking should not be initiated for failure to deleted. The Department of Energy will comply with subparts C, D, or F. Interested persons are invited to make its own determination of any such participate in this proposed rulemaking claim and treat it according to its Proposed Section 490.603 Prohibited by submitting written data, views, or determination. Acts comments with respect to the subject set C. Public Hearing Procedures This proposed regulation tracks the forth in this notice. The Department language of section 511 of the Act. 42 encourages the maximum level of public The time and place of the public U.S.C. 13261. participation possible in this hearings are indicated at the beginning rulemaking. Individual consumers, of this notice. The Department invites Proposed Section 490.604 Penalties representatives of consumer groups, any person who has an interest in the and Fines manufacturers, associations, coalitions, proposed regulation or who is a This proposed regulation follows states or other government entities, and representative of a group or class of section 512 of the Act. 42 U.S.C. others are urged to submit written persons which has an interest to make § 13262. The text reflects DOE comments on the proposal. The a request for an opportunity to make an conclusions with regard to which of the Department also encourages interested oral presentation at the hearing. subsections of section 512 provide for persons to participate in the public Requests to speak should be sent to the civil penalties and which provide for hearings to be held at the times and address or phone number indicated in criminal fines. places indicated at the beginning of this the ADDRESSES section of this notice and Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10985 be received by the time specified in the assessment to be used in all decisions VI. Review Under Executive Order DATES section of this notice. involved in promulgating and 12866 The person making the request should implementing policy action. This regulatory action has been briefly describe his or her interest in the This proposed rule establishes an determined to be a significant regulatory proceedings and, if appropriate, state Alternative Fueled Vehicle Credit action under Executive order 12866, why that person is a proper Program under which states may Regulatory Planning and Review, representative of the group or class of generate credits if they obtain October 4, 1993. Accordingly, today’s persons that has such an interest. The alternative fueled vehicles in excess of action was subject to review under the person also should provide a phone their required quantity or if they obtain Executive Order by the Office of number where they may be reached alternative fueled vehicles prior to the Information and Regulatory Affairs during the day. Each person selected to date when they are required and (OIRA). DOE concluded that the speak at a public hearing will be establishes a mandate for state fleets to proposed rule would not result in (1) an notified as to the approximate time that acquire alternative fuel vehicles. The annual effect on the economy of $100 they will be speaking. They should allocation of credits is based on the million or more or (2) have significant bring ten copies of their statement to the measurable actions of obtaining adverse effects on competition, hearing. In the event any person alternative fueled vehicles and is employment, investment, productivity, wishing to testify cannot meet this available to fleets, that meet the innovation, or on the ability of the requirement, alternative arrangements requirements, throughout the United United States-based enterprises to can be made in advance with Andi States. compete in domestic export markets. Kasarsky, (202) 586–3012. The granting of credits to states will The DOE reserves the right to select be handled in the same manner as the OIRA requested that DOE prepare a cost persons to be heard at the hearings, to granting of credits to any other fleet analysis. In this section of the schedule their presentations, and to operator. The enforcement of the state Supplementary Information, DOE establish procedures governing the fleet mandate will be handled in the describes the assumptions and main conduct of the hearing. The length of same manner as other mandate conclusions of that cost analysis. A copy each presentation will be limited to ten programs. States can also apply for a of that cost analysis is available for minutes, or based on the number of hardship exemption which would public inspection in the administrative persons requesting to speak. exempt them from acquiring alternative record on file in DOE’s Freedom of A Department official will be fuel vehicles in any given year. Information Reading Room. DOE has designated to preside at the hearing. The The Department has determined that also placed in that file a copy of the hearing will not be a judicial or an since states are treated the same as any notice of proposed rulemaking as evidentiary-type hearing, but will be other fleet operator in the allocation of transmitted to OIRA, as well as conducted in accordance with 5 U.S.C. credits and in the administration and exchanges of correspondence between 553 and Section 501 of the Department enforcement of the fleet mandate, the DOE and OIRA showing changes in the of Energy Organization Act. 42 U.S.C. proposed rule will not have a notice agreed to by the two agencies. 7191. At the conclusion of all initial oral substantial direct effect on the The cost analysis spans a 25-year time statements, each person will be given institutional interests or traditional frame, from 1995 to 2020, which the opportunity to make a rebuttal functions of States. In addition, the included the incremental vehicle statement. The rebuttal statements will provision for hardship exemptions purchase cost and the cost differential be given in the order in which the initial included in the state fleet mandate between alternative fuels and gasoline statements were made. precludes any possible violation in the under five different scenarios. The Any further procedural rules needed authority that the Federal government analysis examines the effects the for the proper conduct of the hearing has over States. Thus, preparation of a proposed rule will have on the will be announced by the Presiding federalism assessment is therefore acquisition of alternative fueled vehicles Officer at the hearing. unnecessary. by fuel providers and State fleets, If DOE must cancel a hearing, DOE exclusive of the effects of non-mandated V. Review Under Executive Order will make every effort to publish an acquisition of vehicles by these and 12778 advance notice of such cancellation in other fleets. In doing so it assumes that the Federal Register. Notice of Section 2 of Executive Order 12778 no alternative fueled vehicles will be cancellation will also be given to all instructs each agency to adhere to acquired by these fleets prior to model persons scheduled to speak at the certain requirements in promulgating year 1996. In actuality, these fleets hearing. Hearing dates may be canceled new regulations. These requirements, currently are acquiring alternative in the event no public testimony has set forth in section 2 (a) and (b)(2), fueled vehicles—either because of been scheduled in advance. include eliminating drafting errors and economics, State laws or business needless ambiguity, drafting the strategies—and will probably continue IV. Review Under Executive Order regulations to minimize litigation to do so in the future. This assumption 12612 providing clear and certain legal focuses the analysis on the estimated Executive Order 12612, 52 FR 41685 standards for affected legal conduct, and costs to fuel providers and State fleets (October 30, 1987), requires that promoting simplification and burden in complying with the proposed regulations, rules, legislation, and any reduction. Agencies are also instructed regulation without distorting it in any other policy actions be reviewed for any to make every reasonable effort to substantial way. Assumptions about the substantial direct effect on states, on the ensure that the regulation describes any number of vehicles acquired, the relationship between the National administrative proceeding to be operating characteristics of those Government and the States, or in the available prior to judicial review and vehicles, fleet vehicle replacement rates, distribution of power and any provisions for the exhaustion of current and future alternative fueled responsibilities among various levels of administrative remedies. DOE certifies vehicle incremental costs, and current government. If there are substantial that the proposed rule meets the and future retail fuel costs were based effects, then the Executive Order requirements of section 2 (a) and (b)(2) on previous analyses undertaken by the requires a preparation of a federalism of Executive Order 12778. Department. 10986 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules The costs to fuel providers and State displaced increases. The Department sources, gathering and maintaining the fleets in complying with the proposed would also be interested in data that data needed, and completing and rule varies depending upon vehicle would aid in estimating the extra retrieving the collection of information. type, fuel type and fuel consumption, refueling costs for ‘‘covered persons’’ The collection of information contained but in no case are the annual costs whose fleets use fuels other than the one in this proposed rule is considered the estimated to exceed $61 million per they themselves provide, e.g., a natural least burdensome for the Department of year. More typically, the estimated gas pipeline company whose alternative Energy functions to comply with the annual costs are approximately $25 fueled vehicles operate on methanol or legal requirements and achieve program million, decreasing to $10 million per ethanol. objectives. However, comments are year in later years. In reaching these requested concerning the accuracy of VII. Review Under the Regulatory conclusions, the Department took into the estimated paperwork reporting Flexibility Act account the fact that some alternative burden. fuel providers may not operate vehicles The Regulatory Flexibility Act of IX. Review Under the National solely on the fuel they provide and may 1980, 5 U.S.C. 601–612, was enacted by Environmental Policy Act have to purchase other alternative fuels Congress to ensure that small entities do at retail prices. Retail fuel prices for all not face significant negative economic The provisions of this proposed rule alternative fuels were used in the impact as a result of Government would establish procedures for the analysis. These prices have three main regulations. In instances where implementation of an Alternative Fuel components: (1) The wholesale fuel significant impacts are possible on a Transportation Program to assist in and cost; (2) the cost of transporting the fuel substantial number of entities, agencies monitor the progress of State fleet and from production points to retail outlets; are required to perform a regulatory certain alternative fuel providers and (3) the retail outlet mark-ups. flexibility analysis. compliance activity. The proposed rule In one scenario, the annual costs to DOE has determined that this provides for reporting procedures to State fleets decreased to a point where proposed rule will not have a significant demonstrate compliance with the it is estimated that these fleets would negative impact on a substantial number alternative fueled vehicle acquisition incur savings as a result of complying of small entities. To be covered by this mandates as specified by Title V of the with the proposed rule. This scenario rulemaking, an organization must own, Energy Policy Act of 1992, and includes assumes that the most popular operate or control at least 50 light duty proposed procedures for interpretive alternative fueled vehicles will be motor vehicles, of which at least 20 light rulings, exemption, appeals, and the flexible-fuel vehicles that can operate on duty motor vehicles used primarily approval process for State plans. gasoline and/or methanol. Because the within a single MSA or CMSA must be The proposed rule would also proposed rule does not impose a fuel capable of being centrally fueled. An establish and define the parameters for use requirement on State fleets, it is organization that fits this description is who must comply, the parts of a vehicle logical to assume that States will choose usually not a small organization, but inventory which are affected by the to operate these vehicles on the fuel one of medium size or larger. acquisition mandates, the allocation of which costs less at a certain point in credits for voluntary acquisitions, the VIII. Review Under the Paperwork investigation and enforcement in the time; currently that fuel is gasoline. It is Reduction Act expected that the nominal incremental assessment of civil penalties, and the cost for these vehicles, together with the New information collection contents of a State’s light duty fact that their operation and refueling is requirements subject to the Paperwork alternative fueled vehicle plan. Because identical to a gasoline-only version, Reduction Act, 44 U.S.C. 3501, et seq., of the foregoing non-procedural parts of should make them very attractive to and recordkeeping requirements are the proposed rule, the Department has State fleet managers. The expected proposed by this rulemaking. determined that preparation of an popularity of these vehicles, combined Accordingly, this notice has been Environmental Assessment (EA) is with estimates that show methanol submitted to the Office of Management appropriate. The Department will prices falling below gasoline by model and Budget for review and approval of complete the EA and any further year 2001, result in annual cost savings paperwork requirements. The analysis found to be required prior to to State fleets, starting with model year information DOE proposes to collect as the issuance of a final rule. reporting requirements is necessary to 2005, in the range of $400,000 to $1 X. Impact on State Governments million. determine whether an organization is in In order to provide commenters with compliance with the proposed Section 1(b)(9) of Executive Order a better understanding of the effects of regulation and whether they are eligible 12866 (‘‘Regulatory Planning and this proposal, the Department plans to for the allocation of alternative fueled Review’’), 58 FR 51735 (September 30, make revisions and improvements to its vehicle credits. The frequency of the 1993) established the following analysis before the close of the comment information collection is annually and principle for agencies to follow in period. To aid in this effort, the is due four months after the end of the rulemakings: ‘‘Wherever feasible, Department seeks comments on all compliance period. It is estimated the agencies shall seek views of appropriate aspects of its analysis. In particular, the number of organizations submitting State, local, and tribal officials before Department is interested in comment on reports will be approximately 1000 for imposing regulatory requirements that the following elements of the analysis: the years 1996 through 1999. The might significantly or uniquely affect the retail and net-of-excise-tax future estimated number of organizations who those governmental entities. Each price projections for gasoline and will be submitting reports after that date agency shall assess the effects of Federal alternative fuels; the assumption that has not been determined and is subject regulations on State, local, and tribal alternative fueled vehicle purchases, to the DOE decision on future governments, including specifically the that would result in apparent life-cycle rulemakings. availability of resources to carry out cost savings, would not occur in the The public reporting burden is those mandates, and seek to minimize absence of this rule; and the assumption estimated to average 12 hours per those burdens that uniquely or that the cost per gallon of gasoline response, including time for reviewing significantly affect such governmental displaced falls as the amount of gasoline instructions, searching existing data entities, consistent with achieving Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10987 regulatory objectives. In addition, estimates of incremental costs STATES AND AREAS AFFECTED BY THE agencies shall seek to harmonize attributable solely to the section 507(o) CLEAN FUEL FLEET PROGRAMÐ Federal regulatory actions with mandate. Continued regulated state, local and tribal In developing today’s notice of regulatory and other governmental proposed rulemaking, the Department Affected area State(s) functions.’’ Executive Order 12875 consulted with a focus group of State (‘‘Enhancing Intergovernmental officials from the National Association 21. Ventura County ...... California. Partnership’’), 58 FR 58093 (October 26, of State Energy Officials which 22. Washington (District of Maryland, Vir- 1993) provides for reduction or represents energy offices in 53 States, Columbia). ginia. mitigation, to the extent allowed by law, territories and the District of Columbia. As indicated above, 11 of these 22 of the burden on State, local, and tribal The principal concern expressed by areas have applications to opt out of the governments of unfunded Federal some of these officials was conflict EPA Clean Fuel Fleet Program which mandates not required by statute. between the DOE program and similar are still pending as of the date of Section 507(o) of the Act explicitly programs operating under EPA or State prescribes the alternative fueled vehicle publication of this notice. regulations. With respect to EPA, DOE With respect to the State programs, acquisition mandate which is reflected has attempted to avoid unnecessary in subpart C of today’s proposed DOE is unaware of any that would be in differences between its proposed conflict with the program proposed regulations, but does not specifically regulations and those already authorize appropriation of funds to today. If DOE has overlooked any such promulgated by EPA. When asked for conflicts, State officials are invited to defray the costs of compliance. comments on a draft of today’s notice, However, it is important to observe that submit comments explaining the EPA did not suggest any changes to conflicts. the effect of the mandate is mitigated in eliminate or mitigate unnecessary terms of its impacts and costs in a differences. List of Subjects in 10 CFR Part 490 number of respects. Earlier in this notice, DOE noted that Appeal procedures, Energy, Energy First, section 507(o) authorizes the overlap between the proposed conservation, Fuel, Gasoline, Motor approval of acceptable alternative State regulations and the EPA regulations is vehicles, Oil imports, Petroleum, plans to comply with the acquisition limited because the DOE program would Recordkeeping and Reporting mandate by enlisting the voluntary apply in MSAs and CMSAs with a 1980 requirements, and Utilities. commitments from other fleet operators Bureau of Census population of 250,000 with fleets that are not subject to vehicle or more and the EPA program applies Issued in Washington, D.C. on February 2, 1995. acquisition requirements under the only in non-attainment areas. EPA has Energy Policy Act of 1992. Second, published a table, 59 FR 50043, listing Christine A. Ervin, section 507(i) authorizes the Department the 22 non-attainment areas as follows: Assistant Secretary, Energy Efficiency and to grant exemptions from vehicle Renewable Energy. For the reasons set forth in the acquisition requirements for States in STATES AND AREAS AFFECTED BY THE Preamble, Title 10, Chapter II, cases of financial hardship. Third, CLEAN FUEL FLEET PROGRAM Congress has authorized and Subchapter D, of the Code of Federal appropriated some fiscal year 1994 and Affected area State(s) Regulations is proposed to be amended fiscal year 1995 funds for financial by adding a new Part 490 as set forth assistance to State alternative fuel 1. Atlanta ...... Georgia. below: transportation programs some of which 2. Baltimore ...... Maryland. may include plans to fund the 3. Baton Rouge ...... Louisiana. PART 490ÐALTERNATIVE FUEL incremental costs of acquiring 4. Beaumont-Port Arthur ... Texas. TRANSPORTATION PROGRAM 5. Boston-Lawrence- Massachusetts, alternative fueled vehicles. Section 409 Subpart AÐGeneral Provision of the Act specifically authorizes Worcester (Eastern Mas- New Hamp- sachusetts). shire. Sec. financial assistance to States for this 6. Chicago-Gary-Lake Illinois, Indiana. § 490.1 Purpose and Scope. purpose. However, the funds, even if County. § 490.2 Definitions. exclusively used to pay for such 7. Denver-Boulder ...... Colorado. § 490.3 Excluded vehicles. incremental costs, may not be sufficient 8. El Paso ...... Texas. § 490.4 General information inquiries. to fund all such costs incurred by each 9. Greater Connecticut ...... Connecticut. § 490.5 Requests for an interpretive ruling. State annually. 10. Houston-Galveston- Texas. § 490.6 Petitions for general applicable The Department preliminarily Brazoria. rulemaking. estimates that, in the aggregate, the costs 11. Los Angeles-South California. § 490.7 Relationship to other law. to States in model year 1996 will be Coast Air Basin. 12. Milwaukee-Racine ...... Wisconsin. Appendix A to Subpart A of Part 490— between $3.3 million and $7.4 million. 13. New York-Northern Connecticut, Metropolitan Statistical Areas/Consolidated The annual aggregate costs should never New Jersey-Long Island. New Jersey, Metropolitan Statistical Areas with 1980 exceed $13 million in FY 1995 dollars. New York. Populations of 250,000 or More A copy of the analysis which includes 14. Philadelphia-Wilming- Delaware, Mary- Subpart BÐ[Reserved] these figures is in the public file in the ton-Trenton. land, New Jer- DOE Freedom of Information Reading sey, Penn- Subpart CÐMandatory State Fleet Program Room and is available upon request sylvania. § 490.200 Purpose and scope. from the information contact identified 15. Providence (All Rhode Rhode Island. § 490.201 Alternative fueled vehicle at the outset of this notice. The Island). acquisition mandate schedule. Department does not have estimates for 16. Sacramento Metro ...... California. § 490.202 Acquisitions satisfying the 17. San Diego ...... California. mandate. each State. The Department would 18. San Joaquin Valley ..... California. § 490.203 Light Duty Alternative Fueled welcome comments from State financial 19. Southeast Desert California. Vehicle plan. officials knowledgeable about near term Modified AQMA. § 490.204 Process for granting exemptions. State plans for replacing existing 20. Springfield (Western Massachusetts. § 490.205 Reporting requirements. vehicles so that DOE can refine its Massachusetts). § 490.206 Violations. 10988 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules Subpart DÐAlternative Fuel Provider conversion kit components are under Covered Person means a person that Vehicle Acquisition Mandate warranty of the conversion company. owns, operates, leases, or otherwise § 490.300 Purpose and scope. Alternative Fuel means methanol, controls— § 490.301 Definitions. denatured ethanol, and other alcohols; (1) A fleet, as defined by this section, § 490.302 Vehicle acquisition mandate mixtures containing 85 percent or more that contains at least 20 light duty motor schedule. by volume of methanol, denatured vehicles that are centrally fueled or § 490.303 Who must comply. ethanol, and other alcohols with capable of being centrally fueled, and § 490.304 Which new light duty motor vehicles are covered. gasoline or other fuels; natural gas; are used primarily within a § 490.305 Acquisitions satisfying the liquefied petroleum gas; hydrogen; coal- metropolitan statistical area or a mandate. derived liquid fuels; fuels (other than consolidated metropolitan statistical § 490.306 Vehicle operation requirements. alcohol) derived from biological area, as established by the Bureau of the § 490.307 Option for electric utilities. materials; and electricity (including Census, with a 1980 population of § 490.308 Process for granting exemptions. electricity from solar energy). 250,000 or more as set forth in § 490.309 Annual reporting requirements. Alternative Fueled Vehicle means a Appendix A to this subpart or in a § 490.310 Violations. dedicated vehicle or a dual fueled Federal Register notice; and Subpart EÐ[Reserved] vehicle. (2) at least 50 light duty motor Assistant Secretary means the vehicles within the United States, as Subpart FÐAlternative Fueled Vehicle Assistant Secretary for Energy Efficiency Credit Program defined by this section. and Renewable Energy or any other DOE Dealer Demonstration Vehicle means § 490.500 Purpose and scope. official to whom the Assistant any vehicle that is operated by a motor § 490.501 Applicability. Secretary’s duties under this part may vehicle dealer solely for the purpose of § 490.502 Creditable actions. § 490.503 Credit allocation. be redelegated by the Secretary. promoting motor vehicle sales, either on § 490.504 Use of alternative fueled vehicle Capable of Being Centrally Fueled the sales lot or through other marketing credits. means a vehicle can be refueled at least or sales promotions, or for permitting § 490.505 Credit accounts. 75 percent of its time at a location, that potential purchasers to drive the vehicle § 490.506 Alternative Fueled Vehicle Credit is owned, operated, or controlled by the for pre-purchase or pre-lease evaluation. transfers. fleet or covered person, or is under Dedicated Vehicle means— § 490.507 Credit activity reporting contract with the fleet or covered person (1) A dedicated automobile as defined requirements. for refueling purposes, including in section 513(h)(1)(C) of the Motor Subpart GÐInvestigations and commercial fleet credit card agreements. Vehicle Information and Cost Savings Enforcement. Centrally Fueled means that the Act (15 U.S.C. 2013(h)(1)(C)); or § 490.600 Purpose and scope. vehicle is fueled at least 75 percent of (2) A motor vehicle, other than an § 490.601 Powers of the Secretary. the time at a location that is owned, automobile, that operates solely on § 490.602 Special orders. operated, or controlled by the fleet or alternative fuel. § 490.603 Prohibited acts. covered person, or is under contract DOE means the Department of Energy. § 490.604 Penalties and fines. with the fleet or covered person for Dual Fueled Vehicle means— § 490.605 Statement of enforcement policy. refueling purposes, including (1) A dual fueled automobile which is § 490.606 Proposed assessments and orders. commercial fleet credit card agreements. capable of operating on alternative fuel § 490.607 Appeals. Control means— and on gasoline or diesel fuel and as Authority: 42 U.S.C. 7191, 13235, 13251, (1) When it is used in the context defined in section 513(h)(1)(D) of the 13257, 13258, 13260–3. determining whether one person Motor Vehicle Information and Cost controls another or whether two persons Savings Act (15 U.S.C. § 2013(h)(1)(D)); Subpart AÐGeneral Provisions are under common control, means any or § 490.1 Purpose and Scope. one or a combination of the following: (2) A motor vehicle, other than an (a) The provisions of this part (i) A third person or firm has equity automobile, that is capable of operating implement the alternative fuel ownership of 51 percent or more in each on alternative fuel and on gasoline or transportation program under titles III, of two firms; or diesel fuel including flexible-fuel IV, V, and VI of the Energy Policy Act (ii) Two or more firms have common vehicles that operate on a mixture of an of 1992. (Pub. L. 102–486) corporate officers, in whole or in alternative fuel and a petroleum-based (b) The provisions of this subpart substantial part, who are responsible for fuel or bi-fuel vehicles that can be cover the definitions applicable the day-to-day operation of the switched to operate on either an throughout this part and procedures to companies; or alternative fuel or a petroleum-based obtain an interpretive ruling and to (iii) One firm leases, operates, fuel. petition for a generally applicable rule supervises, or in 51 percent or greater Electric-hybrid Vehicle means a to amend this part. part owns equipment and/or facilities vehicle primarily powered by an electric used by another person or firm, or has motor that draws current from § 490.2 Definitions. equity ownership of 51 percent or more rechargeable storage batteries, fuel cells The following definitions apply to of another firm. or other sources of electric current and this part— (2) When it is used to refer to the also relies on a non-electric source of Act means the Energy Policy Act of management of vehicles, means a power. 1992 (Pub. L. 102–486) and any person has the authority to decide who Electric Motor Vehicle means a motor amendments thereof. can operate a particular vehicle, and the vehicle primarily powered by an electric After-Market Converted Vehicle purposes for which the vehicle can be motor that draws current from means an Original Equipment operated. rechargeable storage batteries, fuel cells, Manufacturer vehicle that is (3) When it used to refer to the photovoltaic arrays, or other sources of reconfigured by a conversion company, management of people, means a person electric current and may include an which is not under contract to the has the authority to direct the activities electric-hybrid vehicle. Original Equipment Manufacturer, to of another person or employee in a Emergency motor vehicle means any operate on an alternative fuel and whose precise situation, such as the workplace. vehicle that is legally authorized by a Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10989 government authority to exceed the Original Equipment Manufacturer § 490.5 Requests for an interpretive ruling. speed limit to transport people and Vehicle means a vehicle engineered, (a) Right to file. Any person who is or equipment to and from situations in designed and produced by an Original may be subject to this part shall have which speed is required to save lives or Equipment Manufacturer. the right to file a request for an property, such as a rescue vehicle, fire Person means any individual, interpretive ruling on a question with truck or ambulance. partnership, corporation, voluntary regard to how the regulations apply to Fleet means, except as provided by association, joint stock company, particular facts and circumstances. § 490.3, a group of 20 or more light duty business trust, Governmental entity, or (b) How to file. A request for an motor vehicles, used primarily in a other legal entity in the United States interpretive ruling shall be filed— metropolitan statistical area or except United States Government (1) With the Assistant Secretary; consolidated metropolitan statistical entities. (2) In an envelope labeled ‘‘Request area, as established by the Bureau of the Public Building means any closed for Interpretive Ruling under 10 CFR Census as of December 31, 1992, with a structure owned, leased, or controlled Part 490;’’ and 1980 Census population of more than by a state, or any instrumentality of a (3) By messenger or mail at the Office 250,000 (listed in Appendix A to this state. of Energy Efficiency and Renewable Subpart or in an annual notice in the Energy, EE–33, U.S. Department of State means any of the 50 States, the Federal Register), that are centrally Energy, 1000 Independence Avenue, District of Columbia, the fueled or capable of being centrally S.W., Washington, D.C. 20585 or at such Commonwealth of Puerto Rico, and any fueled, and are owned, operated, leased, other address as DOE may provide by other territory or possession of the or otherwise controlled— notice in the Federal Register. United States. (1) By a person who owns, operates, (c) Content of request for interpretive leases, or otherwise controls 50 or more § 490.3 Excluded vehicles. ruling. At a minimum, a request under light duty motor vehicles within the this section shall— When counting light duty motor United States and its possessions and (1) Be in writing; vehicles for the purpose of determining territories; (2) Be labeled ‘‘Request for (2) By any person who controls such under this part whether a person has a Interpretive Ruling Under 10 CFR Part person; fleet or whether acquisitions are for 490;’’ (3) By any person controlled by such addition to a fleet, the following (3) Identify the name, address, person; and vehicles are excluded— telephone number, and any designated (4) By any person under common (a) Motor vehicles held for lease or representative of the person requesting control with such person. rental to the general public, including the interpretive ruling; Law Enforcement Motor Vehicle vehicles that are owned or controlled (4) State the facts and circumstances means any vehicle which is primarily primarily for the purpose of short-term relevant to the request; operated by a civilian or military police rental or extended-term leasing, without (5) Be accompanied by copies of officer or sheriff, or by personnel of the a driver, pursuant to a contract; relevant supporting documents, if any; Federal Bureau of Investigation, the (b) Motor vehicles held for sale by (6) Specifically identify the pertinent Drug Enforcement Administration, or motor vehicle dealers, including regulations and the related question on other agencies of the Federal demonstration motor vehicles; which an interpretive ruling is sought government, or by state highway patrols, (c) Motor vehicles used for motor with regard to the relevant facts and municipal law enforcement, or other vehicle manufacturer product circumstances; and similar enforcement agencies, and evaluations or tests, including but not (7) Contain any arguments in support which is used for the purpose of law limited to, light duty motor vehicles of the terms of an interpretation the enforcement activities including, but owned or held by a university research requester is seeking. not limited to, chase, apprehension, department, independent testing (d) Public comment. DOE may give surveillance, or patrol of people engaged laboratory, or other such evaluation public notice of any request for an in or potentially engaged in unlawful facility, solely for the purpose of interpretive ruling and invite public activities. evaluating the performance of such comment. Lease means the use and control of a vehicle for engineering, research and (e) Opportunity to respond to public motor vehicle for transportation development or quality control reasons; comment. DOE may provide an purposes pursuant to a rental contract or (d) Law enforcement vehicles; opportunity for any person who requested an interpretive ruling to similar arrangement with a term of 120 (e) Emergency motor vehicles; days or more. respond to public comments. Light Duty Motor Vehicle means a (f) Motor vehicles acquired and used (f) Other sources of information. DOE light duty truck or light duty vehicle, as for purposes that the Secretary of may— such terms are defined under section Defense has certified to DOE must be (1) Conduct an investigation of any 216(7) of the Clean Air Act (42 U.S.C. exempt for national security reasons; statement in a request; § 7550(7)), having a gross vehicle weight (g) Nonroad vehicles, including farm (2) Consider any other source of rating of 8,500 pounds or less. and construction motor vehicles; and information in evaluating a request for Model Year means the period from (h) Motor vehicles which under an interpretive ruling; and September 1 of the previous calendar normal operations are garaged at (3) Rely on previously issued year through August 31. personal residences at night. interpretive rulings dealing with the Motor Vehicle has the meaning given same or a related issue. such term under section 216(2) of the § 490.4 General information inquiries. (g) Informal conference. DOE, on its Clean Air Act (42 U.S.C. 7550(2)). DOE responses to inquiries with own initiative, may convene an informal Original Equipment Manufacturer regard to the provisions of this part that conference with the person requesting means a manufacturer that provides the are not filed in compliance with an interpretive ruling. original design and materials for §§ 490.5 or 490.6 of this part constitute (h) Effect of an interpretive ruling. assembly and manufacture of its general information and the responses The authority of an interpretive ruling product. provided shall not be binding on DOE. shall be limited to the person requesting 10990 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules such ruling and shall depend on the (3) Identify the provisions of law that Denver-Boulder-Greeley CMSA CO accuracy and completeness of the facts direct, authorize, or affect the issuance Des Moines MSA IA and circumstances on which the of the rules being sought; and Detroit-Ann Arbor-Flint CMSA MI interpretive ruling is based. An (4) Explain why DOE should not El Paso MSA TX choose to make policy by precedent Erie MSA PA interpretive ruling by the Assistant Eugene-Springfield MSA OR Secretary shall be final for DOE. through interpretive rulings, petitions Evansville-Henderson MSA IN-KY (i) Reliance on an interpretive ruling. for exemption, or other adjudications. Fort Wayne MSA IN No person who obtains an interpretive (d) Determination upon rulemaking Fresno MSA CA ruling under this section shall be subject petitions. After considering the petition Grand Rapids-Muskegon-Holland MSA MI to an enforcement action for civil and other information deemed to be Greensboro-Winston Salem-High Point MSA penalties or criminal fines for actions appropriate, DOE may grant the petition NC reasonably taken in reliance thereon, and issue an appropriate rulemaking Greenville-Spartanburg-Anderson MSA SC notice, or deny the petition because the Harrisburg-Lebanon-Carlisle MSA PA but a person may not act in reliance on Hartford MSA CT an interpretive ruling that is rule being sought— Hickory-Morganton MSA NC administratively rescinded or modified, (1) Would be inconsistent with Honolulu MSA HI judicially invalidated, or its prospective statutory law; Houston-Galveston-Brazoria CMSA TX effect is overruled by statute or (2) Would establish a generally Huntington-Ashland MSA WV-KY-OH regulation. applicable policy that should be left to Indianapolis MSA IN (j) Denials of requests for an case-by-case determinations; Jackson MSA MS (3) Would establish a policy Jacksonville MSA FL interpretive ruling. DOE shall deny a inconsistent with the underlying Johnson City-Kingsport-Bristol MSA TN-VA request for an interpretive ruling if DOE statutory purposes; or Kansas City MSA MO-KS determines that— (4) For other good cause. Knoxville MSA TN (1) There is insufficient information Lakeland-Winter Haven MSA FL upon which to base an interpretive § 490.7 Relationship to other law. Lancaster MSA PA ruling; Nothing in this part shall be Lansing-East Lansing MSA MI (2) The questions posed should be construed to require or authorize Las Vegas MSA NV-AZ treated in a general notice of proposed acquisition of, or conversion to, light Lexington MSA KY Little Rock-N. Little Rock MSA AR rulemaking under 42 U.S.C. 7191 and 5 duty alternative fueled motor vehicles Los Angeles-Riverside-Orange County CMSA U.S.C. 553(e); in violation of applicable regulations of CA (3) There is an adequate procedure the U.S. Environmental Protection Louisville MSA KY-IN elsewhere in this part for addressing the Agency, U.S. Department of Macon MSA GA question posed, such as a petition for Transportation, or any State or local Madison MSA WI exemption; or government agency. McAllen-Edinburg-Mission MSA TX (4) For other good cause. Melbourne-Titusville-Palm Bay MSA FL (k) Public file. From time to time, DOE Appendix A To Subpart A of Part 490 Memphis MSA TN-AR-MS Miami-Fort Lauderdale CMSA FL may file a copy of an interpretive ruling Metropolitan Statistical Areas/ Milwaukee-Racine CMSA WI in a public file labeled ‘‘Interpretive Consolidated Metropolitan Statistical Areas Minneapolis-St. Paul MSA MN-WI Rulings Under 10 CFR Part 490’’ which With 1980 Populations of 250,000 or more Mobile MSA AL shall be available during normal Albany-Schenectady-Troy MSA NY Modesto MSA CA business hours for public inspection at Albuquerque MSA NM Montgomery MSA AL the DOE Freedom of Information Allentown-Bethlehem-Easton MSA PA Nashville MSA TN Reading Room at 1000 Independence Appleton-Oshkosh-Neenah MSA WI New London-Norwich MSA CT-RI Avenue, SW, Washington, DC 20585, or Atlanta MSA GA New Orleans MSA LA at such other addresses as DOE may Augusta-Aiken MSA GA-SC New York-N. New Jersey-Long Island CMSA Austin-San Marcos MSA TX NY-NJ-CT-PA announce in a Federal Register notice. Bakersfield MSA CA Norfolk-Virginia Beach-Newport News MSA § 490.6 Petitions for generally applicable Baton Rouge MSA LA VA-NC rulemaking. Beaumont-Port Arthur MSA TX Oklahoma City MSA OK Binghamton MSA NY Omaha MSA NE-IA (a) Right to file. Pursuant to 42 U.S.C. Birmingham MSA AL Orlando MSA FL 7191 and 5 U.S.C. 553(e), any person Boise City MSA ID Pensacola MSA FL may file a petition for generally Boston-Worcester-Lawrence CMSA MA-NH- Peoria-Pekin MSA IL applicable rulemaking under titles III, ME-CT Philadelphia-Wilmington-Atlantic City IV, and V of the Act with the DOE Buffalo-Niagara Falls MSA NY CMSA PA-NJ DE-MD General Counsel. Canton-Massillon MSA OH Phoenix-Mesa MSA AZ (b) How to file. a petition for generally Charleston MSA SC Pittsburgh MSA PA Charleston MSA WV Portland-Salem CMSA OR-WA applicable rulemaking under this Charlotte-Gastonia-Rock Hill MSA NC-SC Providence-Fall River-Warwick MSA RI-MA section shall be filed by mail or Chattanooga MSA TN-GA Raleigh-Durham-Chapel Hill MSA NC messenger in an envelope address to the Chicago-Gary-Kenosha CMSA IL-IN-WI Reading MSA PA Office of General Counsel, GC–1, U.S. Cincinnati-Hamilton CMSA OH-KY-IN Richmond-Petersburg MSA VA Department of Energy, 1000 Cleveland-Akron CMSA OH Rochester MSA NY Independence Avenue, S.W., Colorado Springs MSA CO Rockford MSA IL Washington, D.C. 20585. Columbia MSA SC Sacramento-Yolo CMSA CA (c) Content of rulemaking petitions. A Columbus MSA OH Saginaw-Bay City-Midland MSA MI petition under this section must— Columbus MSA SC-GA-AL St. Louis MSA MO–IL Corpus Christi MSA TX Salinas MSA CA (1) Be labeled ‘‘Petition for Dallas-Fort Worth CMSA TX Salt Lake City-Ogden MSA UT Rulemaking Under 10 CFR Part 490’’; Davenport-Moline-Rock Island MSA IA-IL San Antonio MSA TX (2) Describe with particularity the Dayton-Springfield MSA OH San Diego MSA CA terms of the rule being sought; Daytona Beach MSA FL San Francisco-Oakland-San Jose CMSA CA Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10991 San Juan MSA PR number will be made by rounding the (1) Certification by the Governor, or Santa Barbara-Santa Maria-Lompoc MSA CA number of vehicles up to the next whole the Governor’s designee, that the plan Scranton-Wilkes Barre-Hazleton MSA PA number. meets the requirements of this subpart; Seattle-Tacoma-Bremerton CMSA WA (2) Identification of state, local and Shreveport-Bossier City MSA LA § 490.202 Acquisitions satisfying the private fleets that will participate in the Spokane MSA WA mandate. Springfield MSA MA plan; Stockton-Lodi MSA CA In addition to the use of alternative (3) Number of new alternative fueled Syracuse MSA NY fueled vehicle credits under subpart F of vehicles per plan participant, either Tampa-St. Petersburg-Clearwater MSA FL this part, the following actions within a through conversion or acquisition; Toledo MSA OH model year qualify as acquisitions that (4) A written statement from each Tucson MSA AZ count toward compliance with the new plan participant to assure commitment; Tulsa MSA OK light duty alternative fueled vehicle (5) A statement of contingency Utica-Rome MSA NY mandates by State fleets: Washington-Baltimore CMSA DC–MD–VA– measures by the State to offset any (a) The purchase or lease of an failure to fulfill significant WV Original Equipment Manufacturer West Palm Beach-Boca Raton MSA FL commitments by plan participants, in Wichita MSA KS vehicle, (regardless of model year of order to meet the requirements of York MSA PA manufacture), capable of operating on § 490.201; Youngstown-Warren MSA OH alternative fuels that was not previously (6) A provision by the State to in service in the fleet; or monitor and verify implementation of Subpart BÐ[Reserved] (b) The purchase or lease of an after- the plan; market converted vehicle (regardless of (7) A provision certifying that all Subpart CÐMandatory State Fleet model year of manufacture), that was acquisitions and conversions under the Program not previously in service in the fleet; or plan are voluntary and will meet the § 490.200 Purpose and scope. (c) The conversion of a newly requirements of § 247 of the Clean Air purchased Original Equipment Act, as amended (42 U.S.C. § 7587) and This subpart sets forth rules Manufacturer Vehicle (regardless of the all applicable safety requirements. implementing the provisions of Section model year of manufacture) to operate 507(o) of the Act which requires, subject (c) When to submit plan. Beginning on alternative fuels prior to its first use with model year 1996, any State to some exemptions, that certain in service. percentages of new light duty motor wishing to submit a plan under this section must do so no later than June 1 vehicles acquired for state fleets be § 490.203 Light Duty Alternative Fueled alternative fueled vehicles. Vehicle Plan. prior to the model year covered by such plan. § 490.201 Alternative fueled vehicle (a) General provisions. (1) In lieu of (d) Review and approval. DOE shall acquisition mandate schedule. meeting its acquisition requirements review and approve a plan which meets under § 490.201 exclusively through (a) Except as otherwise provided in the requirements of this subpart and is State-owned vehicles, a State may this subpart, beginning with model year designed to achieve at a minimum, the follow a Light Duty Alternative Fueled 1996, the following percentages of new same number of alternative fueled Vehicle Plan approved by DOE under light duty motor vehicles acquired vehicle acquisitions or conversions as this section. annually for state government fleets, would be required under § 490.201 including agencies thereof but (2) Unless a fleet is exempt under within 60 days of the date of receipt of excluding municipal fleets, shall be § 490.204, a State which does not have the plan by DOE at the address in alternative fueled vehicles; an approved plan in effect under this paragraph (h)(1) of this section. (1) 10 percent of the vehicles acquired section will be subject to the State fleet (e) Disapproval of plans. If DOE in model year 1996; acquisition percentage requirements of disapproves or requests a State to (2) 15 percent of the vehicles acquired § 490.201. submit additional information, the State in model year 1997; (3) In the event that a significant may revise and resubmit the plan to (3) 25 percent of the vehicles acquired commitment under an approved plan is DOE within a reasonable time. States, in model year 1998; not met by a participant of a plan, the however, must comply with § 490.201 (4) 50 percent of the vehicles acquired State shall meet its percentage until such time as the plan is approved. in model year 1999; and requirements under § 490.201 or submit (f) How a State may modify an (5) 75 percent of the vehicles acquired to DOE an amendment to the plan for approved plan. If a State determines in model year 2000 and thereafter. DOE approval. that it cannot successfully implement its (b) Each State shall calculate its (4) Only voluntary acquisitions or plan, it may submit to DOE for approval, alternative fueled vehicle acquisition conversions, or combinations thereof, by at any time, the proposed modifications requirements for the state government state, local, and private fleets may be with adequate justifications. Until the fleets, including agencies thereof, by used to meet the State’s alternative fuel modifications are approved, the State applying the alternative fueled vehicle vehicle acquisition requirement under must comply with § 490.201. acquisition percentages for each model the plan. (g) Where to submit plans. (1) A State year to the total number of new light (5) Any acquisitions or conversions of shall submit to DOE an original and two duty motor vehicles to be acquired light duty alternative fueled vehicles by copies of the plan and shall be during that model year for those fleets. fleets within the State may be included addressed to the U.S. Department of (c) If, when the mandated acquisition within the plan, irrespective of whether Energy, Office of Energy Efficiency and percentage of alternative fueled vehicles the vehicles are in excluded categories Renewable Energy, EE–33, 1000 is applied to the number of light duty in the definition of fleet set forth in Independence Ave., SW, Washington, motor vehicles to be acquired by a fleet § 490.2 of this part. DC 20585. subject to this subpart, a number results (b) Required elements of a plan. Each (2) Any requests for modifications that requires the acquisition of a partial plan must include the following shall also be sent to the address in vehicle, an adjustment to the acquisition elements: paragraph (g)(1) of this section. 10992 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules § 490.204 Process for granting State’s request has been granted or § 490.206 Violations. exemptions. denied. Violations of this subpart are subject (a) To obtain an exemption, in whole (g) If the Assistant Secretary denies an to investigation and enforcement under or in part, from the vehicle mandates of exemption, in whole or in part, and the subpart G of this part. this subpart, a State shall submit to DOE State wishes to exhaust administrative a written request for exemption, along remedies, the State must appeal within Subpart DÐAlternative Fuel Provider with supporting documentation which 30 days of the date of the determination, Vehicle Acquisition Mandate demonstrates that— pursuant to 10 CFR part 205, subpart D, § 490.300 Purpose and Scope. (1) Alternative fuels that meet the to the Office of Hearings and Appeals, normal requirements and practices of U. S. Department of Energy, 1000 This subpart implements section 501 the principal business of the state fleet Independence Ave., SW, Washington, of the Act, which requires, subject to are not available in the area where the DC 20585. The Assistant Secretary’s some exemptions, that certain annual vehicles are to be operated; or determination shall be stayed during the percentages of newly acquired light (2) Alternative fueled vehicles that pendency of an appeal under this duty motor vehicles acquired by meet the normal requirements and paragraph. alternative fuel providers must be practices of the principal business of the alternative fueled vehicles. state fleet are not reasonably available § 490.205 Reporting requirements. § 490.301 Definitions. for acquisition because they are not (a) Any State subject to the offered for sale or lease commercially on In addition to the definitions found in requirements of this subpart must § 490.2, the following definitions apply reasonable terms and conditions in any submit a report on or before the of the States; or to this subpart— December 31 after the close of the model Affiliate means a person that, directly (3) The application of such year, beginning with model year 1996. requirements would pose an or indirectly, controls, is controlled by, (b) The report shall include the unreasonable financial hardship. or is under common ownership or (b) Requests for exemption may be following information: control of the subject person. submitted on an ongoing basis and must (1) Number of new light duty motor Alternative Fuels Business means be accompanied with supporting vehicles acquired by a state during the activities undertaken to derive revenue documentation. model year; from— (c) DOE shall grant exemptions for (2) Number of new light duty (1) Producing, storing, refining, one model year only, and they may be alternative fueled vehicles that must be processing, transporting, distributing, renewed annually if supporting acquired in the model year; importing, or selling at wholesale or documentation is provided. (3) Number of new light duty retail any alternative fuel other than (d) If a State is seeking an exemption alternative fueled vehicles acquired by a electricity; or under— State during the model year; (2) Generating, transmitting, (1) Paragraph (a)(1) of this section, the (4) Number of alternative fueled importing, or selling at wholesale or types of documentation that are to vehicle credits transferred to or from the retail electricity. accompany the request must include, State during the model year; Business unit means a semi- but are not limited to, maps of vehicle autonomous major grouping of activities (5) Number of alternative fueled operation zones and maps of locations for administrative purposes and vehicle credits applied against providing alternative fuel; or organizational structure within a acquisition requirements; (2) Paragraph (a)(2) of this section, the business entity. types of documentation that are to (6) For each new light duty alternative Division means a major administrative accompany the request must include, fueled vehicle acquired— unit of an enterprise comprising at least but are not limited to, alternative fueled (i) Vehicle make and model; several enterprise units or constituting a vehicle purchase or lease requests, a (ii) Model year; and complete integrated unit for a specific listing of vehicles that meet the normal (iii) Vehicle identification number; purpose. practices and requirements of the State (7) Number of light duty alternative Normal Requirements and Practices fleet and any other documentation that fueled vehicles acquired by municipal means the operating business practices exhibits good faith efforts at acquiring and private fleets during the model year and required conditions under which alternative fueled vehicles; or under an approved Light Duty the principal business of the covered (3) Paragraph (a)(3) of this section, it Alternative Fueled Vehicle Plan (if person operates. must submit a statement identifying applicable). Principal Business means the sales- what portion of the alternative fueled (c) If credits are applied against related activity that produces the vehicle acquisition requirement should greatest gross revenue. be subject to the exemption and vehicle acquisition requirements, then a credit activity report, as described in Substantial Portion means that at least describing the specific nature of the 2 percent of a covered person’s refinery financial hardship that precludes subpart F of this part, must be submitted with the report under this section. yield of petroleum products is compliance. composed of alternative fuels. (e) Requests for exemption shall be (d) Records shall be maintained and Substantially Engaged means that a addressed to the U.S. Department of retained for a period of three years from covered person, or affiliate, division, or Energy, Office of Energy Efficiency and the start of this program. other business unit thereof, regularly Renewable Energy, EE–33, 1000 (e) All reports, marked ‘‘Annual derives sales-related gross revenue from Independence Ave., SW, Washington, Report,’’ shall be sent to the Office of an alternative fuels business. DC 20585, or to such other address as Energy Efficiency and Renewable DOE may announce in a Federal Energy, U.S. Department of Energy, EE– § 490.302 Vehicle acquisition mandate Register notice. 33, 1000 Independence Ave., SW, schedule. (f) The Assistant Secretary shall Washington, DC, 20585, or such other (a) Except as provided in § 490.304 of provide to the State within 30 days a address as DOE may provide by notice this part, of the light duty motor written determination as to whether the in the Federal Register. vehicles newly acquired by a covered Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10993 person described in § 490.303 of this acquisition mandate schedule in this section, the electric utility must part, the following percentages shall be § 490.302 of this part applies to all new notify the Department of its intent to do alternative fueled vehicles for the light duty motor vehicles acquired by a so. The notification must be postmarked following model years: covered person described in § 490.303 no later than December 31, 1995 and (1) 30 percent for model year 1996. of this part. must be sent to the Office of Energy (2) 50 percent for model year 1997. (b) Exception. If a covered person has Efficiency and Renewable Energy, EE– (3) 70 percent for model year 1998. more than one affiliate, division, or 33, 1000 Independence Avenue, S.W., (4) 90 percent for model year 1999 other business unit, then § 490.302 of Washington, D.C. 20585 or such other and thereafter. this part only applies to new light duty addresses as DOE may provide in a (b) Except as provided in § 490.304 of motor vehicles acquired by an affiliate, Federal Register notice. this part, this acquisition schedule division, or other such business unit— (c) If a covered person whose applies to all light duty motor vehicles (1) Which is substantially engaged in principal business is generating, that a covered person newly acquires for the alternative fuels business; but transmitting, importing, or selling at use within the United States. (2) This subpart does not apply to the wholesale or retail electricity has (c) If, when the mandated acquisition vehicles of an affiliate, division, or other notified the Department by December percentage of alternative fuel vehicles is business unit whose principal business 31, 1995, of their intent to acquire applied to the number of new light duty is either transforming alternative fuels electric motor vehicles, the following motor vehicles to be acquired by a into a product that is not an alternative percentages of new light duty motor covered person subject to this subpart, fuel or consumes alternative fuel as a vehicles acquired shall be alternative a number results that requires the feedstock or fuel in the manufacture of fueled vehicles for the following model acquisition of a partial vehicle, an a product that is not an alternative fuel. years: adjustment will be made to the required § 490.305 Acquisitions satisfying the (1) 30 percent for model year 1998. acquisition number by rounding up the mandate. (2) 50 percent for model year 1999. number of vehicles to the next whole In addition to the use of alternative (3) 70 percent for model year 2000. number. fueled vehicle credits under subpart F of (4) 90 percent for model year 2001 (d) Only acquisitions satisfying the this part, the following actions within and thereafter. mandate, as defined by § 490.305, and the model year qualify as acquisitions § 490.308 Process for granting use of alternative fueled vehicle credits for the purpose of compliance with the exemptions. acquired under subpart F of this part requirements of § 490.302 of this part— (a) To obtain an exemption from the count toward compliance with the (a) The purchase or lease of an vehicle acquisition mandate in acquisition schedule in paragraph (a) of Original Equipment Manufacturer § 490.302 of this part, a covered person, this section. vehicle (regardless of the model year of or its affiliate, division, or business unit § 490.303 Who must comply. manufacture), capable of operating on which is subject to § 490.302 of this alternative fuels that was not previously (a) Except as provided by paragraph part, shall submit a written request for under the control of the covered person; exemption to the Office of Energy (b) of this section a covered person must or comply with the requirements of this Efficiency and Renewable Energy, U.S. (b) The purchase or lease of an after- Department of Energy, EE–33, 1000 subpart if that person is— market converted vehicle (regardless of (1) A covered person whose principal Independence Ave., SW, Washington, the model year of manufacture), that DC 20585, or such other address as DOE business is producing, storing, refining, was not previously under the control of processing, transporting, distributing, may publish in the Federal Register, the covered person; or along with supporting documentation importing or selling at wholesale or (c) The conversion of a newly which demonstrates that— retail any alternative fuel other than acquired Original Equipment (1) Alternative fuels that meet the electricity; Manufacturer vehicle (regardless of the normal requirements and practices of (2) A covered person whose principal model year of manufacture) to operate the principal business of that person are business is generating, transmitting, on alternative fuels prior to its first use not available in the area where the importing, or selling, at wholesale or in service. retail, electricity; or vehicles are to be operated; or (3) A covered person— § 490.306 Vehicle operation requirements. (2) Alternative fueled vehicles that (i) Who produces, imports, or The alternative fueled vehicles meet the normal requirements and produces and imports in combination, acquired pursuant to § 490.302 of this practices of the principal business of an average of 50,000 barrels per day or part shall be operated solely on that person are not offered for purchase more of petroleum; and alternative fuels, except when these or lease commercially on reasonable (ii) A substantial portion of whose vehicles are operating in an area where terms and conditions in the United business is producing alternative fuels. the appropriate alternative fuel is States. (b) This subpart does not apply to a unavailable. (b) Documentation covered person whose principal (1) If a covered person is seeking an business is— § 490.307 Option for electric utilities. exemption under paragraph (a)(1) of this (1) transforming alternative fuels into (a) A covered person whose principal section, the types of documentation that a product that is not an alternative fuel; business is generating, transmitting, are to accompany the request include, or importing, or selling, at wholesale or but are not limited to, maps of vehicle (2) consuming alternative fuels as a retail, electricity has the option of operation zones and maps of locations feedstock or fuel in the manufacture of delaying the vehicle acquisition providing alternative fuel. a product that is not an alternative fuel. mandate schedule in § 490.302 until (2) If a covered person is seeking an January 1, 1998, if the covered person exemption under paragraph (a)(2) of this § 490.304 Which new light duty motor intends to comply with this regulation section, the types of documentation that vehicles are covered. by acquiring electric motor vehicles. are to accompany the request include, (a) General rule. Except as provided in (b) Notification Date. If an electric but are not limited to, alternative fueled paragraph (b) of this section, the vehicle utility intends to use the option under vehicle purchase requests, a listing of 10994 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules vehicles that meet the normal practices requirements, as reported in the annual before the model year when acquisition and requirements of the covered person report, then a credit activity report, as requirements apply. and any other documentation that described in subpart F, must be (c) DOE shall allocate credits to fleets exhibits good faith efforts at acquiring submitted with this report to DOE. and covered persons under paragraphs alternative fueled vehicles. (d) Records shall be maintained and (a) or (b) of this section for alternative (c) Except as provided by paragraph retained for a period of three years. fueled vehicles acquired after October (e) of this section, exemption 24, 1992. determination shall be made in a letter § 490.310 Violations. ruling by the Assistant Secretary. Violations of this subpart are subject § 490.504 Use of alternative fueled vehicle credits. (d) Exemptions are granted for one to investigation and enforcement under model year only and may be renewed, subpart G of this part. At the request of a fleet or covered if supporting documentation is person in an annual report under this Subpart E [Reserved] provided, annually. part, DOE shall treat each credit as the (e) Exemption determinations are acquisition of a light duty alternative Subpart FÐAlternative Fuel Vehicle binding for the covered person only and fueled vehicle that is counted in Credit Program cannot be used to set precedent for other determining compliance with specific annual alternative fueled vehicle exemption requests. § 490.500 Purpose and Scope. acquisition requirements of this part. (f) If a covered person is denied an This subpart implements the statutory exemption and believes that it meets the requirements of section 508 of the Act, § 490.505 Credit accounts. criteria established in paragraph (a) of which provides for the allocation of (a) DOE shall establish a credit this section, that covered person may credits to fleets or covered persons who account for each fleet or covered person file a request for relief with the Office acquire alternative fueled vehicles in who obtains an alternative fueled of Hearings and Appeals, U.S. excess of the number they are required vehicle credit. Department of Energy, 1000 or obtain alternative fuel vehicles prior (b) DOE shall send to each fleet or Independence Ave, SW, Washington, to the date when they are required to do covered person an annual credit account DC 20585. so under this part. balance statement after the receipt of its (g) Requests for relief will be credit activity report under § 490.507. processed utilizing the procedures § 490.501 Applicability. codified at 10 CFR part 205, Subpart D. This subpart applies to all fleets and § 490.506 Alternative fueled vehicle credit covered persons who are required to transfers. § 490.309 Annual reporting requirements. acquire alternative fuel vehicles by this (a) Any fleet which is required to (a) If a person is required to comply Part. acquire alternative fueled vehicles may with the vehicle acquisition mandate transfer an alternative fueled vehicle schedule in § 490.302 or § 490.307, that § 490.502 Creditable actions. credit to— person shall file an annual report under A fleet or covered person becomes (1) Any other fleet which is required this section, on a form obtainable from entitled to alternative fuel vehicle to acquire alternative fueled vehicles. DOE, with the Office of Energy credits by— (2) An alternative fuel provider which Efficiency and Renewable Energy, U.S. (a) Acquiring alternative fuel vehicles is a covered person, if the fleet provides Department of Energy, EE–33, 1000 that qualify under § 490.305 and certification to the covered person that Independence Ave., SW, Washington, § 490.202, as applicable, in excess of the the credit represents a vehicle that DC 20585, or such other address as DOE number that fleet or covered person is operates solely on alternative fuel. may publish in the Federal Register, on required to acquire in a model year (b) Any alternative fuel provider or before the December 31 after the close when acquisition requirements apply; or which is a covered person required to of the model year beginning with model (b) Acquiring alternative fueled acquire alternative fueled vehicles may year 1996. vehicles in model years prior to the transfer its alternative fueled vehicle (b) This report shall include the model year when that fleet or covered credits to any other fleet or covered following information— person is first required to acquire person required to acquire alternative (1) Number of new light duty motor alternative fueled vehicles. fueled vehicles. vehicles acquired in the United States (c) Proof of credit transfer may be on § 490.503 Credit allocation. during the model year; a form provided by DOE, or otherwise (2) Number of new light duty (a) Based on annual credit activity in writing, including dated signatures of alternative fueled vehicles that are report information, as described in the transferor and transferee. The proof required to be acquired; § 490.507 of this part, DOE shall allocate should be received by DOE within 7 (3) Number of new light duty one credit for each alternative fueled days of the transfer date to the Office of alternative fueled vehicles acquired in vehicle a fleet or covered person Energy Efficiency and Renewable the United States during the model year; acquires that exceeds the number of Energy, U.S. Department of Energy, EE– (4) Number of alternative fueled alternative fueled vehicles that fleet or 33, 1000 Independence Ave, SW, vehicle credits transferred to or from a person is required to acquire in a model Washington, DC 20585 or such other covered person during the model year; year when acquisition requirements address as may be provided by notice in (5) Number of alternative fueled apply; or the Federal Register. vehicle credits applied against (b) In the event that an alternative acquisition requirements; fueled vehicle is acquired by a fleet or § 490.507 Credit activity reporting (6) For each new light duty alternative covered person in a model year prior to requirements. fueled vehicle acquired— the model year when acquisition (a) A covered person or fleet applying (i) Vehicle make and model; requirements first apply, as reported in for allocation of alternative fueled (ii) Model year; and the annual credit activity report, DOE vehicle credits must submit a credit (iii) Vehicle Identification Number. shall allocate one credit per alternative activity report by December 31 after the (c) If credits are applied against fueled vehicle for each year the close of a model year to the Office of alternative fueled vehicle acquisition alternative fueled vehicle is acquired Energy Efficiency and Renewable Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Proposed Rules 10995 Energy, U.S. Department of Energy, EE– agreements, or other records as the settle an enforcement proceeding, if the 33, 1000 Independence Ave, SW, Secretary of Transportation is person agrees to come into compliance Washington, DC 20585 or other such authorized to do under section 505(b)(1) in a manner satisfactory to DOE. address as DOE may publish in the of the Motor Vehicle Information and Federal Register. Cost Savings Act (15 U.S.C. § 490.606 Proposed assessments and orders. (b) Included in this report should be § 2005(b)(1)). the following information: DOE may issue a proposed assessment (1) Number of new light duty motor § 490.602 Special orders. of, and order to pay, a civil penalty in vehicles acquired; (a) DOE may require by general or a written statement setting forth (2) Number of new light duty special orders that any person— supporting findings of violation of the alternative fueled vehicles acquired; (1) File, in such form as DOE may Act or a relevant regulation of this part. (3) Number of alternative fueled prescribe, reports or answers in writing The proposed assessment and order vehicles that are required to be to specific questions relating to any shall be served on the person named acquired; function of DOE under this part; and therein by certified mail, return-receipt (4) Number of alternative fueled (2) Provide DOE access to (and for the requested, and shall become final for vehicle credits requested for: purpose of examination, the right to DOE if not timely appealed pursuant to (i) alternative fueled vehicles acquired copy) any documentary evidence of § 490.607 of this part. in excess of required acquisition such person which is relevant to any number; and function of DOE under this part. § 490.607 Appeals. (ii) alternative fueled vehicles (b) File under oath any reports and (a) In order to exhaust administrative acquired in model year prior to model answers provided under this section or remedies, on or before 30 days from the year in which alternative fueled vehicle as otherwise prescribed by DOE, and file date of issuance of a proposed acquisition requirements first apply; such reports and answers with DOE assessment and order to pay, a person (5) Purchase of alternative fueled within such reasonable time and at such must appeal a proposed assessment and vehicle credits: place as DOE may prescribe. order to the Office of Hearings and (i) Credit source; and Appeals, U.S. Department of Energy, (ii) Date of Purchase; § 490.603 Prohibited acts. (6) Sale of alternative fueled vehicle It is unlawful for any person to violate 1000 Independence Avenue, SW, credits: any provision of section 501, 503(b), or Washington, DC 20585. (i) Credit purchaser; and 507 of the Act, or any regulations issued (b) Proceedings in the Office of (ii) Date of Sale. under such sections. Hearings and Appeals shall be subject to subpart H of 10 CFR part 205 except Subpart GÐInvestigations and § 490.604 Penalties and Fines. that— Enforcement (a) Civil penalties. Whoever violates (1) Appellant shall have the ultimate § 490.603 of this part shall be subject to burden of persuasion; § 490.600 Purpose and scope. a civil penalty of not more than $5,000 This subpart sets forth the rules for each violation. (2) Appellant shall have right to a applicable to investigations under titles (b) Willful violations. Whoever trial-type hearing on contested issues of III, IV, V, and VI of the Act and to willfully violates § 490.603 of this part fact only if the hearing officer concludes enforcement of section 501, 503(b), 507 shall pay a criminal fine of not more that cross examination will materially or 508 of the Act, or any regulation than $10,000 for each violation. assist in determining facts in addition to issued under such sections. (c) Repeated violations. Any person evidence available in documentary who knowingly and willfully violates form; and § 490.601 Powers of the Secretary. § 490.603 of this part, after having been (3) The Office of Hearings and For the purpose of carrying out titles subjected to a civil penalty for a prior Appeals may issue such orders as it may III, IV, V, and VI of the Act, DOE may violation of § 490.603 shall pay a deem appropriate on all other hold such hearings, take such criminal fine of not more than $50,000 procedural matters. testimony, sit and act at such times and for each violation. (c) The determination of the Office of places, administer such oaths, and Hearings and Appeals shall be final for require by subpena the attendance and § 490.605 Statement of enforcement DOE. testimony of such witnesses the policy. production of such books, papers, DOE may agree not to commence an [FR Doc. 95–4764 Filed 2–27–95; 8:45 am] correspondence, memoranda, contracts, enforcement proceeding, or may agree to BILLING CODE 6450±01±P federal register February 28,1995 Tuesday Revision PolicyCommittee;Notice Standard OccupationalClassification Budget Management and Office of Part IV 10997 10998 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices OFFICE OF MANAGEMENT AND FOR FURTHER INFORMATION CONTACT: After an initial attempt to produce a BUDGET Laura Ross, U.S. Bureau of Labor Government-wide occupational Statistics, telephone number 202–606– classification standard in 1977, the 1980 Standard Occupational Classification 6505. Standard Occupational Classification Revision Policy Committee Proposal SUPPLEMENTARY INFORMATION: The (SOC) Manual was prepared through the To Revise the SOC following sections of this notice provide collaborative efforts of numerous Federal agencies concerned with AGENCY: Office of Management and a brief history of the SOC and further occupational information. It served as Budget, Executive Office of the elaboration of topics on which the foundation for the 1980 Census of President. comments are explicitly sought. Population Classified Index of ACTION: Notice of solicitation of History Industries and Occupations as well as comments. The development of a Standard for a revised system for the Bureau of SUMMARY: Under title 44 U.S.C. 3504, Occupational Classification (SOC) began Labor Statistics (BLS) Occupational the Office of Management and Budget in December 1966 on the Employment Statistics (OES) program, (OMB) is announcing its process for recommendation of the Interagency although neither system fully adopted revising the Standard Occupational Committee on Occupational the SOC. The 1980 SOC Manual Classification (SOC), and is soliciting Classification. The Committee’s includes descriptions of the content of public comment on its proposal to recommendation was based on the each occupation together with a list of develop a new occupational results of an inquiry on occupational corresponding occupations from the classification system based on a unified information circulated to Government 1977 Dictionary of Occupational Titles concept. OMB plans future public agencies in August 1965 by the then (DOT). This list of corresponding DOT comment periods after completion of Bureau of the Budget. This inquiry occupations formed the basis of the major milestones in the revision process asked 28 agencies for their views on the current occupational crosswalks used to desirability of establishing a Standard including: (1) The Standard link various Federal occupational Occupational Classification, similar to Occupational Classification Revision classification systems. When the revised the Standard Industrial Classification, Policy Committee’s (SOCRPC) OES system was implemented in 1983, for general use in classifying recommendations to OMB on the a crosswalk was prepared linking it to occupational data. Most of the agencies the 1980 SOC, the 1977 DOT, and the principles and unified conceptual favored establishing such a system. 1980 Census of Population systems. As framework to use to guide the revision The desirability of establishing a each system has added occupations, the (fall 1995) and (2) the SOCRPC’s Standard Occupational Classification original crosswalk has been updated to recommendations for changes to the actually had been recognized many indicate the equivalent occupations in existing SOC at the 4-digit level based years earlier. At the time of the 1940 the other systems. on the agreed upon principles and Census of Population, a publication, In the past few years, the BLS and the unified conceptual framework (fall Convertibility List of Occupations with Employment and Training 1996). The SOC revision is tentatively Conversion Tables and Industrial Administration (ETA) have been scheduled for implementation Classification for Reports from working together to organize activities beginning in July, 1997. All Federal Individuals, was developed by a joint aimed at developing information and agencies that collect occupational data committee of the Bureau of the Budget new concepts related to classification are expected to utilize the new system. and the American Statistical principles for a new SOC. These REQUESTS FOR COMMENTS: The Standard Association. The main purpose of the activities have included commissioning Occupational Classification Revision publication was to develop a bridge papers on major occupational Policy Committee welcomes comments between the occupational classification classification issues. with respect to any topic related to system used in the 1940 Census and that In 1993, the Advisory Panel for the occupational classification, including: used by the U.S. Employment Service to Dictionary of Occupational Titles 1. The uses of occupational data, classify its operating statistics. (APDOT) issued a report entitled The 2. The purpose and scope of Subsequent modifications in the Census New DOT: A Database of Occupational occupational classification, classification system and publication of Titles for the Twenty-First Century. ′In 3. The principles underlying the the third edition of the Dictionary of this report, the APDOT recommended current SOC, Occupational Titles (DOT) rendered the creating a new database system that 4. Conceptual options for the new earlier convertibility list obsolete. would identify and describe the skills, SOC, and The situation when the SOC project knowledge, and competencies needed in 5. The SOC Revision Policy began in the mid-1960’s was, therefore, the changing work place. Committee process. essentially the same as it had been in BLS sponsored an International DATES: To ensure consideration in the the early 1940’s. The two principal Occupational Classification Conference, development of the principles and systems of occupational classification, held in June 1993, at which both unified conceptual framework to guide those of the Bureau of the Census and specially commissioned and numerous the revision of the SOC, all comments of the U.S. Employment Service, needed other papers were presented. The must be in writing and received on or reconciliation. However, the issue was Conference provided a forum for the before March 31, 1995. of even greater concern than in the discussion of new ideas and alternative ADDRESSES: Please send comments to earlier period because a number of approaches to occupational Thomas J. Plewes, Chairman, Standard Government agencies had created their classification issues and served to Occupational Classification Revision own occupational classification systems introduce revision activities for the U.S. Policy Committee, U.S. Bureau of Labor for specific purposes, thereby SOC. The approximately 100 Statistics, Suite 4945, 2 Massachusetts compounding the initial problem. In participants represented statistical Avenue, NE., Washington, DC 20212. addition, requirements in Federal agencies from several countries, State- Interested parties may also send legislation resulted in increased level interests, professional associations, comments via E-mail, to demands for occupational data on a academia, and relevant Federal RossllL:[email protected]. more comparable basis. agencies. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 10999 The conference was organized around different sources are presented together Request for Comments five modules: (1) Perspectives of current through the use of these crosswalks. The Committee invites comments on occupational systems; (2) new Unfortunately, linkages from the purpose and scope of the SOC. challenges and alternative approaches to occupations in one system to another occupational classification; (3) user are not always exact. In these cases, the Principles Underlying the Current SOC needs and experiences with different crosswalk uses a ‘‘best fit’’ approach to The principles adopted in the new occupational classification systems; (4) link the systems. If Federal agencies all SOC should be relevant to the existing possibilities for a unifying classification used one classification system, an SOC, world of work. The twelve classification system; and (5) international the need for a crosswalk would be principles used in the 1980 SOC are perspectives on occupational obviated or at least minimized. listed below. Following some of the classification. The proceedings from the principles are questions designed to Request for Comments conference were published in facilitate public comment. September 1993.1 At the conclusion of The Committee invites comments 1. The classification should the conference, there was agreement from members of the public on their realistically reflect the current that work should begin on developing a uses of occupational data and the occupational structure of the United new SOC. applicability of existing and potential States. The changing world of work requires classification systems to those uses. Should the new system attempt to a new approach to statistical Descriptions of specific strengths and reflect what analysts see as the future classification, such as developing a shortcomings users have experienced occupational structure? single system to meet multiple needs or with data based on the existing 2. An occupation should be classified using a single database to develop occupational classification systems, on the basis of work performed. Skill multiple classifications. Therefore, a including experiences related to the level, training, education, licensing and revision of the SOC is being undertaken. need to employ crosswalks, are most credential requirements usually The Office of Management and Budget welcome. associated with job performance should has formed the Standard Occupational be considered only when an inaccurate Purpose and Scope of the SOC Classification Revision Policy picture of the occupational structure Committee to coordinate activities The Standard Occupational would be presented without such leading to a new SOC. The charter for Classification provides a mechanism for consideration. that committee is included near the end cross-referencing and aggregating Should work performed continue to of this notice. occupation-related data collected by be the underlying principle of social and economic statistical reporting classification in the new SOC, or should Uses of Occupational Data programs. The system is designed to skills or something else provide a new When devising a data classification maximize the analytical utility of basis for classification? system, it is crucial to begin with a clear statistics on labor force, employment, 3. Place of work (industry) should be vision of how the data to be classified income, and other occupational data considered in classifying an occupation will be used in order to structure the collected for a variety of purposes by only when the work setting alters the classification to maximize the various agencies of the United States nature of the work sufficiently to usefulness of the data. The uses of Government, State agencies, warrant separate classification. For occupational data vary widely. Uses professional associations, labor unions example, cooks in private households include investigating the supply and and private research organizations. and commercial settings were classified in different unit groups because work is demand of labor, planning education The classification covers all significantly dissimilar in their and training programs, fostering career occupations in which work is performed choices and facilitating placement, respective work settings. for pay or profit, including work 4. The occupations should be studying labor mobility, analyzing the performed in family-operated classified in homogeneous groups that return on alternative investments in enterprises where direct remuneration can be defined so that the content of human capital, establishing comparable may or may not be made to family each group is well delineated. pay schedules, surveying labor members. The SOC may also be used to What factor(s) should be used to productivity, and assessing employment classify volunteers, but occupations determine what is an occupational benefits, stability, and working unique to volunteer settings were not group? conditions. Not all of such uses will be included in the 1980 SOC. 5. An occupation that combines two equally well-served by any given The SOC provides a coding system distinct activities should be classified in classification. and nomenclature for identifying and one group on the basis of the primary Moreover, existing occupational classifying occupations within a activity—the one that accounts for the information systems typically have data framework suitable for use in and out of major portion of the worker’s time. and information from various sources government. However, because of the However, in cases where one activity such as the Census of Population and vast amount of occupational detail that requires special skills that are crucial in Housing, the OES surveys, and the DOT. was considered in developing such a carrying out the duties of the occupation Currently, crosswalks provide bridges system, and the wide variety of uses of (although not required for as much time from one system to another. In the occupational data, it was not possible to as other activities), that activity should National Occupational Information construct a system that would meet the determine the classification of the Coordinating Committee’s Occupational specific needs of all organizations. The occupation. Information System, data from these level of detail, for example, may not be Approximately what percentage of sufficient for specialized analytical time should a worker in an occupation 1 Copies of the International Occupational purposes or for internal organizational perform the highest skilled activity in Classification Conference proceedings may be management requirements. In such order for the occupation to be classified obtained by writing to the Occupational cases, however, approaches generally Employment Statistics Program, Suite 4840, 2 based on that skill? Massachusetts Avenue, NE., Washington, DC 20212, can be taken that will not conflict with 6. Each occupation should be or calling 202–606–6569. the overall scheme of the system. assigned to only one group at the most 11000 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices detailed level of the classification (1) Type of Work Performed skills necessary to perform the tasks and system (unit group). The two major sources of duties of a given job can be acquired 7. Large size should not by itself be occupational employment data in the only through formal education. Skills considered sufficient reason for separate U.S., the Census of Population and the often are acquired through informal identification of a group. OES survey, are based on the 1980 SOC. training and experience.5 8. Small size should not by itself be Both use classification systems based There are some obstacles that may considered sufficient reason for primarily upon work performed. The limit the desirability of completely excluding a group from separate Census system, used to collect adopting ISCO–88 for the U.S. SOC. A identification, although size must be occupational data from households, major focus of a new SOC would be to considered, or the system could become 2 consists of 501 occupations; the OES meet user needs that center on job too large to be useful. system, used to collect data from placement, career guidance, and 9. Supervisors should be identified establishments, consists of 760 program planning; less demand exists separately from the workers they 3 occupations. The DOT, used by the for internationally-comparable supervise wherever possible in keeping U.S. Employment Service, consists of occupational data. Only four skill levels with the real structure of the world of more than 12,000 titles that also are are identified in ISCO–88, based upon work. based primarily on work performed.4 The 1980 SOC did not separately formal education or vocational training, (2) The International Standard identify those who supervise which are the basis for identifying major Classification of Occupations (ISCO–88) professional or technical workers. occupational groups. This leads to major Should any distinction be made ISCO–88 has a dual framework: The groups that are somewhat divergent, between supervisors and workers in the concept of the kind of work performed, resulting in a classification system that case of professional or technical or job; and the concept of skill. Job is is not markedly different from existing workers? defined as a set of tasks and duties ‘‘work content based’’ occupational 10. Apprentices and trainees should executed by one person. It is the classifications. statistical unit classified by ISCO–88. A be classified with the occupations for (3) Skills-Based Systems which training is being taken. set of jobs whose main tasks and duties 11. Helpers should be identified are characterized by a high degree of Discussions about skills-based separately when their work is such that similarity constitutes an occupation. occupational classification concepts they are not in training for the Persons are classified by occupation often are difficult, because the term through their relationship to a past, occupation for which they are providing ‘‘skills’’ means different things to help, or if their work is truly different. present or future job. Skill is defined as the ability to carry different people. A number of other Is there a need to distinguish among out the tasks and duties of a given job. countries have dealt with this issue in these workers according to the type of It has two dimensions—skill level, revising their national classification worker that they assist? which is a function of the complexity systems, and it is useful to look to their 12. The need for comparability to the and range of the tasks and duties experiences. International Standard Classification of involved, and skill specialization, The National Occupational Occupations (ISCO) should be which is defined by the field of Classification of Canada merits study considered in developing the new knowledge required, the tools and structure, but it should not be an since Canada and the United States have machinery used, the materials worked a great deal in common in terms of overriding factor. on or with, as well as the kinds of goods Should the ISCO be the anchor for the occupational structure. The two major and services produced. attributes that were used as U.S. system? (Please refer to the These were the basis for the description of ISCO 88 below.) classification criteria in developing the delineation and further aggregation of NOC were skill level and skill type. the occupational groups in ISCO–88. In Request for Comments Other factors, such as industry and part due to the international properties occupational mobility, also were taken The Committee invites comments on of the classification, only four broad the principles used in the current SOC. skill levels were defined, each according into consideration. Skill level is defined Suggestions for alternative principles to the categories that appear in the as the amount and type of education are particularly welcomed. International Standard Classification of and training required to enter and perform the duties of an occupation. In Conceptual Options for the New SOC Education (ISCED). Although there is a direct linkage with educational determining skill level, the experience The Policy Committee has identified attainment, it does not follow that the required for entry and the complexity of four broad conceptual foundations of the responsibilities typical of an occupational classification systems: (1) 2 Information on the Census classification system occupation were also considered. Four The type of work performed, for can be obtained by contacting the Bureau of the skill levels are identified in the NOC: 6 example, the 1980 SOC, the U.S. Bureau Census, HHES, Iverson Mall, Room 416, U.S. of the Census system, the Dictionary of Department of Commerce, Washington, DC 20233– Skill Level A 3300, or calling 301–763–8574. Occupational Titles (DOT) of the 3 Information on the OES classification system —University degree (bachelor’s, Employment and Training can be obtained by writing the Bureau of Labor master’s, or other post-graduate) Administration, and the Occupational Statistics, Occupational Employment Statistics Employment Statistics (OES) system of Program, Suite 4840, 2 Massachusetts Avenue, NE., Washington, DC 20212, or calling 202–606–6569. 5 The ISCO can be obtained by contacting the the U.S. Bureau of Labor Statistics; (2) 4 Information on the DOT can be obtained by International Labour Organisation (ILO), the International Standard Classification writing the U.S. Department of Labor, Employment International Labour Office, CH–1211 Geneva 22, of Occupations (ISCO); (3) a skills-based and Training Administration, Room N4470, 200 Switzerland or ILO Publications, 49 Sheridan system, for example, the National Constitution Ave., NW., Washington, DC 20210 or Avenue, Albany, NY 12210 or by calling 518–436– 9686, ext. 123. Occupational Classification (NOC) of by calling 202–219–7161. Copies can be obtained by contacting the U.S. Government Printing Office, 732 6 The NOC can be obtained by contacting Canada Canada; and (4) an economic-based North Capitol St., NW., Washington, DC 20401 or Communication Group—Publishing, Ottawa, system. calling 202–512–1800. Canada K1A 0S9 or by calling 819–956–4802. Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 11001 Skill Level B (4) Economic-Based Systems classification system being developed —Two to three years of post-secondary by the Economic Classification Policy As has been recognized explicitly in 9 education at community college or ongoing work by the Economic Committee. A supply-based conceptual approach institute of technology, or Classification Policy Committee (ECPC) would group occupations on the basis of —Two to four years of apprenticeship (1993), classification systems should be considerations workers care about such training, or designed to facilitate the uses of the as their incomes and the consumption —Three to four years of secondary information they provide. For example, aspects of their jobs (see Rosen, 1986).10 school and more than two years of on- data on employment and wages Measurable attributes that are important the-job training, training courses, or classified by occupation are used by specific work experience to workers include the cost of obtaining researchers and policy makers to the requisite skills, the risk of layoff and —Occupations with supervisory analyze a variety of labor market issues. responsibilities subsequent unemployment, onerous As initially pointed out by Cain, working conditions, such as risks to life —Occupations with significant health Hansen, and Weisbrod (1967),7 to be and safety responsibilities and health and exposure to pollution, useful for economic analysis, and special work-time scheduling and Skill Level C occupational groupings should be related requirements, including shift relatively homogeneous in the sense —One to four years of secondary school work and inflexible work schedules. A that a high degree of substitutability education supply-based approach would group should exist within each group —Up to two years of on-the-job training, occupations according to these compared to between groups. Two training courses, or specific work attributes. The resulting classification alternative approaches, each based on a experience system would yield data of interest to consistent economic concept, have been both researchers and policy makers. Skill Level D suggested. A demand-based approach Both the demand-based and supply- —Up to two years of secondary school would group jobs or workers based on based approaches motivate attention to and short work demonstration or on- how employers choose to utilize some measure of skills in a the-job training different types of labor. A supply-based classification system. Seemingly very approach would group workers based Skill type is defined generally as the different functions could require on how individuals choose how much type of work performed, although other virtually identical skills. For example, a labor to supply and what jobs to enter. factors related to skill type are also manufacturing firm may have a number A demand-based approach would reflected in the NOC. One of these of jobs in which workers perform build on the technological relationship factors is similarity with respect to the different functions, but which require between outputs and inputs that education field of study required for very little specific training and similar economists term a ‘‘production entry into an occupation. Another factor computer skills, motor coordination, function.’’ Given a production function, is the industry of employment, where interpersonal skills, and amounts of together with product prices, wages of experience within an internal job ladder education. Because the workers in these different types of labor, and prices of or within an industry is usually a positions will have similar skills and be other inputs, firms will choose labor prerequisite for entry. The ten broad nearly interchangeable, a demand-based and other inputs so as to maximize occupational categories, based on skill argument would justify their being profits or minimize costs. A demand- type, identified in the NOC are: grouped together. If the positions do not based classification approach would differ in terms of working conditions, O. Management Occupations view an occupation essentially as a scheduling, and so forth, a supply-based 1. Business, Finance, and bundle of worker characteristics or argument would also indicate that they Administration skills that are needed to produce the should be grouped together. From the 2. Natural and Applied Sciences and product (for example, see Welch research economist’s point of view, it is 8 Related Occupations (1969). difficult to justify a system that makes 3. Health Occupations Such a system would be invaluable detailed distinctions between 4. Occupations in Social Science, for analyzing a variety of issues occupations that require very similar Education, Government Service, and pertaining to labor demand. For skills and have very similar job Religion example, it would be helpful in attributes. Economic theory also 5. Occupations in Art, Culture, studying how the economy’s demands suggests that more detail is required Recreation, and Sport for low and high skilled labor are across high skill occupations than 6. Sales and Service changing over time due to changing across low skill occupations because 7. Trades, Transport and Equipment technology and increasing globalization. demand- and supply-based substitution Operators, and Related Occupations A demand-based system would be of is much more difficult and costly across 8. Occupations Unique to Primary interest to researchers and policy high skill jobs than across low skill jobs. Industry makers, students deciding what types of 9. Occupations Unique to Processing, courses to take, and unemployed Request for Comments Manufacturing, and Utilities workers searching for work. Another The Committee invites comments on While the NOC changes the way in attractive feature of a demand-based any aspect of the alternative which occupations are grouped, it does occupational classification system is classification concepts. Specificity is not change the basic definition of what that it would be logically consistent encouraged particularly in commenting constitutes an individual occupation. with the production-based industrial Some advocates of skills-based systems 9 For more information, see the Federal Register, suggest that occupations should be 7 Cain, Glen, W. Lee Hansen, and Burton A. Vol. 58, No. 60, March 31, 1993, pp. 16990–17004 distinguished by their unique Weisbrod, ‘‘Occupational Classification: An and Vol. 59, No. 142, July 26, 1993, pp. 38092–96. combinations of skills. There is no Economic Approach.’’ Monthly Labor Review, 10 Rosen, Sherwin, ‘‘The Theory of Equalizing system currently that uses this type of February 1967, pp. 48–52. Differences,’’ in Orley Ashenfelter and Richard 8 Welch, Finis, ‘‘Linear Synthesis of Skill Layard, eds., Handbook of Labor Economics, combined skills base to classify Distribution,’’ Journal of Human Resources, Volume Volume I, New York: North Holland, 1986, pp. 641– individual occupations. 4, 1969, pp. 311–327. 692. 11002 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices on either the skills-based or economic- administrative uses, and with providing Notice of the Policy Committee’s work based concepts. This will help ensure recommendations to OMB on the should be widespread and should be that the Committee will interpret the structure and implementation of a new published in the Federal Register for all comments properly. SOC. This is a large undertaking with interested public and private parties. implications for the accuracy and utility Interested parties will be given the Standard Occupational Classification of all occupation-related statistical data. opportunity to be included on a mailing Revision Policy Committee Charter The charge to the Committee includes: list. Background (1) Identifying the major statistical uses The conceptual framework for the Concerns with the quality of the U.S. of occupational classifications; (2) new SOC should be completed prior to work force, skill formation and training identifying and developing new July 1995 to allow for testing related to issues, and changes in occupational concepts, structures, and methodologies the 2000 Census. The completed structures due to new technology, to determine what constitutes an occupational classification structure competitive economic pressures, and occupation; (3) developing and should be available by July 1997 to shifts to forms of ‘‘high performance’’ empirically testing a standard coincide with development of the 2000 work organization, have focused classification system based on these Census. concepts; (4) planning the attention on the quality of occupational Request for Comments information and statistics. Current implementation of the new The Committee invites comments on occupational data and their underlying classification system; and (5) ensuring the SOC Revision Policy Committee classification structures have come that there is ample opportunity for process. Suggestions related to the under criticism for being fragmented, widespread public participation in the classification structure criteria incompatible, outdated, and lacking in revision process. particularly are encouraged, as well as skills information. Many users and Classification Structure Criteria suggestions as to other major questions producers of occupational data feel that the Committee should be considering it is time to revise the U.S. Standard The principal use of a revised SOC besides those mentioned in the charter. Occupational Classification (SOC) would be statistical, but it also would system to develop a unified serve as a framework for administrative Comment Procedure purposes and other occupational classification structure that meets the Interested parties are invited to occupational statistics and information classifications. The Policy Committee should evaluate the utility of alternative comment in writing to the Standard needs of the twenty-first century. Occupational Classification Revision The 1993 International Occupational classification structures in consideration Policy Committee. Comments may be in Classification Conference provided a of the following: (1) Ensuring reference to any topic related to forum for the discussion of new ideas compatibility between the descriptive occupational classification including and alternative approaches to material of the new Dictionary of the uses of the occupational data, the occupational classification issues. The Occupational Titles (DOT) and the purpose and scope of an occupational Conference included many individuals revised SOC; (2) current public interest classification system, the principles and agencies directly involved with the in a skills-based classification system; underlying the current SOC, and occupational classification user (3) users’ needs for historical conceptual options for the new SOC. community, as well as international comparability of data; (4) ability to The Committee particularly solicits occupational experts from numerous measure the concept in the context of its comments on present and future uses of countries. The papers, discussions, and uses; (5) the expertise of other countries data that are produced using ideas generated at the conference will in revising national classification occupational classification systems, serve to inform revision activities for the systems; (6) desirability, but not with emphasis on the strengths and SOC. necessity, of compatibility with international occupational classification weaknesses of the present systems in Establishment of the SOC Revision systems; and (7) the need for all Federal meeting user needs. Interested parties Policy Committee Government occupational classification may also send comments via E-mail, to ll The Office of Management and Budget systems to be part of the SOC Ross L:[email protected]. (OMB) is hereby establishing a Standard framework. Availability of Comment Materials Occupational Classification Revision Committee Process All written comments and materials Policy Committee, chaired by the received in response to this notice will Bureau of Labor Statistics, with The Policy Committee should adopt be available throughout 1995 during representatives from the Bureau of the processes that ensure ample opportunity normal business hours, 8:15 a.m. to 4:45 Census, the Employment and Training for public participation. These processes p.m., in Suite 4840, 2 Massachusetts Administration, the Office of Personnel should involve all stakeholders, Avenue NE., Washington, DC 20212. Management, the Defense Manpower including the range of occupational data Individuals wishing to inspect these Data Center, and, ex officio, the National users, both government and private, as materials must call 202–606–6505 to Science Foundation and the Office of well as data collectors and data obtain an appointment to enter the Management and Budget. providers. The Policy Committee should consider forming a Consultation Group, suite. Charge to the Committee composed of Federal agencies not Sally Katzen, The Policy Committee is charged with represented on the Policy Committee. Administrator, Office of Information and an examination of the Federal Such a group would meet on a flow Regulatory Affairs. Government’s various occupational basis, as necessary, to provide input to [FR Doc. 95–4831 Filed 2–27–95; 8:45 am] classification systems for statistical and the work of the Policy Committee. BILLING CODE 3110±01±P federal register February 28,1995 Tuesday Committee; Notice Negotiated RulemakingAdvisory Borrower DefensesRegulations Education Department of Part V 11003 11004 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices DEPARTMENT OF EDUCATION Issues To Be Negotiated American Council on Education The issues to be negotiated include Association of American Universities Office of Postsecondary Education; which acts or omissions of an Career College Association Borrower Defenses Regulations Coalition of private non-profit multi- institution of higher education a Negotiated Rulemaking Advisory State guaranty agencies borrower may assert as defenses to a Committee; Establishment Consumer Bankers Association demand for repayment of a loan made Education Finance Council AGENCY: Department of Education. under the Direct Loan, FFEL, and Hispanic Association of Colleges and Perkins Programs, and the consequences ACTION: Notice of intent to establish the Universities of such defenses for the institution, the Legal Services Team (a coalition) Borrower Defenses Regulations Secretary, and, for FFEL Program loans, Negotiated Rulemaking Advisory National Association of Independent for the lender and the guaranty agency. Colleges and Universities Committee (Committee) for the William The Committee may also negotiate D. Ford Federal Direct Loan (Direct National Association of State issues regarding whether administrative Universities and Land Grant Colleges Loan) Program, the Federal Family procedures should be established to Education Loan (FFEL) Program, and National Association of Student adjudicate whether a borrower has a Financial Aid Administrators the Federal Perkins Loan (Perkins) valid defense and the effect the Program regulations. National Association for Equal adjudication would have on the rights Opportunity in Higher Education/ and liabilities of institutions, lenders, United Negro College Fund (a SUMMARY: The Secretary of Education guaranty agencies, and the Secretary. and the Office of Postsecondary coalition) Education announce the intention to Agenda for First Meeting National Council of Higher Education Loan Programs establish the Borrower Defenses The draft agenda for the first meeting, Regulations Negotiated Rulemaking Sallie Mae which will be organizational, follows: United States Student Association Advisory Committee to create draft (1) Welcoming remarks. proposed rules for borrower defenses in (2) Introduction of facilitator and Requests for Participation the Direct Loan, FFEL, and Perkins participants. If you feel you represent, or wish to Programs. (3) Discussion of procedural ground nominate someone who represents, a DATES AND TIMES: The first meeting of rules. significantly affected interest that is not the Committee is expected to be held in (4) General discussion of participants’ included in the above list, please send late March 1995. The specific time, date, perspectives on substantive issues. a request for participation to Nicki and location will be announced in a (5) Development of issue agendas or Meoli, Program Specialist, Policy subsequent notice prior to the meeting. drafts for subsequent meetings. Development Division, Office of FOR FURTHER INFORMATION CONTACT: Structure of Committee Postsecondary Education, U.S. Department of Education, Room 3053, Nicki Meoli, Program Specialist, Policy The ultimate goal of negotiated Development Division, Office of ROB–3, 600 Independence Avenue, SW, rulemaking is to reach consensus among Washington, DC 20202–5400, no later Postsecondary Education, U.S. all committee members through Department of Education, Room 3053, than 30 days after the publication of this discussion and negotiation among all notice. ROB–3, 600 Independence Avenue, SW, interested and affected parties, Washington, DC 20202–5400. including the Department. With this in The Application Must Include Telephone: (202) 708–9406. Individuals mind, the Department will conduct 1. Name of the applicant or nominee who use a telecommunications device these negotiations within a structure and a description of the interest or for the deaf (TDD) may call the Federal that is designed to reach this goal fairly interests to be represented; Information Relay Service (FIRS) at 1– and efficiently and give strong 2. Evidence that the applicant or 800–877–8339 between 8 a.m. and 8 consideration to the complex nature of nominee is authorized to represent p.m., Eastern time, Monday through the issues to be negotiated. All members parties related to the interest or interests Friday. of the Committee will be able to the person proposes to represent; SUPPLEMENTARY INFORMATION: The participate in discussion and 3. A written commitment that the Secretary has determined that it is negotiation. The Office of Postsecondary applicant or nominee will actively necessary and in the public interest to Education has selected the members participate in good faith in the establish the Borrower Defenses because they, and the groups they development of the rule under Regulations Negotiated Rulemaking represent, will be affected by the final consideration; and Advisory Committee. The Department of rule. Thus, the widest possible variety 4. The reasons that the organizations Education (Department) has retained the of interests will be represented in the listed in the notice do not adequately services of a professional mediator to negotiating process while maintaining represent the interest or interests of the serve as a neutral convener and the possibility of reaching informed person or organization submitting the facilitator for the negotiated rulemaking. agreement. application or nomination. The Committee will be balanced and The following list of organizations are Please note that participation in the represent all parties that will be affected ‘‘full’’ members of the Committee (some rulemaking process is not limited to by these rules. The Committee will organizations with similar interests have members of the Committee. Meetings include representatives of institutions of joined as a coalition): are open to the public so interested higher education, higher education Department of Education parties may observe the negotiations, organizations, student loan lenders, American Association of Community and there will be an allotted public guaranty agencies, loan servicers, legal Colleges comment period at each session for the aid organizations, students, and the American Association of Cosmetology public to communicate their views. Department. Administrative support for Schools There are expected to be a total of three the Committee will be provided by the American Association of State Colleges meetings held in the Washington Office of Postsecondary Education. and Universities Metropolitan area. In addition, proposed Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices 11005 rules resulting from these negotiations will be published in the Federal Register with a comment period. The Department expects to publish these proposed rules by July 1, 1995. A final rule will be published by December 1, 1995. Dated: February 23, 1995. Richard W. Riley, Secretary of Education. [FR Doc. 95–4875 Filed 2–27–95; 8:45 am] BILLING CODE 4000±01±P federal register February 28,1995 Tuesday House ConferenceonAging;Notice Building theLegacyof1995White Turning ResolutionsIntoResults; Administration onAging Services Health andHuman Department of Part VI 11007 11008 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Notices DEPARTMENT OF HEALTH AND may submit comments regarding —Issues related to responsibility HUMAN SERVICES (HHS) implementation of resolutions (federal, state and local government, independent of these post-Conference private and/or foundation sector, Administration on Aging events. individuals/families, or a combination These two avenues, along with a final of the above); Turning Resolutions Into Results: Conference report prepared by the —Issues related to cost (reallocation of Building the Legacy of the 1995 White Policy Committee with input by the existing resources, obtaining House Conference on Aging Advisory Committee and Governors’ additional funding if necessary, AGENCY: White House Conference on offices, will help define a blueprint for offsetting costs); and Aging, AoA, HHS. proposed post-WHCoA implementation —Issues related to process (specific activities. This blueprint will provide ACTION: Notice; Request for Public legislative or regulatory the framework for immediate and long Comments. recommendations, immediate goals term actions to implement the and long-term timetables, suggestions SUMMARY: The White House Conference Conference’s highest priority to guide interested private sector on Aging (WHCoA), which will be held recommendations. It will also identify participants). areas and tasks in which the public and May 2–5, 1995 in Washington, D.C., will These reports will be collected for conclude with the passage of resolutions private sectors, including governmental and nongovernmental organizations and future dissemination to the most designed to influence aging policy into appropriate entity. Some targets for the next century. This notice announces agencies, can play a role in implementing the Conference distribution include: (1) The two categories of post-conference Administration on Aging and other activities devised to ensure recommendations. These may include private initiatives as well as the divisions within the U.S. Department of implementation of these resolutions into Health and Human Services; (2) U.S. policy: (1) Follow up meetings enactment of public policies and laws affecting aging Americans, their families Departments of Housing, Veterans recognized by WHCoA and held Affairs, and other federal government throughout the country; and (2) and their communities now and into the 21st century. entities; (3) state and local government submission of public comments. entities; (4) Congressional offices; (5) FOR FURTHER INFORMATION CONTACT: I. Post-Conference Events national and state organizations (6) Karen Goldmeier, White House The 1995 White House Conference on corporations and private sector entities; Conference on Aging, 501 School Street, Aging proposes to recognize a final and (7) nonprofit and grassroots SW, 8th Floor, Washington, DC 20024– series of events focused on organizations. 2755, phone (202) 245–7116. implementing the priority Interested organizations should SUPPLEMENTARY INFORMATION: As recommendations created in the May submit a letter of intent asking for specified in Title II of the Older Conference. Organizations interested in WHCoA recognition of the event to the Americans Act Amendments of 1987 sponsoring an event under the auspices White House Conference on Aging; 501 (Pub. L. 100–175, as amended) the 1995 of the WHCoA must adhere to School Street, SW, 8th floor; White House Conference on Aging is to guidelines similar to those that Washington, D.C. 20024–2755. The work jointly with States, individuals, presently govern pre-conference events. letter must include the name, address, and public and private organizations to Thus, to qualify for recognition, the telephone number and contact person of devise a series of resolutions to guide activity must: (1) Be a policy-oriented the organization, as well as a brief national aging policy into the 21st event focusing on one or more of the description of the proposed post- century. Consistent with this grassroots priority resolutions adopted by the 1995 conference event including the theme focus, the WHCoA has solicited White House Conference on Aging; (2) and/or title. All submissions must be information and encouraged guarantee the participation of older received by May 31, 1995. participation from a wide range of persons; (3) produce a written report sources since President Clinton within 30 days or by October 13, 1995, II. Public Comments announced the Conference on February whichever is earlier; (4) raise funds only After the close of conference on May 17, 1994. The WHCoA has received to the extent necessary to cover the cost 5, 1995, the White House Conference on input from individuals and of the event; and (5) be approved by the Aging will accept public comments organizations across the country, Executive Director of the WHCoA. from individuals and organizations that including over 900 responses generated Recognition signifies the WHCoA’s address practical aspects of resolution by a proposed WHCoA agenda for acknowledgement of the relevancy of implementation. Like the reports public comment published in the the event to the goals of the WHCoA. It generated from the post WHCoA events, October 12, 1994 Federal Register. In allows the sponsoring organization to submissions must focus on one or more addition, by the May Conference in publicize that the event has been of the three aspects of resolution Washington D.C., more than 700 recognized by the WHCoA and that it implementation listed above and are to activities affiliated with the WHCoA will be listed in the final report of the be a maximum of five pages long. will have been held around the country. Conference. Recognition does not, Comments should be sent to the address In keeping with this grassroots however, imply that the WHCoA agrees listed in section I to be forwarded to the emphasis, the WHCoA proposes to with or endorses the recommendations. most appropriate entity to oversee recognize two avenues for public Sponsoring organizations will be implementation. The deadline for participation after the close of the required to file a report of the event. The WHCoA consideration of these Washington Conference. First, the reports shall be 3–5 pages in length, comments is October 13, 1995. WHCoA is announcing of a series of double spaced, and should summarize events to follow the May Conference. recommendations adopted regarding Dated: February 22, 1995. These events, described in more detail implementation of WHCoA resolutions. Fernando M. Torres-Gil, below, will narrowly focus on strategies These recommendations may address Assistant Secretary for Aging. to implement the resolutions adopted by any aspect of implementation, [FR Doc. 95–4851 Filed 2–27–95; 8:45 am] the Conference. Second, individuals including, but not limited to: BILLING CODE 4130±02±M federal register February 28,1995 Tuesday Payment ofChildSupport of allExecutiveAgenciesToFacilitate Executive Order12953ÐActionsRequired Executive OrderNo.12950 Executive Order12952ÐAmendmentto The President Part VII 11009 11011 Federal Register Presidential Documents Vol. 60, No. 39 Tuesday, February 28, 1995 Title 3— Executive Order 12952 of February 24, 1995 The President Amendment to Executive Order No. 12950 By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to amend Executive Order No. 12950, it is hereby ordered that the list of Labor Organizations attached to and made a part of such order is amended to include the following: International Brotherhood of Firemen & Oilers œ– THE WHITE HOUSE, February 24, 1995. [FR Doc. 95–5129 Filed 2–27–95; 10:56 am] Billing code 3195–01–P Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents 11013 Presidential Documents Executive Order 12953 of February 27, 1995 Actions Required of all Executive Agencies To Facilitate Payment of Child Support Children need and deserve the emotional and financial support of both their parents. The Federal Government requires States and, through them, public and private employers to take actions necessary to ensure that monies in payment of child support obligations are withheld and transferred to the child’s caretaker in an efficient and expeditious manner. The Federal Government, through its civilian employees and Uniformed Services members, is the Nation’s largest single employer and as such should set an example of leadership and encouragement in ensuring that all children are properly supported. NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, it is hereby ordered as follows: PART I—PURPOSE Section 101. This executive order: (a) Establishes the executive branch of the Federal Government, through its civilian employees and Uniformed Serv- ices members, as a model employer in promoting and facilitating the estab- lishment and enforcement of child support. (b) Requires all Federal agencies, including the Uniformed Services, to cooperate fully in efforts to establish paternity and child support orders and to enforce the collection of child and medical support in all situations where such actions may be required. (c) Requires each Federal agency, including the Uniformed Services, to provide information to its employees and members about actions that they should take and services that are available to ensure that their children are provided the support to which they are legally entitled. PART 2—DEFINITIONS For purposes of this order: Sec. 201. ‘‘Federal agency’’ means any authority as defined at 5 U.S.C. 105, including the Uniformed Services, as defined in section 202 of this order. Sec. 202. ‘‘Uniformed Services’’ means the Army, Navy, Marine Corps, Air Force, Coast Guard, and the Commissioned Corps of the National Oceanic and Atmospheric Administration, and the Public Health Service. Sec. 203. ‘‘Child support enforcement’’ means any administrative or judicial action by a court or administrative entity of a State necessary to establish paternity or establish a child support order, including a medical support order, and any actions necessary to enforce a child support or medical support order. Child support actions may be brought under the civil or criminal laws of a State and are not limited to actions brought on behalf of the State or individual by State agencies providing services under title IV-D of the Social Security Act, 42 U.S.C. 651 et seq. Sec. 204. ‘‘State’’ means any of the fifty States, the District of Columbia, the territories, the possessions, and the Commonwealths of Puerto Rico and of the Mariana Islands. 11014 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents PART 3—IMMEDIATE ACTIONS TO ENSURE CHILDREN ARE SUP- PORTED BY THEIR PARENTS Sec. 301. Wage Withholding. (a) Within 60 days from the date of this order, every Federal agency shall review its procedures for wage withholding under 42 U.S.C. 659 and implementing regulations to ensure that it is in full compliance with the requirements of that section, and shall endeavor, to the extent feasible, to process wage withholding actions consistent with the requirements of 42 U.S.C. 666(b). (b) Beginning no later than July 1, 1995, the Director of the Office of Personnel Management (OPM) shall publish annually in the Federal Register the list of agents (and their addresses) designated to receive service of withholding notices for Federal employees. Sec. 302. Service of Legal Process. Every Federal agency shall assist in the service of legal process in civil actions pursuant to orders of courts of States to establish paternity and establish or enforce a support obligation by making Federal employees and members of the Uniformed Services sta- tioned outside the United States available for the service of process. Each agency shall designate an official who shall be responsible for facilitating a Federal employee’s or member’s availability for service of process, regard- less of the location of the employee’s workplace or member’s duty station. The OPM shall publish a list of these officials annually in the Federal Register, beginning no later than July 1, 1995. Sec. 303. Federal Parent Locator. Every Federal agency shall cooperate with the Federal Parent Locator Service, established under 42 U.S.C. 653, by providing complete, timely and accurate information that will assist in locat- ing noncustodial parents and their employers. Sec. 304. Crossmatch for Delinquent Obligors. (a) The master file of delin- quent obligors that each State child support enforcement agency submits to the Internal Revenue Service for Federal income tax refund offset purposes shall be matched at least annually with the payroll or personnel files of Federal agencies in order to determine if there are any Federal employees with child support delinquencies. The list of matches shall be forwarded to the appropriate State child support enforcement agency to determine, in each instance, whether wage withholding or other enforcement actions should be commenced. All matches will be performed in accordance with 5 U.S.C. 552a(o)-(u). (b) All Federal agencies shall inform current and prospective employees that crossmatches are routinely made between Federal personnel records and State records on individuals who owe child support, and inform employ- ees how to initiate voluntary wage withholding requests. Sec. 305. Availability of Service. All Federal agencies shall advise current and prospective employees of services authorized under title IV-D of the Social Security Act that are available through the States. At a minimum, information shall be provided annually to current employees through the Employee Assistance Program, or similar programs, and to new employees during routine orientation. Sec. 306. Report on Actions Taken. Within 90 days of the date of this order, all Federal agencies shall report to the Director of the Office of Management and Budget (OMB) on the actions they have taken to comply with this order and any statutory, regulatory, and administrative barriers that hinder them from complying with the requirements of part 3 of this order. PART 4—ADDITIONAL ACTIONS Sec. 401. Additional Review for the Uniformed Services. (a) In addition to the requirements outlined above, the Secretary of the Department of Defense (DOD) will chair a task force, with participation by the Department of Health and Human Services (HHS), the Department of Commerce, and the Department of Transportation, that shall conduct a full review of current policies and practices within the Uniformed Services to ensure that children Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents 11015 of Uniformed Services personnel are provided financial and medical support in the same manner and within the same time frames as is mandated for all other children due such support. This review shall include, but not be limited to, issues related to withholding non-custodial parents’ wages, service of legal process, activities to locate parents and their income and assets, release time to attend civil paternity and support proceedings, and health insurance coverage under the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS). All relevant existing statutes, includ- ing the Soldiers and Sailors Civil Relief Act of 1940, the Uniformed Services Former Spouses Protection Act, and the Tax Equity and Fiscal Responsibility Act of 1982, shall be reviewed and appropriate legislative modifications shall be identified. (b) Within 180 days of the date of this order, DOD shall submit to OMB a report based on this review. The report shall recommend additional policy, regulatory and legislative changes that would improve and enhance the Federal Government’s commitment to ensuring parental support for all chil- dren. Sec. 402. Additional Federal Agency Actions. (a) OPM and HHS shall jointly study and prepare recommendations concerning additional administrative, regulatory, and legislative improvements in the policies and procedures of Federal agencies affecting child support enforcement. Other agencies shall be included in the development of recommendations for specific items as appropriate. The recommendations shall address, among other things: (i) any changes that would be needed to ensure that Federal employees comply with child support orders that require them to provide health insur- ance coverage for their children; (ii) changes needed to ensure that more accurate and up-to-date data about civilian and uniformed personnel who are being sought in conjunction with State paternity or child support actions can be obtained from Federal agencies and their payroll and personnel records, to improve efforts to locate noncustodial parents and their income and assets; (iii) changes needed for selecting Federal agencies to test and evaluate new approaches to the establishment and enforcement of child support obligations; (iv) proposals to improve service of process for civilian employees and members of the Uniformed Services stationed outside the United States, including the possibility of serving process by certified mail in establishment and enforcement cases or of designating an agent for service of process that would have the same effect and bind employees to the same extent as actual service upon the employees; (v) strategies to facilitate compliance with Federal and State child support requirements by quasi-governmental agencies, advisory groups, and commis- sions; and (vi) analysis of whether compliance with support orders should be a factor used in defining suitability for Federal employment. (b) The recommendations are due within 180 days of the date of this order. The recommendations are to be submitted in writing to the Office of Management and Budget. Sec. 501. Internal Management. This order is intended only to improve the internal management of the executive branch with regard to child support enforcement and shall not be interpreted to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its officers, or any other person. Sec. 502. Sovereignty of the United States Government. This order is intended only to provide that the Federal Government has elected to require Federal agencies to adhere to the same standards as are applicable to all other employers in the Nation and shall not be interpreted as subjecting the Federal Government to any State law or requirement. This order should not be construed as a waiver of the sovereign immunity of the United 11016 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Presidential Documents States Government or of any existing statutory or regulatory provisions, including 42 U.S.C. 659, 662, and 665; 5 CFR Part 581; 42 CFR Part 21, Subpart C; 32 CFR Part 54; and 32 CFR Part 81. Sec. 503. Defense and Security. This order is not intended to require any action that would compromise the defense or national security interest of the United States. œ– THE WHITE HOUSE, February 27, 1995. [FR Doc. 95–5146 Filed 2–27–95; 11:23 am] Billing code 3195–01–P i Reader Aids Federal Register Vol. 60, No. 39 Tuesday, February 28, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING FEBRUARY Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. Document drafting information 523±3187 Machine readable documents 523±4534 3 CFR Ch. VIII...... 10303 Proclamations: 0...... 8446 Code of Federal Regulations 6767...... 7427 1...... 8446 Index, finding aids & general information 523±5227 6768...... 8517 25...... 6945 Printing schedules 523±3419 6769...... 8519 29...... 7429 6770...... 9593 47...... 8446 Laws 6771...... 10477 50...... 8446 Public Laws Update Service (numbers, dates, etc.) 523±6641 Executive Orders: 51...... 8446 Additional information 523±5230 October 8, 1914 52...... 8446 (Revoked in part by 53...... 8446 Presidential Documents PLO 7116)...... 10029 54...... 8446 68...... 10303 Executive orders and proclamations 523±5230 April 17, 1926 70...... 6638 Public Papers of the Presidents 523±5230 (Revoked in part by 97...... 8446 Weekly Compilation of Presidential Documents 523±5230 PLO 7115)...... 8956 12163 (See 110...... 8118 The United States Government Manual Memorandum of 300...... 6957 319 ...... 5997, 6957, 8921 General information 523±5230 Februrary 16, 1995) ...... 10793 322...... 5997 Other Services 12898 (Amended by 372...... 6000 Data base and machine readable specifications 523±4534 EO 12948)...... 6381 729...... 7429 Guide to Record Retention Requirements 523±3187 12948...... 6381 905...... 8924 Legal staff 523±4534 12949...... 8169 911...... 8523 Privacy Act Compilation 523±3187 12950 (Amended by 915...... 8523, 8926 Public Laws Update Service (PLUS) 523±6641 EO 12952)...... 11011 920...... 7430 TDD for the hearing impaired 523±5229 12950...... 10475 944...... 8924 12951...... 10789 959...... 10479 12952...... 11011 985...... 6392, 8524 ELECTRONIC BULLETIN BOARD 12953...... 11013 997...... 6394 Free Electronic Bulletin Board service for Public Law Administrative Orders: 1005...... 7432 numbers, Federal Register finding aids, and list of Memorandums: 1007...... 7432 documents on public inspection. 202±275±0920 February 7, 1995 ...... 7885 1011...... 7432 1046...... 7432 FAX-ON-DEMAND February 15, 1995 ...... 10791 February 16, 1995 ...... 10793 1050...... 7434 1210...... 10795 You may access our Fax-On-Demand service. You only need a fax Presidential Determinations: machine and there is no charge for the service except for long No. 95±14 of Feb. 6, 1212...... 7435 distance telephone charges the user may incur. The list of 1995 ...... 8521 1240...... 9608 documents on public inspection and the daily Federal Register’s 1435...... 7697 table of contents are available using this service. The document 4 CFR 1726...... 10152 numbers are 7050-Public Inspection list and 7051-Table of 28...... 9773 1751...... 8171 Contents list. The public inspection list will be updated 29...... 9773 1755...... 9079 immediately for documents filed on an emergency basis. Proposed Rules: NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 5 CFR 6...... 10334 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 185...... 7891 28...... 10335 public inspection may be viewed and copied in our office located 211...... 6595 29...... 6452, 6453 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 213...... 10005 51 ...... 8973, 9990, 10427 telephone number is: 301±713±6905 214...... 6383 52...... 8573 302...... 10005 68...... 10336 FEDERAL REGISTER PAGES AND DATES, FEBRUARY 317...... 6383 210...... 10042, 10150 319...... 6383 220...... 10042, 10150 353...... 6595 457...... 9629 5997±6382...... 1 8283±8520...... 14 359...... 6383 810...... 9790 6383±6646...... 2 8521±8920...... 15 430...... 6595 955...... 10516 8921±9280...... 16 534...... 6383 1001...... 6606, 7290 6647±6944...... 3 1650...... 9595 1002...... 6606, 7290 6945±7110...... 6 9281±9594...... 17 2604...... 10006 1004...... 6606, 7290 9595±9772...... 21 7111±7428...... 7 2635...... 6390 1005...... 6606, 7290 9773±10004...... 22 Proposed Rules: 1006...... 6606, 7290 7429±7696...... 8 10005±10302...... 23 532...... 6041 1007...... 6606, 7290 7697±7884...... 9 950...... 8961 1011 ...... 6396, 6606, 7290 10303±10474...... 24 7885±8168...... 10 1012...... 6606, 7290 10475±10788...... 27 7 CFR 1013...... 6606, 7290 8169±8282...... 13 10789±11016...... 28 Ch. I ...... 10303 1030...... 6606, 7290 ii Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Reader Aids 1032 ...... 6005, 6606, 7290 317...... 10304 71 ...... 6657, 6958, 6959, 6960, 19 CFR 1033...... 6606, 7290 318...... 10304 7115, 7116, 7439, 7441, 4...... 6966 1036...... 6606, 7290 327...... 10305 7442, 7821, 8164, 8165, Proposed Rules: 1040...... 6606, 7290 381...... 10304 8166, 9281, 9282, 9283, 134...... 6464 1044...... 6606, 7290 Proposed Rules: 9285, 9286, 9287, 10013, 210...... 7723 1046...... 6606, 7290 1...... 10810 10014, 10488 353...... 9802 1049...... 6606, 7290 3...... 10810 91...... 8166 355...... 9802 1050...... 6606, 7290 50...... 9631 97 ...... 6398, 6961, 6962, 6963, 356...... 9802 1064...... 6606, 7290 71...... 9632 9287, 9289 1065...... 6606, 7290 77...... 9631 121...... 6616 20 CFR 1068...... 6606, 7290 92...... 7137, 9631 135...... 6616 404...... 8140, 10150 1075...... 6606, 7290 94 ...... 6454, 7138, 9633 300...... 10310 416...... 8140, 10150 1076...... 6606, 7290 98...... 7137 302...... 6919 422...... 7117 1079...... 6606, 7290 308...... 6774, 10516 385...... 10310 Proposed Rules: 1093...... 6606, 7290 310...... 6774, 10516 Proposed Rules: 1094...... 6606, 7290 318 ...... 6774, 6975, 10516 Ch. 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I ...... 9634 9799, 9800, 10811 558...... 7121, 8547 1138...... 6606, 7290 50 ...... 7467, 9634, 10810 71 ...... 6461, 6462, 6686, 6975, 1139...... 6606, 7290 52...... 7467, 10810 7718, 9652, 9653, 10042 Proposed Rules: 1230...... 8579 100...... 7467, 10810 121...... 6632, 8490 20...... 8772 1485...... 6352 490...... 10970 125...... 6632 101...... 8989 1717...... 8981 600...... 10296 135...... 6632 111...... 8989 170...... 8989 8 CFR 11 CFR 15 CFR 201...... 9554 103...... 6647, 9773 211...... 10517 100...... 7862 15a...... 9291 292...... 6647 310...... 6892, 8989 104...... 7862 806...... 10489 299...... 6647, 9774 341...... 10286 113...... 7862 925...... 9294 310...... 6647 943...... 10312 876...... 8595 312...... 6647 12 CFR Proposed Rules: 896...... 9762 313...... 6647 944...... 10812 1310...... 10814 315...... 6647 3...... 7903 32...... 8526 316...... 6647 16 CFR 22 CFR 316a...... 6647 201...... 9281 208...... 8177 305...... 9295 41...... 10497 319...... 6647 1117...... 10490 42...... 10499 322...... 6647 225...... 8177 325...... 8182 1500...... 8188, 10742 43...... 7443 324...... 6647 226...... 7712 325...... 6647 265...... 10306 Proposed Rules: Ch. 1 ...... 6463 514...... 8547 327...... 6647 330...... 7701 307...... 8312 Proposed Rules: 328...... 6647 344...... 7111 310...... 8313 140...... 7737 329...... 6647 409...... 9612 1617...... 7660 1700...... 9654 330...... 6647 23 CFR 331...... 6647 Proposed Rules: Ch. 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IX...... 10339 499...... 6647 8284, 8286, 8288, 8290, 157...... 6657, 7821 81...... 9154 8292, 8294, 8295, 8297, 284...... 9775 25 CFR 9 CFR 8538, 8540, 8542, 8544, 1310...... 8195 Ch. II...... 8446, 10303 8927, 8929, 8930, 9613, Proposed Rules: Ch. VI...... 8553 91...... 9609 9616, 9619, 9621, 10307, 803...... 7925 225...... 10474 92...... 9611 10308, 10801, 10803, 10805, 804...... 7925 Proposed Rules: 202...... 8446 10807 805...... 7925 Ch. VI...... 8806 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Reader Aids iii 26 CFR 110...... 10019 261...... 7366, 7824 7116...... 10029 117 .....6658, 7121, 7122, 8941, 270...... 6666 1...... 8932, 9776 44 CFR 300...... 8298 10315 271...... 7824 281...... 10331 Proposed Rules: 161...... 8942 64 ....6034, 6035, 10036, 10510 300...... 8570, 8570 1 ...... 7487, 7488, 9309 162...... 10020 65...... 6403, 6404 302...... 7824 53...... 7488 165 ...... 7909, 7910, 8943 67...... 6407 Proposed Rules: 372...... 9299 206...... 7130 27 CFR Ch. I...... 7927, 8993 Proposed Rules: Proposed Rules: 178...... 10782 110...... 10043 Ch. I...... 7931, 10819 67...... 6470 117 ...7928, 7930, 8209, 10815, 51...... 7508 28 CFR 10817 52 ...... 6049, 6051, 6052, 6467, 45 CFR 0...... 8932, 9777 137...... 7652 6687, 7154, 7742, 7931, 1611...... 10809 64...... 7446 154...... 10044 7934, 8612, 8993, 8994, 524...... 10722 156...... 10044 9802, 9810, 10340, 10341, 46 CFR 10533, 10819, 10823 15...... 8308 29 CFR 34 CFR 60...... 10654 25...... 7131 825...... 6658 74...... 6660 63 ...... 8333, 9802, 9812, 9813 160...... 7131 1910...... 7447, 9624 75...... 6660 70...... 8335 500...... 9786 80...... 8341 1915...... 9624 99...... 8563 Proposed Rules: 81...... 9813, 10341 1926...... 9624 Proposed Rules: Ch. I ...... 6687 82...... 7390 2619...... 8555 668...... 6940 10...... 10053 86...... 7404 2676...... 8555 12...... 10053 93...... 7508 36 CFR 381...... 6067 30 CFR 180 .....6052, 7509, 8612, 8615, 7...... 6021 572...... 6482 250...... 9298 242...... 10317 9815, 9816 254...... 9626 185...... 7511 Proposed Rules: 47 CFR 870...... 9974 186...... 7511 242...... 6466 1 ...... 9889, 10038, 10511 886...... 9974 261 ...... 6054, 7513, 10052 1400...... 7506 887...... 9974 266...... 10052 2...... 8309, 10038 21...... 10038 888...... 9974 37 CFR 268...... 10052 914...... 6400 761...... 7742 22...... 9889 917...... 8558 251...... 8196, 8198 271...... 7513 24...... 8571 926...... 6006 252...... 8196 300 ...... 7934, 8212, 8616 64...... 7131 931...... 8560 253...... 8196 302...... 7513 73 ....6670, 9628, 10511, 10512 254...... 8196 74...... 10511 Proposed Rules: 430...... 9813 255...... 8196 76...... 10512 Ch. II...... 6977, 7152 435...... 9428 256...... 8196 90...... 9787 6...... 8209 700...... 10053 257...... 8196 94...... 10038 18...... 8209 723...... 10053 258...... 8196 97...... 7459 19...... 8209 761...... 7742 259...... 8196, 8198 Proposed Rules: 20...... 8209 41 CFR 21...... 8209 Proposed Rules: Ch. I...... 6482, 8994 22...... 8209 1...... 8609 101±40...... 7129 0...... 8618 23...... 8209 3...... 8609 201±3...... 7715 1 ...... 8618, 8995, 10056 201±9...... 7715 17...... 8618 26...... 8209 38 CFR 27...... 8209 201±18...... 7715 21...... 8618 29...... 8209 3 ...... 6660, 9626, 9627 201±20...... 7715 22...... 8618 33...... 8209 4...... 7124 201±21...... 7715 23...... 8618 35...... 8209 17...... 10502 201±23...... 7715 25...... 8618 250...... 9312 201±39...... 7715, 10508 63...... 8996 39 CFR 64...... 8217 756...... 7926 42 CFR 902...... 10520 20...... 7912 68...... 10056 913...... 10522 111...... 10021 63...... 10718 73 ...... 6068, 6483, 6490, 6689, 914...... 9313 233...... 8305 100...... 7678 8618, 9001, 10341, 10533, 917...... 9314 Proposed Rules: 410...... 8951 10534, 10826 935...... 9317 111...... 6047, 7154 Proposed Rules: 74...... 8618 944...... 10531 265...... 8610 52a...... 9560 78...... 8618 3001...... 8211 482...... 7514 80...... 8618 31 CFR 87...... 8618 43 CFR 351...... 10019 40 CFR 90...... 8341, 8618 500...... 8933 9...... 10029 2...... 10030 94...... 8618 550...... 8300 51...... 7449 4...... 9894 95...... 8618 575...... 6376 52 ...... 6022, 6027, 6401, 7124, 12...... 9786 97...... 8618 7453, 7713, 7715, 7913, 18...... 9786 48 CFR 32 CFR 8306, 8563, 8565, 8566, 426...... 10030 40a...... 8936 8943, 8948, 8949, 9778, 1780...... 9894 31...... 7133 113...... 8940 10323, 10504 4100...... 9894 Proposed Rules: 199...... 6013 63...... 7627 Proposed Rules: 28...... 6602 320...... 7908 70...... 8772 11...... 7154, 7155 32...... 6602 552...... 8305 80...... 6030 2920...... 7877 45...... 7744 553...... 8305 81 ...... 7124, 7453, 10325 3400...... 10533 52...... 6602, 7744 Proposed Rules: 82...... 7386 3470...... 10533 1516...... 10535 184...... 10340 93...... 7449 3480...... 10533 1552...... 10535 199...... 7489 180 .....6032, 7456, 7457, 7458, 8360...... 7743 5416...... 10826 9780, 9781, 9783 Public Land Orders: 33 CFR 185...... 9783 7114...... 8571 49 CFR 100...... 10313 186...... 9783 7115...... 8956 173...... 7627 iv Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Reader Aids 192...... 7133 501...... 9788 571 ...... 6411, 7461, 8199, 8202 Proposed Rules: 214...... 8619 225...... 9001 653...... 7100 654...... 7100 50 CFR 17 ...... 6671, 6968, 10694 100...... 10317 216...... 10332 227...... 8956 229...... 6036 611 ...... 7288, 8470, 8479 625...... 8958 642 ...... 7134, 7716, 10333, 10514 651...... 6446 663...... 6039, 10039 672 .....7136, 7288, 7917, 8470, 8478 675 ....6974, 8479, 8960, 10040 676 ...... 6448, 7288, 8470, 8479 Proposed Rules: Ch. VI...... 7156 17 .....8342, 8620, 9484, 10056, 10344, 10535 100...... 6466 222...... 6977 424...... 7744 611...... 8114 638...... 9320 641...... 10536 646...... 8620 649...... 7936 650...... 7936, 8622 651...... 7936 652...... 6977 675...... 8114 676...... 8114