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2 III

Contents Federal Register Vol. 61, No. 238

Tuesday, December 10, 1996

Agency for Health Care Policy and Research Defense Department NOTICES See Defense Logistics Agency Agency information collection activities: See Engineers Corps Proposed collection; comment request, 65065–65066 NOTICES Agency information collection activities: Agricultural Marketing Service Submission for OMB review; comment request, 65029 RULES Kiwifruit grown in California, 64959–64960 Defense Logistics Agency Agriculture Department NOTICES See Agricultural Marketing Service Contractor alert list, 65029–65030 See Commodity Credit Corporation See Farm Service Agency Drug Enforcement Administration See Rural Business-Cooperative Service NOTICES See Rural Housing Service Applications, hearings, determinations, etc.: See Rural Utilities Service Agbebiyi, Jonathan, M.D., 65075 NOTICES Herrera, Anibal P., M.D., 65075–65079 Agency information collection activities: Roger Pharmacy, 65079–65081 Submission for OMB review; comment request, 65009 Education Department Army Department NOTICES See Engineers Corps Agency information collection activities: Centers for Disease Control and Prevention Proposed collection; comment request, 65030–65033 NOTICES Meetings: Energy Department Newborn screening for cystic fibrosis; public health See Energy Research Office genetics policy development paradigm; workshop, See Federal Energy Regulatory Commission 65066 Energy Research Office Children and Families Administration NOTICES NOTICES Meetings: Agency information collection activities: High Energy Physics Advisory Panel, 65033 Submission for OMB review; comment request, 65066– 65067 Engineers Corps Coast Guard RULES RULES Danger zones and restricted areas: Drawbridge operations: Cooper River and tributaries, Charleston, SC; Naval Louisiana, 64995–64996 Weapons Station small arms firing range, 64996– Regattas and marine parades: 64997 AC Delco Offshore Invitational, 64991–64992 Holiday Boat Parade of the Palm Beaches, 64994–64995 Environmental Protection Agency Key West Super Boat Race, 64993–64994 NOTICES Agency information collection activities: Commerce Department Submission for OMB review; comment request, 65041– See Foreign-Trade Zones Board 65043 See International Trade Administration Grants and cooperative agreements; availability, etc.: See National Oceanic and Atmospheric Administration Environmental education program, 65106–65117 NOTICES Meetings: Agency information collection activities: Science Advisory Board, 65043 Submission for OMB review; comment request, 65013 Pesticide, food, and feed additive petitions: Commodity Credit Corporation Merck Co., Inc., 65043–65047 Water pollution control: NOTICES National pollutant discharge elimination system; State Agency information collection activities: programs— Proposed collection; comment request, 65009–65010 Oklahoma, 65047–65053 Commodity Futures Trading Commission RULES Farm Service Agency Foreign futures and options transactions: NOTICES New Zealand Futures and Options Exchange— Agency information collection activities: Exempted transactions, 64985–64989 Proposed collection; comment request, 65010–65012 IV Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Contents

Federal Aviation Administration Federal Highway Administration RULES NOTICES Airworthiness directives: Meetings: Aerospace Technologies of Australia Pty Ltd.; correction, Intelligent Transportation Society of America, 65101– 64985 65102 PROPOSED RULES Air carrier certification and operations: Federal Housing Finance Board Digital flight data recorder upgrade requirements, 65142– NOTICES 65145 Meetings; Sunshine Act, 65059 Airworthiness directives: Aerospace Technologies of Australia Pty Ltd., 65002– Federal Maritime Commission 65006 NOTICES Burkhart Grob, Luft-und Raumfahrt, 65001–65002 Agreements filed, etc., 65059 Glasflugel, 65006–65008 NOTICES Meetings: Federal Railroad Administration Aviation Security Advisory Committee, 65100–65101 NOTICES Grants and cooperative agreements; availability, etc.: Next generation high-speed rail corridor studies, 65102 Federal Communications Commission RULES Radio stations; table of assignments: Federal Reserve System Arizona, 64999 NOTICES PROPOSED RULES Banks and bank holding companies: Radio stations; table of assignments: Change in bank control, 65059 Colorado, 65008 Formations, acquisitions, and mergers, 65059–65060 NOTICES Permissible nonbanking activities, 65060 Reporting and recordkeeping requirements, 65053 Meetings; Sunshine Act, 65060

Federal Deposit Insurance Corporation Federal Trade Commission RULES NOTICES Assessments: Prohibited trade practices: Oakar institutions; interpretive rules, 64960–64985 Progressive Mortgage Corp. et al., 65061 NOTICES State and local property taxes, payment; policy statement, Food and Drug Administration 65053–65058 RULES Food additives: Federal Energy Regulatory Commission Adjuvants, production aids, and sanitizers— NOTICES 1,4-bis[(2,4,6-trimethylphenyl)amino]-9,10- Electric rate and corporate regulation filings: anthracenedione, 64989–64991 Southern Company Services, Inc., et al., 65040–65041 NOTICES Applications, hearings, determinations, etc.: Agency information collection activities: Alabama-Tennessee Natural Gas Co. et al., 65033–65034 Proposed collection; comment request, 65067–65069 Canyon Creek Compression Co., 65034 Submission for OMB review; comment request, 65069– Colorado Interstate Gas Co., 65034, 65034 65070 Eastern Shore Natural Gas Co., 65034–65035 Medical devices; premarket approval: El Paso Natural Gas Co., 65035 Tripter-X1 Series Extracorporeal Shock Wave Gas Research Institute, 65035–65036 Lithotripters (Tripter-X1, Tripter-X1 Nova, and Iroquois Gas Transmission System, L.P., 65036 Tripter-X1 Compact), 65070 Mississippi River Transmission Corp., 65036 Mojave Pipeline Operating Co., 65036 Foreign-Trade Zones Board National Fuel Gas Supply Corp., 65036–65037 NOTICES Northwest Pipeline Corp., 65037 Applications, hearings, determinations, etc.: Pacific Gas Transmission Co., 65037–65038 Texas, 65013 Panhandle Eastern Pipe Line Co., 65038 PNM Gas Services, 65038 General Services Administration Steuben Gas Storage Co., 65038 RULES Stingray Pipeline Co., 65038 Federal travel: Trailblazer Pipeline Co., 65039 Approved accommodations data collection and employee Transwestern Pipeline Co., 65039 reporting requirement eliminated, 64997–64998 Viking Gas Transmission Co., 65039 West Texas Gas, Inc., 65039 Health and Human Services Department Williams Natural Gas Co., 65040 See Agency for Health Care Policy and Research See Centers for Disease Control and Prevention Federal Financial Institutions Examination Council See Children and Families Administration NOTICES See Food and Drug Administration Agency information collection activities: See National Institutes of Health Proposed collection; comment request, 65058–65059 See Public Health Service Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Contents V

NOTICES Legal Services Corporation Agency information collection activities: NOTICES Submission for OMB review; comment request, 65061– Meetings; Sunshine Act, 65083 65062 Organization, functions, and authority delegations: National Institutes of Health Health Resources and Services Administration, 65062– NOTICES 65065 Meetings: National Cancer Institute, 65070 Housing and Urban Development Department National Institute of Child Health and Human NOTICES Development, 65071 Agency information collection activities: National Institute of Mental Health, 65071 Submission for OMB review; comment request, 65071– Research Grants Division special emphasis panels, 65071 65074 National Oceanic and Atmospheric Administration Immigration and Naturalization Service RULES NOTICES Fishery conservation and management: Agency information collection activities: Northeastern United States fisheries— Submission for OMB review; comment request, 65081– Summer flounder, 64999–65000 NOTICES 65082, 65082 Agency information collection activities: Proposed collection; comment request, 65028 Interior Department Marine mammals: See Land Management Bureau Incidental taking; authorization letters, etc.— Ensearch Exploration Inc. et al., 65028–65029 International Trade Administration Meetings: NOTICES Mid-Atlantic Fishery Management Council, 65029 Antidumping: Engineered process gas turbo-compressor systems, Nuclear Regulatory Commission assembled or unassembled, and complete or RULES incomplete, from — Radiation protection standards: Japan, 65013–65018 Radionuclides; constraint level for air emission, 65120– Extruded rubber thread from— 65127 Malaysia, 65019–65022 NOTICES Hot-rolled lead and bismuth carbon steel products from— Agency information collection activities: United Kingdom, 65022–65025 Proposed collection; comment request, 65083–65084 Shop towels from— Enforcement actions policy and procedure: Bangladesh, 65025–65027 Policy statement revision, 65088–65092 North American Free Trade Agreement (NAFTA); Radiation protection programs, 65128–65129 binational panel reviews: Applications, hearings, determinations, etc.: Porcelain-on-steel cooking ware from— Commonwealth Edison Co., 65084–65085 Mexico, 65027–65028 Niagara Mohawk Power Corp., 65085–65088 Applications, hearings, determinations, etc.: Johns Hopkins University, 65027 Occupational Safety and Health Administration NOTICES Justice Department Meetings: See Drug Enforcement Administration Construction Safety and Health Advisory Committee, See Immigration and Naturalization Service 65083 See Justice Programs Office NOTICES Personnel Management Office Voting Rights Act certification: RULES Galveston County, TX, 65074 Voting rights program: Jefferson County, TX, 65074–65075 Jefferson and Galveston Counties, TX, 64998–64999

Justice Programs Office Postal Rate Commission NOTICES RULES Formula grants: Meetings; Sunshine Act, 65092 Juvenile Justice and Delinquency Prevention Office Postal Service programs; clarification and guidance, 65132–65140 NOTICES Meetings; Sunshine Act, 65092–65093 Labor Department See Occupational Safety and Health Administration Public Health Service See Agency for Health Care Policy and Research Land Management Bureau See Centers for Disease Control and Prevention NOTICES See Food and Drug Administration Closure of public lands: See National Institutes of Health California, 65074 NOTICES Public land orders: Organization, functions, and authority delegations: Alaska; correction, 65074 National Institutes of Health, 65071 VI Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Contents

Rural Business-Cooperative Service Veterans Affairs Department NOTICES NOTICES Agency information collection activities: Meetings: Proposed collection; comment request, 65010–65012 Wage Committee, 65104 Rural Housing Service NOTICES Agency information collection activities: Separate Parts In This Issue Proposed collection; comment request, 65010–65012

Rural Utilities Service Part II NOTICES Environmental Protection Agency, 65106–65117 Agency information collection activities: Proposed collection; comment request, 65010–65012 Part III Securities and Exchange Commission Nuclear Regulatory Commission, 65120–65129 NOTICES Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 65098–65099 Part IV New York Stock Exchange, Inc., 65099–65100 Department of Justice, Justice Programs Office, 65132– Applications, hearings, determinations, etc.: 65140 Midland National Life Insurance Co. et al., 65093–65095 Victory Portfolios et al., 65095–65098 Part V Surface Transportation Board Department of Transportation, Federal Aviation NOTICES Administration, 65142–65145 Railroad operation, acquisition, construction, etc.: Grand Trunk Western Railroad Inc., 65102–65103 Hastings Industrial Link Railroad, 65103 Reader Aids Transportation Department Additional information, including a list of public laws, See Coast Guard telephone numbers, reminders, and finding aids, appears in See Federal Aviation Administration the Reader Aids section at the end of this issue. See Federal Highway Administration See Federal Railroad Administration See Surface Transportation Board

United States Information Agency Electronic Bulletin Board NOTICES Free Electronic Bulletin Board service for Public Law Agency information collection activities: numbers, Federal Register finding aids, and a list of Submission for OMB review; comment request, 65103– documents on public inspection is available on 202–275– 65104 1538 or 275–0920. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

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

7 CFR 920...... 64959 10 CFR 20...... 65120 12 CFR 327...... 64960 14 CFR 39...... 64985 Proposed Rules: 39 (4 documents) ...... 65001, 65002, 65004, 65006 121...... 65142 135...... 65142 17 CFR 30...... 64985 21 CFR 178...... 64989 28 CFR 31...... 65132 33 CFR 100 (3 documents) ...... 64991, 64993, 64994 117...... 64995 334...... 64996 41 CFR 301±1...... 64997 301±7...... 64997 301±8...... 64997 301±ll ...... 64997 301±17...... 64997 45 CFR 801...... 64998 47 CFR 73...... 64999 Proposed Rules: 73...... 65008 50 CFR 648...... 64999 64959

Rules and Regulations Federal Register Vol. 61, No. 238

Tuesday, December 10, 1996

This section of the FEDERAL REGISTER Vegetable Division, AMS, USDA, P.O. through group action of essentially contains regulatory documents having general Box 96456, room 2523–S, Washington, small entities acting on their own applicability and legal effect, most of which DC 20090–6456; telephone (202) 720– behalf. Thus, both statutes have small are keyed to and codified in the Code of 2491; Fax # (202) 720–5698. entity orientation and compatibility. Federal Regulations, which is published under There are approximately 65 handlers 50 titles pursuant to 44 U.S.C. 1510. SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing Order of kiwifruit who are subject to The Code of Federal Regulations is sold by No. 920 (7 CFR part 920), as amended, regulation under the marketing order the Superintendent of Documents. Prices of regulating the handling of kiwifruit and approximately 500 producers of new books are listed in the first FEDERAL grown in California, hereinafter referred kiwifruit in the regulated area. Small REGISTER issue of each week. to as the ‘‘order.’’ This order is effective agricultural service firms have been under the Agricultural Marketing defined by the Small Business Agreement Act of 1937, as amended (7 Administration (13 CFR 121.601) as DEPARTMENT OF AGRICULTURE U.S.C 601–674), hereinafter referred to those having annual receipts of less than $5,000,000, and small agricultural Agricultural Marketing Service as the ‘‘Act.’’ The Department of Agriculture producers are defined as those whose 7 CFR Part 920 (Department) is issuing this rule in annual receipts are less than $500,000. conformance with Executive Order The majority of kiwifruit handlers and [Docket No. FV96±920±3 FIR] 12866. producers may be classified as small This rule has been reviewed under entities. Kiwifruit Grown in California; This rule finalizes a reduction in the Reduction of Reporting Requirements Executive Order 12988, Civil Justice Reform. This rule is not intended to number of reports required to be filed by AGENCY: Agricultural Marketing Service, have retroactive effect. This rule will small kiwifruit handlers (those who USDA. not preempt any State or local laws, handle less than 10,000 tray equivalents ACTION: Final rule. regulations, or policies, unless they per year). The decrease in the number present an irreconcilable conflict with of reports required to be filed should not SUMMARY: The Department of this rule. inhibit the effective operation of the Agriculture (Department) is adopting as The Act provides that administrative order. It is estimated that less than a final rule, without change, the proceedings must be exhausted before 100,000 tray equivalents will be shipped provisions of an interim final rule parties may file suit in court. Under by those eligible for the reduced reducing the reporting requirements for section 608c(15)(A) of the Act, any reporting requirement, or approximately California kiwifruit handlers who ship handler subject to an order may file one percent of California kiwifruit less than 10,000 trays or tray with the Secretary a petition stating that production. A majority of these small equivalents per fiscal year. The changes the order, any provision of the order, or volume handlers, eligible for the in reporting requirements were any obligation imposed in connection reduced reporting requirement, sell fruit unanimously recommended by the with the order is not in accordance with for two to five growers. Generally, Kiwifruit Administrative Committee law and request a modification of the kiwifruit shipments are small and may (Committee), the agency responsible for order or to be exempted therefrom. A consist of less than 50 trays at a time. the local administration of the Federal handler is afforded the opportunity for Shipment information from these small marketing order for kiwifruit grown in a hearing on the petition. After the volume handlers will be added into the California. This final rule decreases the hearing the Secretary would rule on the total shipments at the end of each fiscal reporting burden on such handlers petition. The Act provides that the year. The lack of shipment information while maintaining the information district court of the United States in any that will be provided by these handlers collection necessary for the efficient district in which the handler is an on a monthly basis is insignificant. The operation of the program. inhabitant, or has his or her principal Committee is still able to levy EFFECTIVE DATE: January 9, 1997. place of business, has jurisdiction to assessments on those handlers eligible FOR FURTHER INFORMATION CONTACT: Kurt review the Secretary’s ruling on the for the reduced reporting requirement J. Kimmel, California Marketing Field petition, provided an action is filed not based on the information in the Office, Marketing Order Administration later than 20 days after date of the entry shipment reports that is still required Branch, F&V, AMS, USDA, 2202 of the ruling. twice per season. Monterey Street, suite 102B, Fresno, Pursuant to requirements set forth in This rule directly benefits small California 93721; telephone: (209) 487– the Regulatory Flexibility Act (RFA), the kiwifruit handlers. It is anticipated that 5901, Fax # (209) 487–5906; or Charles Agricultural Marketing Service (AMS) approximately 20 of the 65 handlers are L. Rush, Marketing Specialist, has considered the economic impact of eligible for the reduced reporting Marketing Order Administration this action on small entities. burden authorized by this rule. These Branch, F&V, AMS, USDA, room 2522– The purpose of the RFA is to fit handlers will not be required to file S, P.O. Box 96456, Washington, DC regulatory actions to the scale of biweekly inventory reports and will be 20090–6456; telephone: (202) 720–5127, business subject to such actions in order required to file shipment reports less Fax # (202) 720–5698. Small businesses that small businesses will not be unduly frequently. It is estimated that the may request information on compliance or disproportionately burdened. reporting burden for each of these 20 with this regulation by contacting: Jay Marketing orders issued pursuant to the handlers will decrease by an average of Guerber, Marketing Order Act, and rules issued thereunder, are 12 hours per year, for a total reduction Administration Branch, Fruit and unique in that they are brought about of 240 hours. 64960 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

The range of volume of kiwifruit Commission (State Commission), which Reduction Act (Pub. L. 104–13) and handled by kiwifruit handlers is administers a State program. have been assigned OMB number 0581– extremely broad with some handlers Prior to the 1995–96 season, the State 0149. handling as few as 50 tray equivalents Commission determined that the This final rule reduces the reporting and others over 1 million tray reporting burden of the KISS report and burden on approximately 20 handlers of equivalents. The majority of handlers the shipment report was kiwifruit who have been spending fall in the middle and on average ship disproportionately impacting small approximately 240 hours completing the between 100,000 and 800,000 tray volume handlers. As a result, the State shipment reports and the KISS reports. equivalents. Commission created an alternate After consideration of all relevant Therefore, the AMS has determined reporting system, known as ‘‘Reporting material presented, the information and that this action will not have a EZ.’’ It allows handlers who ship less recommendation submitted by the significant economic impact on a than 10,000 tray equivalents per season Committee, and other information, it is substantial number of small entities. to file the shipment report twice per found that finalizing the interim final An interim final rule was issued on season instead of monthly and exempts rule, without change, as published in September 27, 1996, and published in handlers from filing the KISS report. the Federal Register (61 51575, October the Federal Register (61 FR 51575, Similarly, this rule reduces the 3, 1996) will tend to effectuate the October 3, 1996), with an effective date frequency that the shipment report is declared policy of the Act. filed and eliminates the filing of a KISS of October 4, 1996. That rule amended List of Subjects in 7 CFR Part 920 § 920.160 (a) and (b), of the rules and report for those handlers that ship less regulations in effect under the order. than 10,000 trays or tray equivalents per Kiwifruit, Marketing agreements, That rule provided a 30-day comment fiscal year so that the ‘‘Reporting EZ’’ Reporting and recordkeeping period which ended November 4, 1996. program is authorized under both the requirements. No comments were received. State program and the Federal order. For the reasons set forth in the Handlers shipping under 10,000 trays or Under the terms of the order, fresh preamble, 7 CFR part 920 is amended as tray equivalents per season only have to market shipments of California kiwifruit follows: fill out the shipment report twice per are required to be inspected and are year. The first report is due January 5 or PART 920ÐKIWIFRUIT GROWN IN subject to grade, size, maturity, and such other later time established by the CALIFORNIA pack and container requirements. In Committee and includes information on Accordingly, the interim final rule addition, the order authorizes the fresh shipments from the beginning of amending 7 CFR part 920 which was Committee to collect information from the fiscal year (August 1 through published at 61 FR 51575 on October 3, kiwifruit handlers in order to efficiently December 31). The second shipment 1996, is adopted as a final rule without operate the program. report is due the fifth day of the month change. The Committee met on June 12, 1996, following each handler’s last shipment and unanimously recommended for the season and includes shipments Dated: December 4, 1996. reducing the reporting burden for from January 1 until the end of shipping Robert C. Keeney, handlers who ship less than 10,000 tray season. Director, Fruit and Vegetable Division. equivalents per season. Such handlers, In order for a handler to qualify for [FR Doc. 96–31350 Filed 12–9–96; 8:45 am] if they qualified with the Committee, the ‘‘Reporting EZ’’ program, the BILLING CODE 3410±02±P will no longer be required to complete Committee must make a determination biweekly inventory reports and will prior to October 31 (near the beginning only be required to fill out a monthly of the shipping season). The information FEDERAL DEPOSIT INSURANCE shipment report twice per year. that the Committee will use to CORPORATION Section 920.60 of the order authorizes determine whether a handler is the Committee, subject to the approval qualified is available from the State 12 CFR Part 327 of the Secretary, to request information Commission. The State Commission from handlers necessary to perform its already requires handlers to submit RIN 3064±AB59 duties under the order. Prior to the information in order to determine effective date of the interim final rule, whether a handler intends to ship under Assessments section 920.160(a) of the order’s rules 10,000 tray equivalents per year. Thus, AGENCY: Federal Deposit Insurance and regulations required a report of the Committee does not need to place Corporation (FDIC). shipments to be filed with the any additional reporting burden on ACTION: Final rule. Committee by the fifth day of the month kiwifruit handlers in order to determine following such shipment, or such other handler eligibility for the ‘‘Reporting SUMMARY: The FDIC is amending its later time established by the Committee. EZ’’ program. The State Commission assessment regulations by adopting This report is used to compile statistical and the Committee have a written interpretive rules pertaining to information on shipments and to memorandum of understanding that transactions in which an institution calculate assessments owed under the provides for the sharing of information belonging to one insurance fund marketing order. Pursuant to while keeping proprietary information acquires deposits that are treated as § 920.160(b) each handler had to file a confidential. Once the handler has insured by the other insurance fund Kiwifruit Inventory Shipment System qualified, the Committee will then (Oakar transactions). The FDIC is (KISS) report on the fifth and twentieth notify handlers that they are eligible for codifying and refining its procedures for day of each month. The information the ‘‘Reporting EZ’’ program. determining the amount of the deposits collected in the KISS report is used to The information collection so acquired and for attributing the track inventories of California kiwifruit requirements contained in the deposits to the two insurance funds. In and provide inventory statistics, in referenced sections have been addition, recent merger and branch-sale aggregate, to the industry. Both of these previously approved by the Office of cases have revealed certain weaknesses reports are also required under the Management and Budget (OMB) under in the FDIC’s procedures for computing authority of the California Kiwifruit the provisions of the Paperwork the growth of the amounts so attributed. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64961

The interpretive rules repair those When an institution acquires deposits the remaining portion of the weaknesses. The FDIC is also pursuant to section 5(d)(2) and pays the assessment base. simplifying and clarifying the existing requisite fees, the deposits so assumed —Insurance. The AADA fixes the rule by making changes in become insured by the buyer’s primary amount of the institution’s deposits nomenclature. fund (primary-fund deposits). Until that is to be ‘‘treated as’’ insured by an Oakar institution’s secondary fund EFFECTIVE DATE: The final rule is recently the SAIF assessment rate has effective January 1, 1997. been substantially higher than the BIF (secondary-fund deposits). The assessment rate. Some institutions that remaining portion of the institution’s FOR FURTHER INFORMATION CONTACT: have assumed SAIF-assessable deposits deposits is insured by the primary Stephen Ledbetter, Chief, Assessments have found it advantageous to pay the fund (primary-fund deposits). If an Evaluation Section, Division of fees and convert the deposits to BIF- Oakar institution fails, and the failure Insurance, (202) 898–8658; Allan Long, assessable ones. causes a loss to the FDIC, the two Assistant Director, Division of Finance, There is also another avenue open to insurance funds share the loss in (202) 416–6991; Jules Bernard, Counsel, institutions that would like to engage in proportion to the amounts of deposits Legal Division, (202) 898–3731, Federal inter-fund deposit-transfer transactions. that they insure. Deposit Insurance Corporation, Section 5(d)(3) of the FDI Act, id. An Oakar institution’s AADA is used Washington, D.C. 20429. 1815(d)(3), known as the Oakar prospectively. That is to say, an Oakar SUPPLEMENTARY INFORMATION: This Amendment, allows institutions to institution’s AADA for a current interpretive regulation addresses the participate in such transactions without semiannual period is set at the start of computation of assessments paid by paying entrance and exit fees, but only that period, and is used to compute the Oakar institutions. An Oakar institution under certain conditions. The most institution’s assessment for that current is one that is a member of one insurance prominent conditions are these: semiannual period.1 fund (the institution’s primary fund), —The buyer becomes subject to II. The Final Rule but holds deposits that are treated as assessment by the seller’s insurance insured by the other fund (the fund, see id. 1815(d)(3)(B) and (D); The FDIC has issued a proposed rule institution’s secondary fund). The and asking for comment on the regulation directly affects all Oakar —The acquired deposits remain insured interpretations that are the subject of the institutions. The regulation also by the seller’s insurance fund, which final rule. 61 FR 34751 (July 3, 1996). indirectly affects non-Oakar institutions, is the secondary fund of the buyer The comment period remained open because it alters the business (secondary-fund deposits). Id. until September 4, 1996. The FDIC has considerations that they must take into 1815(d)(3) (B) and (H). received 20 comments: 10 from banks; account when they transfer deposits to An inter-fund deposit-transfer eight from bank holding companies; and or from an Oakar institution (or to an transaction that proceeds under the two from trade groups. After the institution that becomes an Oakar authority of the Oakar amendment is comment period closed, however, institution as a result of the transfer). called an Oakar transaction. Congress passed and the President signed the Deposit Insurance Funds Act I. Background The Oakar Amendment introduces the concept of the ‘‘adjusted attributable of 1996 (Funds Act), Pub. L. 104–208, Section 7(l) of the Federal Deposit deposit amount’’ (AADA). An AADA is 110 Stat. 3009 et seq. The Funds Act has Insurance Act (FDI Act), 12 U.S.C. an artificial construct: a number, altered the economic environment for 1817(l), says that upon becoming expressed in dollars, that is generated in Oakar institutions, thereby mooting insured, a depository institution the course of an Oakar transaction, and some of the comments. becomes a member either of the Bank that pertains to the buyer. When an The Funds Act makes two changes Insurance Fund (BIF) or of the Savings AADA is first generated, its value is that, taken together, will cause the FDIC Association Insurance Fund (SAIF). equal to the amount of the secondary- to lower SAIF rates substantially. The Funds Act requires the FDIC to Section 5(d)(2) of the FDI Act, id. fund deposits that the buyer has capitalize the SAIF—that is, to raise the 1815(d)(2), maintains the separation acquired from the seller. The value Savings Association Insurance Fund between the BIF and the SAIF. Section remains constant until the end of the reserve ratio to the designated reserve 5(d)(2) says that no institution may semiannual period in which the ratio (DRR) 2 participate in a ‘‘conversion transaction occurs. —as of October 1, 1996, by transaction’’ without the FDIC’s prior Thereafter the AADA increases or imposing a special assessment on all approval. Id. 1815(d)(2)(A)(i). A decreases at the same underlying rate as SAIF-assessable institutions. Funds Act, ‘‘conversion transaction’’ includes, inter the buyer’s overall deposit base—that is, section 2702(a); see 61 FR 53834 (Oct. alia, any inter-fund deposit-transfer at the rate of growth or shrinkage due to 1 Technically, each Oakar transaction generates transaction: that is, any merger, its ordinary business operations, not its own AADA. Oakar institutions typically acquisition, or other transaction in counting growth due to the acquisition participate in several Oakar transactions. which a BIF member assumes the of deposits from another institution Accordingly, an Oakar institution generally has an obligation to pay deposits owed by a (e.g., in a merger or a branch purchase). overall or composite AADA that consists of all the individual AADAs generated in the various Oakar SAIF member (or conversely). Id. See id. 1815(d)(3)(C). transactions, plus the growth attributable to each 1815(d)(2)(B) (ii), (iii) and (iv). Each An Oakar institution’s AADA is used individual AADA. The composite AADA can institution that participates in such a for the following purposes: generally be treated as a unit, however, because all transaction—whether as the acquiring or —Assessments. An Oakar institution the constituent AADAs (except initial AADAs) grow at the same rate. resulting institution (buyer) or as the pays two assessments: one for deposit 2 The Savings Association Insurance Fund reserve transferring or merging institution in its secondary fund, and the other ratio is the ratio of the SAIF’s net worth to the (seller)—must pay an entrance fee to for deposit in its primary fund. The aggregate amount of deposits insured by the SAIF. one insurance fund and an exit fee to secondary-fund assessment is based 12 U.S.C. 1817(l)(7). The designated reserve ratio (DRR) is a target ratio that has a fixed value for each the other fund. Id. 1815(d)(2)(F). The on the portion of the assessment base year. The DRR is currently set by statute at 1.25 fees are substantial. See 12 CFR part that is equal to the AADA. The percentum; the FDIC may increase the ratio under 312. primary-fund assessment is based on certain conditions. Id. 1817(b)(2)(A)(iv). 64962 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

16, 1996) (imposing the special case of an Oakar institution that capital of the banking system would not assessment). When the SAIF is transfers deposits to another institution. help to bolster the SAIF. See 135 Cong. capitalized at the DRR, the FDIC may The FDIC has by interpretation Rec. H4970 (Aug. 3, 1989) (statement of not (generally) impose higher SAIF developed a procedure for attributing Rep. Oakar). assessments than necessary to maintain the transferred deposits to the BIF and The FDIC accepts the proposition that the SAIF’s capitalization at that level. 12 the SAIF. See FDIC Advisory Op. 90–22, an Oakar institution is a member of its U.S.C. 1817(b)(2)(A)(iii).3 In addition, 2 FED. DEPOSIT INS. CORP., LAW, primary fund only, and is not a member the Funds Act has separated the REGULATIONS, RELATED ACTS 4452 of its secondary fund even though it assessments imposed by the Financing (1990) (Rankin letter). The Rankin letter holds secondary-fund deposits. The Corporation (FICO) from those imposed adopts the principle that an Oakar FDIC adopted this view in the context by the SAIF.4 Beginning on January 1, institution transfers its primary-fund of the original version of the Oakar 1997, the FICO assessments will no deposits first, and only begins to Amendment, which as in effect at the longer serve to reduce the amounts that transfer its secondary-fund deposits time when the FDIC adopted the Rankin the FDIC is authorized to assess for the after its primary-fund deposits have principle, and which made it SAIF: accordingly, the SAIF rates will been exhausted. abundantly clear that a BIF-member no longer include the FICO draw. The FDIC has asked for comment on bank continued to be a BIF member after In light of these developments, the the relative merits of the Rankin acquiring deposits from a SAIF member FDIC has proposed to lower the most principle and an alternative approach: in an Oakar transaction. The favorable SAIF rate to zero, and to treating the transferred deposits as a Amendment carefully avoided modify the rest of the SAIF rate blend of primary-fund and secondary- characterizing the buyer as a SAIF schedule. The proposed SAIF rates are fund deposits. Under the blended- member. On the contrary, the set at the same levels as the current BIF deposits approach, the FDIC would Amendment emphasized the point that rates. 61 FR 53867 (October 16, 1996). attribute the transferred deposits to the the buyer was a BIF member that These changes would reduce—but not insurance funds in the same ratio as the happened to owe a payment to the eliminate—the difference between the overall deposits of the transferring SAIF. To be sure, the SAIF was obliged rates for BIF-assessable deposits and Oakar institution (seller) were attributed to insure some of the buyer’s deposits— SAIF-assessable ones. The Funds Act immediately prior to the transfer. but the Amendment went out of its way gives the FICO authority to assess all The FDIC has received 15 comments to say that the deposits were only insured institutions, and also that address this issue. Eight ‘‘treated as’’ SAIF insured, not simply temporarily requires the FICO to assess commenters (including one of the trade ‘‘insured’’ by the SAIF. 12 U.S.C. SAIF-assessable deposits at a higher rate groups) favor the Rankin principle over 1815(d)(3)(B)(iii) (Supp. I 1989). The than BIFassessable deposits. From 1997 the blended-deposits rule. Three prefer FDIC holds this view today. See through 1999 (or when the last savings the blended-deposits rule to the Rankin Treatment of Assessments Paid by association ceases to exist, if that principle. The remaining four ‘‘Oakar’’ Banks and ‘‘Sasser’’ Banks on happens before the end of 1999), (including the other trade group) SAIF-Insured Deposits, General institutions will pay roughly 6.4 basis express no preference as between these Counsel’s Opinion No. 7, 60 FR 7059 points to the FICO on their SAIF- alternatives. Several commenters (Feb. 6, 1995). assessable deposits, and roughly 1.3 suggest other options (discussed below). But the FDIC also takes the position basis points to the FICO on their BIF- Having considered the comments, the that nominal fund membership is not assessable deposits. 12 U.S.C. FDIC has determined that the Rankin the touchstone for determining whether 1441(f)(2)(A); see Funds Act, section approach is preferable both to the a transaction is a conversion transaction blended-deposits rule and to the other 2703(a)(1). Accordingly, institutions within the meaning of section 5(d)(2), options suggested by the commenters. still have some incentive to ‘‘game’’ the and accordingly does not determine As a preliminary matter, it should be assessment rules for the purpose of whether a transaction comes within the noted that two commenters aver that scope of the Oakar Amendment. shifting deposits from SAIF-assessable there is no statutory foundation for status to BIF-assessable status, although ‘‘Membership’’ is a label that denotes either the Rankin principle or the the formal relationship of an insured the incentive is much less than before. blended-deposits approach. The FDIC The final rule ends some of the institution to the FDIC as insurer within rejects this contention. The FDIC anomalies that institutions can use to the context of the two-fund system. considers that it has ample authority to engage in ‘‘gaming’’ strategies. The final Ordinarily—that is, in the case of non- adopt either one of these deposit- rule also strengthens the correlation Oakar institutions—membership attribution plans, and more generally between the assessment that an correctly signifies the relationship has ample authority to prescribe a between an institution and the FDIC. institution pays to an insurance fund method for attributing deposits that an and the risk that the institution poses to Membership entails a well-defined set Oakar institution transfers to another of obligations that the institution and that fund, and helps preserve the institution. The contrary view would balance in the insurance responsibilities the FDIC have to each other. A member render section 5(d)(2) and the Oakar of a fund must pay assessments to the of the two funds. Amendment meaningless. If the FDIC FDIC for deposit in that fund. The FDIC A. Attribution of Transferred Deposits had no such power, a BIF-member buyer must use the resources of that fund to Neither section 5(d)(2) nor the Oakar could acquire deposits from a SAIF- insure the member’s deposits. The Amendment explicitly addresses the member seller without paying entrance assessment that the FDIC imposes on and exit fees simply by passing the the member is determined by the 3 If the Savings Association Insurance Fund deposits through an intermediary BIF- strength of the fund relative to the reserve ratio falls below the DRR, the FDIC may set member Oakar bank. The barrier fund’s insurance responsibilities. rates that increase the reserve ratio to the DRR. Id. between the insurance funds would But membership does not correctly 1817(b)(2)(A)(iii). effectively disappear. Moreover, the express the relationship between Oakar 4 The FDIC must still approve the FICO’s assessments, and the FICO must still impose its acquired deposits would be neither institutions and the FDIC as insurer. assessments ‘‘in the same manner’’ as the FDIC SAIF-assessed nor SAIF-insured: Oakar institutions owe assessments to assesses institutions. 12 U.S.C. 1441(f)(2). contrary to Congress’ intent, the private both funds, and both funds must share Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64963 the loss that the FDIC would suffer if an and flexible authority to interdict commenters say the branches and Oakar institution were to fail. strategies that facilitate or encourage the customers that they have acquired from The FDIC resolves these conflicting shifting of deposits from SAIF- SAIF-member institutions do not make themes by focusing on the relationship assessable deposits to BIF-assessable a proportionate contribution to the of an Oakar institution to the FDIC—the deposits. Funds Act, section 2703(d). overall growth of their deposits: as a set of obligations that the label ‘‘BIF One reason the FDIC has decided to result, the assessment base for their member’’ or ‘‘SAIF member’’ ordinarily retain the Rankin principle rather than SAIF assessments is artificially large. signifies—and not on nominal fund shift to the blended-deposits approach The FDIC considers, however, that membership. The FDIC takes the is that the Rankin principle has the these objections touch upon the position that the substance of the virtue of simplicity. Sellers rarely structure and purposes of the Oakar relationship, and the effect of a deposit- transfer all their primary-fund deposits. Amendment, rather than upon the transfer on that relationship, is the A seller ordinarily has the same AADA Rankin principle. The Oakar touchstone for determining whether the after the transaction as before, and a Amendment is specifically designed to deposit-transfer is a conversion buyer does not ordinarily become an avoid deposit-tracing—that is, keeping transaction within the meaning of Oakar institution. Six commenters agree track of deposits based on their origin. section 5(d)(2). Put another way, the that simplicity was one advantage of the An AADA’s initial value may be equal FDIC considers that the label ‘‘member’’ Rankin principle. to the amount of the secondary-fund must be given only that degree of The Rankin principle also has the deposits that the buyer acquires from significance that is appropriate to virtue of being well established and well the seller. But the Oakar Amendment preserve the integrity of the two-fund understood. Three commenters agree does not connect the AADA to those structure. with this point. Two commenters take particular deposits, or to the customers In proposing the blended-deposits issue with it, however. They point out that hold them, or to the branches in rule, the FDIC has suggested that that the Rankin principle was first which the deposits are located. The institutions might adopt ‘‘gaming’’ articulated in a staff opinion letter, not Oakar Amendment treats an Oakar strategies that use the Rankin principle in a rulemaking with public notice and institution as a unit. The Amendment to convert SAIF-assessed deposits into comment, and declare that it is uses the institution’s overall rate of BIF-assessed ones. One commenter, a implausible for the FDIC to assert that growth to compute the institution’s trade group, urges the FDIC to prevent the Rankin principle is well established AADA, thereby—in effect—applying ‘‘gaming’’ strategies, but has not or well understood in these that growth equally to the institution’s endorsed any particular method of circumstances. primary-fund and secondary-fund prevention. Three commenters express The FDIC considers that commenters’ deposits. In objecting to that effect, the doubt that institutions will engage in point is not well taken. The FDIC issued commenters challenge the basic ‘‘gaming’’ strategies. Finally, two the Rankin letter more than six years principles of the Oakar Amendment commenters say that the FDIC cannot ago, and has applied its principles on a itself. The commenters’ redress lies with fairly oppose such strategies if the FDIC consistent basis. The FDIC accordingly Congress. is willing to countenance tandem- has had a consistent, well settled The blended-deposits approach, for banking plans and deposit-migration interpretation of section 5(d)(2) and the its part, has certain attractions. It helps programs. These two commenters Oakar Amendment since 1990; the prevent ‘‘gaming’’. It also maintains the further urge the FDIC to view such Rankin letter expresses that relative proportions of the seller’s ‘‘gaming’’ strategies as beneficial rather interpretation. Moreover, the FDIC has primary-fund deposit-base and the than pernicious, on the ground that the published the Rankin letter, thereby secondary-fund deposit base, just as strategies are equivalent to the options providing public notice of the those proportions are preserved in the available to non-Oakar thrifts, and that interpretation. ordinary course of business. By contrast, the strategies therefore place Oakar One commenter points out that, under as one commenter has pointed out, the banks on an equal competitive footing the Rankin principle, SAIF-insured Rankin principle tends to inflate the with other institutions. deposits have a greater propensity to AADA. When an institution buys The FDIC considers that these move from SAIF-member savings branches from a member of the opposite comments have all been overtaken by associations to BIF-member Oakar banks fund, the buyer gains secondary-fund events. On one hand, notwithstanding than the other way around. The Rankin deposits and increases its AADA. But the doubts expressed by the principle therefore has the effect of when it acts as the seller, it does not commenters, the FDIC has found that, reducing the store of deposits available normally lose any secondary-fund prior to enactment of the Funds Act, a for assessment by the FICO. The FDIC deposits, because it does not normally number of institutions had begun to considers that the Funds Act has sell off all its primary-fund deposits: its pursue ‘‘gaming’’ strategies. For mooted this point, however, as the FICO AADA remains the same. example, some holding companies had now has authority to assess deposits At the same time, however, the proposed elaborate schemes to purge held by BIF members. See 12 U.S.C. blended-deposits approach has a AADAs from their Oakar banks by 1441(f)(2). number of disadvantages. As nine means of linked deposit-transfer Another commenter objects to the commenters point out, the blended- transactions and deposit-migration Rankin principle on the ground that deposits rule would cause Oakar programs. But on the other hand, the when a BIF-member Oakar bank buys a institutions to proliferate. If a non-Oakar Funds Act has considerably reduced the branch from a SAIF-member institution, institution were to acquire deposits threat posed by ‘‘gaming’’ strategies. and incurs an obligation to the SAIF as from an Oakar institution, the buyer Institutions will have much less a result, the Oakar bank cannot escape would necessarily assume secondary- incentive to adopt such strategies once the obligation merely by selling off the fund deposits, and would therefore the SAIF rates have been reduced to the branch. This commenter—along with become an Oakar institution in its own level that maintains the SAIF’s several others—also makes the more right. Six commenters observe that the capitalization at the DRR. In addition, general point that the statutory rules for blended-deposits rule would generate the Funds Act gives the FDIC and the determining the AADA do not reflect burdensome reporting and record- other federal banking agencies broad practical business realities. These keeping obligations. Six commenters 64964 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

(not all the same ones) say further that commenters propose that the parties to B. FDIC Computation of the AADA; the blended-deposit approach would a transaction should be able to Reporting Requirements result in higher costs for buyers and lost determine the attribution of the In the past, every Oakar institution sales for sellers. Four commenters transferred deposits by agreement. One has prepared an annual growth indicate that the blended-deposits rule of the commenters says the attribution- worksheet for submission to the FDIC. could cause uncertainty or confusion in by-agreement rule would minimize the The worksheet shows the growth or determining the assessment costs with creation of Oakar institutions, would shrinkage of the institution’s AADA respect to transferred deposits, reduce the incentive to engage in the during the prior calendar year, and the particularly in light of the uncertain ‘‘gaming’’ strategies that the FDIC had computations used to determine that prospects for future assessment rates. discussed in the proposed rule, and growth or shrinkage. In addition, each One says the blended-deposits rule would not entail any heavier reporting institution that has acquired secondary- would impede banks in selling off or record-keeping obligations than the fund deposits in an Oakar transaction branches in order to rationalize branch blended-deposits approach. A second (Oakar buyer) has prepared and networks or for other corporate commenter says this proposal would submitted a transaction worksheet for purposes. eliminate uncertainty in pricing each such transaction. The FDIC has These comments continue to have deposits and, from the point of view of supplied the worksheet, and has also force despite the economic and legal a BIF-member Oakar bank acting as the provided the name of the Oakar buyer, changes made by the Funds Act. Buyers seller, would be fairer and more flexible the name of the seller, and the date of would have to bear the extra record- than the Rankin principle. The third the transaction. The Oakar buyer has keeping and reporting burdens commenter does not give its reasons for provided the volume of the acquired associated with secondary-fund supporting the proposal. deposits and the AADA so generated. deposits. Moreover, even though the The FDIC declines to adopt the As part of the changeover to the disparity between BIF rates and SAIF attribution-by-agreement rule, however. quarterly adjustment of AADAs (see rates will be reduced, the FICO’s rates The FDIC recognizes that its assessment II.C. below), the FDIC is lifting the retain a differential: institutions will rules and procedures provide the burden of computing AADA growth still have to pay higher rates to the FICO environment within which parties from Oakar institutions entirely. Oakar on SAIF-insured deposits than on BIF- negotiate transactions, and that as a institutions will no longer prepare insured deposits, at least temporarily. matter of course, the parties consider annual growth worksheets or Id. 1441(d)(2); see Funds Act section the likely consequences of their transaction worksheets, and will not 2703(c). The differential (roughly five agreements within that environment. report their AADAs in their quarterly basis points) is smaller than the recent But the FDIC rejects the proposition that reports of condition. Instead, each Oakar differential between the BIF and SAIF parties should be able to determine, by institution will provide the following assessment rates, and is short-lived as agreement among themselves, which set three pieces of information in its well. But so long as it persists, buyers of rules the FDIC will apply to them. quarterly reports of condition: will be less willing to assume The FDIC considers that, as a matter of —total deposits acquired during the SAIFassessable deposits. principle, its relationship to the quarter; One commenter objects to the institutions that it insures and assesses —secondary-fund deposits acquired in blended-deposits rule on the ground derives from its supervisory and rule- the quarter; and that it would force banks that acquire making authority, and accordingly is not —total deposits sold in the quarter.5 deposits from an Oakar bank—and a fit subject for private negotiation. The The FDIC will use this information to banks that purchase deposits from those FDIC also notes that, as a practical calculate the institution’s AADA, and subsequent acquirers, and so on, ad matter, parties do not always take the will show the AADA (and the way it has infinitum—to pay SAIF assessments. same view of their agreements after the been computed) in the institution’s The commenter says this result is agreements have been completed. quarterly assessment invoices. improper. The commenter asserts that a Another commenter proposes that the The FDIC has received nine buyer always loses a significant portion buyer’s primary fund should determine comments on this program. Four of the acquired deposits soon after which of the seller’s deposits are (including a trade group) favor it; five acquiring them, and that accordingly a transferred first. Under the buyer’s-fund (including another trade group) are third-generation or fourth-generation rule, any deposits transferred by the opposed. The supporters agree the buyer does not assume any of the SAIF- seller would be attributed to the buyer’s program would reduce regulatory insured deposits that changed hands in primary fund until the seller has burden. The opponents say the program the original Oakar transaction. The FDIC exhausted its store of such deposits; would not lighten the record-keeping does not agree with this point, however. thereafter, transferred deposits would be burden of Oakar institutions, and could As discussed above, the FDIC considers attributed to the buyer’s secondary fund. well increase that burden, because the that the Oakar Amendment does not The chief advantages of the proposal, institutions would have to verify the contemplate deposit-tracing. The FDIC according to the commenter, are that it accuracy of the FDIC’s figures. One of further considers that the Oakar offers the simplicity of the Rankin the opponents—the trade group—says Amendment is designed to preserve principle while helping to preserve or precisely the obligation that the increase the deposit-base subject to 5 The Comptroller of the Currency, the Board of commenter seeks to end: namely, the assessment by the FICO. Governors of the Federal Reserve System, and the buyer’s duty to pay SAIF assessments Here again, however, events have FDIC have issued a joint proposal calling for on the SAIF-insured deposits it has overtaken the comment. The FICO may institutions to report the three items in their quarterly reports of condition. 61 FR 48687, 48693– acquired, and to do so an on-going basis, now assess both BIF and SAIF members. 48694 (Sept. 16, 1996). The Office of Thrift without regard for whether any 12 U.S.C. 1441(f)(2). Under these Supervision has issued a similar proposal with particular customers of the buyer have conditions, the buyer’s-fund proposal respect to the institutions it supervises. Id. 53262, withdrawn their funds after the Oakar has no material advantage over the 53263 (Oct. 10, 1996). The FDIC expects both proposals to be adopted. The alternative is for transaction has taken place. Rankin principle, while the Rankin institutions to prepare and transmit quarterly Several commenters offer deposit- principle has the advantage of being a worksheets with the requisite information directly attribution rules of their own. Three well-established precept. to the FDIC. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64965 further that the program’s reporting Amendment give the FDIC room to alter institution’s secondary fund. The FDIC requirements are burdensome. The its view. is also adopting the view that, if an commenter notes that Oakar institutions The constant-value concept derived AADA is generated in a transaction that have not reported their deposit-sales in from the 1989 version of the Oakar occurs during the second calendar the past, and have reported their Amendment. See 12 U.S.C. 1815(d)(3) quarter of a semiannual period, the first acquired secondary-fund deposits and (Supp. I 1989). That version of the quarterly component of the AADA for their acquired total deposits annually, Amendment said that an Oakar bank’s the current (following) semiannual not quarterly. AADA measured the portion of the period is zero; only the second quarterly The FDIC considers that the reporting average assessment base that the SAIF component is equal to the volume of the burden associated with its program is could assess. Id. 1815(d)(3)(B). The FDI secondary-fund deposits that the buyer minimal, however, especially as Act (as then in effect) defined the has so acquired. compared with the burden of preparing average assessment base as the average The FDIC considers that this view of and filing the two worksheets. Indeed, of the institution’s assessment bases on the phrase ‘‘for any semiannual period’’ the program may not constitute a net the two dates for which the institution is appropriate because the phrase is the increase in burden at all in most cases. was required to file a call report. Id. counterpart of, and is meant to interpret, The items to be reported are zero in 1817(b)(3). As a result, an AADA—even the following language in the Oakar most quarters; and even in other a newly created one, and even one that Amendment: quarters, the information should be was generated in a transaction during (C) DETERMINATION OF ADJUSTED readily available and easy to calculate. the latter quarter of the prior ATTRIBUTABLE DEPOSIT AMOUNT.—The Moreover, Oakar institutions have semiannual period—served to allocate adjusted attributable deposit amount which already been providing two of the three an Oakar bank’s entire assessment base shall be taken into account for purposes of for the entire current semiannual determining the amount of the assessment items in their annual growth under subparagraph (B) for any semiannual worksheets: only the last item is new. period. The FDIC issued rules in keeping with this view. 54 FR 51372 period * * *. As an alternative, the FDIC has (Dec. 15, 1989).6 12 U.S.C. 1815(d)(3)(C). considered replacing the annual growth Congress has decoupled the AADA This passage speaks of the worksheet with a more detailed from the assessment base as part of the assessment—not the AADA—‘‘for any quarterly worksheet, and retaining the changeover to a risk-based assessment semiannual period’’. Insofar as the transaction worksheet. The FDIC has system. See Federal Deposit Insurance AADA is concerned, the statute merely determined that this approach would Corporation Improvement Act of 1991 specifies the semiannual period for impose an additional and unnecessary (FDICIA), Pub. L. 102–242, section 302 which the AADA is to be computed: the burden on Oakar institutions, however. (e) and (g), 105 Stat. 2236, 2349 (Dec. period for which the assessment is due. The FDIC has further determined that 19, 1991); see also Defense Production The FDIC believes that the phrase ‘‘for this approach could increase the Act Amendments of 1992, Pub L. 102– any semiannual period’’ in its own frequency of errors associated with 558, section 303(b)(6)(B), 106 Stat. 4198, regulation may properly be read to have AADA calculations. 4225 (Oct. 28, 1992); cf. 58 FR 34357 the same meaning. C. Quarterly Treatment of AADAs (June 23, 1993). The Oakar Amendment Moreover, while the Amendment says no longer expressly links the AADA the AADA must ‘‘be taken into account’’ The FDIC is adopting the view that an directly to the assessment base. The in determining a semiannual AADA for a semiannual period may be Amendment now says that the AADA assessment, the Amendment does not regarded as having two quarterly measures the amount of an Oakar prescribe any particular method for components. The increment by which institution’s deposits that are to be doing so. The FDIC considers that this an AADA grows during a semiannual treated as secondary-fund deposits. See language provides enough latitude for period is the result of the growth of each 12 U.S.C. 1815(d)(3). the FDIC to apply the AADA in a quarterly component. Five commenters Accordingly, the FDIC is no longer manner that is appropriate to the (including one trade group) generally compelled to retain the constant-value quarterly payment program. support this interpretation. view of the AADA. Furthermore, as The FDIC’s existing regulation is Three commenters oppose quarterly discussed below, the FDIC has found compatible with this interpretation. The determination of AADAs, chiefly on the that the constant-value concept has regulation speaks of an assessment base ground that this procedure would cause certain disadvantages. The FDIC is for each quarter, not of an average of increased recordkeeping and reporting therefore re-interpreting the phrase ‘‘for such bases. The regulation further says burdens. The burdens the commenters any semiannual period’’ as used in 12 that an Oakar institution’s AADA fixes cite are essentially the same as those CFR 327.32(a)(3) in the light of the a portion of its ‘‘assessment base’’. See discussed above (see II.B.) with respect FDIC’s quarterly assessment program. 12 CFR 327.32(a)(2) (i) and (ii). to the FDIC’s computation of the AADA. The FDIC is taking the position that, Accordingly, the FDIC is not modifying For the reasons presented in that consistent with this phrase, an Oakar the text that specifies the method for discussion, the FDIC does not consider institution’s AADA for a semiannual computing AADAs. that the net increase in burden—if any— period is to be determined on a quarter- One commenter urges the FDIC to will be material. by-quarter basis—just as the assessment apply the revised interpretation on a base for a semiannual period is so retroactive basis, effective either as of 1. Quarterly Components determined—and is to be used to January 1, 1994 (when the statutory a. In General. The FDIC’s assessment measure the portion of each quarterly changes took effect) or as of June 1, 1995 regulation speaks of an institution’s assessment base that is assessed by the (when the BIF was capitalized, and the AADA ‘‘for any semiannual period’’. 12 most favorable BIF rate dropped CFR 327.32(a)(3). The FDIC has 6 The FDIC revised its collection procedure late substantially). To apply the revised previously interpreted this phrase to in 1994, and began collecting the semiannual interpretation retroactively could cause assessment in two quarterly installments. 59 FR mean that an AADA has a constant 67153 (Dec. 29, 1994). The new procedure did not considerable difficulties for the FDIC, value throughout a semiannual period. affect the relationship between an Oakar however, and perhaps for some Recent changes in the Oakar institution’s AADA and its assessment base. institutions. The FDIC would have to 64966 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations identify every Oakar transaction accordingly determined to apply the (or third) quarter; its first payment for occurring after the effective date of the revised interpretation only on a the upcoming semiannual period is revision, and the amount of the assumed prospective basis. based on them. At the same time, the deposits; redetermine every Oakar b. Need for Quarterly Components: buyer’s secondary-fund assessment is institution’s initial AADA in such a Appearance of Double-Counting Under approximately equal to an assessment transaction; recompute the assessments certain conditions, the FDIC’s constant- on the transferred deposits for both payable to each insurance fund for every value view of the AADA appears to be quarters in the semiannual period. semiannual assessment; restate the tantamount to double-counting balance of each insurance fund; re- transferred deposits for a calendar The source of this apparent effect is allocate the insurance funds’ earnings quarter. The appearance of double- that, under the FDIC’s constant-value and expenses; and redetermine each counting occurs when an Oakar interpretation, an AADA—even a newly insurance fund’s reserve ratio. A institution acquires secondary-fund generated one—applies to an Oakar retroactive revision could even affect deposits in the latter half of a institution’s entire assessment base for the data used for determining the recent semiannual period—i.e., in the second the entire semiannual period. The special assessment that recently or fourth calendar quarter. The seller following example illustrates the capitalized the SAIF. The FDIC has has the deposits at the end of the first point: 7

Seller Buyer Industry (SAIF) (BIF) total

Before the transaction: Starting assessment bases (ignoring float, &c.): SAIF ...... $200 0 $200 BIF ...... 0 $100 $100

$200 $100 $300 The transaction (May 1): March call report ...... $200 $100 $300 Deposits sold ...... ($100) +$100 (AADA) (1) June call report ...... $100 $200 $300 After the transaction: Ending assessment bases (ignoring float, &c.): SAIF ...... $100 $100 (AADA) $200 BIF ...... 0 $100 $100

$100 $200 $300 Average assessment bases: (ignoring float, &c.): SAIF ...... $150 $100 (AADA) $250 BIF ...... 0 $50 $50

$150 $150 $300 1 Neutral.

In this illustration, the buyer is a BIF buyer’s SAIF assessment base—and its amount of the BIF-assessable deposits member with $100 in deposits, all SAIF assessment—is twice as large as it shrinks to $50. But the anomaly only insured by the BIF. The seller is a SAIF would have been had it been computed lasts for one semiannual period. In the member with $200 in deposits, all in the ‘‘usual’’ way (that is, in the following period, the seller’s assessment insured by the SAIF. The buyer acquires manner that applies to non-Oakar base is $100 for both quarters, making $100 from the thrift. The transaction institutions). The difference is roughly its average assessment base $100. The takes place in May (the second half of equivalent to ‘‘double counting the buyer’s AADA remains $100. the first semiannual period). acquired deposits’’: counting the Accordingly, the aggregate amount of The transaction generates an AADA transferred $100 in the buyer’s deposit- SAIF-assessable deposits retreats to for the buyer; the value of the AADA is base for both quarters rather than just $200 once more; and the aggregate $100. The buyer’s SAIF assessment is for the second one.8 amount of BIF-assessable deposits is based on that amount (more exactly, on The anomaly is most apparent from back to the full $100. the portion of its assessment base that the standpoint of the industry as a Broadening the focus to include both is equal to that amount). But the average whole. The aggregate amount of the insurance funds also brings out a more of the buyer’s SAIF insured deposits for SAIF-assessable deposits temporarily subtle point: the anomaly is not the prior two quarters is only $50. The balloons to $250, while the aggregate tantamount to double-counting the

7 In order to bring out the relationship between semiannual period of 1995, the FDIC collects the 8 The equivalence is not so close as it appears. For the AADA and the assessment base more clearly, semiannual assessment in two installments. The one thing, an Oakar institution’s secondary-fund the table refers to the average assessment base of an first installment is computed using the assessment assessment base is not a proportional part of the institution. The average assessment base is derived base that derives from the deposits reported in the overall base, but rather is equal to the full value of from the average of the deposits that the institution institution’s first report of condition for the prior its AADA. See id. 327.32(a)(2). For another, an has reported in its two reports of condition for the prior semiannual period. The FDIC has used the quarter; the second installment is computed using initial AADA remains fixed during the semiannual average assessment base to compute the semiannual the assessment base derived from the second such period in which it is generated, even though the assessment for most of the time that Oakar report of condition. 59 FR 67153 (Dec. 29, 1994). Oakar institution’s total deposits rise or fall institutions have existed. The FDIC has collected The new collection procedure does not affect the between the time of the transaction and the end of the semiannual assessments in a single payment. amount that an institution owes for a semiannual the period. The FDIC has recently changed its collection period. Accordingly, the effect described in the procedures, however. Beginning with the second example remains valid. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64967 transferred deposits for a quarter, but the procedures prescribed by the FDIC, six-month time deposits). For example, rather to re-allocating the buyer’s each Oakar institution has computed its until recently, the FDIC’s rules assessment base from the BIF to the ‘‘annual rate of growth’’ at the end of regarding the payment of interest on SAIF. The BIF-assessable portion of the each calendar year, and has used this deposits spoke of ‘‘the annual rate of buyer’s average assessment base is $50, figure to calculate the AADA for use simple interest’’—a phrase that not $100. The difference is equivalent to during the following year. pertained to rates payable on time cutting the buyer’s BIF assessment base This procedure has a weakness. An deposits having maturities as short as by $100 for half the semiannual period. Oakar institution’s AADA has tended to seven days. See 12 CFR 329.3 (1993). The FDIC’s quarterly-payment drift out of alignment with its deposit One commenter agrees with the FDIC procedure has brought attention to these base, because the AADA remains that the statutory phrase permits the anomalous effects. The quarterly- constant while the deposit base changes. computation of growth on a quarter-by- payment schedule is merely a new At the end of the year, when the quarter basis. No commenter takes the collections schedule, not a new method institution computes its AADA for the for determining the amount due. See 59 next year, the AADA suddenly—but opposite view. FR 67153 (Dec. 29, 1994). Accordingly, only temporarily—snaps back into its b. Annual vs. Quarterly Growth under current procedures, the buyer and proper proportion. Adjustment the seller in the illustration would pay The FDIC does not believe that the amounts specified therein even Congress intended to cause such a An AADA remains fixed until a under the quarterly-payment schedule. fluctuation in the relation between an growth adjustment is applied. Total When an Oakar transaction occurs in institution’s AADA and its deposit base. deposits fluctuate from day to day in the the latter half of a semiannual period, Moreover, from the FDIC’s standpoint as normal course of business, however. however, the buyer’s call report for the insurer, it is appropriate to maintain a These fluctuations are reflected entirely prior quarter does not show an AADA. relatively steady correlation between the in an institution’s primary-fund The buyer’s first payment for the current AADA and the total deposit base. The deposits until the growth adjustment semiannual period is therefore based on FDIC is therefore revising its view, and occurs. That adjustment has hitherto its assessment base for that quarter, not is taking the position that-after the end been made on an annual basis: on its AADA. Moreover, the entire of the semiannual period in which an Accordingly, the relationship between payment is computed using the institution’s AADA has been an institution’s total deposits on one assessment rate for the institution’s established—the AADA grows and hand, and its primary-fund deposits and primary fund. The FDIC therefore shrinks at the same underlying rate as its AADA on the other, has often varied adjusts (and usually increases) the the institution’s domestic deposit base significantly. By contrast, the quarterly- amount to be collected in the second (that is, excluding acquisitions and adjustment method causes primary-fund quarterly payment in order to correct deposit sales), measured deposits and the AADA vary together these defects. contemporaneously on a quarter-by- with total deposits. Three commenters Interpreting the semiannual AADA to quarter basis. Over a full semiannual cite this result as a reason for supporting consist of two quarterly components period, any increase or decrease in the the quarterly determination of AADAs. eliminates this anomaly. Three AADA automatically occurs at a rate Consider an Oakar institution that has commenters endorse the quarterly equal to the ‘‘rate of growth of deposits’’ total deposits of $15 as of 12/31/93, determination of AADAs for that reason. during the semiannual period, thereby with an AADA of $6.5. Further assume satisfying the statutory requirement. 2. Quarterly Growth The FDIC considers that the statutory that the institution’s total deposits grow a. In General. The Oakar Amendment reference to an ‘‘annual rate’’ does not by $1 every quarter, and that the says that the growth rate for an AADA foreclose this approach. In ordinary institution does not participate in any during a semiannual period is equal to usage, ‘‘annual rate’’ can refer to a rate additional acquisitions or deposit sales. the ‘‘annual rate of growth of deposits’’ that is expressed as an annual rate, even The following graphs show the effects of of the Oakar institution. The FDIC has though the interval during which the making growth adjustments to the previously interpreted the phrase rate applies, and over which it is institution’s AADA on an annual basis ‘‘annual rate’’ to mean a rate determined determined, is a shorter interval such as versus a quarterly basis: over the interval of a full year. Under a semiannual period (e.g., in the case of BILLING CODE 6714±01±P 64968 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64969 64970 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

The following graphs express this difference in terms of percents of total deposits: Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64971 64972 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

In the annual-adjustment method, the AADA becomes a smaller percent of total deposits as the total grows. In the quarterly-adjustment method, the AADA and the primary-fund deposits remain constant percents of total deposits. c. Rolling One-Year Adjustments vs. Quarterly Adjustments The FDIC also considered an alternative approach: Using the rate of growth in the institution’s deposit base for the prior four quarters, measured from the current quarter. This technique would be as consistent with the letter of the statute as the current method. But the four-prior-quarters method would retain the lag between the AADA and the deposit base. Consider the same Oakar institution with beginning total deposits of $15 and constant growth of $1 per quarter. The following graphs illustrate the effects on deposits of using total-deposit growth rates on two different bases—namely, rolling one-year growth rates, and quarter-to-quarter growth rates: Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64973 64974 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64975

In both cases, the primary-fund deposits and the AADA appear to vary together with total deposits, but it is difficult to discern their precise relationship. Graphs of the same effects in terms of percents of total deposits are more illustrative: 64976 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

BILLING CODE 6714±01±C Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64977

In the percent-of-deposits graphs, the excluded growth attributable to mergers, simplification, liberalization, and AADA and the primary-fund deposits branch purchases, and other symmetry. Congress allowed savings are shown to converge when the AADA acquisitions of deposits from other BIF associations to acquire banks, as well as growth adjustment is based on rolling members: the deposits so acquired were the other way around. Congress allowed one-year growth rates. In this particular to be subtracted from the Oakar bank’s institutions to deal with one another example, the effect occurs because the total deposits for the purpose of directly, eliminating the requirement institution’s constant growth of $1 per determining the growth in the Oakar that the institutions must belong to the quarter results in a steadily decreasing bank’s deposit base (and therefore the same holding company (and the need rate of growth of total deposits. rate of growth of the AADA). See 12 for approval by an extra federal Therefore, a rolling one-year growth rate U.S.C. 1813(d)(3)(C)(3)(iii) (Supp. I supervisor). Congress established a of those total deposits at any point in 1989). mirrorimage set of rules for assessing time will be more than the actual rate The 1989 version of the Oakar Oakar banks and Oakar thrifts. As noted of growth over the quarter to which the Amendment spoke only of ‘‘growth’’ above, Congress repealed the seven rolling rate is being applied. While and ‘‘increases’’ in the AADA. Id. The percentum floor on AADA growth, different growth characteristics for total statute was internally consistent in this thereby removing the most prominent deposits would yield different regard, because AADAs could never cause of divergence between an Oakar relationships between the AADA and decrease. institution’s assessment base and its the primary fund over time, the general Congress eliminated the minimum deposit base. Congress expanded the point is that the relationships of the growth rate as of the start of 1992. scope of the Oakar Amendment and AADA and the primary-fund deposits FDICIA section 501 (a) and (b), 105 Stat. made it congruent with the relevant can vary when the AADA is adjusted, 2389 and 2391. As a result, the Oakar provisions of section 5(d)(2). See unless the total-deposit rate of growth Amendment now specifies that an FDICIA section 501(a), 105 Stat. 2388– used for the adjustment is drawn from Oakar institution’s AADA grows at the 91. the same period for which the rate is same rate as its domestic deposits In keeping with this view of the 1991 applied to the AADA. (excluding mergers, branch acquisitions, amendments, the FDIC interprets the As the latter graph shows, applying and other acquisitions of deposits). 12 growth provisions of the Oakar the actual quarterly growth rate for total U.S.C. 1813(d)(3)(C). Amendment symmetrically: that is, to deposits to the AADA results in stable The modern version of the Oakar encompass negative growth rates as well percents of total deposits for the AADA Amendment continues to speak only of as positive ones. Nine commenters and primary fund deposits. ‘‘growth’’ and ‘‘increases’’, however. support this view; none oppose it. In sum, the FDIC considers that the Congress has not—at least not Accordingly, the FDIC is taking the quarterly approach is permissible under explicitly—modified it to address the position that an Oakar institution’s the statute, and is preferable to any case of an institution that has a AADA grows and shrinks at the same approach that relies on a yearly interval shrinking deposit base. Nor has underlying rate of growth as the to determine growth in the AADA. Congress addressed the case of an institution’s domestic deposits. institution that transfers deposits in D. Negative Growth of the AADA The FDIC considers that this bulk to another insured institution. interpretation is appropriate because it One element of an Oakar institution’s The FDIC regards this omission as a accords with customary usage in the AADA for a current semiannual period gap in the statute that requires banking industry, and because it is is ‘‘the amount by which [the AADA for interpretation. The FDIC does so consistent with the purposes and the the preceding semiannual period]9 because, if the statute were read to allow structure of the statute. Under the would have increased during the only increases in AADAs, the statute FDIC’s interpretation, each fund preceding semiannual period if such would generate a continuing shift in the continues to bear a constant share of the increase occurred at a rate equal to the relative insurance burden toward the risk posed by the institution, and annual rate of growth of [the Oakar SAIF. Most Oakar institutions—and continues to draw assessments from a institution’s] deposits’’. 12 U.S.C. nearly all large Oakar institutions—are constant proportion of the institution’s 1815(d)(3)(C)(iii). The FDIC is codifying BIF-member Oakar banks. If an Oakar deposit base. its view that the terms ‘‘growth’’ and bank’s deposit base were to shrink Moreover, the FDIC’s interpretation ‘‘increase’’ encompass negative growth through ordinary business operations, encourages banks to make the (shrinkage). But the FDIC is changing its but its AADA could not decline in investment that Congress wished to interpretation by excluding shrinkage proportion to that shrinkage, the SAIF’s promote. If ‘‘negative increases’’ were due to deposit sales. share of the risk presented by the Oakar disallowed, Oakar banks would see their bank would increase. But the reverse 1. Negative Growth in General SAIF assessments (which currently would not be true: if an Oakar bank’s carry a much higher rate) grow The 1989 version of the Oakar deposit base increased, its AADA would disproportionately when their deposits Amendment focused on an Oakar bank’s rise as well, and the SAIF would shrank through ordinary business underlying rate of growth for the continue to bear the same share of the operations. purpose of determining the Oakar risk. The result would be a tendency to Finally, the interpretation is designed bank’s AADA. The 1989 version of the displace the insurance burden from the to avoid—and has generally avoided— Amendment set a minimum growth rate 10 BIF to the SAIF. the anomaly of an institution having an for an AADA of seven percent. The The FDIC further considers that the AADA that is larger than its total Amendment then specified that, if an main themes of the changes that deposit base. Oakar bank’s deposit base grew at a Congress made to the Oakar higher rate, the AADA would grow at Amendment in 1991 are those of 2. Negative Growth due to Deposit- the higher rate too. But the Amendment Transfers 10 A shrinking Oakar thrift would have the The FDIC considers that—consistent 9 Theoretically, the growth is not applied directly opposite effect: the BIF’s exposure would increase, with the principle of separation between to the prior AADA, but rather to an amount that is and the SAIF’s exposure would decrease. Oakar computed afresh each time—which amount is the thrifts are comparatively rare, however. The net bias the insurance funds embodied in sum of the various elements of the prior AADA. would run against the SAIF. section 5(d)(2)—a deposit-transfer from 64978 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations an Oakar institution to another rule on the ground that the rule treats emphasize the point that the amount of institution should have no effect on the SAIF-member Oakar institutions (whose the transferred deposits is measured by industry-wide stock of BIF-insured and AADA represents BIF-assessable focusing on the volume divested by the SAIF-insured deposits. deposits) more favorably than BIF- seller. The FDIC’s purpose is to make it The FDIC’s procedure for calculating member Oakar institutions, based on the clear that post-transaction events—such the growth of the AADA has upset that higher rates in effect for SAIF-assessable as deposit run-off—have no bearing on balance, however. A deposit sale deposits at the time the comment was the calculation of the buyer’s AADA. reduces the Oakar bank’s total deposit filed. The FDIC considers that the Funds Two commenters (including one trade base by a certain percentage: Act has deprived this comment of much group) support the nominalvalue accordingly, the Oakar bank’s AADA— of its force. The SAIF rates are to be principle; two oppose it. The opposing and therefore its volume of SAIF- reduced significantly. The remaining commenters point out that the FDIC insured deposits—has been reduced by differential between the rates on SAIF- discounts the transferred deposits when the same percentage. Its BIF-insured assessable and BIF-assessable deposits it serves as conservator or receiver for a deposits have increased is relatively small, and will soon expire. seller (troubled-seller cases). The FDIC correspondingly. In effect, SAIF One commenter, which opposed the provides the discount on the ground deposits have been converted into BIF deposit-sale exclusion rule if the FDIC that the buyer can expect to sustain a deposits, in violation of the moratorium, retained the Rankin principle, said substantial run-off of deposits after the and without generating any entrance or further that the FDIC should not apply transaction. The opposing commenters exit fees for the insurance funds.11 the deposit-sale exclusion rule to sales contend that buyers sustain run-off even The FDIC is curing this defect by that occur prior to the effective date of when the seller is a healthy institution. excluding deposit sales from the growth the final rule. The commenter declared The commenters therefore urge the FDIC computation. The FDIC continues to that the FDIC should not expect to provide for a discount in healthy- believe that the terms ‘‘growth’’ and institutions to make business decisions seller cases as well as in troubled-seller ‘‘increase’’ as used in the statute are based upon proposed rules. As a ones.12 broad enough to refer to a negative rate technical matter, of course, the FDIC is The FDIC does not believe the as well as a positive one. But the FDIC not adopting the deposit-sale exclusion commenters’ point is well taken. As does not consider that it is required to rule retroactively: rather, the FDIC is discussed in more detail at II.E.2. below, extend these terms beyond reasonable changing the method for computing the FDIC has established the discount limits. In particular, the FDIC does not future assessments, beginning with the for troubled-seller cases because, as a believe that it must necessarily interpret assessment due for the first semiannual historical matter, the cases have arisen these terms to include a decrease that is period of 1997. At the same time, the in the context of unusual economic attributable to a bulk transfer of FDIC acknowledges that the change conditions, and presented special deposits. The statute itself excludes the would affect the business decisions of supervisory issues. These special effect of an acquisition or other deposit- institutions prior to that time, because circumstances do not apply to healthy- assumption from the computation of institutions must look ahead to consider seller transactions in the current growth. The FDIC considers that it has the consequences of their actions. The economic environment. Buyers and ample authority to make an equivalent FDIC considers that institutions have sellers negotiate the terms of their exclusion for deposit sales. had ample advance notice of the transactions at arms’ length, and take The FDIC believes its interpretation is deposit-sale exclusion rule, however. the effects of deposit run-off into sound because deposit sales do not—in Moreover, the rule repairs a significant account in arriving at a price. The FDIC and of themselves—represent any weakness in the growth calculation. The does not believe it necessary or change in the industry-wide deposit adverse effects resulting from that appropriate to contribute the resources base of each fund. It is inappropriate for weakness must be eliminated without of the seller’s insurance fund, in the the FDIC to generate such a change on delay. The FDIC will therefore apply the form of foregone assessments, to assist its own as a collateral effect of its deposit-sale exclusion rule when such transactions. assessment procedures. Moreover, the computing assessments for the first The FDIC is retaining the nominal- interpretation is in accord with the semiannual period of 1997. value principle for two chief reasons. tenor of the amendments made by the E. Value of an Initial AADA Most importantly, the principle reflects FDICIA, because it treats deposit sales the manifest intent of the statute, which symmetrically with deposit- By statute, an Oakar institution’s specifies that the volume of the acquired acquisitions. initial AADA is equal to ‘‘the amount of deposits are to be ‘‘determined at the Two commenters—both trade any deposits acquired by the institution time’’ of the transaction. Second, the groups—support the FDIC’s position. in connection with the transaction (as principle has the virtues of clarity and Five commenters oppose the deposit- determined at the time of such precision. Both the buyer and a seller sale exclusion rule. Four of them do so transaction)’’. Id. 1815(d)(3)(C). The will know precisely the value of an for the very reason that the FDIC is FDIC has interpreted and explained AADA that is generated in an Oakar adopting it: when the Rankin principle three aspects of this phrase. is in force, the deposit-exclusion rule 1. The Nominal-Amount Principle 12 These two commenters further note that they, prevents an institution’s store of along with nine other institutions, have petitioned secondary-fund deposits from shrinking The FDIC has adopted an interpretive the FDIC to amend its regulations to provide for except insofar as the seller transfers the regulation specifying that the ‘‘amount such a discount. The 11 petitioners have provided deposits to the buyer. One commenter of any deposits acquired’’ by the data indicating that they have experienced run-off in healthy-seller cases, although the methods used also objects to the deposit-sale exclusion buyer—and therefore the value of the to identify and measure run-off varied from buyer’s initial AADA—is (generally) institution to institution. 11 The effect has occurred whenever an Oakar equal to the full nominal amount of the The FDIC has determined that it is appropriate to institution transfers deposits, without regard for deposits that the buyer assumes from address the subject matter of the petition in this whether the transferred deposits have been rulemaking proceeding together with other issues primary-fund or secondary-fund deposits. Any the seller. 12 CFR 327.32(a)(3)(4). The related to the computation of the AADA. For the deposit-transfer has shrunk the seller’s overall FDIC is retaining the substance of this reasons given herein, the FDIC declines to adopt the deposit-base, and has therefore reduced its AADA. provision. The final rule continues to position that the petitioners have proposed. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64979 transaction. The buyer’s expected The sellers had often been held in discount, giving the following reasons: secondary-fund assessments can be an conservatorship for some time. In order ‘‘deposit runoff remains a factor’’; and important cost for the parties to to maintain the assets in such ‘‘pricing variations that depend on consider when deciding on an institutions, the conservator had often runoff calculation are uncertain’’. The acceptable price. The FDIC considers found it necessary to obtain large and FDIC does not believe these reasons are that the nominal-value principle other high-yielding deposits. The FDIC persuasive, however. The discount is reduces uncertainty on this point. determined that, while any bidder had not an alternative to estimating the The final rule updates the regulation to evaluate and price all aspects of a volatility of deposits and determining in two minor ways. The regulation has transaction, it would be an appropriate price for them. The presumed that the buyer will assume all counterproductive to require bidders to discount is simply a reduction in the the seller’s deposits, and that all such price the contingencies related to base amount on which future deposits will be insured by the buyer’s volatile deposits in assisted assessments will be computed. secondary fund. The reason for these transactions, given that these deposits Whatever uncertainties are present will presumptions is purely historical. At the were primarily artifacts of government persist, without regard for whether the time the regulation was adopted, the conservatorships. Considering the base amount retains its full nominal Oakar Amendment only spoke of cases objective of attracting private capital in value or is discounted by a fixed in which the seller merged into or order to avoid additional costs to the amount. taxpayer, the FDIC sought to avoid the consolidated with the buyer, or in 3. Conduit Deposits which the buyer acquired all the seller’s potential deterrent effect of including assets and liabilities. See 12 U.S.C. these artificial elements in the pricing The FDIC staff has taken the position 1815(d)(3)(A) (Supp. I 1989). The equation. that, when an Oakar institution assumes Amendment did not allow for less The FDIC recognized that healthy secondary-fund deposits from one comprehensive Oakar transactions (e.g., sellers sometimes relied upon volatile institution (original transferor) but branch sales). Nor did it contemplate a deposits for funding as well. But the promptly re-transfers them to another transaction in which the seller was an FDIC regarded their funding decisions institution (re-transferee) under certain Oakar institution in its own right. as a normal part of a strategy to conditions, the retransferred deposits The final rule makes it clear that the maximize the profits of a going concern. are not counted as ‘‘acquired’’ deposits nominal-amount principle applies to all The comparable decisions for troubled for the purpose of computing the Oakar deposit-transfer transactions in which sellers were made by managers of institution’s AADA. The Oakar the buyer acquires secondary-fund government conservatorships that were institution is regarded as a mere conduit deposits. The final rule also specifies subject to funding constraints, relatively for the deposits. The deposits that the AADA is only equal to the inflexible operating rules (necessary to themselves retain their original insurance status after the re-transfer: nominal amount of the secondary-fund control a massive government effort to whatever their status in the hands of the deposits, not necessarily all the sell failed thrifts), and other original transferor, whether BIF-insured transferred deposits. Each point considerations outside the scope of the or SAIF-insured, the deposits have that represents the current view of the FDIC. typical private transaction. The FDIC adopted this interpretive status in the hands of the ultimate 2. Deposits Acquired in Troubled-Seller rule at a time when troubled and failed retransferee. The FDIC described this Cases thrifts were prevalent, and the stress on interpretation, which is the settled view As noted above, the FDIC has the safety net for such institutions was of the FDIC, in the preamble to the discounted the nominal amount of the relatively severe. The stress has been proposed rule, but the proposed rule transferred deposits in troubled-seller considerably relieved, however. The itself did not set forth a provision cases. The discount is two-fold: FDIC considers that, under current making this point explicit. The final conditions, there is no longer any need rule contains such a provision. —Brokered deposits: All brokered to maintain a special set of rules for The FDIC has invoked the conduit deposits have been subtracted from troubled-seller cases. principle only in very narrow the nominal volume of the transferred Moreover, the FDIC ordinarily must circumstances. The FDIC has agreed to deposits. contribute its own resources to induce exclude the re-transferred deposits —The ‘‘80/80’’ principle: Each buyers to acquire such institutions. Any when determining an Oakar institution’s remaining deposit has been capped at reduction in future assessments that the AADA only when all of the following $80,000. The buyer’s AADA has been FDIC offers as an incentive merely conditions have been met: the Oakar equal to 80 percent of the aggregate of reduces the amount of money the FDIC institution has committed to re-transfer the deposits as so capped. must contribute at the time of the specified branches as a condition of See 12 CFR 327.32(a)(3)(4). The FDIC transaction. The simpler and more approval of the transaction; the is ending these discounts for future straightforward approach is to reflect all commitment has been enforceable; and transactions, on the ground that they are such considerations in the net price that the re-transfer has been required to no longer needed. The FDIC is making buyers pay for such institutions at the occur within six months after the change effective as of July 1, 1997, time of the transaction. consummation of the initial Oakar in order to avoid disrupting any Two commenters, both trade groups, transaction. See, e.g., FDIC Advisory negotiations that may currently be oppose the FDIC’s position. One Op. 94–48, 2 FED. DEPOSIT INS. under way. commenter agrees with the FDIC’s CORP., LAW, REGULATIONS, The FDIC adopted the discounts reasons for ending the discount, but RELATED ACTS 4901–02 (1994). because the funding decisions for suggests that the FDIC should retain it The FDIC is codifying and refining the troubled-seller cases—and particularly for the purpose of ‘‘giving prospective ‘‘conduit’’ principle. Under the final for troubled-thrift cases—were subject to bidders the choice of accepting the rule, secondary-fund deposits have the constraints and considerations that fell predetermined deposit haircut or status of ‘‘conduit’’ deposits in the outside the normal range of factors pricing deposit volatility hands of an Oakar institution only if the influencing such decisions in the contingencies’’. The other commenter Oakar institution has acquired them in market place for healthy institutions. strongly urges the FDIC to retain the an Oakar transaction, if a federal 64980 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations banking supervisory agency or the which the buyer does not re-transfer the growth increment has already been United States Department of Justice has deposits, but merely divests itself of determined with respect to a explicitly ordered the institution to re- them by paying them off. The semiannual period, the growth transfer the deposits within six months commenter suggests that deposits increment continues to have the same after the date of that transaction, if the should qualify as conduit deposits if the value thereafter. See, e.g., FDIC institution’s obligation to make the re- buyer knows it will re-transfer the Advisory Op. 9219, 2 FED. DEPOSIT transfer is enforceable, and if the re- deposits within a very short time after INS. CORP., LAW, REGULATIONS, transfer must be completed in the six- acquiring them, and if the buyer can RELATED ACTS 4619, 4620–21 (1992). month grace period. If the conditions identify the deposits with great The net effect has been to ‘‘freeze’’ are not satisfied, the conduit principle specificity. The FDIC declines to adopt AADAs—and their elements—for prior does not come into play, and the this position, however. The FDIC wishes semiannual periods. The final rule deposits are regarded as having been to confine the conduit rule to codifies this principle. assumed by the Oakar institution at the circumstances where the actions of the In keeping with this principle, the time of the original Oakar transaction. parties, and the relationships among interpretations set forth in the final rule Any subsequent re-transfer of the them, are reasonably well defined. apply on a purely prospective basis. deposits would be treated as a separate When the Department of Justice or a They come into play only for the transaction, and analyzed federal banking supervisor orders a purpose of computing future AADAs. independently of the Oakar transaction. buyer to re-transfer deposits to another The final rule’s interpretations do not The final rule also clarifies the point institution, the FDIC may safely expect affect AADAs already computed for that conduit deposits are used to that the link between the buyer and the prior semiannual periods, or the compute the Oakar institution’s AADA deposits will be severed. Moreover, the assessments that Oakar institutions have on a temporary basis. The deposits are buyer remains subject to continuing already paid on them. Nor do they affect counted in the ‘‘amount of deposits federal oversight, the focus of which is the prior-period elements of AADAs acquired’’ by the Oakar institution—and on the structural and economic changes that are to be determined for future therefore in its AADA—during the that the divestiture has been designed to semiannual periods (except insofar as semiannual period in which the produce. The result is that the oversight the interpretations affect the increment transaction occurs. The AADA so ensures that the link between the buyer computed with respect to the second computed is used to determine the and the deposits will remain severed. semiannual period of 1996). In short, assessment due for the next semiannual The case is otherwise when a buyer the final rule ‘‘leaves prior AADAs period. If the institution retains the merely pays off the deposits. When no alone’’. deposits during part of that following other institution is involved, the buyer 2. 1st-Half 1997 Assessments: Excluding period, the deposits are again included may easily re-establish its connection Deposit Sales From the Growth in the ‘‘amount of deposits acquired’’— with the depositors—and, as a practical Calculation and are again part of the institution’s matter, recover the deposits—either AADA—for the purpose of computing directly or indirectly. Moreover, any The FDIC will follow its existing the assessment for the semiannual continuing federal oversight of the procedures in computing AADAs for the period after that. But thereafter the buyer is more likely to focus on general first semiannual period of 1997, with one exception. An institution’s AADA deposits are excluded from the ‘‘amount regulatory objectives, such as the for the first semiannual period of 1997 of deposits acquired’’ by the Oakar maintenance of an appropriate capital will be based on the growth of the institution. In this regard, one level, that do not prevent the buyer from institution’s deposits as measured over commenter (a trade group) says the re-establishing its link to the deposits. deposits should ‘‘be assessed on a pro the entire calendar year 1996. The rata basis for the time they remain on F. Transitional Matters AADA so determined will be used to the institution’s books’’. The FDIC 1. Freezing prior AADAs compute both quarterly payments for declines to adopt this suggestion. The the first semiannual period of 1997. suggestion is a departure from the In theory, an Oakar institution’s The exception is that, when FDIC’s general method of determining AADA is computed anew for each computing an AADA’s increment of assessments, which derives an semiannual period. An institution’s growth with respect to the second institution’s assessment base from the AADA for a current semiannual period semiannual period of 1996, the FDIC deposits that the institution holds at the is equal to the sum of three elements: will apply its new limitation on end of each calendar quarter, and which • Element 1: The volume of secondary- ‘‘negative’’ growth: that is, the FDIC will does not take into account the length of fund deposits that the institution decline to consider shrinkage time the institution holds the deposits. originally acquired in the Oakar attributable to deposit-transfer Two commenters support the conduit transaction; transactions that have occurred on and rule as proposed by the FDIC. Three • Element 2: The aggregate of the after July 3, 1996 (the date on which the others urge the FDIC to broaden the growth increments computed with Federal Register published the conduit rule to reach cases in which the respect to the semiannual periods proposed rule). buyer re-transfers the deposits prior to the one with respect to which The FDIC acknowledges that this voluntarily. The FDIC declines to do so, Element 3 is being determined; and limitation makes a significant break however. One of the primary purposes • Element 3: The growth increment with the past. The FDIC further for the conduit rule—absent which the with respect to the period just prior to recognizes that the limitation can affect FDIC would not have adopted the rule— the current period (i.e., just prior to the business considerations that affect is to accommodate the directives of the the period for which the assessment is deposit-transfer transactions. The FDIC Department of Justice and the federal due, and for which the AADA is being considers that the industry has had banking agencies. That purpose is not computed). Element 3 is computed on ample notice of the limitation, however, served when the seller does not act a base that equals the sum of elements and that the parties to any such under government compulsion. 1 and 2. transaction have been able to factor in One commenter urged the FDIC to The FDIC has consistently interpreted any new costs that the limitation may extend the conduit rule to cases in its existing rules to mean that, when a have produced. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64981

At the same time, the FDIC agrees that a fit candidate for review under each of changes made by the rule to apply with it would be inappropriate to apply the these initiatives. respect to the assessment for the first limitation retroactively to transactions The final rule clarifies subpart B by semiannual period of 1997, which that have been completed earlier in defining and using the terms ‘‘primary begins on January 1, 1997—notably, the 1996. The parties to these transactions fund’’ and ‘‘secondary fund’’. An Oakar exclusion of deposit-sales from the did not have notice of the FDIC’s institution’s primary fund is the fund to computation of growth in the AADA. proposal. The FDIC will therefore which the institution belongs; its The FDIC has therefore determined that include shrinkage attributable to a secondary fund is the other insurance it has good cause to adopt the final rule deposit sale that occurred during the fund. Using these terms, the FDIC is with respect to these provisions without first semiannual period of 1996 when simplifying paragraphs (1) and (2) of the full 30-day delay. determining the annual growth rate for § 327.32(a) by eliminating redundant IV. Request for Public Comment an Oakar institution with respect to that language; the changes do not alter the semiannual period. The annual growth meaning of these provisions. The FDIC has solicited comment on rate as so computed will be used in In addition, the FDIC is clarifying all aspects of the rule. In particular, the computing the institution’s AADA for § 327.6(a) by changing the nomenclature FDIC has solicited comment on the the first semiannual period of 1997 and used therein. ‘‘Deposit-transfer following points: attributing deposits for future periods. transaction’’ is replaced by ‘‘terminating that an Oakar institution transfers to transaction’’; ‘‘acquiring institution’’ is another institution according to 3. 2nd-Half 1997 Assessments: Use of replaced by ‘‘surviving institution’’; and principles articulated in the Rankin Quarterly AADAs ‘‘transferring institution’’ is replaced by letter, or treating the transferred The FDIC will begin measuring ‘‘terminating institution’’. The terms deposits as a blend of deposits insured AADAs on a quarterly basis during the previously used in § 327.6(a) are also by both insurance funds; having the first semiannual period of 1997. The used in other provisions of part 327, FDIC, rather than individual first quarterly AADA component that where they have different and less institutions, compute AADAs using the FDIC will identify and measure will specialized meanings. The change in information provided by the be the quarterly component as of March nomenclature in § 327.6(a) is intended institutions; interpreting AADAs as 31, 1997. That component will reflect to avoid any confusion that the previous consisting of quarterly components, and terminology might have caused. the rate of growth of the institution’s computing the growth of AADAs on a deposits during the first calendar III. Effective Date quarterly cycle rather than an annual one; retaining the concept of negative quarter of 1997 (January–March). The The final rule is effective on January growth for the purpose of computing component so measured will be used to 1, 1997. Notwithstanding the fact that AADAs; excluding deposit sales from determine the institution’s first the FDIC has asked for comment on the the computation of growth; applying the quarterly payment for the second changes made by the final rule, the final nominal-amount principle for semiannual period in 1997—that is, the rule is an interpretive rule, and may be determining initial AADAs in all cases, June payment. made effective without having been including troubled-seller cases; and The second quarterly AADA published 30 days prior to its effective preserving the conduit-deposit concept. component that the FDIC will identify date. 5 U.S.C. 553(d)(2). and measure will reflect the rate of Moreover, the FDIC has determined In addition, in accordance with growth of the institution’s deposits that there is good cause for the rule to section 3506(c)(2)(B) of the Paperwork during the second calendar quarter of be made effective on January 1, 1997, Reduction Act, 44 U.S.C. 3506(c)(2)(B), 1997 (April–June). The second and not after a 30-day delay. The 30-day the FDIC has solicited comment for the component will be used to determine delay is not necessary in the case of following purposes on the collection of the institution’s second quarterly provisions that codify the FDIC’s information described herein: payment for the second semiannual existing interpretations: e.g., those • To evaluate whether the collection of period in 1997 (the September pertaining to the Rankin doctrine, to the information is necessary for the payment). principle of negative growth in general, proper performance of the functions the conduit principle, to the nominal- of the FDIC, including whether the G. Simplification and Clarification of information has practical utility; the Regulation value rule for initial AADAs in healthy- seller cases, and to the principle that the • To evaluate the accuracy of the FDIC’s The final rule makes certain changes value of AADAs for prior semiannual estimate of the burden of the to the current regulation that clarify and periods will be ‘‘frozen’’. The 30-day collection of information; simplify it without changing its delay is likewise not necessary in the • To enhance the quality, utility, and meaning. The FDIC is making these case of provisions that, by their terms, clarity of the information to be changes in response to two initiatives. do not affect the assessment for the first collected; and Section 303 of the Riegle Community semiannual period of 1997: e.g., those • To minimize the burden of the Development and Regulatory that shift the burden of computing collection of information on those Improvement Act of 1994, Pub. L. 103– AADAs to the FDIC, those that interpret who are to respond, including 325, 108 Stat. 2160 (Sept. 23, 1994), the AADA—and the growth thereof—on through the use of automated requires federal agencies to streamline a quarterly basis, and those that apply collection techniques or other forms and modify their regulations. In the nominal-value rule to initial AADAs of information technology. addition, the FDIC has voluntarily in troubled-seller cases. The FDIC has also solicited comment committed itself to review its The FDIC has refrained from adopting on all other points raised or options regulations on a 5-year cycle. See the final rule earlier, inasmuch as the described herein, and on their merits Development and Review of FDIC Rules rule is predicated in part on certain relative to the rule. and Regulations, 2 FED. DEPOSIT INS. prior actions of the Board, notably the CORP., LAW, REGULATIONS, reduction of assessment rates for SAIF V. Paperwork Reduction Act RELATED ACTS 5057 (1984). The FDIC members. Nevertheless, the FDIC Under the FDIC’s prior procedures, considers that subpart B of part 327 is considers it necessary for certain of the each Oakar institution was required to 64982 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations compute its AADA at the end of each and by the FDIC’s assumption of the which assessments are computed. The year, using a worksheet provided by the burden of computing AADAs. Regulatory Flexibility Act is therefore FDIC (annual growth worksheet). The Accordingly, the FDIC is revising an inapplicable to this aspect of the final annual growth worksheet showed the existing collection of information. The rule. computation of the institution’s AADA revision has been reviewed and Finally, the legislative history of the for the first semiannual period of the approved by the Office of Management Regulatory Flexibility Act indicates that current year—that is, the AADA that and Budget pursuant to the Paperwork its requirements are inappropriate to was used to compute the assessment Reduction Act of 1980 (44 U.S.C. 3501 this aspect of the final rule. The due for the first semiannual period of et seq.). Regulatory Flexibility Act is intended to the current year—which was based on The impact of the final rule on assure that agencies’ rules do not the institution’s growth during the prior paperwork burden is to require a one- impose disproportionate burdens on year. The institution was required to time de minimis report from small businesses: provide the annual growth worksheet to approximately 100 institutions for the Uniform regulations applicable to all the FDIC as a part of the institution’s first semiannual period in 1997, and entities without regard to size or capability certified statement. thereafter to eliminate the annual of compliance have often had a In addition, whenever an institution growth worksheet for all 900 Oakar disproportionate adverse effect on small was the buyer in an Oakar transaction, institutions, which takes an estimated concerns. The bill, therefore, is designed to it was required to submit a transaction two hours to prepare. The effect of this encourage agencies to tailor their rules to the worksheet showing the total deposits procedure on the estimated annual size and nature of those to be regulated acquired on the transaction date. If the reporting burden for this collection of whenever this is consistent with the underlying statute authorizing the rule. seller were an Oakar institution, and if information is a reduction of 1,800 the buyer had acquired the entire 126 Cong. Rec. 21453 (1980) (‘‘Description hours: of Major Issues and Section-by-Section institution, the buyer was also required Approximate Number of Analysis of Substitute for S. 299’’). to report the seller’s last AADA (as Respondents: 900. shown in the seller’s last call report). The final rule does not impose a Number of Responses per The buyer was then required to subtract uniform cost or requirement on all Respondent: ¥1. this number from the total deposits Oakar institutions regardless of size: to Total Annual Responses: 900. acquired in order to determine its new the extent that it imposes any costs at Average Time per Response: 2 hours. AADA. all, the costs have to do with the effects The final rule changes this procedure Total Average Annual Burden Hours: that the rule has on Oakar institutions’ ¥ for the annual growth worksheets for the 1800 hours. assessments. An institution’s first semiannual period of 1997 (i.e., for The FDIC expects the Federal assessment is proportional to its size. the worksheets that show the growth of Financial Institutions Examination Moreover, while the FDIC has authority deposits during 1996). The change only Council and the Office of Thrift to establish a separate risk-based affects Oakar institutions that Supervision to require (as needed) the assessment system for large and small transferred deposits to other institutions information in the quarterly reports of members of each insurance fund, see 12 during 1996. Such an institution must condition, starting with the report for U.S.C. 1817(b)(1)(D), the FDIC has not report the total amount of deposits that March 31, 1997. done so. Within the current assessment it transferred in transactions from July VI. Regulatory Flexibility Analysis scheme, the FDIC cannot ‘‘tailor’’ 1–December 31, 1996. assessment rates to reflect the ‘‘size and Thereafter the FDIC will compute the The Regulatory Flexibility Act (5 nature’’ of institutions. AADAs for all Oakar institutions, using U.S.C. 601–612) does not apply to the information taken from their quarterly final rule. Although the FDIC has VII. Congressional Review call reports. Institutions will not have to chosen to publish general notice of the The FDIC is submitting a report to report additional information in most rule, and to ask for public comment on each House of the Congress and to the cases. An Oakar institution that has it, the FDIC was not obliged to do so, as Comptroller General with respect to the neither acquired nor transferred the rule is interpretive in nature. See id. final rule in conformity with the deposits in the prior quarter will not 553(b) and 603(a). procedures specified in 5 U.S.C. 801. have to provide any additional Moreover, the FDIC considers that the The FDIC is submitting the report information at all. An Oakar institution rule amounts to a net reduction in voluntarily and not under compulsion that has acquired deposits will have to burden for all Oakar institutions, as they of the statute, however. The term provide the same information at the end no longer have to prepare or file regular ‘‘rule’’—as that term is used in section of the quarter that it now provides at the annual growth worksheets after the 801—excludes ‘‘any rule of particular end of the year; there will be a change worksheet with respect to 1996. Instead, applicability, including a rule that in the timing, but no change in burden. a limited number of Oakar institutions approves or prescribes * * * rates’’. Id. Only an Oakar institution that must submit one new piece of 804(3). The FDIC considers that the final transferred deposits will have to provide information, and only for quarters in rule is governed by this exclusion, additional information. Sellers will have which they have transferred deposits. because the final rule pertains to the to report the volume of deposits In addition, although the Regulatory computations associated with transferred and the date of the Flexibility Act requires a regulatory assessment rates. Accordingly, the transaction. This information is readily flexibility analysis when an agency requirements of id. 801–808 do not available: the extra reporting burden is publishes a rule, the term ‘‘rule’’ (as apply. small. defined in the Regulatory Flexibility In any case, because the final rule is More to the point, the net effect is to Act) excludes ‘‘a rule of particular interpretive in character, notice and reduce the overall reporting burden on applicability relating to rates’’. Id. comment are not required under the Oakar institutions. The burden of 601(2). The final rule relates to the rates Administrative Procedure Act. See 5 submitting extra information in deposit- that Oakar institutions must pay, U.S.C. 553(b). Accordingly, the FDIC sale cases is more than offset by the because it addresses various aspects of has for good cause found that notice and elimination of the growth worksheet the method for determining the base on public procedure thereon are Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64983

‘‘unnecessary’’ within the meaning of 5 shall not exceed, in the aggregate, the § 327.32 Computation and payment of U.S.C. 808(2). The final rule will terminating institution’s assessment assessment. therefore take effect on the date base as reported in its quarterly report (a) Rate of assessment—(1) BIF and specified herein. of condition for the first half of the SAIF member rates. (i) Except as semiannual period during which the provided in paragraph (a)(2) of this List of Subjects in 12 CFR Part 327 terminating transfer occurs. section, and consistent with the Assessments, Bank deposit insurance, * * * * * provisions of § 327.4, the assessment to Banks, banking, Financing Corporation, be paid by an institution that is subject Reporting and recordkeeping 3. Section 327.8 is amended by to this subpart B shall be computed at requirements, Savings associations. revising paragraph (h) and adding the rate applicable to institutions that For the reasons set forth in the paragraphs (j) and (k) to read as follows: are members of the primary fund of preamble, the Board of Directors of the § 327.8 Definitions. such institution. (ii) Such applicable Federal Deposit Insurance Corporation rate shall be applied to the institution’s is amending 12 CFR part 327 as follows: * * * * * assessment base less that portion of the (h) As used in § 327.6(a), the assessment base which is equal to the PART 327ÐASSESSMENTS following terms are given the following institution’s adjusted attributable 1. The authority citation for part 327 meanings: deposit amount. continues to read as follows: (1) Surviving institution. The term (2) Rate applicable to the adjusted attributable deposit amount. Authority: 12 U.S.C. 1441, 1441b, 1813, surviving institution means an insured depository institution that assumes Notwithstanding paragraph (a)(1)(i) of 1815, 1817–1819; Deposit Insurance Funds this section, that portion of the Act of 1996, Pub. L. 104–208, 110 Stat. 3009 some or all of the deposits of another et seq. insured depository institution in a assessment base of any acquiring, terminating transfer. assuming, or resulting institution which 2. In § 327.6 the section heading and is equal to the adjusted attributable paragraph (a) are revised to read as (2) Terminating institution. The term deposit amount of such institution shall: follows: terminating institution means an (i) Be subject to assessment at the insured depository institution some or assessment rate applicable to members § 327.6 Terminating transfers; other all of the deposits of which are assumed terminations of insurance. of the secondary fund of such by another insured depository institution pursuant to subpart A of this (a) Terminating transfer—(1) institution in a terminating transfer. Assessment base computation. If a part; and terminating transfer occurs at any time (3) Terminating transfer. The term (ii) Not be taken into account in in the second half of a semiannual terminating transfer means the computing the amount of any period, each surviving institution’s assumption by one insured depository assessment to be allocated to the assessment base (as computed pursuant institution of another insured primary fund of such institution. to § 327.5) for the first half of that depository institution’s liability for * * * * * semiannual period shall be increased by deposits, whether by way of merger, (4) Deposits acquired by the an amount equal to such institution’s consolidation, or other statutory institution. As used in paragraph pro rata share of the terminating assumption, or pursuant to contract, (a)(3)(i) of this section, the term institution’s assessment base for such when the terminating institution goes ‘‘deposits acquired by the institution’’ first half. out of business or transfers all or means all deposits that are held in the (2) Pro rata share. For purposes of substantially all its assets and liabilities institution acquired by such institution paragraph (a)(1) of this section, the to other institutions or otherwise ceases on the date of such transaction; phrase pro rata share means a fraction to be obliged to pay subsequent provided, that if on or before June 30, the numerator of which is the deposits assessments by or at the end of the 1997, the Corporation has been assumed by the surviving institution semiannual period during which such appointed or serves as conservator or from the terminating institution during assumption of liability for deposits receiver for the acquired institution, the second half of the semiannual occurs. The term terminating transfer such term: period during which the terminating does not refer to the assumption of * * * * * transfer occurs, and the denominator of liability for deposits from the estate of 5. New §§ 327.33 through 327.37 are which is the total deposits of the a failed institution, or to a transaction in added to subpart B to read as follows: terminating institution as required to be which the FDIC contributes its own reported in the quarterly report of resources in order to induce a surviving § 327.33 ``Acquired'' deposits. condition for the first half of that institution to assume liabilities of a This section interprets the phrase semiannual period. terminating institution. ‘‘deposits acquired by the institution’’ as (3) Other assessment-base * * * * * used in § 327.32(a)(3)(i). adjustments. The Corporation may in its (j) Primary fund. The primary fund of (a) In general.—(1) Secondary-fund discretion make such adjustments to the an insured depository institution is the deposits. The phrase ‘‘deposits acquired assessment base of an institution insurance fund of which the institution by the institution’’ refers to deposits that participating in a terminating transfer, is a member. are insured by the secondary fund of the or in a related transaction, as may be acquiring institution, and does not necessary properly to reflect the likely (k) Secondary fund. The secondary include deposits that are insured by the amount of the loss presented by the fund of an insured depository acquiring institution’s primary fund. institution to its insurance fund. institution is the insurance fund that is (2) Nominal dollar amount. Except as (4) Limitation on aggregate not the primary fund of the institution. provided in paragraph (b) of this adjustments. The total amount by which 4. Section 327.32 is amended by section, an acquiring institution is the Corporation may increase the revising paragraph (a)(1), (a)(2), and deemed to acquire the entire nominal assessment bases of surviving or other (a)(4) introductory text, and removing dollar amount of any deposits that the institutions under this paragraph (a) paragraph (a)(5), to read as follows: transferring institution holds on the date 64984 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations of the transaction and transfers to the (c) Application of AADAs. The value for a semiannual period, and the acquiring institution. of an AADA that is to be applied to a amount by which the sum of the (b) Conduit deposits.—(1) Defined. As quarterly assessment base in accordance amounts specified in § 327.32(a)(3)(i) used in this paragraph (b), the term with § 327.32(a)(2) is the value of the and (ii) would have grown during a ‘‘conduit deposits’’ refers to deposits quarterly AADA component for the semiannual period, is to be determined that an acquiring institution has corresponding quarter. by computing such rate of growth and assumed from another institution (d) Initial AADAs. If an AADA for a such sum of amounts for each calendar (original transferor) in the course of a current semiannual period has been quarter within the semiannual period. transaction described in § 327.31(a), and generated in a transaction that has that are treated as insured by the occurred in the second calendar quarter § 327.37 Attribution of transferred deposits. secondary fund of the acquiring of the prior semiannual period, the first institution, but which the acquiring quarterly AADA component for the This section explains the attribution institution has been explicitly and current period is deemed to have a of deposits to the BIF and the SAIF specifically ordered by the Corporation, value of zero. when one insured depository institution or by the appropriate federal banking (e) Transition rule. Paragraphs (b), (c) (acquiring institution) acquires deposits agency for the institution, or by the and (d) of this section shall apply to any from another insured depository Department of Justice to commit to re- AADA for any semiannual period institution (transferring institution). For transfer to another insured depository beginning on or after July 1, 1997. the purpose of determining whether the institution (re-transferee institution) as a assumption of deposits (assumption condition of approval of the transaction. § 327.35 Grandfathered AADA elements. transaction) constitutes a transaction The commitment must be enforceable, This section explains the meaning of undertaken pursuant to section 5(d)(3) and the divestiture must be required to the phrase ‘‘total of the amounts of the Federal Deposit Insurance Act (12 occur and must occur within 6 months determined under paragraph (a)(3)(iii)’’ U.S.C. 1815(d)(3)), and for the purpose after the date of the initial transaction. in § 327.32(a)(3)(ii). The phrase ‘‘total of of computing the adjusted attributable (2) Treatment with respect to the amounts determined under deposit amounts, if any, of the acquiring acquiring institution. Conduit deposits paragraph (a)(3)(iii)’’ refers to the and the transferring institutions after the are not considered to be acquired by the aggregate of the increments of growth transaction: acquiring institution within the determined in accordance with (a) Transferring institution.—(1) meaning of § 327.32(a)(3)(i) for the § 327.32(a)(3)(iii). Each such increment Transfer of primary-fund deposits. To purpose of computing the acquiring is deemed to be computed in the extent that the aggregate volume of institution’s adjusted attributable accordance with the contemporaneous deposits that is transferred by a deposit amount for a current provisions and interpretations of such transferring institution in a transaction, semiannual period that begins after the section. Accordingly, any increment of or in a related series of transactions, end of the semiannual period following growth that is computed with respect to does not exceed the volume of deposits the semiannual period in which the a semiannual period has the value that is insured by its primary fund acquiring institution re-transfers the appropriate to the proper calculation of (primary-fund deposits) immediately deposits. the institution’s assessment for the prior to the transaction (or, in the case (3) Treatment with respect to re- semiannual period immediately of a related series of transactions, transferee institution. Conduit deposits following such semiannual period. immediately prior to the initial are treated as insured by the same transaction in the series), the transferred insurance fund after having been § 327.36 Growth computation. This section interprets various deposits shall be deemed to be insured acquired by the re-transferee institution by the institution’s primary fund. The as when held by the original transferor. phrases used in the computation of growth as prescribed in primary institution’s volume of primary- § 327.34 Application of AADAs. § 327.32(a)(3)(iii). fund deposits shall be reduced by the This section interprets the meaning of (a) Annual rate. The annual rate of aggregate amount so transferred. the phrase ‘‘an insured depository growth of deposits refers to the rate, (2) Transfer of secondary-fund institution’s ‘adjusted attributable which may be expressed as an annual deposits. To the extent that the aggregate deposit amount’ for any semiannual percentage rate, of growth of an volume of deposits that is transferred by period’’ as used in the introductory text institution’s deposits over any relevant the transferring institution in a of § 327.32(a)(3). interval. A relevant interval may be less transaction, or in a related series of (a) In general. The phrase ‘‘for any than a year. transactions, exceeds the volume of semiannual period’’ refers to the current (b) Growth; increase; increases. deposits that is insured by its primary semiannual period: that is, the period Except as provided in paragraph (c) of fund immediately prior to the for which the assessment is due, and for this section, references to ‘‘growth’’, transaction (or, in the case of a related which an institution’s adjusted ‘‘increase’’, and ‘‘increases’’ may series of transactions, immediately prior attributable deposit amount (AADA) is generally include negative values as to the initial transaction in the series), computed. well as positive ones. the following volume of the deposits so (b) Quarterly components of AADAs. (c) Growth of deposits. ‘‘Growth of transferred shall be deemed to be An AADA for a current semiannual deposits’’ does not include any decrease insured by the institution’s secondary period consists of 2 quarterly AADA in an institution’s deposits representing fund (secondary-fund deposits): the components. The first quarterly AADA deposits transferred to another insured aggregate amount of the transferred component for the current period is depository institution, if the transfer deposits minus that portion thereof that determined with respect to the first occurs on or after July 1, 1996. is equal to the institution’s primary- quarter of the prior semiannual period, (d) Quarterly determination of growth. fund deposits. The transferring and the second quarterly AADA For the purpose of computing institution’s volume of secondary-fund component for the current period is assessments for semiannual periods deposits shall be reduced by the volume determined with respect to the second beginning on July 1, 1997, and of the secondary-fund deposits so quarter of the prior period. thereafter, the rate of growth of deposits transferred. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64985

(b) Acquiring institution. The deposits Need for the Correction NZFOE and on any non-U.S. exchange 1 where such Dealers are permitted under shall be deemed, upon assumption by The AD number for that action should New Zealand law to conduct futures the acquiring institution, to be insured be AD 96–23–18, but was referenced as business for customers; and by the same fund or funds in the same AD 96–23–03. As written, operators of confirmation of the applicability of the amount or amounts as the deposits were the ASTA Models N22B, N24A, and Limited Marketing Orders. so insured immediately prior to the N22S airplanes would be referencing transaction. the wrong AD in their logbook, thus EFFECTIVE DATE: January 9, 1997. By order of the Board of Directors. creating confusion as to whether the FOR FURTHER INFORMATION CONTACT: Jane Dated at Washington, D.C., this 26th day of operator had complied with the AD. C. Kang, Esq., or Marianne A. Bueno, November 1996. Action is taken herein to correct this Esq., Division of Trading and Markets, Federal Deposit Insurance Corporation. reference in Amendment 39–9808 and Commodity Futures Trading Jerry L. Langley, to add this AD correction to § 39.13 of Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, Executive Secretary. the Federal Aviation Regulations (14 D.C. 20581. Telephone: (202) 418–5430. [FR Doc. 96–31207 Filed 12–9–96; 8:45 am] CFR 39.13). SUPPLEMENTARY INFORMATION: On July BILLING CODE 6714±01±P The effective date remains December 23, 1996. 23, 1987, the Commission adopted final rules governing the domestic offer and Correction of Publication sale of commodity futures and option DEPARTMENT OF TRANSPORTATION Accordingly, the publication of contracts traded on or subject to the rules of a foreign board of trade.2 These Federal Aviation Administration November 12, 1996 (61 FR 57993), of Amendment 39–9808; AD 96–23–03, rules, which are codified in Part 30 of 3 14 CFR Part 39 which was the subject of FR Doc. 96– the Commission’s regulations, 28164, is corrected as follows: generally extend the Commission’s [Docket No. 95±CE±103±AD; Amendment existing customer protection regulations 39±9808; AD 96±23±18] On page 57993, in the first column, in the fifth line of the heading of the for products offered or sold on contract RIN 2120±AA64 document, replace AD 96–23–03 with markets in the United States to foreign 4 AD 96–23–18. futures and option products sold to Airworthiness Directives; Aerospace U.S. customers by imposing Technologies of Australia Pty Ltd. § 39.13 [Corrected] requirements with respect to (Formerly Government Aircraft On page 57994, in the first column, registration, disclosure, capital Factory) Models N22B, N24A, and § 39.13, the first line of the AD, replace adequacy, protection of customer funds, N22S Airplanes; Correction 96–23–03 with 96–23–18. recordkeeping and reporting, sales practice and compliance procedures AGENCY: Federal Aviation Issued in Kansas City, Missouri on that are generally comparable to those Administration, DOT. December 2, 1996. applicable to wholly domestic ACTION: Final rule; correction. Michael Gallagher, transactions. Manager, Small Airplane Directorate, Aircraft In formulating a regulatory program to SUMMARY: This action makes a Certification Service. govern the offer and sale of foreign correction to an airworthiness directive [FR Doc. 96–31264 Filed 12–9–96; 8:45 am] futures and options products to U.S. (AD) that was published in the Federal BILLING CODE 4910±13±U customers, the Commission, among Register on November 12, 1996 (61 FR other things, considers the potential 57993), and concerns Aerospace extraterritorial impact of such a program Technologies of Australia Pty Ltd. and the desirability of avoiding (ASTA) Models N22B, N24A, and N22S COMMODITY FUTURES TRADING duplicative regulation of firms engaged airplanes. The AD number for that COMMISSION action should be AD 96–23–18, but was 1 The term ‘‘non-U.S. exchange’’ refers to a foreign referenced as AD 96–23–03. The AD 17 CFR Part 30 board of trade which is defined in Commission rule currently requires replacing the existing 1.3 (ss), 17 CFR 1.3(ss) (1996) as: fuselage stub fin plate with one of Foreign Futures and Options Any board of trade, exchange or market located improved design. This action corrects Transactions outside the United States, its territories or possessions, whether incorporated or the AD to reflect the correct AD number. AGENCY: Commodity Futures Trading unincorporated, where foreign futures or foreign EFFECTIVE DATE: December 23, 1996. Commission. options transactions are entered into. Thus, contracts that are traded on a market that FOR FURTHER INFORMATION CONTACT: Mr. ACTION: Order. has been designated as a contract market pursuant Ron Atmur, Aerospace Engineer, FAA, to section 5 of the Commodity Exchange Act Los Angeles Aircraft Certification SUMMARY: The Commodity Futures (‘‘CEA’’ or ‘‘Act’’) are not within the scope of this Office, 3960 Paramount Boulevard., Trading Commission (‘‘Commission’’ or Order. Lakewood, California 90712; telephone ‘‘CFTC’’), subject to the conditions 2 52 FR 28980 (Aug. 5, 1987). 3 (310) 627–5224; facsimile (310) 627– specified below, is granting to 17 CFR Part 30 (1996). 4 Commission rule 30.1(a), 17 CFR 30.1(a) (1996), 5210. designated Dealers of the New Zealand defines the term ‘‘foreign futures’’ as ‘‘any contract SUPPLEMENTARY INFORMATION: On Futures and Options Exchange for the purchase or sale of any commodity for future October 28, 1996, the FAA issued an (‘‘Exchange’’ or ‘‘NZFOE’’) the following delivery made, or to be made, on or subject to the relief: Exemption under Commission rules of any foreign board of trade.’’ airworthiness directive (AD), Commission rule 30.1(b), 17 CFR 30.1(b) (1996), Amendment 39–9808 (61 FR 57993, rule 30.10, 17 CFR 30.10 (1996), from defines the term ‘‘foreign option’’ as ‘‘any November 12, 1996), to require application of certain of the transaction or agreement which is or is held out to replacing the existing fuselage stub fin Commission’s foreign futures and be of the character of, or is commonly known to the options rules to solicit and accept orders trade as, an ‘option’, ‘privilege’, ‘indemnity’, ‘bid’, plate with one of improved design on ‘offer’, ‘put’, ‘call’, ‘advance guaranty’, or ‘decline ASTA Models N22B, N24A, and N22S from United States customers for guaranty’, made on or subject to the rules of any airplanes. otherwise permitted transactions on the foreign board of trade.’’ 64986 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

in international business. Based upon substituted compliance for purposes of the NZFOE for or on behalf of customers these considerations, the Commission, exemptive relief pursuant to in the United States 10 and which are as set forth in Commission rule 30.10, Commission rule 30.10. The specific otherwise permissible as to U.S. determined to permit persons located elements examined are set forth in customers.11 By letter dated February outside the United States and subject to Appendix A to Part 30, ‘‘Interpretative 22, 1996, counsel for the Exchange a comparable regulatory structure in the Statement With Respect to the requested expanded rule 30.10 relief to jurisdiction in which they are located to Commission’s Exemptive Authority permit Dealers to also solicit or accept seek an exemption from certain of the Under Section 30.10 of Its Rules’’ orders from U.S. customers for requirements imposed by the Part 30 (‘‘Appendix A’’).7 These elements otherwise permitted transactions on any rules so as to solicit or accept orders include: (1) Registration, authorization non-U.S. exchange where the Dealers directly from U.S. customers for foreign or other form of licensing, fitness review are entitled to carry such accounts. The futures or option transactions.5 Provided or qualification of persons (both Exchange construes its customer such exemption would not otherwise be individuals and firms) through which protection rules broadly to also apply to contrary to the public interest, persons customer orders are solicited and regulated activities on exchanges other located and doing business outside of accepted; (2) minimum financial than the NZFOE and as authorizing the United States were granted relief requirements for those persons who disciplinary action against its Dealers in based upon substituted compliance with accept customer funds; (3) protection of connection with such activities.12 the comparable regulatory requirements customer funds from misapplication; (4) By letter dated June 5, 1996, counsel imposed by the foreign jurisdiction.6 minimum sales practice standards, for the Exchange requested confirmation In issuing orders under rule 30.10, the including the disclosure of the risks of from the Commission that the Limited Commission evaluates whether the futures transactions; (5) recordkeeping Marketing Orders will apply to Dealers particular foreign regulatory program and reporting requirements; (6) which have confirmed rule 30.10 provides a basis for permitting procedures to audit for compliance relief.13 with, and to take action against those Order: The Commission is hereby 5 In general, foreign exchanges have filed rule persons who violate, the requirements issuing the following order: 30.10 applications on behalf of their members in of the program; and (7) the existence of connection with transactions on those exchanges. In Order under CFTC Rule 30.10 exempting certain cases, where a regulatory/self-regulatory appropriate information-sharing designated dealers of the NZFOE from the authority has requested that firms subject to its arrangements. The Commission may application of certain of the foreign futures jurisdiction be granted broader relief to engage in apply additional conditions to ensure and options rules the later of thirty days after transactions on exchanges other than in its home that brokers licensed under other publication of the order herein in the Federal jurisdiction, the relief has been granted where the relevant authority has represented that it will regulatory regimes are not permitted to Register or after the filing of relevant monitor its firms for compliance with the terms of solicit U.S. customers while effectively consents by dealers of the exchange and the the order in connection with such offshore evading U.S. requirements, such as exchange under the terms and conditions of transactions. those relative to statutory this order. To date, such expanded relief has been granted: disqualification. (a) on May 15, 1989, to firms designated by the The Commission has reviewed the U.K. Securities and Investments Board and certain Moreover, the Commission information and representations U.K. SROs to conduct brokerage activities for U.S. specifically stated in adopting rule contained in, among other things, the customers on any non-U.S. exchange designated 30.10 that no exemption based on following submissions: under U.K. law. 54 FR 21599, 21600 (May 19, 1989); substituted compliance of a general 54 FR 21604, 21605 (May 19, 1989) (Association of Futures Brokers and Dealers (‘‘AFBD’’)); 54 FR nature would be granted unless the 10 See letters dated June 8 and June 12, 1993, from 21609, 21610 (May 19, 1989) (The Securities persons to whom the exemption is to be Philip McBride Johnson, counsel for the Exchange, Association (‘‘TSA’’)); 54 FR 21614, 21615 (May 19, applied: (1) Consent to jurisdiction in to Jean A. Webb, Commission, Re: Petition for 1989) (Investment Management Regulatory the United States and designate an agent Authorization of the Offer and Sale in the United Organisation). The AFBD and TSA subsequently States of Futures and Option Contracts Traded on merged to form the Securities and Futures for service of process in the United the NZFOE. Association, which became the successor States with respect to transactions By letter dated July 12, 1993, counsel for the organization for rule 30.10 purposes. 55 FR 14017 subject to Part 30 by filing a copy of the Exchange also requested that the Commission (Apr. 5, 1991); and relevant agency agreement with the authorize the offer and sale of option contracts (b) on April 7, 1993, to firms designated by the National Futures Association (‘‘NFA’’); traded on the Exchange to persons resident in the Sydney Futures Exchange (‘‘SFE’’). 58 FR 19209 United States. See letter dated July 12, 1993 from (Apr. 13, 1993). (2) agree to make their books and Mr. Johnson to Ms. Webb, Re: Petition Pursuant to 6 The Commission has authorized, subject to records available in the United States to Commission Regulation § 30.3(a) for Exemption of certain conditions, firms which have received rule Commission and Department of Justice Certain Commodity Options on the NZFOE. 30.10 relief to engage in limited marketing conduct representatives; and (3) notify NFA of On March 12, 1996, the Commission amended with respect to foreign futures or option contracts Commission rule 30.3(a) to no longer require an the commencement or termination of authorization order before a particular foreign from locations within the United States through 8 their employees or other representatives. 57 FR business in the United States. option product could be offered or sold to U.S. 49644 (Nov. 3, 1992); 59 FR 42156 (Aug. 17, 1994) By letters dated June 8 and June 12, customers. However, the amendment does not affect (hereinafter ‘‘Limited Marketing Orders’’). 1993, as supplemented, counsel for the existing restrictions on transactions involving stock Prior to the issuance of the Limited Marketing index futures and foreign government debt. 61 FR Exchange requested that the 10891 (Mar. 18, 1996). Based on the foregoing, by Orders, rule 30.10 relief was available only to Commission exercise its authority under qualified firms subject to a comparable regulatory letter dated March 22, 1996 from Jane C. Kang, system which solicited U.S. customers from a Commission rule 30.10 to exempt Commission, to Mr. Johnson, the Exchange was foreign location. The Limited Marketing Orders certain Dealers 9 from compliance with notified that its application under rule 30.3 was interpret rule 30.10 relief more expansively to allow the registration and other requirements deemed withdrawn. 11 rule 30.10 exempted firms and their employees or of Part 30 relative to brokerage activities The Part 30 rules apply solely with respect to other representatives to market foreign futures and foreign futures and foreign options, which are option products to qualified customers from U.S. undertaken on or subject to the rules of defined by reference to the term ‘‘foreign board of locations under certain conditions. Among other trade.’’ See note 1 above. conditions, the Limited Marketing Orders require 7 17 CFR Part 30, Appendix A (1996). 12 Letter dated February 22, 1996 from Philip that the regulatory or self-regulatory organization to 8 52 FR 28980, 28981 and 29002 (Aug. 5, 1987). McBride Johnson, counsel for the Exchange, to Jane which the Commission has issued 30.10 relief or its 9 Subsequent to the acquisition of the NZFOE by C. Kang, Commission. equivalent obtain written confirmation from the the SFE, member firms of the NZFOE are called 13 Letter dated June 5, 1996 from Philip McBride Commission that the Limited Marketing Orders ‘‘Dealers’’ and shall be referred to as such in this Johnson, counsel for the Exchange, to Jane C. Kang, apply to such rule 30.10 order. Order. Commission. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64987

—The Securities Act 1978, as amended, (1) A system of qualification or licensing of pursuant to section 5 of the CEA, 1988, No. 234 (21 December firms and persons who deal in transactions undertaken by such Dealers from a 1988)(‘‘SAA’’); subject to regulation under Part 30 that location in New Zealand. —The Futures Industry (Client Funds) includes, for example, criteria and procedures for granting, monitoring, The Commission also hereby confirms Regulations 1990, No. 227 (3 suspending and revoking licenses, and that the Limited Marketing Orders will September 1990)(‘‘Client Funds provisions for requiring and obtaining access apply to Dealers designated by the Regulations’’); to information about licensees; Exchange for rule 30.10 relief pursuant —The Companies Act 1955, Articles of (2) Financial requirements for licensees; to this Order. Any such Dealer acting Association of New Zealand Futures (3) A system for the segregation of pursuant to the Limited Marketing and Options Exchange Limited; customer funds that applies to all customers Orders will be required to comply with —New Zealand Securities Commission and which requires the separate accounting for such funds, augmented by funds designed the terms and conditions of the Limited Annual Report (30 June 1992); Marketing Orders in addition to those —The Annual Audited Financial to compensate customers who have suffered specified herein. Statements of the New Zealand a loss as a result of fraud or insolvency or Futures and Options Exchange (31 other failure of a Dealer; This Order does not provide an (4) Recordkeeping and reporting exemption from any provision of the March 1992); requirements pertaining to financial and —New Zealand Futures & Options Act or regulations thereunder not trade information including, without specified herein, for example, without Exchange, A Specialist, Screen- limitation, order tickets, trade confirmations, Trading Marketplace; customer account statements, customers’ limitation, the antifraud provision in —Aklaw Number Thirty-Nine Limited deposit records and accounting records for Commission rule 30.9, 17 CFR 30.9 (Aklaw) Petition to the Australian customer and proprietary trades; (1996), or the disclosure provisions of Ministerial Council; and (5) Sales practice standards for licensees Commission rules 1.55, 30.6 and 33.7, —Letters dated June 8, 1993; June 12, which include, for example, required 17 CFR 1.55, 30.6 and 33.7 (1996), 1993; June 9, 1994; February 22, 1996; disclosures to customers and prohibitions on including the requirements of rule June 6, 1996; and November 12, 1996 misrepresentations and other deceptive 1.55(f), 30.6(e) and 33.7(f).16 from Philip McBride Johnson, practices; (6) Procedures to audit for compliance The relief does not extend to rules or Skadden, Arps, Slate, Meagher & with, and to redress violations of, customer regulations relating to trading, directly Flom, counsel for the Exchange. protection and sales practice requirements or indirectly, on U.S. exchanges. For Based upon its review of the above including, without limitation, a surveillance example, a Dealer trading in U.S. supporting materials and the program and the existence of broad powers markets for its own account would be Memorandum from the Division of to conduct investigations and to impose subject to the Commission’s large trader Trading and Markets dated November sanctions; and reporting requirements.17 Similarly, if 21, 1996, and subject to the conditions (7) Mechanisms for sharing information such a Dealer were carrying a position between the Exchange and the New Zealand set forth below, the Commission has Securities Commission (‘‘NZSC’’) and the on a U.S. exchange on behalf of foreign determined to issue this Order which Commission on an ‘‘as needed’’ basis clients, it would be subject to the will become effective the later of thirty including, without limitation, confirmation reporting requirements applicable to days after publication of this Order in data, data necessary to trace funds, position foreign brokers.18 The relief herein does the Federal Register or the filing of data, data on firms’ standing to do business not apply to Dealers that solicit U.S. consents by Dealers of the Exchange and and financial condition, and mechanisms for customers for transactions on U.S. the Exchange to the terms and cooperating with the Commission in markets. In that case, the Dealer must inquiries, compliance matters, investigations conditions of the Order herein. 14 comply with all applicable U.S. laws Furthermore, subject to the conditions and enforcement proceedings. Further, the Commission has and regulations, including the set forth below, the Commission determined in this Order to permit requirement to register in the concludes that the standards for relief Dealers designated for rule 30.10 relief appropriate capacity. set forth in Commission rule 30.10 and, to solicit and accept orders from U.S. The eligibility of any Dealer to seek in particular, Appendix A thereof, have customers for otherwise permitted rule 30.10 relief under this exemptive generally been satisfied and that transactions in commodity futures and Order is subject to the following compliance with the SAA, the Client commodity options (including options conditions: Funds Regulations and NZFOE rules on futures) 15 on or subject to the rules I. The regulatory or self-regulatory may be substituted for compliance with of any non-U.S. exchange permitted organization responsible for monitoring the certain sections of the Act as more under New Zealand law, other than a compliance of such Dealer with the particularly set forth herein. By this contract market designated as such regulatory requirements described in the rule Order, the Commission hereby exempts, 30.10 petition must represent in writing to subject to specified conditions, those the CFTC that: 14 On September 16, 1996, the Commission and Dealers identified to the Commission as the NZSC signed a Memorandum of Understanding A. Each Dealer for which relief is sought eligible for the rule 30.10 relief granted concerning consultation and mutual assistance for is registered, licensed or authorized, as herein from registration with the the exchange of information. In addition, the appropriate, and is otherwise in good Commission based upon substituted Exchange has provided assurances to the standing under the standards in place in New Commission regarding the availability of Zealand; such Dealer is engaged in business compliance by such Dealers with the information relevant to Part 30 on an ‘‘as needed’’ with customers located in New Zealand as applicable statutes and relevant basis. See letter dated June 9, 1994 from Philip well as in the United States; and such Dealer Exchange and other rules in effect in McBride Johnson, counsel for the Exchange, to Jane would not be statutorily disqualified from New Zealand. C. Kang, Commission. 15 Relief under this Order extends only to those This determination to permit products falling within the jurisdiction of the CEA 16 These rules essentially provide that delivery of substituted compliance is based on, and remains subject to existing product restrictions a mandated risk disclosure statement does not among other things, the Commission’s under the CEA and Commission regulations and eliminate any obligation under the Act to disclose finding that the regulatory scheme procedures thereunder related to stock indices and all material information to existing or prospective governing the firms trading on the foreign government debt (see CEA section customers even if the information is not specifically 2(a)(1)(B)(v) and Securities and Exchange required by the applicable risk disclosure rule. Exchange who would be exempted Commission rule 3a12–8, 17 CFR 240.3a12–8 17 See, e.g., 17 C.F.R. Part 18 (1996). hereunder provides: (1996)). 18 See, e.g., 17 C.F.R. Parts 17 and 21 (1996). 64988 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations registration under section 8a(2) of the CEA, applicable provisions of the SAA and Client other exchange or through the intermediation 7 U.S.C. 12(a)(2) (1994); Funds Regulations; of one or more intermediaries, complies with B. It will monitor Dealers to which relief D. Represents that no principal, and no paragraphs 1, 2 or 3 below: is granted for compliance with the regulatory employee who solicits or accepts orders from 1. a. Must maintain in a separate account requirements for which substituted U.S. customers, would be disqualified from or accounts money, securities and property compliance is accepted and will promptly directly applying to do business in the in an amount at least sufficient to cover or notify the Commission or NFA of any change United States under section 8a(2) of the CEA, satisfy all of its current obligations to U.S. in status of a Dealer which would affect its 7 U.S.C. 12a(2) (1994), and consents to notify customers denominated as the foreign futures continued eligibility for the exemption the Commission promptly of any change in or foreign options secured amount; granted hereunder, including the termination that representation based on a change in b. May not commingle such money, of its activities in the United States; control as generally defined in Commission securities and property with the money, C. All transactions on the Exchange with rule 3.32, 17 CFR 3.32 (1996); securities or property of the Dealer, with any respect to customers resident in the United E. Discloses the identity of each subsidiary proprietary account of such Dealer, and may States will be made on or subject to the rules or affiliate domiciled in the United States not use such money, securities and property of the Exchange and be otherwise permissible with a related business (e.g., banks and to secure or guarantee the obligations of, or as to U.S. customers, and the Commission broker/dealer affiliates) and provides a brief extend credit to, the Dealer or any will receive prompt notice of all material description of such subsidiary’s or affiliate’s proprietary account of the Dealer; changes to NZSC and Exchange rules, the principal business in the United States; c. May deposit together with the secured SAA and Client Fund Regulations; F. Consents to participate in any NFA amount required to be on deposit in the D. It will carry out its compliance, arbitration program which offers a procedure separate account or accounts referred to in surveillance and rule enforcement activities for resolving customer disputes on the papers paragraph 1. a. above money, securities or with respect to solicitations and acceptance where such disputes involve representations property held for or on behalf of non-U.S. of orders by designated Dealers of U.S. or activities with respect to transactions customers of the Dealer for the purpose of customers for otherwise permissible under Part 30, and consents to notify entering into foreign futures and options transactions involving options and futures customers resident in the United States of the transactions. In such a case, the amount that business on non-U.S. exchanges to the same availability of such a program; and if the U.S. must be deposited in such separate account extent that the Exchange conducts such customer elects NFA arbitration, that the or accounts must be no less than the greater activities in regard to Exchange business; Dealer consents to participate in NFA of (1) the foreign futures and foreign options E. Customers resident in the United States arbitration even in circumstances where the secured amount required by paragraph 1. a. will be provided no less stringent regulatory claim involves a matter arising primarily out above plus the amount that would be protection than New Zealand customers of delivery, clearing, settlement or floor required to be on deposit if all such under all relevant provisions of New Zealand practices; customers (including non-U.S. customers) law; G. Consents to maintain all firm records for were subject to such requirement, or (2) the F. It consents to maintain all Exchange a minimum of five years; foreign futures and foreign options secured records for a minimum of five years; and H. Undertakes to comply with the amount required by paragraph 1. a. above G. It will cooperate with the Commission applicable provisions of New Zealand law plus the amount required to be held in a with respect to any inquiries concerning any and Exchange and NZSC rules which form separate account or accounts for or on behalf activity subject to regulation under the Part the basis upon which this exemption from of such non-U.S. customers pursuant to any 30 rules, including sharing the information certain provisions of the Act is granted; applicable law, rule or regulation or order, or specified in Appendix A to the Part 30 rules I. Agrees to provide to any U.S. customer any rule of any self-regulatory organization; on an ‘‘as needed’’ basis in accordance with either the generic risk disclosure statement d. The separate account or accounts the agreed information sharing arrangement approved by the Commission under rule referred to in paragraph 1. a. above must be and will use its best efforts to notify the 1.55(c), or the risk disclosure statements maintained under an account name that Commission if it becomes aware of any mandated by Commission rules 30.6(a) [i.e., clearly identifies them as such, with any of information which in its judgment affects the 1.55(a)] and 33.7, and applicable Commission the following depositories: financial or operational viability of a New orders, as appropriate;19 (1) Another person registered with the Zealand-domiciled Dealer doing business in J. With respect to transactions effected on Commission as a futures commission the United States under the exemption behalf of U.S. customers on the NZFOE, merchant (‘‘FCM’’), or a firm exempted from granted by this Order. complies with the regulations relating to FCM registration pursuant to CFTC rule II. Each Dealer seeking rule 30.10 relief segregation of client funds under NZFOE 30.10; hereunder must apply in writing whereby it: rules and New Zealand laws; (2) The clearing organization of any foreign A. Consents to jurisdiction in the United K. With respect to transactions effected on board of trade; States under the Act and files a valid and behalf of U.S. customers on any non-U.S. (3) Any member and/or clearing member of binding appointment of an agent in the futures and options exchange other than the such foreign board of trade; or United States for service of process in NZFOE and the SFE 20, whether by the (4) A bank or trust company which any of accordance with the requirements set forth in Dealer directly as a clearing member of such the depositories identified in (1)–(3) above Commission rule 30.5, 17 CFR 30.5 (1996); may use consistent with the applicable laws B. Acknowledges that it can be required by 19 See, e.g., CFTC Advisory No. 90–1 [1987–1990 and rules of the jurisdiction in which the the Exchange to provide the Exchange Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,597 depository is located; and immediate access to its books and records (Feb. 21, 1990) (disclosure statement related to the e. The separate account or accounts related to transactions under Part 30 required deferred payment of options premiums). referred to in paragraph 1. a. may be deemed to be maintained under the applicable laws 20 NZFOE is a wholly-owned subsidiary of SFE, a good secured amount depository only if the and Exchange rules in effect in New Zealand which received rule 30.10 relief from the Dealer obtains and retains in its files for the and that the Exchange will cooperate in Commission on November 1, 1988. 53 FR 44856 period required by applicable law and (Nov. 7, 1988). The SFE and its members are providing access to such books and records required to segregate customer funds from money Exchange rules, a written acknowledgement to the Commission in accordance with the and property belonging to the firm and cannot use from such separate account depository that: agreed upon information sharing customer funds to satisfy the firm’s obligations, (1) It was informed that such money, arrangement; both at the firm level and at the SFE clearing house securities or property are held for or on C. Consents that all futures or regulated in connection with all transactions effected on the behalf of customers of the Dealer; and option transactions with respect to customers SFE. See Section 1209 of the Australian (2) It will ensure that such money, resident in the United States will be made on Corporations Law; SFE Article 43; and SFE Clearing securities or property will be held and or subject to the rules of the Exchange or any House By-Law 41. Consequently, with respect to treated at all times effectively in accordance transactions on the SFE on behalf of U.S. foreign other exchange, other than a contract market futures and options customers, NZFOE Dealers may with the provisions of this paragraph; and, designated as such pursuant to section 5 of comply with existing NZFOE and SFE rules in provided further, that the Dealer assures itself the Act, and will be undertaken consistent connection with paragraph K relating to the foreign that such separate account depository will with the rules of the NZSC and Exchange and futures and options secured amount. not pass on such money, securities or Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64989 property to any other depository unless the Upon filing of the notice required FR date and citation, llll, 1996, Dealer has assured itself that all such other under paragraph I. B. as to any such llll FR llll. separate account depositories will treat such Dealer, the rule 30.10 relief granted by Issued in Washington, D.C., on December funds in a manner consistent with the this Order may be suspended 3, 1996. procedures described in this paragraph 1 Jean A. Webb, herein; 21 or immediately as to that Dealer. That 2. Must set aside funds constituting the suspension will remain in effect Secretary to the Commission. entire secured amount requirement in a pending further notice by the [FR Doc. 96–31326 Filed 12–9–96; 8:45 am] separate account as set forth in Commission Commission, or the Commission’s BILLING CODE 6351±01±U rule 30.7, 17 CFR § 30.7 (1996), and treat designee, to the Dealer and the those funds in the manner described by that Exchange and/or any applicable rule; or regulatory or self-regulatory DEPARTMENT OF HEALTH AND 3. Must comply with the terms and organization. procedures of paragraph 1 or 2, with the HUMAN SERVICES amount required to be segregated under Any material changes or omissions in NZFOE rules and New Zealand laws to be the facts and circumstances pursuant to Food and Drug Administration substituted for the secured amount which this Order is granted might requirement as set forth in such paragraphs.22 require the Commission to reconsider its 21 CFR Part 178 finding that the standards for issuance [Docket No. 94F±0251] 21 This proviso is intended to ensure that the of an order under Commission rule originating Dealer makes reasonable inquiries and 30.10, including Appendix A of rule Indirect Food Additives: Adjuvants, understands prior to the initiation of a trade the 30.10, have generally been satisfied. conditions under which its customers’ funds will be Production Aids, and Sanitizers held at all subsequent depositories, so that it may Further, if experience demonstrates determine whether it may count a particular that the continued effectiveness of this AGENCY: Food and Drug Administration, intermediary or clearing house as a good separate Order in general, or with respect to a HHS. account depository for purposes of this Order or particular Dealer, would be contrary to must alternatively set aside funds in the manner set ACTION: Final rule. forth in paragraph 2. The Dealer initially would public policy or the public interest, or discuss with its immediate intermediary broker that the systems in place for the SUMMARY: The Food and Drug whether funds will be transferred to any subsequent exchange of information or other Administration (FDA) is amending the depositories and determine the conditions under food additive regulations to provide for which such funds would be treated. Compliance circumstances do not warrant with this condition would be satisfied by the Dealer continuation of the exemptive relief the safe use of 1,4-bis[(2,4,6- obtaining relevant information or assurances from granted herein, the Commission may trimethylphenyl)amino]-9,10- appropriate sources such as, for example, the condition, modify, suspend, terminate, anthracenedione as a colorant in immediate intermediary broker, exchanges or polyethylene phthalate polymers clearinghouses, exchange regulators, banks, withhold as to a specific Dealer, or attorneys or regulatory references. otherwise restrict the exemptive relief intended for use in food-contact articles. This requirement is intended to ensure that funds granted in this Order, as appropriate, on This action is in response to a petition provided by U.S. customers for foreign futures and its own motion. If necessary, provisions filed by Registration and Consulting Co. options transactions, whether held at a U.S. FCM will be made for servicing existing AG. under rule 30.7(c) or a firm exempted from registration as an FCM under CFTC rule 30.10, will client positions. DATES: Effective December 10, 1996; receive equivalent protection at all intermediaries written objections and requests for a List of Subjects in 17 CFR Part 30 and exchange clearing organizations. Thus, for hearing January 9, 1997. example, an exchange that does not segregate Commodity futures, Commodity ADDRESSES: Submit written objections to customer from firm obligations and firms which options, Foreign futures and options. trade on such exchanges and which do not arrange the Dockets Management Branch (HFA– to comply otherwise with any of the procedures Accordingly, 17 CFR Part 30 is 305), Food and Drug Administration, described in paragraph K would not be deemed an amended as set forth below: 12420 Parklawn Dr., rm. 1–23, acceptable separate account. Specifically, such Rockville, MD 20857. exchange or firms could not provide a valid and PART 30ÐFOREIGN FUTURES AND binding acknowledgement to a rule 30.10 exempted FOREIGN OPTIONS TRANSACTIONS FOR FURTHER INFORMATION CONTACT: Vir firm. D. Anand, Center for Food Safety and This provision is not intended to create a duty on 1. The authority citation for part 30 a rule 30.10 firm that it audit any intermediaries for Applied Nutrition (HFS–216), Food and continued compliance with the undertakings it has continues to read as follows: Drug Administration, 200 C St. SW., obtained based on discussions with those relevant Authority: Secs. 2(a)(1)(A), 4, 4c, and 8a of Washington, DC 20204, 202–418–3081. intermediaries. It is intended to make clear that the Commodity Exchange Act, 7 U.S.C. 2, 6, SUPPLEMENTARY INFORMATION: In a notice firms must engage in a due diligence inquiry before 6c and 12a. customer funds are sent to another intermediary published in the Federal Register of and take appropriate action (i.e., set aside funds) in 2. Appendix C to part 30 is amended August 2, 1994 (59 FR 39366), FDA the event that it becomes aware of facts leading it by adding at the end of the appendix the announced that a food additive petition to conclude that customer funds are not being following entry to read as follows: handled consistent with the requirements of (FAP 4B4423) had been filed by Registration and Consulting Co. AG, c/ Commission rules or relevant rule 30.10 order by Appendix C—Foreign Petitioners any subsequent intermediary or clearing house. o Bruce A. Schwemmer, Bruce Granted Relief From the Application of 22 The Client Funds Regulations permit a Dealer EnviroExcel Group, Inc., 94 Buttermilk Certain of the Part 30 Rules Pursuant to Bridge Rd., Washington, NJ 07882 to send client funds to a depository outside New § 30.10 Zealand which cannot or will not provide the (formerly, c/o Reynaldo A. Gustilo, acknowledgement required by the Client Funds * * * * * 125A 18th St., suite 142, Newport Plaza, Regulations, provided that the Dealer has first: Firms designated by the New Zealand —advised the client that the money may not Jersey City, NJ 07310). The petition receive the protection afforded by section 20 of the Futures and Options Exchange proposed to amend the food additive Client Funds Regulations (i.e., segregation); and (‘‘NZFOE’’) regulations in § 178.3297 Colorants for —obtained the written agreement of the client polymers (21 CFR 178.3297) to provide that notwithstanding such notice, the money may requiring that the secured amount funds of U.S. for the safe use of 1,4-bis[(2,4,6- be credited to the client funds account. See section foreign futures and options customers (or the 10 of the Client Funds Regulations. segregated amount under New Zealand law) be in trimethylphenyl)amino]-9,10- The Commission notes, however, that such appropriate separate account locations and anthracenedione (C.I. Solvent Blue 104) waiver is inconsistent with the terms of this Order protected for the benefit of such customers. as a colorant in polyethylene phthalate 64990 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations polymers complying with 21 CFR II. Safety of Petitioned Use of the the numerous conservative assumptions 177.1630, intended for use in food- Additive used in calculating the exposure contact articles. FDA estimates that the petitioned use estimate, the actual lifetime-averaged Upon review of information provided of the additive, 1,4-bis[(2,4,6- individual exposure to 2,4,6- by the petitioner, FDA concluded that trimethylphenyl)amino]-9,10- trimethylaniline is likely to be the use of C.I. Solvent Blue 104 as a anthracenedione, will result in exposure substantially less than the worst-case synonym for the colorant may cause to no greater than 0.2 part per billion of exposure, and therefore, the upper- confusion because it is identified by a the additive in the daily diet (3 bound lifetime human risk would be less. Thus, the agency concludes that different CAS Reg. No. (71872–84–9) kilograms (kg)) or an estimated daily there is reasonable certainty that no than the CAS Reg. No. for the colorant intake (EDI) of 0.6 microgram per person harm from exposure to 2,4,6- itself (116–75–6). Therefore, this final per day (/person/day) (Ref. 1). trimethylaniline would result from the rule identifies the colorant only by its FDA does not ordinarily consider proposed use of the additive. CAS Reg. name (1,4-bis[(2,4,6- chronic toxicological studies to be trimethylphenyl)amino]-9,10- necessary to determine the safety of an B. Need for Specifications anthracenedione) and the corresponding additive whose use will result in such The agency has also considered CAS Reg. No. (116–75–6). low exposure levels (Ref. 2), and the whether specifications are necessary to In FDA’s evaluation of the safety of agency has not required such testing control the amount of 2,4,6- this food additive, the agency has here. However, the agency has reviewed trimethylaniline present as an impurity reviewed the safety of the additive itself the available toxicological data on the in the additive. The agency finds that and the chemical impurities that may be additive and concludes that the specifications are not necessary for the present in the additive resulting from its estimated small dietary exposure to this following reasons: (1) Because of the manufacturing process. Although the additive is safe. low level at which 2,4,6- additive itself has not been shown to FDA has evaluated the safety of this trimethylaniline may be expected to cause cancer, it has been found to additive under the general safety clause, remain as an impurity following contain minute amounts of 2,4,6- considering all available data and using production of the additive, the agency trimethylaniline, which is a risk assessment procedures to estimate would not expect the impurity to carcinogenic impurity resulting from the the upper-bound limit of lifetime become a component of food at other manufacture of the additive. Residual human risk presented by 2,4,6- than extremely low levels; and (2) the amounts of reactants and manufacturing trimethylaniline, the carcinogenic upper-bound limit of lifetime human aids, such as 2,4,6-trimethylaniline, are chemical that may be present as an risk from exposure to the impurity, even commonly found as contaminants in impurity in the additive. The risk under worst-case assumptions, is very chemical products, including food evaluation of 2,4,6-trimethylaniline has low, less than 1.1 in a billion. additives. two aspects: (1) Assessment of the worst-case exposure to the impurity III. Conclusion I. Determination of Safety from the proposed use of the additive; FDA has evaluated the data in the and (2) extrapolation of the risk Under the so-called ‘‘general safety petition and other relevant material and observed in the animal bioassay to the clause’’ of the Federal Food, Drug, and concludes that the proposed use of the conditions of probable exposure to Cosmetic Act (the act) (21 U.S.C. additive as a colorant for polyethylene humans. 348(c)(3)(A)), a food additive cannot be phthalate polymers in contact with food approved for a particular use unless a A. 2,4,6-Trimethylaniline is safe. Based on this information, the agency has also concluded that the fair evaluation of the data available to FDA has estimated the hypothetical FDA establishes that the additive is safe additive will have the intended worst-case exposure to 2,4,6- technical effect. Therefore, the agency for that use. FDA’s food additive trimethylaniline from the petitioned use regulations (21 CFR 170.3(i)) define safe concludes that the regulations in of the additive as a colorant in § 178.3297 should be amended as set as ‘‘a reasonable certainty in the minds polyethylene phthalate polymers to be of competent scientists that the forth below. 1.3 parts per trillion in the daily diet (3 In accordance with § 171.1(h) (21 CFR substance is not harmful under the kg), or 3.9 nanograms (ng)/person/day 171.1(h)), the petition and the intended conditions of use.’’ (Ref. 1). The agency used data from a documents that FDA considered and The food additive anticancer or long-term rodent bioassay on 2,4,6- relied upon in reaching its decision to Delaney clause of the act (21 U.S.C. trimethylaniline conducted by approve the petition are available for 348(c)(3)(A)) provides that no food Weisburger et al. (Ref. 3), to estimate the inspection at the Center for Food Safety additive shall be deemed safe if it is upper-bound limit of lifetime human and Applied Nutrition by appointment found to induce cancer when ingested risk from exposure to this chemical with the information contact person by man or animal. Importantly, resulting from the proposed use of the listed above. As provided in § 171.1(h), however, the Delaney clause applies to additive. The authors reported that the the agency will delete from the the additive itself and not to the test material caused significantly documents any materials that are not impurities in the additive. That is, increased incidence of liver tumors in available for public disclosure before where an additive itself has not been male and female mice and female rats making the documents available for shown to cause cancer, but contains a and lung tumors in male rats. inspection. carcinogenic impurity, the additive is Based on the estimated worst-case properly evaluated under the general exposure to 2,4,6-trimethylaniline of 3.9 IV. Environmental Impact safety clause using risk assessment ng/person/day, FDA’s Center for Food The agency has carefully considered procedures to determine whether there Safety and Applied Nutrition estimates the potential environmental effects of is a reasonable certainty that no harm that a worst-case upper-bound limit of this action. FDA has concluded that the will result from the proposed use of the lifetime human risk from the use of the action will not have a significant impact additive, Scott v. FDA, 728 F.2d 322 subject additive is 4.2 x 10-9, or 4.2 in on the human environment, and that an (6th Cir. 1984). a billion (Refs. 4, 5, and 6). Because of environmental impact statement is not Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64991 required. The agency’s finding of no found in brackets in the heading of this Chairman, Cancer Assessment Committee, significant impact and the evidence document. Any objections received in and Chairman, Quantitative Risk Assessment supporting that finding, contained in an response to the regulation may be seen Committee: Correction to December 18, 1995, environmental assessment, may be seen in the Dockets Management Branch memorandum: Worst-case Risk Assessment in the Dockets Management Branch for 2,4,6-trimethylaniline, August 15, 1996. between 9 a.m. and 4 p.m., Monday 6. Memorandum from Executive Secretary, (address above) between 9 a.m. and 4 through Friday. Cancer Assessment Committee (HFS–227) to p.m., Monday through Friday. VI. References Chairman, Cancer Assessment Committee, V. Objections and Chairman, Quantitative Risk Assessment The following references have been Committee: Risk Assessment for 2,4,6- Any person who will be adversely placed on display in the Dockets trimethylaniline, August 16, 1996. affected by this regulation may at any Management Branch (address above) time on or before January 9, 1997, file and may be seen by interested persons List of Subjects in 21 CFR Part 178 with the Dockets Management Branch between 9 a.m. and 4 p.m., Monday Food additives, Food packaging. (address above) written objections through Friday. Therefore, under the Federal Food, thereto. Each objection shall be 1. Memorandum from the Chemistry Drug, and Cosmetic Act and under separately numbered, and each Review Branch (HFS–247) to the Indirect numbered objection shall specify with Additives Branch (HFS–216) concerning FAP authority delegated to the Commissioner particularity the provisions of the 4B4423: Dietary Concentrations of the of Food and Drugs, 21 CFR part 178 is regulation to which objection is made Additive and the Impurity (2,4,6- amended as follows: trimethylaniline), August 15, 1994. and the grounds for the objection. Each 2. Kokoski, C. J., ‘‘Regulatory Food PART 178ÐINDIRECT FOOD numbered objection on which a hearing Additive Toxicology,’’ in Chemical Safety ADDITIVES: ADJUVANTS, is requested shall specifically so state. Regulation and Compliance, edited by F. PRODUCTION AIDS, AND SANITIZERS Failure to request a hearing for any Homburger, J. K. Marquis, and S. Karger, particular objection shall constitute a New York, NY, pp. 24–33, 1985. 1. The authority citation for 21 CFR 3. Weisburger, E. K., A. B. Russfield, F. waiver of the right to a hearing on that part 178 continues to read as follows: objection. Each numbered objection for Homburger, J. H. Weisburger, E. Boger, C. G. which a hearing is requested shall Van Dongen, and K. C. Chu, ‘‘Testing of Authority: Secs. 201, 402, 409, 721 of the Twenty-One Environmental Aromatic Federal Food, Drug, and Cosmetic Act (21 include a detailed description and Amines or Derivatives for Long-Term U.S.C. 321, 342, 348, 379e). analysis of the specific factual Toxicity or Carcinogenicity,’’ Journal of information intended to be presented in Environmental Pathology and Toxicology, 2. Section 178.3297 is amended in the support of the objection in the event vol. 2, pp. 325–356, 1978. table in paragraph (e) by alphabetically that a hearing is held. Failure to include 4. Memorandum from Executive Secretary, adding a new entry under the headings such a description and analysis for any Cancer Assessment Committee (HFS–227) to ‘‘Substances’’ and ‘‘Limitations’’ to read particular objection shall constitute a Chairman, Cancer Assessment Committee, as follows: and Chairman, Quantitative Risk Assessment waiver of the right to a hearing on the Committee: Worst-case Risk Assessment for § 178.3297 Colorants for polymers. objection. Three copies of all documents 2,4,6-trimethylaniline, December 18, 1995. shall be submitted and shall be 5. Memorandum from Executive Secretary, * * * * * identified with the docket number Cancer Assessment Committee (HFS–227) to (e) * * *

Substances Limitations

******* 1,4-Bis[(2,4,6-trimethylphenyl)amino]-9,10-anthracenedione (CAS Reg. For use at levels not to exceed 0.0004 percent by weight of poly- No. 116±75±6). ethylene phthalate polymers complying with § 177.1630 of this chap- ter. *******

Dated: November 27, 1996. DEPARTMENT OF TRANSPORTATION Invitational. This event will be held William K. Hubbard, from 1 p.m. AST (Atlantic Standard Associate Commissioner for Policy Coast Guard Time) to 2:30 p.m. AST on December 15, 1996, on the waters of Rada Fajardo, Coordination. 33 CFR Part 100 [FR Doc. 96–31361 Filed 12–9–96; 8:45 am] due East of Villa Marine, Fajardo, Puerto BILLING CODE 4160±01±F [CGD07±96±068] Rico. During this event, race boats will be competing at high speeds with RIN 2115±AE46 numerous spectator craft in the area, creating an extra or unusual hazard on Special Local Regulations; Rada the navigable waterways. Therefore, Fajardo, East of Villa Marina, Fajardo, these regulations are necessary to PR provide for the safety of life on the AGENCY: Coast Guard, DOT. navigable waters during the event. ACTION: Temporary final rule. EFFECTIVE DATE: These regulations become effective from 12:30 p.m. AST SUMMARY: Special local regulations are being adopted for the AC Delco Offshore to 3 p.m. AST, December 15, 1996. 64992 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT: Small Entities List of Subjects in 33 CFR Part 100 LTJG D. L. Garrison, Project Officer, Marine Safety, Navigation (water), Coast Guard Greater Antilles Section, Under the Regulatory Flexibility Act Reporting and recordkeeping Puerto Rico, at (787) 729–6800, (5 U.S.C. 601 et seq.), the Coast Guard requirements, Waterways. extension 227. must consider whether this rulemaking will have a significant impact on a SUPPLEMENTARY INFORMATION: In Temporary Regulations substantial number of small entities. accordance with 5 U.S.C. 553, a notice For reasons set out in the preamble, of proposed rulemaking has not been ‘‘Small entities’’ include independently owned and operated small businesses the Coast Guard amends part 100 of title published for these regulations and 33, Code of Federal Regulations, as that are not dominant in their field and good cause exists for making them follows: effective in less than 30 days from the that otherwise qualify as ‘‘small business concerns’’ under Section 3 of 1. The authority citation for part 100 date of publication. Following normal continues to read as follows: rulemaking procedures would have the Small Business Act (15 U.S.C. 632). been impracticable, because the permit The Coast Guard certifies under 5 PART 100Ð[AMENDED] application was received by the unit U.S.C. 605(b) of the Regulatory less than six weeks before the scheduled Flexibility Act (5 U.S.C. 601 et seq.) that Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35. date for the event. this final rule will not have a significant Discussion of Regulations economic impact on a substantial 2. A temporary section 100.35–T96– number of small entities. The regulated 068 is added as follows: The event requiring these regulations area encompasses a limited area and § 100.35±T96±068 AC Delco Offshore is the AC Delco Offshore Invitational. 1 will be in effect for only 2 ⁄2 hours on Invitational; Fajardo, PR. This event will be held from 1 p.m. AST the day of the event. to 2:30 p.m. AST on December 15, 1996, (a) Definitions—(1) Regulated Area. A in the waters of Rada Fajardo due east Collection of Information regulated area is established for the of Villa Marine, Fajardo, Puerto Rico. navigable waters of Rada Fajardo, due The race boats will be competing at high These regulations contain no East of Villa Marine, Fajardo, Puerto speeds with numerous spectator craft in collection-of-information requirements Rico, starting at 18–20.0N, 065–37.2W, the area, creating an extra or unusual under the Paperwork Reduction Act (44 then North to 18–22.4N, 065–37.2W, hazard in the navigable waterways. U.S.C. 3501 et seq.). then North East to 18–23.2N, 065– These regulations are required to Federalism 36.1W, then South East to 18–22.0N, provide for the safety of life on the 065–34.8W, then South to 18–20.0N, navigable waters during the running of This action has been analyzed in 065–34.8W and back to origin. All the AC Delco Offshore Invitational. accordance with the principles and coordinates referenced use Datum: NAD These regulations will establish a criteria contained in Executive Order 1983. regulated area in the waters of Rada 12612, and it has been determined that (2) Coast Guard Patrol Commander. Fajardo, due East of Villa Marine, this rulemaking does not have sufficient The Coast Guard Patrol Commander is Fajardo, Puerto Rico, starting at 18–20. federalism implications to warrant the a commissioned, warrant, or petty 0N, 065–37.2W, then North to 18– prepartion of a Federalism Assessment. officer of the Coast Guard who has been 22.4N, 065–37.2W, then North East to designated by the Commander, Coast 18–23.2N, 065–36.1W, then South East Environmental Assessment Guard Section, Greater Antilles. to 18–22.0N, 065–34.8W, then South to The Coast Guard has considered the (b) Special Local Regulations. (1) 18–20.0N, 065–34.8W and back to environmental impact of this action Entry into the regulated area by other origin. All coordinates referenced use consistent with Section 2.B.2. of than event participants is prohibited, Datum: NAD 1983. unless otherwise authorized by the Commandant Instruction M16475.1B. In Patrol Commander. Regulatory Evaluation accordance with that instruction section (2) Spectator craft are required to This regulation is not a significant 2.B.4.g., this action has been environmentally assessed (EA remain in a spectator area to be regulatory action under section 3(f) of established by the event sponsor west of completed), and the Coast Guard has Executive Order 12866 and does not Isle Palominos. concluded that it will not significantly require an assessment of potential costs (3) At the discretion of the Patrol and benefits under section 6(a)(f) of that affect the quality of the human environment. An environmental Commander, between scheduled racing order. It has been exempted from review events, traffic may be permitted to assessment and finding of no significant by the Office of Management and resume normal operations. After impact have been prepared and are Budget under that order. It is not termination of the AC Delco Offshore available for inspection and copying significant under the regulatory policies Invitational on December 15, 1996, all from LTJG D. L. Garrison, Coast Guard and procedures of the Department of vessels may resume normal operation. Section, Greater Antilles, San Juan, Transportation (DOT) (44 FR 11040; (4) Temporary buoys will be used Puerto Rico, (787) 729–6800, extension February 26, 1979). The Coast Guard delineate the course. expects the economic impact of this 227. As a condition to the permit, the applicant is required to conduct a (c) Effective Date. This section action to be so minimal that a full becomes effective from 12:30 p.m. AST survey of the race course one hour prior Regulatory Evaluation under paragraph to 3 p.m. AST, on December 15, 1996. 10e of the regulated policies and to the event to ensure no manatees or procedures of DOT is unnecessary. The sea turtles are in the vicinity, to educate Dated: November 15, 1996. regulated area encompasses a limited the operators of participant and J.D. Hull, area off the coast of Puerto Rico and spectator craft regarding the possible Captain, U.S. Coast Guard, Acting entry into this area will be prohibited presence of manatees and sea turtles, Commander, Seventh Coast Guard District. for only 21⁄2 hours on the day of the and the appropriate precautions to take [FR Doc. 96–31090 Filed 12–9–96; 8:45 am] event. if the animals are sighted. BILLING CODE 4910±14±M Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64993

33 CFR Part 100 These regulations will establish a Collection of Information regulated area for all navigable waters [CGD07±96±049] These regulations contain no within a line drawn through the collection-of-information requirements RIN 2115±AE46 following points. under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Special Local Regulations; Key West 24–33.65N, 081–48.47W; thence to, 24–33.95N, 081–48.30W; thence to, Super Boat Race; Key West, FL Federalism 24–34.05N, 081–48.45W; thence to, AGENCY: Coast Guard, DOT. 24–33.58N, 081–48.70W; thence to, This action has been analyzed in accordance with the principles and ACTION: Final rule. 24–31.18N, 081–51.10W; thence to, 24–31.18N, 081–48.88W; thence to, criteria contained in Executive Order SUMMARY: The Coast Guard is 24–32.94N, 081–48.82W. 12612, and it has been determined that establishing permanent special local this rulemaking does not have sufficient regulations for the Key West Super Boat All coordinates reference use datum: federalism implications to warrant the Race sponsored by Super Boat Racing, NAD 1983. Entry into this proposed preparation of a Federalism Assessment. regulated area will be prohibited to all Inc. The Key West Super Boat Race will Environment be held annually on the second vessels except event participants, unless Wednesday and Saturday in November, otherwise authorized by the patrol The Coast Guard has considered the between 10 a.m. and 4 p.m. EST commander. A succession of not less environmental impact of this rule (Eastern Standard Time). These than 5 short whistle or horn blasts from consistent with Section 2.B.2. of regulations are intended to promote safe a patrol vessel will be the signal for any Commandant Instruction M16475.1B (as navigation on the waters in the Atlantic non-event participating vessel to take revised by 59 FR 38654, July 29, 1994). Ocean in the vicinity of Key West, immediate steps to avoid collision. The In accordance with that instruction, Florida, by controlling the traffic display of a red distress flare from a specifically section 2.B.2.b.(2), this rule entering, exiting, and traveling within patrol vessel will be a signal for any and has been environmentally assessed (EA these waters. These regulations are all vessels to stop immediately. completed), and the Coast Guard has determined that it would not necessary to provide for the safety of life Regulatory Evaluation on navigable waters during the event. significantly affect the quality of the human environment. An environmental EFFECTIVE DATE: January 9, 1997. These regulations are not a significant assessment and finding of no significant FOR FURTHER INFORMATION CONTACT: regulatory action under section 3(f) of Executive Order 12866 and does not impact have been prepared and are QMC Kent, Project Officer, USCG Group available for copying and inspection. Key West, (305) 292–8727. require an assessment of potential costs and benefits under section 6(a)(3) of that Furthermore, as a condition to the SUPPLEMENTARY INFORMATION: order. it has been exempted from review permit, the applicant will be required to educate the operators of spectator craft Regulatory History by the Office of Management and Budget under that order. It is not and parade participants regarding the On October 11, 1996, the Coast Guard significant under the regulatory policies possible presence of manatees and the published a notice of proposed and procedures of the Department of appropriate precautions to take if the rulemaking entitled Key West Super Transportation (DOT) (44 FR 11040; animals are sighted. Boat Race; Key West, FL [CGD07–96– February 26, 1979). The Coast Guard List of Subjects in 33 CFR Part 100 049] in the Federal Register (61 FR expects the economic impact of this rule Marine safety, Navigation (water), 53344). The comment period ended on to be so minimal that a full Regulatory November 12, 1996. The Coast guard Reporting and recordkeeping Evaluation under paragraph 10e of the requirements, Waterays. received no comments during the notice regulatory policies and procedures of of proposed rulemaking comment DOT is unnecessary, because entry into Final Regulations period. A public hearing was not the regulated area will be prohibited for requested and no hearing was held. For reasons set out in the preamble, only 6 hours on each day of the event. the Coast Guard amends Part 100 of Background and Purpose Small Entities Title 33, Code of Federal Regulations, as These special local regulations are follows: needed to provide for the safety of life Under the Regulatory Flexibility Act 1. The authority citation for part 100 during the Key West Super Boat Race. (5 U.S.C. 601 et seq.), the Coast Guard continues to read as follows: must consider whether the economic The regulations are intended to promote PART 100Ð[AMENDED] safe navigation on the waters in the impact on small entities of a rule for Atlantic Ocean in the vicinity of Key which a general notice of proposed Authority: 33 U.S.C. 1233, 49 CFR 1.46 and West, Florida, by controlling the traffic rulemaking is required. ‘‘Small entities’’ 33 CFR 100.35. entering, exiting, and traveling within may include (1) small businesses and not-for-profit organizations that are 2. A new section 100.722 is added to these waters. Historically during these read as follows: races, there have been approximately 80 independently owned and operated and power boats and 100 spectator craft. The are not dominant in their fields and (2) § 100.722 Annual Key West Super Boat anticipated concentration of event governmental jurisdictions with Race; Key West, FL. participating vessels and spectator craft populations of less than 50,000. (a) Definitions. associated with the Key West Super The Coast Guard certifies that this (1) Regulated area. All navigable Boat Race poses a safety concern, which rule will not have a significant waters within a line drawn through the is addressed in these special local economic impact on a substantial following points: regulations. The Key West Super Boat number of small entities, because entry 24–33.65, 081–48.47W; thence to, Race will be held annually from 10 a.m. into this regulated area will be 24–33.95N, 081–48.30W; thence to, to 4 p.m. EST, on the second prohibited for only 6 hours on each day 24–34.05N, 081–48.45W; thence to, Wednesday and Saturday in November. of the event. 24–33.58N, 081–48.70W; thence to, 64994 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

24–31.18N, 081–51.10W; thence to, QM2 S. E. Fowler, Project Officer, U.S. The regulated area will include the Port 24–31.18N, 081–48.88W; thence to, Coast Guard Group Miami at (305) 535– of Palm Beach Turning Basin and the 24–32.94N, 081–48.82W. 4448. Intracoastal Waterway extending south All coordinates reference use datum: SUPPLEMENTARY INFORMATION: In from Lake Worth South LT 1 (LLNR NAD 1983. accordance with 5 U.S.C. 553, the final 42170) to Lake Worth South Daybeacon (2) Coast Guard Patrol Commander. rule will be made effective in less than 23 (LLNR 42300). The Coast Guard Patrol Commander is 30 days from the date of publication in While the parade is transiting, these a commissioned, warrant, or petty the Federal Register. Following normal regulations will prohibit officer of the United States Coast Guard rulemaking procedures would be nonparticipating vessels from who has been designated by Coast impracticable, unnecessary, and approaching within 1000 feet ahead of Guard Group Key West, Florida. contrary to the public interest. A notice the lead vessel in the parade to 1000 feet (b) Special Local Regulations. (1) of proposed rulemaking for this rule was astern of the last participating vessel in Entry into the regulated area, by other published in the Federal Register (61 the parade or within 50 feet on either than event participants, is prohibited FR 53342) with a thirty day comment side of the parade unless authorized by unless otherwise authorized by the period. The final rule will be made the patrol commander. After the passage patrol commander. effective in less than thirty days from of the parade participants, all vessels (2) A succession of not less than 5 the date of publication in order to hold will be allowed to resume normal short whistle or horn blasts from a the event. During this comment period, operations. A succession of not fewer patrol vessel will be the signal for any no comments were received on this than 5 short whistle or horn blasts from non-event participating vessel to take rulemaking. a patrol vessel will be the signal for any immediate steps to avoid collision. The Regulatory History nonparticipating vessel to stop display of a red distress flare from a immediately. The display of an orange patrol vessel will be a signal for any and On October 11, 1996, the Coast Guard distress smoke signal from a patrol all vessels to stop immediately. published a notice of proposed vessel will be the signal for any and all (c) Effective Dates. This section is rulemaking entitled Holiday Boat vessels to stop immediately. effective at 10 a.m. and terminates at 4 Parade of the Palm Beaches; Palm Regulatory Evaluation p.m. annually on the second Wednesday Beach, FL [CGD07–96–053] in the and Saturday in November. Federal Register (61 FR 53342). The These regulations are not a significant comment period ended on November regulatory action under section 3(f) of Dated: November 15, 1996. 12, 1996. The Coast Guard received no J.D. Hull Executive Order 12866 and does not comments during the notice of proposed require an assessment of potential costs Captain, U.S. Coast Guard, Acting rulemaking comment period. A public and benefits under section 6(a)(3) of that Commander, Seventh Coast Guard District. hearing was not requested and no order. It has been exempted from review [FR Doc. 96–31091 Filed 12–9–96; 8:45 am] hearing was held. by the Office of Management and BILLING CODE 4910±14±M Background and Purpose Budget under that order. It is not These regulations are needed to significant under the regulatory policies 33 CFR Part 100 provide for the safety of life on the and procedures of the Department of navigable waterways during the Holiday Transportation (DOT) (44 FR 11040; [CGD07±053] Boat Parade of the Palm Beaches. These February 26, 1979). The Coast Guard regulations are intended to promote safe expects the economic impact of this rule RIN 2115±AE46 navigation on the waters off the Palm to be so minimal that a full Regulatory Beaches during the parade by Evaluation under paragraph 10e of the Special Local Regulations; Holiday controlling the traffic entering, exiting, regulatory policies and procedures of Boat Parade of the Palm Beaches; and traveling within these waters. The DOT is unnecessary, because entry into Palm Beach, FL Holiday Boat Parade of the Palm the regulated area is prohibited for only Beaches is an annual night time boat 21⁄2 hours during the boat parade. AGENCY: Coast Guard, DOT. parade consisting of approximately sixty Small Entities ACTION: Final rule. (60) power and sail boats ranging in length from 18 feet to 85 feet decorated Under the Regulatory Flexibility Act SUMMARY: The Coast Guard is with holiday lights. Historically, there (5 U.S.C. 601 et seq.), the Coast Guard establishing special local regulations for have been approximately 60 parade must consider the economic impact on the Holiday Boat Parade of the Palm event participant vessels and 200 the small entities of a for which a Beaches. This event will be held spectator craft during the boat parade. general notice of proposed rulemaking annually during the second Saturday of The anticipated concentration of these is required. ‘‘Small entities’’ may December, from 6:30 p.m. until 9 p.m. spectator and parade participant vessels include (1) small businesses and not-for- EST (Eastern Standard Time). associated with the boat parade poses a profit organizations that are Historically, there have been safety concern which is addressed in independently owned and operated and approximately 60 parade event these special local regulations. are not dominant in their fields and (2) participant vessels and 200 spectator The boat parade will take place governmental jurisdictions with craft during the boat parade. The annually during the second Saturday of populations of less than 50,000. resulting congestion of navigable December, from 6:30 p.m. until 9 p.m. The Coast Guard certifies under 5 channels creates an extra or unusual EST (Eastern Standard Time). The U.S.C. 605 (b) that this rule will not hazard on the navigable waters. These parade will form in the staging area in have a significant economic impact on regulations are necessary to provide for the Port of Palm Beach turning basin a substantial number of small entities, the safety of life on navigable waters and then proceed south down the because the regulated area encompasses during the event. Intracoastal Waterway (ICW) to Lake a limited area and will restrict vessel EFFECTIVE DATE: December 10, 1996. Worth South Daybeacon 23 (LLNR traffic for only 21⁄2 hours on the day of FOR FURTHER INFORMATION CONTACT: 42300) where the parade will disband. the event. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64995

Collection of Information Beach Turning Basin and the hours. Additionally, between the hours This rule contains no collection-of- Intracoastal Waterway extending south of 6 a.m. and 4 p.m. daily from information requirements under the from Lake Worth South LT 1 (LLNR December 26, 1996 through December Paperwork Reduction Act (44 U.S.C. 42170) to Lake Worth South Daybeacon 29, 1996, the draw need not open for the 3501 et seq.). 23 (LLNR 42300). passage of vessels for a maximum (b) Special Local Regulations. period of up to six hours. Presently, the Federalism (1) While the parade is transiting, draw is required to open on signal. This This rule has been analyzed in nonparticipating vessels will be temporary deviation is issued to allow accordance with the principles and prohibited from approaching within for the replacement of the main trunions criteria contained in Executive Order 1000 feet ahead of the lead vessel in the of the bascule span, an extensive but 12612, and it has been determined that parade to 1000 feet astern of the last necessary maintenance operation. this rulemaking does not have sufficient participating vessel in the parade or EFFECTIVE DATES: The deviation is federalism Assessment. within 50 feet on either side of the parade unless authorized by the patrol effective from 12:01 a.m. December 8, Environmental Assessment commander. After the passage of the 1996 through 4 p.m. on December 29, The Coast Guard has considered the parade participants all vessels may 1996. environmental impact of this action resume normal operations. FOR FURTHER INFORMATION CONTACT: consistent with Section 2.B.2. of (2) A succession of not fewer than 5 Mr. Phil Johnson, Bridge Administration Commandant Instruction M16475.1B, short whistle or horn blasts from a Branch, Commander (ob), Eighth Coast (as revised by 59 FR 38654, July 29, patrol vessel will be the signal for any Guard District, 501 Magazine Street, 1994). In accordance with that non-participating vessel to stop New Orleans, Louisiana 70130–3396, instruction specifically sections 2.B.4.g. immediately. The display of an orange telephone number (504) 589–2965. and 2.B.5., this rule has been distress smoke signal from a patrol environmentally assessed (EA vessel will be the signal for any and all SUPPLEMENTARY INFORMATION: completed), and the Coast Guard has vessels to stop immediately. Background and Purpose concluded that it will not significantly (c) Effective Date. These regulations affect the quality of the human are effective annually on the second The L&N Railroad/Old Gentilly Road environment. The Coast Guard has Saturday of December, from 6:30 p.m. bascule span drawbridge across the consulted with the U.S. Fish and until 9 p.m. est. Inner Harbor Navigation Canal, mile 3.4 Wildlife Service and the Florida Dated: November 15, 1996. in New Orleans, has a vertical clearance Department of Environmental Protection J.D. Hull, of one foot above high tide in the closed regarding the environmental impact of to navigation position and unlimited this event, and it was determined that Captain, U.S. Coast Guard, Acting Commander, Seventh Coast Guard District. clearance in the open to navigation the event does not jeopardize the [FR Doc. 96–31092 Filed 12–9–96; 8:45 am] position. Navigation on the waterway continued existence of protected, consists of tugs with tows, including BILLING CODE 4910±14±M threatened, or endangered species. The crane barges, jack-up boats, oil industry Coast Guard will consult U.S. Fish and crew vessels, fishing vessels, sailing Wildlife Service and the Florida 33 CFR PART 117 vessels, and other recreational craft. The Department of Environmental Protection Port of New Orleans requested a on a yearly basis regarding the possible [CGD08±96±054] temporary deviation from the normal effects of this event on the environment. RIN 2115±AE47 operation of the bridge so that the main An environmental assessment and a bascule span trunion pins could be finding of no significant impact have Drawbridge Operation Regulation; removed and replaced. The procedure been prepared and are available in the Inner Harbor Navigation Canal, LA requires that the draw span remain in docket for inspection and copying. the closed position for up to six AGENCY: Coast Guard, DOT. List of Subjects in 33 CFR Part 100 consecutive hours per day between the ACTION: Notice of temporary deviation hours of 6 a.m. and 4 p.m. for 14 Marine safety, Navigation (water), from regulations. Reporting and recordkeeping consecutive days while jacks are requirements, Waterways. SUMMARY: Notice is hereby given that constructed which support the span the Commander, Eighth Coast Guard when the trunion pins are removed. The Final Regulations District has issued a temporary span must remain continuously closed For reasons set out in the preamble, deviation from the regulation in 33 CFR to navigation for 4.5 consecutive days the Coast Guard amends Part 100 of 117.5 governing the operation of the while the trunion pins are removed and Title 33, Code of Federal Regulations, as L&N Railroad/Old Gentilly Road bascule replaced. follows: span drawbridge across the Inner Harbor Following the trunion pin 1. The authority citation for Part 100 Navigation Canal, mile 3.4 in New replacements, the draw span must continues to read as follows: Orleans, Orleans Parish, Louisiana. This remain in the closed to navigation deviation requires that the draw open position for up to six consecutive hours PART 100Ð[AMENDED] on signal, except that between the hours per day between the hours of 6 a.m. and Authority: 33 U.S.C. 1233, 49 CFR 1.46 and of 6 a.m. and 4 p.m. daily from 4 p.m. for 3 consecutive days while 33 CFR 100.35. December 8, 1996 through December 21, jacks are removed. The old trunion pins 2. A new section 100.723 is added to 1996, the draw need not open for the are badly worn and must be replaced. read as follows: passage of vessels for a maximum Therefore, this maintenance operation is period of up to six hours. The draw essential for continued operation of the § 100.723 Annual Holiday Boat Parade of need not open for the passage of vessels draw span. This deviation to 33 CFR the Palm Beaches; Palm Beach, FL. for a continuous closure from 12:01 a.m. 117.5 is effective from 12:01 a.m. (a) Regulated Area. A regulated area is on December 22, 1996 through 12 noon December 8, 1996 through 4 p.m. on established to include the Port of Palm on December 26, 1996, a total of 108 December 29, 1996. 64996 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

Dated: November 27, 1996. to the regulations in 33 CFR of a regulatory flexibility analysis for T.W. Josiah, 334.460(a)(12), to correct a coordinate any regulation that will have a Rear Admiral, U.S. Coast Guard, Commander, which establishes a boundary of a significant economic impact on a Eighth Coast Guard District. danger zone in Foster Creek. The substantial number of small entities [FR Doc. 96–31093 Filed 12–9–96; 8:45 am] coordinate which presently reads (i.e., small businesses and small BILLING CODE 4910±14±M ‘‘Latitude 31°59′16′′ N’’ is corrected to governments). The Corps expects that read ‘‘32°59′16′′ N’’. The Navy also the economic impact of the changes to requested that a new danger zone be the danger zones would have practically DEPARTMENT OF DEFENSE established in an unnamed tributary and no impact on the public, no anticipated associated marsh of Back River and navigational hazard or interference with Department of the Army Corps of Foster Creek to prohibit public entry existing waterway traffic and Engineers into the new area ((a)(13)), and to also accordingly, certifies that this proposal prohibit entry into the existing danger will have no significant economic 33 CFR Part 334 zone (a)(12). The purpose of the danger impact on small entities. zone is to protect the public from the Cooper River and Tributaries, dangers associated with a small arms c. Review Under the National Charleston, SC, Danger Zones and firing range nearby and the potential for Environmental Policy Act Restricted Areas an errant round to impact into the An environmental assessment has AGENCY: U.S. Army Corps of Engineers, water. It is not the intent of the Navy to been prepared for this action. We have use the waters of the danger zone as an DoD. concluded, based on the minor nature of impact area for the range. The Navy will ACTION: Final rule. the additional danger zone and other erect post-mounted signs at intervals editorial changes that these SUMMARY: The Corps is amending the across the marsh to identify the area as amendments to danger zones and regulations which establish several a danger zone. It is believed that closure restricted areas will not have a danger zones and restricted areas in the of the water area for the new danger significant impact to the human waters of the Cooper River and its zone will have minimal impact or no environment, and preparation of an tributaries in the vicinity of Charleston, impact on the public’s use of the area environmental impact statement is not South Carolina by establishing a new which is described as a marsh area not required. The environmental assessment danger zone for a small arms range at navigable by conventional watercraft may be reviewed at the District Office the Naval Weapons Station. The small nor frequented by fishermen. We are arms firing range is to be used for also making an editorial change to listed at the end of FOR FURTHER training by the U.S. Border Patrol clarify that these restricted area and INFORMATION CONTACT, above. Training Academy. The Corps is also danger zone regulations apply to d. Unfunded Mandates Act correcting a coordinate that defines the personnel as well as vessels. Other boundaries of an existing danger zone minor changes to the regulations are This rule does not impose an and making minor editorial editorial in nature and since the enforceable duty among the private amendments to the regulations to clarify revisions do not change the boundaries sector and therefore, is not a Federal that persons, as well as vessels, are not or increase the restrictions on the private sector mandate and is not allowed within the danger zones and public’s use or entry into the designated subject to the requirements of Section restricted areas. This clarification does areas, the changes will have practically 202 or 205 of the Unfunded Mandates not affect the size, location or further no effect on the public. The Corps Act. We have also found under Section restrict the public’s use of the areas. The published the amendments contained 203 of the Act, that small governments danger zones and restricted areas herein in the Notice of Proposed will not be significantly and uniquely continue to be essential to the safety and Rulemaking section of the Federal affected by this rulemaking. security of Government facilities, Register on September 12, 1996 with the e. Submission to Congress and the GAO vessels and personnel and protect the comment period ending on October 15, public from the hazards associated with 1996 (61 FR 48112–48113). The Corps Pursuant to Section 801(a)(1)(A) of the the operations at the Government Charleston District Engineer Administrative Procedure Act as facilities. concurrently solicited public comment amended by the Small Business DATES: Effective on January 9, 1997. on the proposed changes to the danger Regulatory Enforcement Fairness Act of ADDRESSES: HQUSACE, CECW–OR, zone rules by distribution of a public 1996, the Army has submitted a report Washington, D.C. 20314–1000. notice to all known interested parties. containing this rule to the U.S. Senate, FOR FURTHER INFORMATION CONTACT: We received no comments in response House of Representatives and the Mr. Ralph Eppard, Regulatory Branch, to the notice of proposed rulemaking or Comptroller General of the General CECW–OR at (202) 761–1783, or Ms. the District public notice. Accounting Office prior to the effective Tina Hadden of the Charleston District Procedural Requirements date of this rule in the Federal Register. at (803) 727–4607. This rule is not a major rule within the SUPPLEMENTARY INFORMATION: Pursuant a. Review Under Executive Order 12866 meaning of Section 804(2) of the to its authorities in Section 7 of the This rule is issued with respect to a Administrative Procedure Act, as Rivers and Harbors Act of 1917 (40 Stat. military function of the Defense amended. 266; 33 U.S.C. 1) and Chapter XIX of the Department and the provisions of Army Appropriations Act of 1919 (40 Executive Order 12866 do not apply. List of Subjects in 33 CFR Part 334 Stat. 892; 33 U.S.C. 3), the Corps is b. Review Under the Regulatory Danger zones, Marine Safety, amending the regulations in 33 CFR Part Waterways. 334.460. Flexibility Act The Commanding Officer, Naval These rules have been reviewed under For the reasons set out in the Weapons Station Charleston, South the Regulatory Flexibility Act (Pub. L. preamble, we are amending 33 CFR Part Carolina, has requested an amendment 96–354), which requires the preparation 334, as follows: Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64997

PART 334ÐDANGER ZONE AND (a)(1), (a)(2), and (a)(4) of this section at Station Charleston, SC, and such RESTRICTED AREA REGULATIONS any time. agencies as he/she may designate. (2) Personnel, vessels and other * * * * * 1. The authority citation for Part 334 watercraft entering the restricted area (11) The unauthorized entering or continues to read as follows: described in paragraph (a)(5) of this crossing of the danger zones described Authority: 40 Stat. 266 (33 U.S.C. 1) and section, shall proceed at normal speed in paragraphs (a)(12) and (a)(13) of this 40 Stat. 892 (33 U.S.C. 3). and under no circumstances anchor, section by all persons, watercraft and 2. Section 334.460 is amended by fish, loiter, or photograph until clear of vessels is prohibited at all times unless revising paragraphs (a)(12), (b)(1), (2), the restricted area. specifically authorized by the (3), (4), (5), (6), (7), (9) and (11), and (3) Personnel, vessels and other Commanding Officer of the U.S. Naval adding a new paragraph (a)(13), to read watercraft may be restricted from using Weapons Station Charleston, SC. any or all of the area described in as follows: Dated: December 2, 1996. paragraphs (a)(3) and (a)(6) of this § 334.460 Cooper River and tributaries at section without first obtaining an escort Russell L. Fuhrman, Charleston, SC or other approval from Commander, Major General, U.S. Army, Director of Civil Works. (a) * * * Naval Base, Charleston, when deemed (12) Danger zone. That portion of necessary and appropriately noticed by [FR Doc. 96–31142 Filed 12–9–96; 8:45 am] Foster Creek beginning at the point of him/her for security purposes or other BILLING CODE 3710±92±M the southern shoreline of an unnamed military operations. tributary of Foster Creek at its (4) Personnel, vessels and other intersection with Foster Creek at watercraft, other than those specifically GENERAL SERVICES latitude 32°59′16′′N, longitude authorized by Commanding Officer, ADMINISTRATION 79°57′23′′W; thence back proceeding U.S. Naval Weapons Station, along the eastern shoreline to the Charleston, SC, entering the restricted 41 CFR Part 301±1, 301±7, 301±8, 301± terminus of the tributary at latitude area described in paragraph (a)(8) of this 11, and 301±17 32°59′49′′N, longitude 79°57′29′′W; section shall proceed at normal speed, [FTR Amdt. 53] thence back down the western shoreline and under no circumstances anchor, RIN 3090±AG24 of the unnamed tributary to latitude fish, loiter, or photograph in any way 32°59′15′′N, longitude 79°57′26′′W. The until clear of the restricted area. Federal Travel Regulation; Repeal of waters and associated marshes in this (5) Personnel, vessels and other the ``Approved Accommodations'' Data danger zone area are subject to impact watercraft, other than those specifically Collection and Employee Reporting by rounds and ricochets originating authorized by Commanding Officer, Requirement from a small arms range when firing is U.S. Naval Weapons Station, AGENCY: in progress. Charleston, SC, entering the areas Office of Governmentwide Policy, GSA. (13) Danger zone. Those portions of described in paragraphs (a)(9) and unnamed tributaries and associated (a)(10) of this section are prohibited ACTION: Final rule. marshes of Back River and Foster Creek from entering within one-hundred (100) SUMMARY: This final rule amends the that are generally described as lying yards of the west bank of the Cooper Federal Travel Regulation (FTR) to south of the main shoreline and River, in those portions devoid of any eliminate the ‘‘approved extending southward to the northern vessels or manmade structures. In those accommodations’’ data collection and shoreline of Big Island (U.S. Naval areas where vessels or man-made reporting requirement. This rule Reservation). Specifically, the area structures are present, the restricted area implements section 1614 of the National beginning at a point on the main will be 100 yards from the shoreline or Defense Authorization Act for Fiscal shoreline which is the northern shore of 50 yards beyond those vessels or other Year 1997 (Pub. L. No. 104–201, an unnamed tributary of Back River at man-made structures, whichever is the September 23, 1996). The rule is latitude 32°59′19′′N, longitude greater. This includes the area in intended to reduce travel management 79°56′52′′W, southwesterly to a point on paragraph (a)(10) of this section. costs by removing an unnecessary or near the northern shoreline of Big (6) In the interest of National Security, employee reporting requirement. Island at latitude 32°59′11′′N, longitude Commanding Officer, U.S. Naval 79°56′59′′W; thence northwesterly to a Weapons Station, Charleston, SC, may DATES: This final rule is effective point on the main shoreline, which is at his/her discretion, restrict passage of September 23, 1996, and applies for the northern shore of an unnamed persons, watercraft and vessels in the travel (including travel incident to a tributary of Foster Creek, at latitude areas described in paragraphs (a)(7) and change of official station) performed on 32°59′16′′N, longitude 79°57′11′′W; (a)(11) of this section until such time as or after September 23, 1996. thence easterly along the main he/she determines such restriction may FOR FURTHER INFORMATION CONTACT: shoreline, which is the northern shore be terminated. Robert A. Clauson, Travel and of the unnamed tributaries of Foster (7) All restricted areas and all danger Transportation Management Policy Creek and Back River, back to the point zones and the approaches leading to the Division (MTT), Washington, DC 20405, of beginning at latitude 32°59′19′′N danger zones will be marked with telephone 202–501–0299. longitude 79°56′52′′W. The waters and suitable warning signs. SUPPLEMENTARY INFORMATION: Section associated marshes in this danger zone * * * * * 1614 of the National Defense area are subject to impact by rounds and (9) The regulations in this section for Authorization Act for Fiscal Year 1997 ricochets originating from a small arms the danger zones described in (‘‘the Act’’) (Pub. L. 104–201, September range when firing is in progress. paragraphs (a)(12) and (a)(13) of this 23, 1996) repealed the ‘‘approved (b) * * * section and the regulations described in accommodations’’ data collection and (1) Unauthorized personnel, vessels paragraphs (b) (4), (5) and (6) of this employee reporting requirement and other watercraft shall not enter the section, shall be enforced by the imposed by the Hotel and Motel Fire restricted areas described in paragraphs Commanding Officer, Naval Weapons Safety Act of 1990 (Pub. L. 101–391, 64998 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

September 25, 1990). The Act did not, 6. Section 301–7.2 is amended by OFFICE OF PERSONNEL however, repeal the Hotel and Motel removing the second sentence of MANAGEMENT Fire Safety Act provisions that paragraph (a)(4), and by revising encourage agencies to promote the use paragraph (b)(2) to read as follows: 45 CFR Part 801 of ‘‘approved accommodations’’ or RIN 3206±AH69 require, with limited exception, the use § 301±7.2 Employee and agency of ‘‘approved accommodations’’ for responsibilities. Voting Rights Program conferences. Agencies, therefore, should * * * * * AGENCY: Office of Personnel continue to effectuate policies (b) * * * encouraging employees to use Management. ‘‘approved accommodations.’’ (2) Fire safety responsibilities. Each ACTION: Final rule with request for The General Services Administration agency, as defined in § 301–17.2(a) of comments. (GSA) has determined that this rule is this chapter, is responsible for not a significant regulatory action for influencing its employees who require SUMMARY: Pursuant to a request from the the purposes of Executive Order 12866 commercial lodging when performing Attorney General, received by the Office of September 30, 1993. This final rule is official travel to stay at an approved of Personnel Management (OPM) on not required to be published in the accommodation as defined in § 301– December 5, 1996, OPM is establishing Federal Register for notice and 17.2(c) of this chapter. two new offices for filing applications or comment. Therefore, the Regulatory complaints under the Voting Rights Act Flexibility Act does not apply. This rule PART 301±8ÐREIMBURSEMENT OF of 1965, as amended. The Attorney also is exempt from Congressional ACTUAL SUBSISTENCE EXPENSES General has determined that this review prescribed under 5 U.S.C. 801 designation is necessary to enforce the since it relates solely to agency 7. The authority citation for part 301– voting guarantees of the Fourteenth and management and personnel. 8 continues to read as follows: Fifteenth amendments to the Constitution. This amendment List of Subjects in 41 CFR Parts 301–1, Authority: 5 U.S.C. 5707. establishes Jefferson County and 301–7, 301–8, 301–11, and 301–17 § 301±8.5 [Amended] Galveston County, Texas, as new offices Government employees, Travel, for filing applications or complaints of Travel allowances, Travel and 8. Section 301–8.5 is amended by complaints. transportation expenses. removing the second sentence of DATES: This rule is effective December 9, For the reasons set out in the paragraph (a)(4). 1996. In view of the need for its preamble, 41 CFR parts 301–1, 301–7, publication without an opportunity for 301–8, 301–11, and 301–17 are PART 301±11ÐCLAIMS FOR prior comment, comments will still be amended to read as follows: REIMBURSEMENT considered. To be timely, comments must be received on or before January 9, PART 301±1ÐAPPLICABILITY AND 9. The authority citation for part 301– 1997. GENERAL RULES 11 continues to read as follows: ADDRESSES: Send or deliver comments 1. The authority citation for part 301– Authority: 5 U.S.C. 5707. to Barbara Matthews-Beck, Attorney, 1 is revised to read as follows: Office of Personnel Management, Room § 301±11.2 [Amended] Authority: 5 U.S.C. 5707; 31 U.S.C. 1353; 7F10, 1900 E Street NW., Washington, and 40 U.S.C. 486(c). 10. Section 301–11.2 is amended by DC 20415. removing and reserving paragraph (b). FOR FURTHER INFORMATION CONTACT: Subpart BÐOfficial Government Barbara Matthews-Beck, (202) 606– Business Travel PART 301±17ÐAGENCY TRAVEL 1700. DATA REQUIREMENTS § 301±1.101 [Amended] SUPPLEMENTARY INFORMATION: The 2. Section 301–1.101 is amended by Attorney General has designated 11. The authority citation for part Jefferson County and Galveston County removing the third and fourth sentences 301–17 is revised to read as follows: of paragraph (b)(4). as additional examination points under Authority: 5 U.S.C. 5707. the provisions of the Voting Rights Act Subpart CÐPre-Employment Interview of 1965, as amended. She determined on Travel § 301±17.2 [Amended] December 5, 1996, that this designation is necessary to enforce the guarantees of § 301±1.202 [Amended] 12. Section 301–17.2 is amended by removing paragraph (d), and by the Fourteenth and Fifteenth 3. Section 301–1.202 is amended by amendments to the Constitution. removing the second and third redesignating paragraphs (e) and (f) as paragraphs (d) and (e), respectively. Accordingly, pursuant to section 6 of sentences of paragraph (a)(5), and by the Voting Rights Act of 1965, as removing the fourth and fifth sentences § 301±17.3 and 301±17.4 [Removed] amended, 42 U.S.C. 1973d, OPM will of paragraph (b)(6). appoint Federal Examiners to review the 13. Sections 301–17.3 and 301–17.4 § 301±1.205 [Amended] qualifications of applicants to be are removed. registered to vote and Federal observers 4. Section 301–1.205 is amended by David J. Barram, removing paragraph (e). to observe local elections. Acting Administrator of General Services. Under section 553(b)(3)(B) of title 5 of PART 301±7ÐPER DIEM [FR Doc. 96–31313 Filed 12–9–96; 8:45 am] the United States Code, the Director ALLOWANCES BILLING CODE 6820±34±P finds that good cause exists for waiving the general notice of proposed 5. The authority citation for part 301– rulemaking. The notice is being waived 7 continues to read as follows: because of OPM’s legal responsibilities Authority: 5 U.S.C. 5707. under 42 U.S.C. 1973e(a) and other parts Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 64999 of the Voting Rights Act of 1965, as FEDERAL COMMUNICATIONS § 73.202 [Amended] amended, which require OPM to COMMISSION 2. Section 73.202(b), the Table of FM publish counties certified by the U.S. Allotments under Arkansas, is amended Attorney General and locations within 47 CFR Part 73 by adding Channel 287C3 at Mena. these counties where citizens can be Federal Communications Commission federally listed and become eligible to [MM Docket No. 96±135; RM±8825] John A. Karousos, vote, and where Federal observers can be sent to observe local elections. Radio Broadcasting Services; Mena, Chief, Allocations Branch, Policy and Rules Under section 553(d)(3) of title 5 of AR Division, Mass Media Bureau. the United States Code, the Director [FR Doc. 96–31328 Filed 12–9–96; 8:45 am] finds that good cause exists to make this AGENCY: Federal Communications BILLING CODE 6712±01±P amendment effective in less than 30 Commission. days. The regulation is being made ACTION: Final rule. effective immediately in view of the DEPARTMENT OF COMMERCE pending election to be held in the SUMMARY: This document allots Channel National Oceanic and Atmospheric subject counties, where Federal 287C3 to Mena, Arkansas, as that Administration observers will observe the election community’s third local FM under the authority of the Voting Rights transmission service, in response to a 50 CFR Part 648 Act of 1965, as amended. petition filed by Wendell Harlan. See 61 [Docket No. 951116270±5308±02; I.D. Regulatory Flexibility Act FR 34406, July 2, 1996. Coordinates used for Channel 287C3 at Mena, 100296I] I certify that this regulation will not Arkansas, are North Latitude 34–38–46 Fisheries of the Northeastern United have a significant economic impact on and West Longitude 94–16–53. With States; Summer Flounder Fishery; a substantial number of small entities this action, the proceeding is Adjustments to the 1996 North because it adds two new locations to the terminated. list of counties in the regulations Carolina State Quota DATES: Effective January 21, 1997. The concerning OPM’s responsibilities AGENCY: National Marine Fisheries under the Voting Rights Act. window period for filing applications for Channel 287C3 at Mena, Arkansas, Service (NMFS), National Oceanic and List of Subjects in 45 CFR Part 801 will open on January 21, 1997, and close Atmospheric Administration (NOAA), Commerce. Administrative practice and on February 21, 1997. ACTION: Commercial quota adjustment. procedure, Voting Rights. FOR FURTHER INFORMATION CONTACT: U.S. Office of Personnel Management. Nancy Joyner, Mass Media Bureau, (202) SUMMARY: NMFS announces an Lorraine A. Green, 418–2180. Questions related to the adjustment to the commercial quota for Deputy Director. window application filing process for the North Carolina 1996 summer Channel 287C3 at Mena, Arkansas, Accordingly, OPM is amending 45 flounder fishery. This action complies should be addressed to the Audio CFR Part 801 as follows: with regulations implementing the Services Division, (202) 418–2700. Fishery Management Plan for the PART 801ÐVOTING RIGHTS SUPPLEMENTARY INFORMATION: This is a Summer Flounder Fishery (FMP), which PROGRAM synopsis of the Commission’s Report require that annual quota overages and Order, MM Docket No. 96–135, landed in any state be deducted from 1. The authority citation for Part 801 that state’s quota for the following year. continues to read as follows: adopted November 1, 1996, and released November 8, 1996. The full text of this The public is advised that a quota Authority: 5 U.S.C. 1103; secs. 7, 9, 79 Stat. Commission decision is available for adjustment has been made and is 440, 411 (42 U.S.C. 1973e, 1973g). inspection and copying during normal informed of the revised quota for the 2. Appendix A to Part 801 is amended business hours in the FCC’s Reference State of North Carolina. by adding alphabetically Galveston and Center (Room 239), 1919 M Street, NW, EFFECTIVE DATE: December 5, 1996, Jefferson Counties of Texas to read as Washington, D.C. The complete text of through December 31, 1996. follows: this decision may also be purchased FOR FURTHER INFORMATION CONTACT: from the Commission’s copy Lucy Helvenston, 508–281–9347. Appendix A to Part 801 contractors, International Transcription SUPPLEMENTARY INFORMATION: * * * * * Service, Inc., (202) 857–3800, located at Regulations implementing Amendment 1919 M Street, N.W., Room 246, or 2100 Dates, Times, and Places for Filing 2 to the FMP are found at 50 CFR part M Street, N.W., Suite 140, Washington, * * * * * 648 subparts A and G. The regulations D.C. 20037. require annual specification of a Texas List of Subjects in 47 CFR Part 73 commercial quota that is apportioned County; Place for filing; Beginning date among the Atlantic coastal states from * * * * * Radio broadcasting. North Carolina through Maine. The Galveston; 5914 Seawall Boulevard, Part 73 of title 47 of the Code of process to set the annual commercial Galveston, Texas 77551, (409) 740–1261; Federal Regulations is amended as quota and the percentage allocated to December 9, 1996. follows: each state are described in § 648.100. * * * * * The commercial summer flounder quota Jefferson; 1610 I–10 South, Beaumont, PART 73Ð[AMENDED] for the 1996 calendar year, adopted to Texas 77707, (409) 842–0037; December 9, ensure achievement of the appropriate 1996. 1. The authority citation for Part 73 fishing mortality rate of 0.41 for 1996, * * * * * continues to read as follows: was set to equal 11,111,298 lb (5.0 [FR Doc. 96–31492 Filed 12–9–96; 8:45 am] Authority: Secs. 303, 48 Stat., as amended, million kg) (January 4, 1996, 61 FR 291). BILLING CODE 6325±01±M 1082; 47 U.S.C. 154, as amended. The notification of a commercial quota 65000 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations transfer from North Carolina to Virginia time, available data indicated that North Carolina quota allocation from was published on March 13, 1996 (61 Carolina had landings for 1995 that 3,043,816 lb (1,380,652 kg) to 2,451,068 FR 10286). This quota transfer is were actually 6,727 lb (3,051 kg) less lb (1,111,786 kg). Therefore, any overage reflected in Table 1. than its 1995 quota. Since that in North Carolina’s 1996 commercial Section 648.100(d)(2) provides that all notification was published, additional fishery will be calculated by deducting landings for sale in a state shall be landings of 599,475 lb (271,917 kg) have the total landings in 1996 from the applied against that state’s annual been reported for 1995 for North adjusted quota of 2,451,068 lb commercial quota. Any landings in Carolina, meaning that North Carolina (1,111,786 kg). This action does not excess of the state’s quota will be now has an overage for 1995 of 592,748 affect a notification concerning the deducted from that state’s annual quota lb (268,866 kg) (equals 599.475 lb less commercial quota harvest that for the following year. Based on dealer 6,727 lb). These landings data for North prohibited further landing of summer reports and other available information, Carolina which were just recently flounder by federally permitted vessels NMFS published final landings for 1995 obtained by NMFS, necessitate and associated quota adjustments on publication of an adjustment. This in North Carolina made effective March April 5, 1996 (61 FR 15199). At that adjustment reduces the 1996 North 15, 1996 (61 FR 11344).

TABLE 1.ÐADJUSTED 1996 COMMERCIAL QUOTA FOR THE SUMMER FLOUNDER FISHERY

1995 Quota 1995 Landings 1995 Overage Initial 1996 quota Adjusted 1996 quota (lb) (lb) (lb) (lb) (lb) (kg)

ME ...... 6,987 5,318 0 5,284 5,284 2,397 NH ...... 67 0 0 51 51 23 MA ...... 1,122,246 1,127,995 5,749 757,841 752,092 341,143 RI ...... 2,243,224 2,365,465 122,241 1,742,583 1,620,342 734,975 CT ...... 331,574 306,404 0 250,791 250,791 113,757 NY ...... 1,243,374 1,248,078 4,704 849,680 844,976 383,275 NJ ...... 2,306,198 2,298,303 0 1,858,363 1,858,363 842,939 DE ...... 2,614 3,072 458 1,977 1,519 689 MD ...... 199,551 136,167 0 226,570 226,570 102,770 VA ...... 3,182,177 3,355,838 173,661 2,374,342 2,200,681 998,212 NC ...... 3,974,018 4,566,766 592,748 3,043,816 2,451,068 1,111,786

Classification This action is required by 50 CFR part 648 and is exempt from review under E.O. 12866. Authority: 16 U.S.C. 1801 et seq. Dated: December 5, 1996. Gary C. Matlock, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. 96–31352 Filed 12–5–96; 3:05 pm] BILLING CODE 3510±22±W 65001

Proposed Rules Federal Register Vol. 61, No. 238

Tuesday, December 10, 1996

This section of the FEDERAL REGISTER Sailplanes, Small Airplane Directorate, not corrected, could cause loss of contains notices to the public of the proposed Aircraft Certification Service, FAA, control of the sailplane. issuance of rules and regulations. The 1201 Walnut, suite 900, Kansas City, Grob has issued Service Bulletin (SB) purpose of these notices is to give interested Missouri, 64106; telephone (816) 426– TM 306–33, dated September 15, 1994, persons an opportunity to participate in the 6934; facsimile (816) 426–2169. and Grob Installation Instructions No. rule making prior to the adoption of the final 306–30/1, dated October 11, 1994, rules. SUPPLEMENTARY INFORMATION: which specifies inspecting for cracks in Comments Invited the elevator control lever and replacing DEPARTMENT OF TRANSPORTATION Interested persons are invited to any cracked elevator control lever, prior participate in the making of the to further flight, or replacing the elevator control lever prior to a certain Federal Aviation Administration proposed rule by submitting such date. written data, views, or arguments as 14 CFR Part 39 The LBA classified these service they may desire. Communications bulletins as mandatory and issued AD [Docket No. 95±CE±95±AD] should identify the Rules Docket 94–317/2 Grob, date of issue: April 21, RIN 2120±AA64 number and be submitted in triplicate to 1995, in order to assure the continued the address specified above. All airworthiness of these airplanes in Airworthiness Directives; Burkhart communications received on or before Germany. Grob, Luft-und Raumfahrt, GmbH. the closing date for comments, specified Model G102 Astir CS Sailplanes above, will be considered before taking Proposed Compliance Time action on the proposed rule. The The FAA has reviewed the AGENCY: Federal Aviation proposals contained in this notice may compliance times recommended by the Administration, DOT. be changed in light of the comments manufacturer in the Grob SB 306–33, ACTION: Notice of proposed rulemaking received. and by the LBA AD and has determined (NPRM). Comments are specifically invited on that one compliance time for all the overall regulatory, economic, SUMMARY: This document proposes to operators is more equitable and would environmental, and energy aspects of adopt a new airworthiness directive not present any undue burden on any of the proposed rule. All comments (AD) that would apply to the Burkhart the owner/operators of any U.S. submitted will be available, both before Grob, Luft-und Raumfahrt, GmbH. registered sailplanes. Therefore, the and after the closing date for comments, (Grob) Model G102 Astir CS sailplanes. compliance time stated in the body of in the Rules Docket for examination by The proposed action would require the proposed AD would take precedence interested persons. A report that replacing the elevator control lever. This over the compliance time recommended summarizes each FAA-public contact proposed action is prompted by the by the manufacturer and the foreign concerned with the substance of this discovery of cracks in the elevator airworthiness authority for Germany. proposal will be filed in the Rules control lever during a routine inspection Docket. Explanation of the Provisions of This of a Grob Model G102 Astir CS Commenters wishing the FAA to AD sailplane. The action specified by the acknowledge receipt of their comments This sailplane model is manufactured proposed AD is intended to prevent submitted in response to this notice in Germany and is type certificated for failure of the elevator control lever, must submit a self-addressed, stamped operation in the United States under the which could result in loss of control of postcard on which the following provisions of section 21.29 of the the sailplane. statement is made: ‘‘Comments to Federal Aviation Regulations (14 CFR DATES: Comments must be received on Docket No. 95–CE–95–AD.’’ The 21.29) and the applicable bilateral or before February 12, 1997. postcard will be date stamped and airworthiness agreement. Pursuant to ADDRESSES: Submit comments in returned to the commenter. this bilateral airworthiness agreement, triplicate to the Federal Aviation the LBA has kept the FAA informed of Administration (FAA), Central Region, Availability of NPRMs the situation described above. The FAA Office of the Assistant Chief Counsel, Any person may obtain a copy of this has examined the findings of the LBA, Attention: Rules Docket No. 95–CE–95– NPRM by submitting a request to the reviewed all available information, and AD, Room 1558, 601 E. 12th Street, FAA, Central Region, Office of the determined that AD action is necessary Kansas City, Missouri 64106. Comments Assistant Chief Counsel, Attention: for products of this type design that are may be inspected at this location Rules Docket No. 95–CE–95–AD, Room certificated for operation in the United between 8 a.m. and 4 p.m., Monday 1558, 601 E. 12th Street, Kansas City, States. The FAA has also determined through Friday, holidays excepted. Missouri 64106. that it is more beneficial and less Service information that applies to the cumbersome to the owners/operators to proposed AD may be obtained from Events Leading to the Proposed Action require a replacement of the elevator Grob Luft-und Raumfahrt, GmbH, The Luftfahrt-Bundesamt (LBA), control lever within the next 20 hours Postfach 1257, D–87712, Mindelheim, which is the airworthiness authority for time-in-service, instead of requiring an Germany. This information also may be Germany, recently notified the FAA that initial inspection for cracks and if examined at the Rules Docket at the an unsafe condition may exist on certain cracks are found, replacing the part address above. Grob Model Astir CS sailplanes. The prior to further flight, and then if no FOR FURTHER INFORMATION CONTACT: Mr. LBA reports that cracks have been found cracks are found, replacing the part J. Mike Kiesov, Project Officer, in the elevator control lever, which if prior to a certain date, as required by the 65002 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules

LBA and the manufacturer. The one location provided under the caption (b) Special flight permits may be issued in time replacement is more time and labor ADDRESSES. accordance with sections 21.197 and 21.199 efficient. of the Federal Aviation Regulations (14 CFR Since an unsafe condition has been List of Subjects in 14 CFR Part 39 21.197 and 21.199) to operate the sailplane identified that is likely to exist or Air transportation, Aircraft, Aviation to a location where the requirements of this safety, Safety. AD can be accomplished. develop in other Grob G102 Astir CS (c) An alternative method of compliance or sailplanes of the same type design, the The Proposed Amendment adjustment of the compliance time that proposed AD would require replacing provides an equivalent level of safety may be the elevator control lever, part number Accordingly, pursuant to the approved by the Manager, Small Airplane (P/N) 102–3542 with an improved authority delegated to me by the Directorate, FAA, 1201 Walnut, suite 900, elevator control lever, P/N 102–3543. Administrator, the Federal Aviation Kansas City, Missouri, 64106. The request Administration proposes to amend part shall be forwarded through an appropriate Related Service Information 39 of the Federal Aviation Regulations FAA Maintenance Inspector, who may add Accomplishment of the proposed (14 CFR part 39) as follows: comments and then send it to the Manager, action would be in accordance with Small Airplane Directorate, FAA, 1201 PART 39ÐAIRWORTHINESS Walnut, suite 900, Kansas City, Missouri, Grob SB TM 306–33, dated September 64106. 15, 1994 and Grob Installation DIRECTIVES Note 3: Information concerning the Instructions No. 306–30/1, dated 1. The authority citation for part 39 existence of approved alternative methods of October 11, 1994. continues to read as follows: compliance with this AD, if any, may be Cost Impact Authority: 49 U.S.C. 106(g), 40113, 44701. obtained from the Small Airplane Directorate. The FAA estimates that 53 sailplanes § 39.13 [Amended] (d) All persons affected by this directive in the U.S. registry would be affected by 2. Section 39.13 is amended by may obtain copies of the document referred the proposed AD, that it would take adding a new AD to read as follows: to herein upon request Grob Luft-und approximately 12 hours per sailplane to Raumfahrt, GmbH, Postfach 1257, D–87712, accomplish the proposed action, and Burkhart Grob Luft-Und Raumfahrt, GMBH: Mindelheim, Germany or may examine this Docket No. 95–CE–95–AD. that the average labor rate is document at the FAA, Central Region, Office approximately $60 an hour. Parts cost Applicability: Model G102 Astir CS of the Assistant Chief Counsel, Room 1558, sailplanes (serial numbers 1001 through 601 E. 12th Street, Kansas City, Missouri approximately $180 per sailplane. Based 1536), certificated in any category. on these figures, the total cost impact of 64106. Note 1: This AD applies to each sailplane the proposed AD on U.S. operators is Issued in Kansas City, Missouri, on identified in the preceding applicability December 2, 1996. estimated to be $47,700. provision, regardless of whether it has been Michael Gallagher, Grob has informed the FAA that no modified, altered, or repaired in the area parts have been distributed to equip any subject to the requirements of this AD. For Manager, Small Airplane Directorate, Aircraft sailplane in the United States. The FAA sailplanes that have been modified, altered, Certification Service. has no way of determining how many or repaired so that the performance of the [FR Doc. 96–31265 Filed 12–9–96; 8:45 am] owners/operators may have requirements of this AD is affected, the BILLING CODE 4910±13±U incorporated the proposed actions on owner/operator must use the authority provided in paragraph (c) of this AD to their sailplane. request approval from the FAA. This 14 CFR Part 39 Regulatory Impact approval may address either no action, if the current configuration eliminates the unsafe [Docket No. 95±CE±98±AD] The regulations proposed herein condition, or different actions necessary to would not have substantial direct effects address the unsafe condition described in RIN 2120±AA64 on the States, on the relationship this AD. Such a request should include an between the national government and assessment of the effect of the changed Airworthiness Directives; Aerospace the States, on the distribution of power configuration on the unsafe condition Technologies of Australia Pty Ltd. addressed by this AD. In no case does the (Formerly Government Aircraft and responsibilities among the various presence of any modification, alteration, or levels of government. Therefore, in Factory) Models N22B, N22S, and repair remove any aircraft from the N24A Airplanes accordance with Executive Order 12612, applicability of this AD. it is determined that this proposal Compliance: Required within the next 20 AGENCY: Federal Aviation would not have sufficient federalism hours time-in-service after the effective date Administration, DOT. of this AD, unless already accomplished. implications to warrant the preparation ACTION: Notice of proposed rulemaking To prevent failure of the elevator control of a Federalism Assessment. (NPRM). For the reasons discussed above, I lever, which could result in loss of control of the sailplane, accomplish the following: certify that this action (1) is not a SUMMARY: This document proposes to (a) Replace the elevator control lever, Grob ‘‘significant regulatory action’’ under part number (P/N) 102–3542, with an adopt a new airworthiness directive Executive Order 12866; (2) is not a elevator control lever of improved design (AD) that would apply to Aerospace ‘‘significant rule’’ under DOT (Grob P/N 102–3543) in accordance with the Technologies of Australia Pty Ltd. Regulatory Policies and Procedures (44 ‘‘Procedure’’ section of the Grob Installation (ASTA) Models N22B, N22S, and N24A FR 11034, February 26, 1979); and (3) if Instructions No. 306–30/1, dated October 11, airplanes. The proposed action would promulgated, will not have a significant 1994, which are referenced in the ‘‘Actions: require repetitively inspecting the stub economic impact, positive or negative, 2’’ section of Grob service bulletin (SB) TM wing upper front spar cap flanges for on a substantial number of small entities 306–33, dated September 15, 1994. cracks, and repairing any cracked part. under the criteria of the Regulatory Note 2: The instructions in this AD do not The proposed AD results from fatigue Flexibility Act. A copy of the draft reflect the instructions given in the Grob tests that show that the stub wing upper service bulletin or the LBA AD discussed in regulatory evaluation prepared for this the preamble of this AD; therefore, the front spar cap flanges could fail over action has been placed in the Rules instructions in the body of this AD take time because of fatigue. The actions Docket. A copy of it may be obtained by precedence over the Grob service bulletin specified by the proposed AD are contacting the Rules Docket at the and the LBA AD. intended to prevent structural failure of Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules 65003 the front spar caused by cracks in the postcard will be date stamped and United States, the proposed AD would stub wing upper front spar cap flanges, returned to the commenter. require repetitively inspecting the stub which could result in loss of control of wing upper front spar cap flanges for Availability of NPRMs the airplane. cracks, and repairing any cracked part. DATES: Comments must be received on Any person may obtain a copy of this Accomplishment of the proposed or before February 21, 1997. NPRM by submitting a request to the inspections would be in accordance ADDRESSES: Submit comments in FAA, Central Region, Office of the with Nomad SB NMD–53–6, dated triplicate to the Federal Aviation Assistant Chief Counsel, Attention: October 21, 1986. Accomplishment of Administration (FAA), Central Region, Rules Docket No. 95–CE–98–AD, Room any proposed repair, if necessary, would Office of the Assistant Chief Counsel, 1558, 601 E. 12th Street, Kansas City, be in accordance with a scheme Attention: Rules Docket No. 95–CE–98– Missouri 64106. obtained from the FAA, Los Angeles AD, Room 1558, 601 E. 12th Street, Discussion Aircraft Certification Office. Kansas City, Missouri 64106. Comments Cost Impact may be inspected at this location The Civil Aviation Safety Authority (CASA), which is the airworthiness between 8 a.m. and 4 p.m., Monday The FAA estimates that 15 airplanes through Friday, holidays excepted. authority for Australia, recently notified the FAA that an unsafe condition may in the U.S. registry would be affected by Service information that applies to the the proposed AD, that it would take proposed AD may be obtained from exist on certain ASTA Models N22B, N22S, and N24A airplanes. The CASA approximately 6 workhours per airplane Aerospace Technologies of Australia Pty to accomplish the proposed initial Ltd., ASTA DEFENCE, Private Bag No. reports that fatigue tests show that the stub wing upper front spar cap flanges inspection, and that the average labor 4, Beach Road Lara 3212, Victoria, rate is approximately $60 an hour. Australia. This information also may be could fail over time because of fatigue. These conditions, if not detected and Based on these figures, the total cost examined at the Rules Docket at the impact of the proposed AD on U.S. address above. corrected, could lead to structural failure of the front spar and subsequent operators is estimated to be $5,400 or FOR FURTHER INFORMATION CONTACT: Mr. loss of control of the airplane. $360 per airplane. This figure does not Ron Atmur, Aerospace Engineer, FAA, take into account the cost of repetitive Los Angeles Aircraft Certification Applicable Service Information inspections or the cost to repair any Office, 3960 Paramount Boulevard., Nomad Service Bulletin (SB) NMD– cracked stub wing upper front spar cap Lakewood, California 90712; telephone 53–6, dated October 21, 1986, includes flanges. The FAA has no way of (310) 627–5224; facsimile (310) 627– procedures for inspecting (using both determining the number of repetitive 5210. visual and eddy current methods) the inspections each operator would incur SUPPLEMENTARY INFORMATION: stub wing front spar cap flanges in the over the life of each affected airplane or area of Buttock Line (BL) 47.6 for fatigue the number of stub wing upper front Comments Invited cracks. spar cap flanges that may be found Interested persons are invited to The CASA of Australia classified this cracked and need to be repaired. participate in the making of the service bulletin as mandatory and proposed rule by submitting such issued FCAA AD/GAF–N22/52, dated Regulatory Impact written data, views, or arguments as January 1987, in order to assure the The regulations proposed herein they may desire. Communications continued airworthiness of these would not have substantial direct effects should identify the Rules Docket airplanes in Australia. on the States, on the relationship number and be submitted in triplicate to between the national government and the address specified above. All The FAA’s Determination the States, or on the distribution of communications received on or before This airplane model is manufactured power and responsibilities among the the closing date for comments, specified in Australia and is type certificated for various levels of government. Therefore, above, will be considered before taking operation in the United States under the in accordance with Executive Order action on the proposed rule. The provisions of section 21.29 of the 12612, it is determined that this proposals contained in this notice may Federal Aviation Regulations (14 CFR proposal would not have sufficient be changed in light of the comments 21.29) and the applicable bilateral federalism implications to warrant the received. airworthiness agreement. Pursuant to preparation of a Federalism Assessment. Comments are specifically invited on this bilateral airworthiness agreement, the overall regulatory, economic, the CASA of Australia has kept the FAA For the reasons discussed above, I environmental, and energy aspects of informed of the situation described certify that this action (1) is not a the proposed rule. All comments above. The FAA has examined the ‘‘significant regulatory action’’ under submitted will be available, both before findings of the CASA of Australia; Executive Order 12866; (2) is not a and after the closing date for comments, reviewed all available information, ‘‘significant rule’’ under DOT in the Rules Docket for examination by including the service information Regulatory Policies and Procedures (44 interested persons. A report that referenced above; and determined that FR 11034, February 26, 1979); and (3) if summarizes each FAA-public contact AD action is necessary for products of promulgated, will not have a significant concerned with the substance of this this type design that are certificated for economic impact, positive or negative, proposal will be filed in the Rules operation in the United States. on a substantial number of small entities Docket. under the criteria of the Regulatory Commenters wishing the FAA to Explanation of the Provisions of the Flexibility Act. A copy of the draft acknowledge receipt of their comments Proposed AD regulatory evaluation prepared for this submitted in response to this notice Since an unsafe condition has been action has been placed in the Rules must submit a self-addressed, stamped identified that is likely to exist or Docket. A copy of it may be obtained by postcard on which the following develop in other ASTA Models N22B, contacting the Rules Docket at the statement is made: ‘‘Comments to N22S, and N24A airplanes of the same location provided under the caption Docket No. 95–CE–98–AD.’’ The type design that are registered in the ADDRESSES. 65004 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules

List of Subjects in 14 CFR Part 39 of the Federal Aviation Regulations (14 CFR horizontal stabilizer caused by fatigue 21.197 and 21.199) to operate the airplane to Air transportation, Aircraft, Aviation cracks, which could result in loss of a location where the requirements of this AD control of the airplane. safety, Safety. can be accomplished. DATES: Comments must be received on The Proposed Amendment (d) An alternative method of compliance or adjustment of the compliance time that or before February 21, 1997. Accordingly, pursuant to the provides an equivalent level of safety may be ADDRESSES: Submit comments in authority delegated to me by the approved by the Manager, FAA, Los Angeles triplicate to the Federal Aviation Administrator, the Federal Aviation ACO, 3960 Paramount Boulevard., Administration (FAA), Central Region, Administration proposes to amend part Lakewood, California 90712. The request shall be forwarded through an appropriate Office of the Assistant Chief Counsel, 39 of the Federal Aviation Regulations Attention: Rules Docket No. 96–CE–57– (14 CFR part 39) as follows: FAA Maintenance Inspector, who may add comments and then send it to the Manager, AD, Room 1558, 601 E. 12th Street, PART 39ÐAIRWORTHINESS Los Angeles ACO. Kansas City, Missouri 64106. Comments DIRECTIVES Note 2: Information concerning the may be inspected at this location existence of approved alternative methods of between 8 a.m. and 4 p.m., Monday 1. The authority citation for part 39 compliance with this AD, if any, may be through Friday, holidays excepted. continues to read as follows: obtained from the Los Angeles ACO. Service information that applies to the Authority: 49 U.S.C. 106(g), 40113, 44701. (e) All persons affected by this directive proposed AD may be obtained from may obtain copies of the document referred Aerospace Technologies of Australia Pty § 39.13 [Amended] to herein upon request to Aerospace Ltd., ASTA DEFENCE, Private Bag No. 2. Section 39.13 is amended by Technologies of Australia Pty Ltd., ASTA 4, Beach Road Lara 3212, Victoria, adding a new airworthiness directive DEFENCE, Private Bag No. 4, Beach Road Australia. This information also may be (AD) to read as follows: Lara 3212, Victoria, Australia; or may examine this document at the FAA, Central examined at the Rules Docket at the Aerospace Technologies of Australia Pty Region, Office of the Assistant Chief Counsel, address above. Ltd.: Docket No. 95–CE–98–AD. Room 1558, 601 E. 12th Street, Kansas City, FOR FURTHER INFORMATION CONTACT: Mr. Applicability: Models N22B, N22S, and Missouri 64106. Ron Atmur, Aerospace Engineer, FAA, N24A airplanes (all serial numbers), Issued in Kansas City, Missouri, on Los Angeles Aircraft Certification certificated in any category. December 2, 1996. Office, 3960 Paramount Boulevard., Note 1: This AD applies to each airplane Michael Gallagher, Lakewood, California 90712; telephone identified in the preceding applicability Manager, Small Airplane Directorate, Aircraft (310) 627–5224; facsimile (310) 627– provision, regardless of whether it has been Certification Service. 5210. modified, altered, or repaired in the area [FR Doc. 96–31267 Filed 12–9–96; 8:45 am] subject to the requirements of this AD. For SUPPLEMENTARY INFORMATION: airplanes that have been modified, altered, or BILLING CODE 4910±13±U repaired so that the performance of the Comments Invited requirements of this AD is affected, the Interested persons are invited to owner/operator must request approval for an 14 CFR Part 39 participate in the making of the alternative method of compliance in proposed rule by submitting such accordance with paragraph (d) of this AD. [Docket No. 96±CE±57±AD] written data, views, or arguments as The request should include an assessment of RIN 2120±AA64 the effect of the modification, alteration, or they may desire. Communications should identify the Rules Docket repair on the unsafe condition addressed by Airworthiness Directives; Aerospace number and be submitted in triplicate to this AD; and, if the unsafe condition has not Technologies of Australia Pty Ltd. been eliminated, the request should include the address specified above. All (Formerly Government Aircraft specific proposed actions to address it. communications received on or before Factory) Models N22B, N22S, and Compliance: Required prior to the closing date for comments, specified N24A Airplanes accumulating 1,700 hours time-in-service above, will be considered before taking (TIS) or within the next 300 hours TIS after action on the proposed rule. The the effective date of this AD, whichever AGENCY: Federal Aviation occurs later, unless already accomplished, Administration, DOT. proposals contained in this notice may and thereafter at intervals not to exceed 2,650 ACTION: Notice of proposed rulemaking be changed in light of the comments hours TIS. (NPRM). received. To prevent structural failure of the front Comments are specifically invited on spar caused by cracks in the stub wing upper SUMMARY: This document proposes to the overall regulatory, economic, front spar cap flanges, which could result in adopt a new airworthiness directive environmental, and energy aspects of loss of control of the airplane, accomplish the (AD) that would apply to Aerospace the proposed rule. All comments following: Technologies of Australia Pty Ltd. submitted will be available, both before (a) Inspect, using both visual and eddy and after the closing date for comments, current methods, the stub wing front spar cap (ASTA) Models N22B, N22S, and N24A flanges in the area of Buttock Line (BL) 47.6 airplanes. The proposed action would in the Rules Docket for examination by for fatigue cracks in accordance with the require repetitively inspecting the interested persons. A report that ACCOMPLISHMENT INSTRUCTIONS horizontal stabilizer upper and lower summarizes each FAA-public contact section of Nomad Service Bulletin NMD–53– skin, intercostal angles, and the concerned with the substance of this 6, dated October 21, 1986. horizontal stabilizer trailing edge proposal will be filed in the Rules (b) If any crack is found during any channel for cracks; and repairing any Docket. inspection required by this AD, prior to cracks or replacing any cracked parts, as Commenters wishing the FAA to further flight, obtain a repair scheme from the applicable. The proposed AD results acknowledge receipt of their comments manufacturer through the Los Angeles Aircraft Certification Office (ACO) at the from numerous reports of cracking in submitted in response to this notice address specified in paragraph (d) of this AD, these horizontal stabilizer areas on the must submit a self-addressed, stamped and incorporate this repair scheme. affected airplanes. The actions specified postcard on which the following (c) Special flight permits may be issued in by the proposed AD are intended to statement is made: ‘‘Comments to accordance with sections 21.197 and 21.199 prevent structural failure of the Docket No. 96–CE–57–AD.’’ The Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules 65005 postcard will be date stamped and develop in other ASTA Models N22B, promulgated, will not have a significant returned to the commenter. N22S, and N24A airplanes of the same economic impact, positive or negative, type design that are registered in the on a substantial number of small entities Availability of NPRMs United States, the proposed AD would under the criteria of the Regulatory Any person may obtain a copy of this require repetitively inspecting the Flexibility Act. A copy of the draft NPRM by submitting a request to the horizontal stabilizer upper and lower regulatory evaluation prepared for this FAA, Central Region, Office of the skin, intercostal angles, and the action has been placed in the Rules Assistant Chief Counsel, Attention: horizontal stabilizer trailing edge Docket. A copy of it may be obtained by Rules Docket No. 96–CE–57–AD, Room channel for cracks; and repairing any contacting the Rules Docket at the 1558, 601 E. 12th Street, Kansas City, cracks or replacing any cracked parts, as location provided under the caption Missouri 64106. applicable. ADDRESSES. Accomplishment of the proposed Discussion inspections would be in accordance List of Subjects in 14 CFR Part 39 The Civil Aviation Safety Authority with Nomad SB NMD–55–34, dated Air transportation, Aircraft, Aviation (CASA), which is the airworthiness April 22, 1996. Accomplishment of any safety, Safety. authority for Australia, recently notified proposed repair or replacement, as The Proposed Amendment the FAA that an unsafe condition may necessary and as applicable, would be exist on certain ASTA Models N22B, in accordance with the Nomad Accordingly, pursuant to the N22S, and N24A airplanes. The CASA Structural Repair Manual, Chapter 55– authority delegated to me by the reports a number of incidents of fatigue 10–11. Administrator, the Federal Aviation cracking in the areas of the horizontal Administration proposes to amend part Cost Impact stabilizer upper and lower skin, 39 of the Federal Aviation Regulations intercostal angles, and the horizontal The FAA estimates that 15 airplanes (14 CFR part 39) as follows: stabilizer trailing edge channel. These in the U.S. registry would be affected by PART 39ÐAIRWORTHINESS conditions, if not detected and the proposed AD, that it would take DIRECTIVES corrected, could lead to structural approximately 2 workhours per airplane failure of the horizontal stabilizer, to accomplish the proposed initial 1. The authority citation for part 39 which could result in loss of control of inspections, and that the average labor continues to read as follows: the airplane. rate is approximately $60 an hour. Based on these figures, the total cost Authority: 49 U.S.C. 106(g), 40113, 44701. Applicable Service Information impact of the proposed AD on U.S. § 39.13 [Amended] ASTA has issued Nomad Service operators is estimated to be $1,800 or 2. Section 39.13 is amended by Bulletin (SB) NMD–55–34, dated April $120 per airplane. This figure does not adding a new airworthiness directive 22, 1996, which includes procedures for take into account the cost of repetitive (AD) to read as follows: inspecting the horizontal stabilizer inspections or the cost to repair or replace any horizontal stabilizer upper Aerospace Technologies of Australia Pty Ltd: upper and lower skin, intercostal angles, Docket No. 96–CE–57–AD. and the horizontal stabilizer trailing and lower skin, intercostal angles, or Applicability: Models N22B, N22S, and edge channel. horizontal stabilizer trailing edge N24A airplanes (all serial numbers), The CASA of Australia classified this channel. The FAA has no way of certificated in any category. service bulletin as mandatory and determining the number of repetitive Note 1: This AD applies to each airplane issued FCAA AD/GAF–N22/72, dated inspections each operator would incur identified in the preceding applicability August 1996, in order to assure the over the life of each affected airplane or provision, regardless of whether it has been continued airworthiness of these the number of horizontal stabilizer modified, altered, or repaired in the area airplanes in Australia. upper and lower skins, intercostal subject to the requirements of this AD. For angles, or horizontal stabilizer trailing airplanes that have been modified, altered, or The FAA’s Determination edge channels that may be found repaired so that the performance of the This airplane model is manufactured requirements of this AD is affected, the cracked during the inspections owner/operator must request approval for an in Australia and is type certificated for proposed by this action. alternative method of compliance in operation in the United States under the Regulatory Impact accordance with paragraph (d) of this AD. provisions of section 21.29 of the The request should include an assessment of Federal Aviation Regulations (14 CFR The regulations proposed herein the effect of the modification, alteration, or 21.29) and the applicable bilateral would not have substantial direct effects repair on the unsafe condition addressed by airworthiness agreement. Pursuant to on the States, on the relationship this AD; and, if the unsafe condition has not this bilateral airworthiness agreement, between the national government and been eliminated, the request should include the CASA of Australia has kept the FAA the States, or on the distribution of specific proposed actions to address it. Compliance: Required within the next 100 informed of the situation described power and responsibilities among the hours time-in-service (TIS) after the effective above. The FAA has examined the various levels of government. Therefore, date of this AD, unless already accomplished, findings of the CASA of Australia; in accordance with Executive Order and thereafter at intervals not to exceed 100 reviewed all available information, 12612, it is determined that this hours TIS. including the service information proposal would not have sufficient To prevent structural failure of the referenced above; and determined that federalism implications to warrant the horizontal stabilizer caused by fatigue cracks, AD action is necessary for products of preparation of a Federalism Assessment. which could result in loss of control of the this type design that are certificated for For the reasons discussed above, I airplane, accomplish the following: operation in the United States. certify that this action (1) is not a (a) Inspect the horizontal stabilizer upper ‘‘significant regulatory action’’ under and lower skin, intercostal angles, and the horizontal stabilizer trailing edge channel for Explanation of the Provisions of the Executive Order 12866; (2) is not a Proposed AD cracks in accordance with the ‘‘significant rule’’ under DOT ACCOMPLISHMENT INSTRUCTIONS Since an unsafe condition has been Regulatory Policies and Procedures (44 section of Nomad Service Bulletin (SB) identified that is likely to exist or FR 11034, February 26, 1979); and (3) if NMD–55–34, dated April 22, 1996. 65006 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules

(b) If any crack is found during any actuating shaft if cracked. Cracks found Commenters wishing the FAA to inspection required by this AD, prior to in the welded seams of the actuating acknowledge receipt of their comments further flight, repair or replace the cracked shaft prompted the proposed action. submitted in response to this notice part or area, as applicable, in accordance The actions specified by the proposed must submit a self-addressed, stamped with the Nomad Structural Repair Manual, Chapter 55–10–11. Those cracked areas that AD are intended to prevent cracks in the postcard on which the following can be repaired and those cracked areas that aileron operating lever’s actuating shaft statement is made: ‘‘Comments to must be replaced are defined in Nomad SB welded seams, which, if not detected Docket No. 96–CE–35–AD.’’ The NMD–55–34, dated April 22, 1996, and the and corrected, could cause loss of postcard will be date stamped and Nomad Structural Repair Manual, Chapter control of the sailplane. returned to the commenter. 55–10–11. DATES: Comments must be received on (c) Special flight permits may be issued in Availability of NPRMs or before February 12, 1997. accordance with sections 21.197 and 21.199 Any person may obtain a copy of this of the Federal Aviation Regulations (14 CFR ADDRESSES: Send comments on the NPRM by submitting a request to the 21.197 and 21.199) to operate the airplane to proposal in triplicate to the Federal FAA, Central Region, Office of the a location where the requirements of this AD Aviation Administration (FAA), Central Assistant Chief Counsel, Attention: can be accomplished. Region, Office of the Assistant Chief Rules Docket No. 96–CE–35–AD, Room (d) An alternative method of compliance or Counsel, Attention: Rules Docket No. adjustment of the compliance time that 1558, 601 E. 12th Street, Kansas City, 96–CE–35–AD, Room 1558, 601 E. 12th provides an equivalent level of safety may be Missouri 64106. approved by the Manager, FAA, Los Angeles Street, Kansas City, Missouri 64106. ACO, 3960 Paramount Boulevard., Comments may be inspected at this Events Leading to the Proposed Action Lakewood, California 90712. The request location between 8 a.m. and 4 p.m., The Luftfahrt-Bundesamt (LBA), shall be forwarded through an appropriate Monday through Friday, holidays which is the airworthiness authority for FAA Maintenance Inspector, who may add excepted. comments and then send it to the Manager, Germany, recently notified the FAA that Service information that applies to the an unsafe condition may exist on certain Los Angeles ACO. proposed AD is available from Note 2: Information concerning the Glasflugel Models Standard Libelle and Glasflugel, c/o H. Streifeneder, Standard Libelle 201 B sailplanes. The existence of approved alternative methods of Glasfaser-Flugzeug Service GmbH, compliance with this AD, if any, may be LBA has received reports of cracks obtained from the Los Angeles ACO. Hofener Weg, D–72582 Grabenstetten, developing in the aileron operating Germany. This information also may be (e) All persons affected by this directive lever’s welded seams. These are fatigue may obtain copies of the document referred examined at the Rules Docket at the cracks that are occurring because of the to herein upon request to Aerospace address above. adverse loading that takes place during Technologies of Australia Pty Ltd., ASTA FOR FURTHER INFORMATION CONTACT: Mr. the rigging and derigging operation, if DEFENCE, Private Bag No. 4, Beach Road J. Mike Kiesov, Project Officer, the aileron control has not first been Lara 3212, Victoria, Australia; or may Sailplanes, FAA, Small Airplane disconnected. This condition, if not examine this document at the FAA, Central Directorate, 1201 Walnut, suite 900, Region, Office of the Assistant Chief Counsel, detected and corrected, could result in Room 1558, 601 E. 12th Street, Kansas City, Kansas City, Missouri 64106; telephone the aileron operating lever breaking, Missouri 64106. (816) 426–6932, facsimile (816) 426– causing total loss of aileron control. Issued in Kansas City, Missouri, on 2169. Glasflugel has issued Glasfaser- December 2, 1996. SUPPLEMENTARY INFORMATION: Flugzeug-Service GmbH Technical Note Michael Gallagher, (TN) 201–33, dated March 4, 1996, Comments Invited Manager, Small Airplane Directorate, Aircraft which specifies procedures for Certification Service. Interested persons are invited to inspecting for cracks, and repairing and [FR Doc. 96–31268 Filed 12–9–96; 8:45 am] participate in the making of the modifying the aileron operating lever’s BILLING CODE 4910±13±U proposed rule by submitting such welded seams, or replacing the lever written data, views, or arguments as with a new reinforced part. they may desire. Communications The LBA classified this technical note 14 CFR Part 39 should identify the Rules Docket as mandatory and issued AD LTA-Nr.: number and be submitted in triplicate to 96–116, dated March 18, 1996, in order [Docket No. 96±CE±35±AD] the address specified above. All to ensure the continued airworthiness of RIN 2120±AA64 communications received on or before these sailplanes in Germany. the closing date for comments, specified Explanation of the Provisions of this AD Airworthiness Directives; Glasflugel above, will be considered before taking Models Standard Libelle and Standard action on the proposed rule. The These sailplane models are Libelle 201 B Sailplanes proposals contained in this notice may manufactured in Germany and are type AGENCY: Federal Aviation be changed in light of the comments certificated for operation in the United Administration, DOT. received. States under the provisions of section ACTION: Notice of proposed rulemaking Comments are specifically invited on 21.29 of the Federal Aviation (NPRM). the overall regulatory, economic, Regulations (14 CFR 21.29) and the environmental, and energy aspects of applicable bilateral airworthiness SUMMARY: This document proposes to the proposed rule. All comments agreement. Pursuant to this bilateral adopt a new airworthiness directive submitted will be available, both before airworthiness agreement, the LBA has (AD) that would apply to certain and after the closing date for comments, kept the FAA informed of the situation Glasflugel Models Standard Libelle and in the Rules Docket for examination by described above. The FAA has Standard Libelle 201 B sailplanes. The interested persons. A report that examined the findings of the LBA, proposed action would require summarizes each FAA-public contact reviewed all available information inspecting the aileron operating lever concerned with the substance of this including the service information actuating shaft welded seams for cracks proposal will be filed in the Rules referenced above, and determined that and modifying or replacing the Docket. AD action is necessary for products of Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules 65007 this type design that are certificated for ($250 per sailplane) if all shafts are modified, altered, or repaired in the area operation in the United States. modified, or $34,560 ($320 per subject to the requirements of this AD. For Since an unsafe condition has been sailplane) if all shafts are replaced. The sailplanes that have been modified, altered, identified that is likely to exist or FAA has no way to determine how or repaired so that the performance of the develop in other Glasflugel Models requirements of this AD is affected, the many owners/operators have owner/operator must request approval for an Standard Libelle and Standard Libelle accomplished this action. alternative method of compliance in 201 B sailplanes of the same type design Regulatory Impact accordance with paragraph (d) of this AD. registered in the United States, the The request should include an assessment of proposed AD would require inspecting The regulations proposed herein the effect of the modification, alteration, or the aileron operating lever’s actuating would not have substantial direct effects repair on the unsafe condition addressed by shaft welded seams for cracks. If cracks on the States, on the relationship this AD; and, if the unsafe condition has not are found, the proposal specifies between the national government and been eliminated, the request should include repairing and modifying, or replacing the States, or on the distribution of specific proposed actions to address it. the actuating shaft. If no cracks are power and responsibilities among the Compliance: Required as indicated in the found, the actuating shaft would have to various levels of government. Therefore, body of this AD, unless already be modified or replaced within the next accomplished. in accordance with Executive Order To prevent cracks in the aileron operating 8 calendar months from the date of the 12612, it is determined that this lever’s actuating shaft welded seams, which proposed initial inspection. proposal would not have sufficient if not detected and corrected, could cause Related Service Information federalism implications to warrant the loss of control of the sailplane, accomplish preparation of a Federalism Assessment. the following: Accomplishment of the proposed For the reasons discussed above, I (a) Within the next 30 calendar days after installation would be in accordance certify that this action (1) is not a the effective date of this AD, inspect for with Glasfaser-Flugzeug-Service GmbH ‘‘significant regulatory action’’ under cracks in the aileron operating lever’s actuating shaft welded seams in accordance Technical Note (TN) 201–33, dated Executive Order 12866; (2) is not a March 4, 1996. with Method 1 of the Accomplishment ‘‘significant rule’’ under DOT section in Glasfaser-Flugzeug-Service GmbH Proposed Compliance Time Regulatory Policies and Procedures (44 (Glasfaser) Technical Note (TN) 201–33, FR 11034, February 26, 1979); and (3) if dated March 4, 1996. The compliance time of the proposed promulgated, will not have a significant (1) If cracks are found, prior to further AD is in calendar time instead of hours economic impact, positive or negative, flight, either: time-in-service (TIS). The average on a substantial number of small entities (i) Remove the shaft, repair the cracked monthly usage of the affected sailplanes under the criteria of the Regulatory welded seams and modify the shaft in ranges throughout the fleet. For accordance with Method 2 of the Flexibility Act. A copy of the draft example, one owner may operate the Accomplishment section in Glasfaser TN regulatory evaluation prepared for this sailplane 25 hours TIS in one week, 201–33, dated March 4, 1996; or, action has been placed in the Rules while another operator may operate the (ii) Remove and replace the shaft with a Docket. A copy of it may be obtained by new Glasflugel reinforced shaft in accordance sailplane 25 hours TIS in one year. In contacting the Rules Docket at the with drawing 201–47–3–1 from Glasfaser TN order to ensure that all of the affected location provided under the caption 201–33, dated March 4, 1996. sailplanes do not have cracked shafts, ADDRESSES. (2) If no cracks are found, within the next and do have the improved aileron 8 calendar months after the inspection operating lever’s welded seams List of Subjects in 14 CFR Part 39 required by paragraph (a) of this AD, either: incorporated within a reasonable (i) Modify the aileron operating lever in Air transportation, Aircraft, Aviation accordance with Method 2 of the amount of time, the FAA is proposing safety, Safety. a compliance time of within the next 30 Accomplishment section of Glasfaser TN The Proposed Amendment 201–33, dated March 4, 1996; or, calendar days after the effective date of (ii) Remove and replace the shaft with a the AD, for the initial action (inspection, Accordingly, pursuant to the new Glasflugel reinforced shaft in accordance and possible repair, modification or authority delegated to me by the with drawing 201–47–3–1 from Glasfaser TN replacement), and if no cracks are found Administrator, the Federal Aviation 201–33, dated March 4, 1996. on the initial inspection, accomplishing Administration proposes to amend part (b) After completing any action described the modification or replacement within 39 of the Federal Aviation Regulations in paragraph (a) or any sub-paragraph of (a) the next 8 calendar months after the (14 CFR part 39) as follows: in this AD, check and adjust (if applicable) effective date of the proposed AD. the aileron deflection range in accordance PART 39ÐAIRWORTHINESS with the ‘‘Remarks’’ paragraph in Glasfaser Cost Impact TN 201–33, dated March 4, 1996. DIRECTIVES (c) Special flight permits may be issued in The FAA estimates that 108 sailplanes 1. The authority citation for part 39 accordance with sections 21.197 and 21.199 in the U.S. registry would be affected by of the Federal Aviation Regulations (14 CFR the proposed AD; that it would take continues to read as follows: 21.197 and 21.199) to operate the sailplane approximately 4 workhours per Authority: 49 U.S.C. 106(g), 40113, 44701. to a location where the requirements of this sailplane to accomplish the inspection, AD can be accomplished. repair and modification; or that it would § 39.13 [Amended] (d) An alternative method of compliance or take 3 workhours per sailplane to 2. Section 39.13 is amended by adjustment of the compliance times that inspect and replace the lever; and that adding a new airworthiness directive provides an equivalent level of safety may be the average labor rate is estimated to be (AD) to read as follows: approved by the Manager, Small Airplane Directorate, 1201 Walnut, suite 900, Kansas approximately $60 an hour. Material Glasflugel: Docket No. 96–CE–35–AD. City, Missouri 64106. cost for the modification is Applicability: Models Standard Libelle and The request shall be forwarded through an approximately $10 per sailplane, and a Standard Libelle 201 B Sailplanes (all serial appropriate FAA Maintenance Inspector, replacement shaft part costs $140 per numbers), certificated in any category. who may add comments and then send it to sailplane. Based on these figures, the Note 1: This AD applies to each sailplane the Manager, Small Airplane Directorate. total cost impact of the proposed AD on identified in the preceding applicability Note 2: Information concerning the U.S. operators is estimated to be $27,000 provision, regardless of whether it has been existence of approved alternative methods of 65008 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules compliance with this AD, if any, may be Inc., licensee of Station KYZX(FM), during normal business hours in the obtained from the Small Airplane Channel 283C2, Pueblo, Colorado, FCC’s Reference Center (Room 239), Directorate. requesting the reallotment of Channel 1919 M Street, NW, Washington, D.C. (e) All persons affected by this directive 283C2 from Pueblo to Pueblo West, The complete text of this decision may may obtain copies of the document referred Colorado, and modification of its also be purchased from the to herein upon request to Glasflugel, c/o H. authorization for Station KYZX(FM) to Commission’s copy contractors, Streifeneder, Glasfaser-Flugzeug Service specify Pueblo West as its community of GmbH, Hofener Weg, D–72582 Grabenstetten, International Transcription Service, Germany; or may examine this document at license, pursuant to the provisions of Inc., (202) 857–3800, 2100 M Street, the FAA, Central Region, Office of the Section 1.420(i) of the Commission’s N.W., Suite 140, Washington, D.C. Assistant Chief Counsel, Room 1558, 601 E. Rules. Coordinates utilized for Channel 20037. 12th Street, Kansas City, Missouri 64106. 283C2 to serve Pueblo West are 38–33– Provisions of the Regulatory Issued in Kansas City, Missouri, on 24 and 104–35–56. Flexibility Act of 1980 do not apply to December 2, 1996. DATES: Comments must be filed on or this proceeding. Michael Gallagher, before January 6, 1997, and reply Members of the public should note Manager, Small Airplane Directorate, Aircraft comments on or before January 21, that from the time a Notice of Proposed Certification Service. 1997. Rule Making is issued until the matter [FR Doc. 96–31269 Filed 12–9–96; 8:45 am] ADDRESSES: Secretary, Federal is no longer subject to Commission BILLING CODE 4910±13±U Communications Commission, consideration or court review, all ex Washington, D.C. 20554. In addition to parte contacts are prohibited in filing comments with the FCC, Commission proceedings, such as this FEDERAL COMMUNICATIONS interested parties should serve the one, which involve channel allotments. COMMISSION petitioner’s counsel, as follows: John M. See 47 CFR 1.1204(b) for rules Pelkey and Rafael G. Prohias, Esqs., governing permissible ex parte contacts. Haley, Bader and Potts, P.L.C., Suite 47 CFR Part 73 For information regarding proper 900, 4350 North Fairfax Drive, filing procedures for comments, See 47 [MM Docket No. 96±232, RM±8868] Arlington, VA 22203–1633. CFR 1.415 and 1.420. FOR FURTHER INFORMATION CONTACT: Radio Broadcasting Services; Pueblo Nancy Joyner, Mass Media Bureau, (202) List of Subjects in 47 CFR Part 73 and Pueblo West, CO 418–2180. Radio broadcasting. AGENCY: Federal Communications SUPPLEMENTARY INFORMATION: This is a Commission. synopsis of the Commission’s Notice of Federal Communications Commission John A. Karousos, ACTION: Proposed rule. Proposed Rule Making, MM Docket No. 96–232, adopted November 8, 1996, and Chief, Allocations Branch, Policy and Rules SUMMARY: This document requests released November 15, 1996. The full Division, Mass Media Bureau. comments on a petition for rule making text of this Commission decision is [FR Doc. 96–31256 Filed 12–9–96; 8:45 am] filed on behalf of Pueblo Broadcasters, available for inspection and copying BILLING CODE 6712±01±P 65009

Notices Federal Register Vol. 61, No. 238

Tuesday, December 10, 1996

This section of the FEDERAL REGISTER displays a currently valid OMB control Description of Respondents: Farms, contains documents other than rules or number. Business or other for-profit. proposed rules that are applicable to the • Agricultural Marketing Service. Number of Respondents: 44,618. public. Notices of hearings and investigations, Title: Avocados Grown in South Frequency of Responses: Reporting: committee meetings, agency decisions and Florida, Marketing Order No. 915. Monthly; Quarterly; Annually. rulings, delegations of authority, filing of OMB Control Number: 0581–0078. Total Burden Hours: 20,086. petitions and applications and agency Emergency processing of this statements of organization and functions are Summary: Information is needed to examples of documents appearing in this nominate committee members, issue submission has been requested by section. exemptions certificates, determine December 31, 1996. handler compliance, levy assessments, • Rural Development. and to prepare periodic reports. Title: 7 CFR 1951–E ‘‘Service of DEPARTMENT OF AGRICULTURE Need and Use of the Information: The Community and Insured Business information is needed to regulate the Programs Loans and Grants.’’ Submission for OMB Review; provisions of Marketing Order No. 915. OMB Control Number: 0575–0066. Comment Request Description of Respondents: Business; Summary: The regulation prescribes Farms; Federal Government; State, Local policies and responsibilities for December 6, 1996. or Tribal Government. servicing actions necessary in The Department of Agriculture has Number of Respondents: 208. connection with community facilities submitted the following information Frequency of Responses: Reporting: loans and grants, water and waste loans collection requirement(s) to OMB for On occasion; Weekly; Annually; Daily. and grants, and insured business and review and clearance under the Total Burden Hours: 101. industry loans. Paperwork Reduction Act of 1995, • Need and Use of the Information: The Public Law 104–13. Comments Foreign Agricultural Service. Title: Declaration of Sale. information is used to provide servicing regarding (a) whether the collection of actions necessary in connection with information is necessary for the proper OMB Control Number: 0551–0009. Summary: Title I of the Agricultural loans and grants under 7 CFR 1951–E. performance of the functions of the Description of Respondents: State, agency, including whether the Trade Development and Assistance Act of 1954, as amended, provides for U.S. Local or Tribal Government; Not-for- information will have practical utility; profit institutions. (b) the accuracy of the agency’s estimate Government financing of sales of agricultural commodities to friendly Number of Respondents: 110. of burden including the validity of the Frequency of Responses: Reporting: methodology and assumptions used; (c) foreign countries. Information must be supplied to inform USDA of the On occasion. ways to enhance the quality, utility and Total Burden Hours: 120. clarity of the information to be pending agreement. Donald Hulcher, collected; (d) ways to minimize the Need and Use of the Information: burden of the collection of information USDA reviews this information to Deputy Departmental Clearance Officer. on those who are to respond, including insure that the price falls within the [FR Doc. 96–31347 Filed 12–9–96; 8:45 am] through the use of appropriate prevailing range of export market prices BILLING CODE 3410±01±M automated, electronic, mechanical, or and that the sale complies with all other technological collection regulations. techniques or other forms of information Description of Respondents: Business Commodity Credit Corporation or other for-profit. technology should be addressed to: Desk Request for Extension and Revision of Officer for Agriculture, Office of Number of Respondents: 17. Frequency of Responses: Reporting: a Currently Approved Information Information and Regulatory Affairs, Collection Office of Management and Budget On occasion. (OMB), Washington, DC 20503 and to Total Burden Hours: 29. AGENCY: Commodity Credit Corporation. • Department Clearance Office, USDA, National Agricultural Statistics ACTION: Notice and request for OCIO, Mail Stop 7602, Washington, DC Service. comments. 20250–7602. Comments regarding these Title: Milk and Milk Products. information collections are best assured OMB Control Number: 0535–0020. SUMMARY: In accordance with the of having their full effect if received Summary: This information collection Paperwork Reduction Act of 1995, this within 30 days of this notification. provides data to estimate total milk notice announces the intention of the Copies of the submission(s) may be production, number of cows, amounts Commodity Credit Corporation (CCC) to obtained by calling (202) 720–6204 or and value of feed fed to milk cows, and request an extension and revision to a (202) 720–6746. production of manufactured dairy currently approved information An agency may not conduct or products. collection relating to the Upland Cotton sponsor a collection of information Need and Use of the Information: User Marketing Certificate Program unless the collection of information This information collection produces regulations issued under authority of displays a currently valid OMB control statistics that are used to establish the Federal Agriculture Improvement number and the agency informs monthly estimates of stocks, shipments, and Reform Act of 1996 (1996 Act). potential persons who are to respond to and selling prices. The information is Other administrative decisions make the collection of information that such used in price support programs for milk obsolete several forms and result in a persons are not required to respond to and to appraise supplies, prices, and decrease in the number of burden hours the collection of information unless it trends in the dairy industry. for information collection under the 65010 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Upland Cotton User Marketing Report), the information collection has Rural Housing Service Certificate Program. been combined into one report called DATES: Comments on this notice must be ‘‘Weekly Consumption Report/ Rural Business-Cooperative Service received on or before February 10, 1997 Application For Payment.’’ The annual to be assured of consideration. reporting burden increase of 25 hours Rural Utilities Service FOR FURTHER INFORMATION CONTACT: connected with this report is due not to Farm Service Agency Janise Zygmont, Farm Service Agency, a change in the burden, but to rounding the Average Time to Respond associated United States Department of Notice of Request for Comments on Agriculture, Stop 0515, P.O. Box 2415, with the Weekly Consumption Report/ Application for Payment report to 13 Approved Information Collection Washington, DC 20013–2415 or call Packages (202) 720–8841. minutes. The net reduction in the burden is 1,925 hours. SUPPLEMENTARY INFORMATION: AGENCIES: Rural Housing Service, Rural Title: Cotton, 7 CFR Part 1427. Respondents: U.S. cotton exporters Business-Cooperative Service, Rural OMB Control Number: 0560–0136. and domestic mills. Utilities Service, and Farm Service Expiration Date: April 30, 1997. Estimated Number of Respondents: Agency, UDSA. Type of Request: Extension and 300. ACTION: Proposed collection; comments Revision of a Currently Approved request. Information Collection. Estimated Average Time to Respond: Abstract: The information collected 14 minutes. SUMMARY: In accordance with the under Office of Management and Budget Estimated Total Annual Responses: Paperwork Reduction Act of 1995 (Pub. (OMB) Number 0560–0136, as identified 11,700. L. 104–13), this notice announces the above, is needed to enable the Farm intention of the Rural Housing Service Estimated Number of Reports Filed (RHS), Rural Business-Cooperative Service Agency (FSA) to effectively per Person: 39. administer the Upland Cotton User Service (RBS), the Rural Utilities Marketing Certificate Program. Estimated Total Burden Hours: 2,750. Service (RUS), and the Farm Service In order to participate in the Upland Topics for comments include but are Agency (FSA) to request a revision to Cotton User Marketing Certificate not limited to the following: (a) whether and extension for information collection Program, U.S. exporters and domestic the collection of information is currently approved in support of the mills must sign an Upland Cotton necessary for the proper performance of Direct Farm Ownership Loan Program Domestic User/Exporter Agreement the functions of the agency, including Regulations under Office of (CCC–1045). CCC–1045 contains the whether the information will have Management and Budget (OMB) control terms and conditions for receiving practical utility; (b) the accuracy of the number 0560–0157; the Farm Credit payments and outlines the agency’s estimate of burden including Account Servicing Regulations under responsibilities of the participant. Two the validity of the methodology and OMB control number 0560–0161; the changes to form CCC–1045 were made assumptions used; (c) ways to enhance Liquidation of Loans Secured by Real in response to the passage of the 1996 the quality, utility and clarity of the Estate and Acquisition of Real and Act. First, the 1996 Act extended the information to be collected: or (d) ways Chattel Property Regulations under authority to conduct the Upland Cotton to minimize the burden of the collection OMB control number 0575–0109; the User Marketing Certificate Program of information on those who are to Management of Property Regulations through July 31, 2003. Previous respond, including through the use of under OMB control number 0575–0110; legislation had authorized the program appropriate automated, electronic, the Debt Settlement, Farmer Programs only through July 31, 1998. Second, the mechanical, or other technological and Housing Regulation under OMB 1996 Act limits the total amount of collection techniques or other forms of control number 0575–0118; and a payments that can be made under the information technology. Comments reinstatement with change, for program to no more than $701 million should be sent to the Desk Officer for information collection in support of the during fiscal years 1996 through 2002. Agriculture, Office of Information and Application for Direct Loan Assistance CCC–1045 has been revised to reflect Regulatory Affairs, Office of under OMB control number 0560–0167. the new date and the restriction on Management and Budget, Washington, These regulations are published under payments. Neither change results in a D.C. 20503 and to Janise Zygmont, Farm the authority of the Consolidated Farm change in the annual reporting and Service Agency, United States and Rural Development Act, as recordkeeping burden. Department of Agriculture, Stop 0515, amended. CCC determined that exporters will P.O. Box 2415, Washington, DC 20013– Revisions are necessary as a result of no longer be required to report their 2415; telephone (202) 720–8841. Copies program changes mandated by the shipments each week. Instead, only for of the information collection may be Federal Agriculture Improvement and weeks in which a payment rate is in obtained from Janise Zygmont at the Reform Act of 1996 (1996 Act). The effect will exporters be required to above address. provisions of the 1996 Act became report to CCC the amount of cotton that effective either upon enactment of the All responses to this notice will be legislation on April 4, 1996, or 90 days has been exported. This reporting will summarized and included in the request be done on CCC 1045–2 or a report thereafter. Therefore, emergency for OMB approval. All comments will clearance for the information collection generated by the exporters containing also become a matter of public record. the same information. This results in a was requested and approved under 1,950-hour reduction in the annual Signed at Washington, D.C., on November OMB control numbers 0560–0172 and reporting burden for exporters. 20, 1996. 0560–0173. Domestic users must continue to report Grant Buntrock, DATES: Comments on this notice must be to CCC on a weekly basis in a somewhat Executive Vice President, Commodity Credit received on or before February 10, 1997 revised format. Instead of two reports Corporation. to be assured consideration. (Domestic User Application for Payment [FR Doc. 96–31346 Filed 12–9–96; 8:45 am] FOR FURTHER INFORMATION CONTACT: and Weekly Inventory Summary BILLING CODE 3410±05±P William D. Cobb, Senior Loan Officer, Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65011

Loan Servicing and Property under the requirements of the regulation results in public reporting burden as Management Division, Farm Service are shown in the following estimates: shown in the following estimates: Agency, USDA/FSA/LSPMD/ Stop Estimate of Burden: Public reporting Estimate of Burden: Public reporting 0523, P.O. Box 2415, Washington, DC burden for this collection of information burden for this collection of information 20013–2415; Telephone (202)720–1059. is estimated to average .38 hours per is estimated to average .22 hours per response. SUPPLEMENTARY INFORMATION: response. Respondents: Individuals or Respondents: Individuals or Title: 7 CFR 1943–A, Direct Farm households, farms. households, state or local governments, Ownership Loan Policies, Procedures, Estimated Number of Respondents: farms, businesses or other for profit, and Authorizations. 160. small businesses or organizations. OMB Number: 0560–0157. Estimated Number of Responses per Estimated Number of Respondents: Expiration Date of Approval: May 31, Respondent: 1. 10,400. 1998. Estimated Total Annual Burden on Type of Request: Revision and Estimated Number of Responses per Respondents: 61 hours. Respondent: 2.53. Extension of a Currently Approved Title: 7 CFR 1951–S, Farmer Credit Estimated Total Annual Burden on Information Collection. Programs Account Servicing Policies Abstract: The information collected OMB Number: 0560–0161. Respondents: 5,878 hours. under OMB Number 0560–0157, as Expiration Date of Approval: June 30, Title: Liquidation of Loans Secured by identified above, is needed to enable 1997. Real Estate and Acquisition or Real and FSA to effectively administer the Type of Request: Revision and Chattel Property. regulation relating to making initial and Extension of a Currently Approved OMB Number: 0575–0109. subsequent direct Farm Ownership (FO) Information Collection. Expiration Date of Approval: May 31, loans. The basic objective of the FO loan Abstract: The information collected 1997. program is to provide credit and under OMB Number 0560–0161, as Type of Request: Revision and management assistance to eligible identified above, is needed to enable Extension of a Currently Approved farmers and ranchers to become owner- FSA to effectively administer the Information Collection. operators of family-sized farms, or to regulation relating to the policies and Abstract: The information collected continue such operations when credit is procedures used in servicing most Farm under OMB Number 0575–0109, as not available elsewhere. Credit program loans. It is a primary identified above, is needed to enable FSA County Offices must collect objective of the Agency to provide RBS, RUS and FSA to effectively information from applicants requesting supervised credit to borrowers in administer the regulation relating to direct FO assistance in order to assure financial difficulty in a manner that will liquidation and acquisition of real estate that the program is carried out in assure the maximum opportunity for the and chattel security when it is accordance with the applicable laws borrower’s recovery and at the same determined that all loan servicing efforts and authorities. The information time, ensure the maximum recovery to have failed to produce a successful collected will be used to determine the Government. outcome. The primary means of program eligibility and feasibility of the FSA County Offices must collect liquidating loans and acquiring security loan request. Program eligibility information from financially distressed is through either conveyance by the requirements require that the applicant and delinquent borrowers requesting borrower or foreclosure. The be a United States citizen; possess the primary or preservation loan servicing information collected under this legal capacity to incur the obligations of in order to determine program eligibility regulation is in response to a borrower’s the loan; have sufficient training or and the feasibility of the request. offer to convey security property to the experience to assure a reasonable Primary loan servicing includes loan Agency in lieu of foreclosure, or to cure prospect of success; have the character, consolidation, rescheduling, a default after the acceleration of the industry and ability to carry out the reamortization, deferral, writedown and loan account to forestall foreclosure proposed operation; is or will become interest rate reductions. Preservation action. The information is essential for the owner-operator of a family sized loan servicing is limited to the the Agency to evaluate the terms of the farm; and is unable to obtain sufficient homestead protection program. offer and determine if acceptance is in credit elsewhere. Loan feasibility Provisions of the 1996 Act included the Government’s best interest. addresses FSA’s determination that both the elimination of the leaseback/ Provisions of the 1996 Act require loan repayment and adequate security buyback program and requires buyout at FSA to provide Native American are available. the current market value rather than the borrower-owners who do not The 1996 Act modified the authorized net recovery value of security property voluntarily convey their real property loan purposes for direct FO loans by when debt restructuring will not resolve security to the Agency the option of (1) eliminating the refinancing of existing a delinquent account. The regulatory requiring FSA to assign the loan and indebtedness and as a result, creditors revisions made as a result of these security instruments to the Secretary of of the applicant will no longer be provisions will eliminate information Interior, or (2) requiring FSA to assign requested to provide evidence of the collection currently approved for the loan and the security instruments to need to refinance debts. Additionally, several exhibits and attachments which the tribe having jurisdiction over the the acquisition, installation, and are no longer required. Other provisions reservation where the property is modification of any qualified non-fossil of the 1996 Act, which include a located not less than 30 days prior to the energy system located on the farm is no limitation of one debt forgiveness on foreclosure of the property. longer an authorized loan purpose. direct loans and the authority to enter Estimate of Burden: Public reporting Therefore, applicants will no longer into contracts for conservation, burden for this collection of information need to provide written evidence that an recreation, and wildlife purposes rather is estimated to average .57 hours per operating permit for the production of than the establishment of an easement response. alcohol fuel has been obtained from the result in a change in the number of Respondents: Individuals or Bureau of Alcohol, Tobacco and respondents for other exhibits, households, state or local governments, Firearms. The public reporting burden attachments or forms. The regulation farms, businesses or other for profit, 65012 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices non-profit institutions, small businesses agencies loan programs. The regulation Estimate of Burden: Public reporting or organizations. establishes the requirements for debt burden for this collection of information Estimated Number of Respondents: settlement and the factors the agency is estimated to average 1.035 hours per 5410. will consider in approving or rejecting response. Estimated Number of Responses per the offer. The information is essential Respondents: Individuals or Respondent: 1.92. for the Agency to evaluate the terms of households, farms, businesses or other Estimated Total Annual Burden on the offer and determined if acceptance for-profit, small businesses or Respondents: 5,917 hours. is in the Government’s best interest. organizations. Title: Management of Property. The 1996 Act established a limitation OMB Number: 0575–0110. of one debt forgiveness on direct loans Estimated Number of Respondents: Expiration Date of Approval: July 31, for FSA borrowers. This limitation will 44,200. 1998. reduce the number of FSA borrowers for Estimated Number of Responses per Type of Request: Revision and which a debt settlement can be Respondent: 1. Extension of a Currently Approved approved under the regulation. Information Collection. Estimated Total Annual Burden on Estimate of Burden: Public reporting Respondents: 45,760 hours. Abstract: The information collected burden for this collection of information under OMB Number 0575–0110, as is estimated to average .50 hours per Copies of the information collection identified above, is needed to enable response. can be obtained from Barbara Williams, Regulations and Paperwork RHS, RBS, RUS and FSA to effectively Respondents: Individuals or Management Division, at (202) 720– administer the regulation relating to the households, state or local governments, 9734. management of custodial and inventory. farms, businesses or other for-profit, RHS, RBS, RUS and FSA will consider small businesses or organizations. Comments real estate and chattel security which Estimated Number of Respondents: has been abandoned by the borrower as 14,950. Comments are invited on: (a) Whether custodial property. Inventory property Estimated Number of Responses per the proposed collection of information is acquired through either foreclosure or Respondent: 1.11. is necessary for the proper performance the voluntary conveyance of the deed or Estimated Total Annual Burden on of the agencies, including whether the title in lieu of foreclosure. The agencies Respondents: 14,825 hours. information will have practical utility; may take actions such as securing, Title: Form FmHA 410– 1, (b) the accuracy of the agencies estimate maintaining, or repairing the property as Application for Direct Loan Assistance. of the burden of the proposed collection necessary to protect the Government’s OMB Number: 0560–0167. of information including the validity of interest. In addition, properties may be Expiration Date: June 30, 1996. the methodology and assumption used; leased under certain limited conditions. (c) ways to enhance the quality, utility The 1996 Act eliminated FSA’s ability Type of Request: Revision and Extension of Information Collection. and clarity of the information to be to lease inventory farm property except collected; and (d) ways to minimize the to those beginning farmers or ranchers Abstract: The information collected under OMB Number 0560–0167, as burden of the collection of information who are selected to purchase an on those who are to respond, including inventory property, but are unable to do identified above, is needed to enable FSA to effectively administer the through the use of appropriate so due to a lack of Agency credit funds. automated, electronic, mechanical, or Such leases may not exceed 18 months regulations relating to the policies and procedures used in making and other technological collection or the date that FSA credit assistance techniques or other forms of information becomes available. servicing direct Farm Credit program loans. The direct loan program is technology. Comments should be sent to Estimate of Burden: Public reporting Barbara Williams, Regulations and burden for this collection of information designed to assist family farmers and ranchers who are temporarily unable to Paperwork Management Division, U.S. is estimated to average .34 hours per Department of Agriculture, Rural response. obtain private, commercial credit. FSA has the responsibility of providing Development, Stop 0743, Washington, Respondents: Individuals or DC 20250–0743. All responses to this households, businesses or other for- credit counseling and supervision to direct borrowers. A thorough notice will be summarized and included profit, state and local governments, in the request for OMB approval. All farms. assessment is completed to evaluate the adequacy of the real estate and facilities, comments will also become a matter of Estimated Number of Respondents: public record. 2,810. machinery and equipment, financial Estimated Number of Responses per and production management, and goals. Dated: November 26, 1996. Respondent: 1. The agency works with the farmer or Jan E. Shadburn, Estimated Total Annual Burden on rancher to develop a plan of supervision Acting Administrator, Rural Housing Service. that will ultimately result in the Respondents: 960 hours. Dated: November 26, 1996. Title: Debt Settlement borrower’s graduation to commercial Dayton J. Watkins, OMB Number: 0575–0118. credit. FSA can provide certain loan Expiration Date of Approval: servicing benefits to assist the borrower Administrator, Rural Business-Cooperative September 30, 1997. in meeting the goals established in the Service. Type of Request: Revision and plan. Form FmHA 410–1, Request for Dated: December 3, 1996. Extension of a Currently Approved Direct Loan Assistance is used by the Wally Beyer, Information Collection. FSA County Offices to collect Administrator, Rural Utilities Service. Abstract: The information collected information needed to determine both under OMB Number 0575–0118, as eligibility and feasibility of a request for Dated: December 3, 1996. identified above, is needed to enable a loan or loan servicing. Bruce R. Weber, RHS, RBS, RUS and FSA to effectively The aforementioned form results in Acting Administrator, Farm Service Agency. administer the regulation relating to public reporting burden as shown in the [FR Doc. 96–31305 Filed 12–9–96; 8:45 am] settlement of debts owed under the following estimates: BILLING CODE 3410±05±P Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65013

DEPARTMENT OF COMMERCE Constitution Avenue, NW, Washington, of Antidumping Investigations, Import DC 20230. Administration, International Trade Submission For OMB Review; Written comments and Administration, U.S. Department of Comment Request recommendations for the proposed Commerce, 14th Street and Constitution information collection should be sent Avenue, N.W., Washington, D.C. 20230; The Department of Commerce (DOC) within 30 days of publication of this telephone: (202) 482–6320 or (202) 482– has submitted to the Office of notice to Jerry Coffey, OMB Desk 5193. Management and Budget (OMB) for Officer, room 10201, New Executive clearance the following proposal for The Applicable Statute Office Building, Washington, DC 20503. collection of information under the Unless otherwise indicated, all provisions of the Paperwork Reduction Dated: December 2, 1996. citations to the Tariff Act of 1930, as Act (44 U.S.C. chapter 35). Linda Engelmeier, amended (the Act), are references to the Agency: Bureau of the Census. Acting Departmental Forms Clearance provisions effective January 1, 1995, the Title: Survey of Residential Officer, Office of Management and Alterations and Repairs. Organization. effective date of the amendments made Form Number(s): SORAR–705. [FR Doc. 96–31260 Filed 12–09–96; 8:45 am] to the Act by the Uruguay Round Agreements Act (URAA). In addition, Agency Approval Number: 0607– BILLING CODE 3510±07±F 0130. unless otherwise indicated, all citations Type of Request: Extension of a to the Department’s regulations are to currently approved collection. Foreign-Trade Zones Board the current regulations, as amended by Burden: 2,000 hours. the interim regulations published in the Number of Respondents: 2,000. [Docket 21±95] Federal Register on May 11, 1995 (60 FR 25130). Avg Hours Per Response: 15 minutes. Foreign-Trade Zone 168ÐDallas-Fort Needs and Uses: The Census Bureau Worth, Texas Withdrawal of Preliminary Determination conducts the Quarterly Survey of Application for Expanded Residential Alterations and Repairs to We preliminarily determine that Manufacturing Authority Nokia Mobile engineered process gas turbo- collect information on real–property Phones Manufacturing (USA), Inc. improvements and repairs from a compressor systems (‘‘EPGTS’’), sample of owners or designated Notice is hereby given of the whether assembled or unassembled, and representatives of rental or vacant withdrawal of the application submitted whether complete or incomplete, from residential housing units. We mail this by the Foreign-Trade Zone Operating Japan are being, or are likely to be, sold survey quarterly to respondents over a Company of Texas, operator of FTZ 168, in the United States at less than fair one–year period. We use data gathered requesting authority on behalf of Nokia value (‘‘LTFV’’), as provided in section in this survey as a component to our Mobile Phones Manufacturing (USA), 733 of the Act. The estimated margins published estimates of expenditures for Inc., to expand Nokia’s authority to of sales at LTFV are shown in the residential upkeep and improvement. manufacture telecommunications ‘‘Suspension of Liquidation’’ section of Data on improvements and repairs to products under zone procedures within this notice. owner occupied housing units are FTZ 168. The application was filed on Case History gathered in the Consumer Expenditures May 8, 1995 (60 FR 26716, 5/18/95). Survey and are also incorporated into The withdrawal was requested by the Since the initiation of this published estimates. Estimates are used applicant because of changed investigation on May 28, 1996 (Notice of by a variety of private businesses and circumstances, and the case has been Initiation of Antidumping Duty trade associations for marketing studies, closed without prejudice. Investigation: Engineered Process Gas economic forecasts, and assessments of Turbo-Compressors, Whether Dated: November 26, 1996. Assembled or Unassembled, and the construction industry. They also John J. Da Ponte, Jr., provide all levels of government with a Whether Complete or Incomplete from Executive Secretary. tool to evaluate economic policy and Japan, 61 FR 28164, June 4, 1996), the measure progress towards established [FR Doc. 96–31248 Filed 12–9–96; 8:45 am] following events have occurred. goals. For example, the Bureau of BILLING CODE 3510±DS±P On July 1, 1996, the United States Economic Analysis uses the International Trade Commission (‘‘ITC’’) improvement statistics to develop the notified the Department of Commerce International Trade Administration structures component of gross private (‘‘the Department’’) of its affirmative domestic investment in the national [A±588±840] preliminary determination (see ITC income and product accounts. Investigation No. 731–TA–748). The ITC Affected Public: Individuals or Notice of Preliminary Determination of found that there is a reasonable households, Businesses or other for– Sales at Less Than Fair Value and indication that an industry in the profit, State, local or tribal government. Postponement of Final Determination: United States is threatened with Frequency: Quarterly. Engineered Process Gas Turbo- material injury by reason of imports Respondent’s Obligation: Voluntary. Compressor Systems, Whether from Japan of EPGTS. Legal Authority: Title 13 USC, Section Assembled or Unassembled, and Also, on July 1, 1996, we presented 182. Whether Complete or Incomplete From Section A (Organization, Accounting OMB Desk Officer: Jerry Coffey, (202) Japan Practices, Markets and Merchandise) of 395–7314. the Department’s questionnaire to Copies of the above information AGENCY: Import Administration, Mitsubishi Heavy Industries, Ltd. collection proposal can be obtained by International Trade Administration, (‘‘MHI’’) and its U.S. affiliate Mitsubishi calling or writing Linda Engelmeier, Department of Commerce. Heavy Industries America Inc. Acting DOC Forms Clearance Officer, EFFECTIVE DATE: December 10, 1996. (‘‘MHIA’’)(collectively ‘‘MHI’’), the sole (202) 482–3272, Department of FOR FURTHER INFORMATION CONTACT: respondent in this investigation. See the Commerce, room 5312, 14th and Irene Darzenta or Howard Smith, Office ‘‘Respondent Selection’’ section of this 65014 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices notice. MHI’s response to Section A was With respect to the definition of Memorandum to Louis Apple from The received on July 29, 1996. complete and incomplete EPGTS, see Team Regarding Initiation of Home On August 6, 1996, Dresser-Rand ‘‘Scope Issues’’ section of this notice. Market Sales-Below-Cost Investigation Company, the petitioner in this Based on the Department’s scope dated December 4, 1996. investigation, alleged that there are clarification made with respect to the reasonable grounds to believe or suspect end uses of the subject merchandise, on Respondent Selection that MHI’s third country sales during October 18, 1996, MHI informed the The petitioner named five Japanese the period of investigation (‘‘POI’’) were Department that its home market was producers of subject merchandise in the made at prices below the cost of viable, but that none of MHI’s home petition, and stated that, of these five production. MHI objected to the market sales made during the POI was producers, only MHI sold subject petitioner’s allegation on August 9, sufficiently similar to its U.S. sale to merchandise in the United States during 1996. The petitioner supplemented its serve as the basis for price-to-price the POI. On June 12, 1996, we sent a allegation with additional information comparisons. Based on MHI’s letter to the Japanese Embassy in on August 27, 1996. The Department representations, subject to verification, Washington, D.C. requesting whether initiated a sales-below-cost investigation the Department notified MHI on October there were any shipments of the subject with respect to third country sales on 23, 1996, that it need no longer respond merchandise to the United States by any August 30, 1996. This issue, however, to the questions concerning third of the companies listed in the petition became moot when MHI reported on country sales contained in Sections B during the period May 1, 1991 through October 18, 1996, that it had a viable and D of the Department’s October 15, May 31, 1996. We received no response. home market based on the 1996 supplemental questionnaire. On June 17, 1996, we contacted the U.S. memorandum issued by the Department Subsequently, on October 23, 1996, the Embassy in Tokyo, requesting the on October 8, 1996, which clarified the Department issued a revised Section D identification of Japanese producers or scope of the investigation. supplemental questionnaire and exporters (other than MHI) of EPGTS to Based on the information received in requested that MHI provide complete the United States, and the quantity and MHI’s Section A response, on August 9, home market sales data following the value of subject merchandise they sold 1996, we issued Sections A–1 (Supplier same format as that outlined in the to the United States during 1994 and Affiliations), B (Third Country Sales), C Department’s August 9, 1996 Section B 1995, or the latest available comparable (U.S. Sales) and D (Constructed Value questionnaire so that the Department periods in 1993 and 1994. On June 26, (‘‘CV’’)) of the Department’s could evaluate adequately its selling 1996, we received a reply cable from the questionnaire to MHI. Section D–1 (Cost practices. MHI’s response to the revised U.S. Embassy which identified several of Production) of the questionnaire was supplemental Section D questionnaire Japanese producers of subject issued on August 30, 1996. Responses to was received by the Department on merchandise, only one of which, Ebara these sections were received on August November 12, 1996. Home market sales Corporation, may have exported to the 27, September 20, and September 30, data was provided to the Department on United States. Based on the petition and 1996. A supplemental questionnaire November 8 and 22, 1996. the information received from the U.S. relevant to Sections A–D was issued on MHI sold subject merchandise in the Embassy, we issued a Section A October 15, 1996. MHI’s response to United States during the POI through a questionnaire to MHI on July 1, 1996. Sections A and C of the Department’s Japanese trading company and its U.S. We also requested U.S. sales/shipment supplemental questionnaire were subsidiary. In order to fully investigate information during the period April 1, received on November 5, 1996. the issue of whether MHI and the 1995 through May 31, 1996 from Ebara On September 12, 1996, at the request trading company (and its U.S. Corporation on July 10, 1996. On July of the petitioner, we postponed the subsidiary) are affiliated parties, on 22, 1996, Ebara Corporation sent a letter preliminary determination to December October 23 and 28, 1996, the stating that it made no sales or 4, 1996. (See Notice of Postponement of Department issued questionnaires to shipments of the subject merchandise to Preliminary Determination: MHI and the trading company, the United States during the period Antidumping Investigation of respectively. Responses to these specified by the Department. We did not Engineered Process Gas Turbo- questionnaires were received on send any additional questionnaires to Compressors, Whether Assembled or November 8 and 19, 1996, respectively. any other producers (besides MHI), as Unassembled, and Whether Complete or MHI submitted supplemental responses no evidence on the record suggested Incomplete from Japan, 61 FR 50272, on November 20 and 22, 1996. that any other Japanese manufacturer September 25, 1996.) On November 18, 1996, the petitioner sold EPGTS in the United States during During the period June 19, 1995, filed comments on issues to be resolved the specified period. through July 15, 1996, the petitioner and and methodologies to be employed in the respondent filed comments the preliminary determination. MHI Postponement of Final Determination requesting clarification of the scope of filed rebuttal comments on November and Extension of Provisional Measures this investigation with respect to: (1) the 25, 1996. Pursuant to section 735(a)(2)(A) of the end uses of the subject merchandise; (2) On November 21, 1996, the petitioner Act, on December 4, 1996, MHI the treatment of revamped and repair filed a home market sales-below-cost requested that in the event of an EPGTS parts and components; and (3) allegation, stating that during the POI, affirmative preliminary determination the definition of complete and MHI sold subject merchandise in the in this investigation, the Department incomplete EPGTS covered by the home market below the cost of postpone its final determination until scope. On October 8, 1996, the production and, therefore, should be not later than 135 days after the Department clarified the scope of the excluded from the Department’s publication of an affirmative investigation with respect to end uses calculation of profit for CV purposes. preliminary determination in the and revamped and repair parts and On November 22, 1996, MHI filed Federal Register. In accordance with 19 components. See October 8, 1996, comments in rebuttal to the petitioner’s CFR 353.20(b)(1995), inasmuch as our Memorandum to Jeffrey Bialos from The allegation. The Department initiated a preliminary determination is Team Re: Scope Issues. See also ‘‘Scope home market sales-below-cost affirmative, MHI accounts for a of Investigation’’ section of this notice. investigation on December 4, 1996. See significant proportion of exports of the Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65015 subject merchandise, and we are not axial (classified by the mechanical pursuant to a contract for a complete aware of the existence of any means of compressing the fluid), or as EPGTS in the United States, which compelling reasons for denying this positive-displacement or dynamic-type taken altogether, constitute at least 50 request, we are granting MHI’s request (classified by the manner in which the percent of the cost of manufacture of the and postponing the final determination. mechanical elements act on the fluid to complete EPGTS of which they are a Suspension of liquidation will be be compressed). Subject compressors part. extended accordingly. See Preliminary include only centrifugal compressors EPGTS imported from Japan as an Determination of Sales at Less Than engineered for process gas compression, assembly or train (i.e., including Fair Value: Large Newspaper Printing e.g., ammonia, urea, methanol, turbines, compressors, motor and gear Presses and Components Thereof, propylene, or ethylene service. boxes, control systems and lubrication Whether Assembled or Unassembled Turbines are classified (1) as steam or systems, and auxiliary equipment) may from Japan (61 FR 8029, March 1, 1996). gas; (2) by mechanical arrangement as be classified under Harmonized Tariff single-casing, multiple shaft, or tandem- Schedule of the United States Scope of Investigation compound (more than one casing with (‘‘HTSUS’’) subheading 8414.80.2015, We have clarified the scope of a single shaft); (3) by flow direction which provides for centrifugal and axial investigation since our notice of (axial or radial); (4) by steam cycle, compressors. The U.S. Customs Service initiation to include EPGTS used in the whether condensing, non-condensing, may view the combination of turbine production of refinery products. automatic extraction, or reheat; and (5) driver and compressor as ‘‘more than’’ Furthermore, we have clarified the by number of exhaust flows of a a compressor and, as a result, classify scope to exclude repair or revamp parts condensing unit. Steam and gas turbines the combination under HTSUS and components that are not included are used in various applications. Only subheading 8419.60.5000. in the original contract of sale for an steam turbines dedicated for a turbo- Compressors for use in EPGTS, if EPGTS. See October 8, 1996, Decision compressor system are subject to this imported separately, may also be Memorandum to Jeffrey P. Bialos from investigation. classified under HTSUS subheading The Team Re: Scope Issues. We have A motor and gear box is used as a 8414.80.2015. Parts for such also clarified the definition of compressor driver in lieu of a steam compressors, including rotors or ‘‘incomplete’’ EPGTS which are covered turbine. A control system is used to impellers and housing, are classified by the scope. See ‘‘Scope Issues’’ section monitor and control the operation of a under HTSUS subheading 8414.90.4045 of this notice. turbo-compressor system. A lubrication and 8414.90.4055. The products covered by this system is engineered to support a Steam turbines for use in EPGTS, if investigation are turbo-compressor subject compressor and steam turbine imported separately, may be classified systems (i.e., one or more ‘‘assemblies’’ (or motor/gear box). under the following HTSUS or ‘‘trains’’) which are comprised of A typical EPGTS consists of one or subheadings: 8406.81.1020: steam various configurations of process gas more compressors driven by a turbine turbines, other than marine turbines, compressors, drivers (i.e., steam (or in some cases a motor drive). A stationary, condensing type, of an turbines or motor-gear systems designed compressor is usually installed on a output exceeding 40 MW; 8406.82.1010: to drive such compressors), and base plate and the drive is installed on steam turbines, other than marine auxiliary control systems and a separate base plate. The turbine (or turbines, stationary, condensing type, lubrication systems for use with such motor drive) base plate will typically exceeding 7,460 Kw; 8406.82.1020: compressors and compressor drivers, also include any governing or safety steam turbines, other than marine whether assembled or unassembled. systems, couplings, and a gearbox, if turbines, stationary, condensing type, One or more of these turbo-compressor any. The lube and oil seal systems for exceeding 7,460 Kw, but not exceeding assemblies or trains, may be combined. the turbine and compressor(s) are 40 MW; 8406.82.1050: steam turbines, The systems covered are only those usually mounted on a separate skid. other than marine turbines, stationary, used in the petrochemical and fertilizer The scope of this investigation covers other than condensing type, not industries, in the production of both ‘‘assembled and unassembled’’ exceeding 7,460 Kw; 8406.82.1070: ethylene, propylene, ammonia, urea, EPGTS from Japan. Because of their steam turbines, other than marine methanol, refinery and other large size, EPGTS and their constituent turbines, stationary, other than petrochemical products. This parts are typically shipped partially condensing type, exceeding 7,460 Kw, investigation does not encompass turbo- assembled (or unassembled) to their but not exceeding 40 MW. Parts for such compressor systems incorporating gas destination where they are assembled turbines are classified under HTSUS turbine drivers, which are typically and/or completed prior to their subheading 8406.90.2000 through used in pipeline transmission, injection, commissioning. 8406.90.4580. gas processing, and liquid natural gas The scope of this investigation also Control and other auxiliary systems service. covers ‘‘complete and incomplete’’ may be classified under HTSUS The scope of this investigation EPGTS from Japan. A ‘‘complete’’ 9032.89.6030, ‘‘automatic regulating or excludes spare parts that are sold EPGTS covered by the scope consists of controlling instruments and apparatus: separately from a contract for an EPGTS. all of the components of an EPGTS (i.e., complete process control systems.’’ Parts or components imported for the process gas compressor(s), driver(s), Motor and gear box entries may be revamp or repair of an existing EPGTS, auxiliary control system(s) and classified under HTSUS subheading or otherwise not included in the original lubrication system(s)) and their 8501.53.4080, 8501.53.6000, contract of sale for the EPGTS of which constituent parts, which are imported 8501.53.8040, or 8501.53.8060. Gear they are intended to be a part, are from Japan in assembled or speed changers used to match the speed expressly excluded from the scope. unassembled form, individually or in of an electric motor to the shaft speed Compressors are machines used to combination, pursuant to a contract for of a driven compressor, would be increase the pressure of a gas or vapor, a complete EPGTS in the United States. classified under HTSUS subheading or mixture of gases and vapors. An ‘‘incomplete’’ EPGTS covered by the 8483.40.5010. Compressors are commonly classified as scope of this investigation consists of Lubrication systems may be classified reciprocating, rotary, jet, centrifugal, or parts of an EPGTS imported from Japan under HTSUS subheading 8414.90.4075. 65016 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Although the HTSUS subheadings are the complete EPGTS is produced. Thus, Export Price’’ and ‘‘Normal Value’’ provided for convenience and customs we will suspend liquidation on all sections of this notice. purposes, our written description of the importations of EPGTS parts from Japan Constructed Export Price scope of this investigation is dispositive. at the preliminary duty rate calculated by the Department unless a certification Pursuant to section 772 of the Act, the Scope Issues is provided by both the foreign basis for the fair value comparison is the Subsequent to initiation, MHI manufacturer/exporter and U.S. price at which the merchandise is first requested that the Department clarify importer that the parts to be imported, sold to an unaffiliated purchaser in the the definition of an ‘‘incomplete’’ when taken altogether, constitute less United States or for export to the United EPGTS covered by the scope of the than 50 percent of the cost of States. MHI reported its sale to a investigation. As stated above, we have manufacture of the complete EPGTS of Japanese trading company on the preliminarily determined that an which they are a part. For entries which grounds that the trading company is an ‘‘incomplete’’ EPGTS covered by the are accompanied by the appropriate unaffiliated purchaser and, at the time scope of this investigation consists of certification, we will direct the U.S. of sale, MHI knew that merchandise was parts of an EPGTS from Japan pursuant Customs Service to suspend liquidation intended for export to the United States. to a contract for a complete EPGTS in at a zero duty rate, subject to However, based on our examination of the United States, which taken verification by the Department at a later the sales documentation provided by altogether, constitute at least 50 percent date, if necessary. We will also require MHI, which shows that MHI played an of the cost of manufacture of the the interested parties to provide the integral role in the sale to the U.S. complete EPGTS of which they are a following information on the customer, we have preliminarily part. documentation accompanying each determined that the Japanese trading Because of their large physical size, entry from Japan of EPGTS parts: (1) the company and its U.S. subsidiary were EPGTS are typically imported into the number of the sales contract pursuant to acting as MHI’s U.S. selling agents, not United States in either partially which the parts are imported, (2) a as resellers, in the transaction under assembled or disassembled form, description of the parts included in the investigation. Therefore, the proper perhaps in multiple shipments over an entry, (3) the actual cost of the imported basis for the fair value comparison is the extended period of time, and may parts, (4) the actual or estimated cost sale by MHI, through the Japanese require the addition and integration of (depending on what is available at the trading company and its U.S. non-subject parts prior to, or during, the subsidiary, to the U.S. customer. time of importation) of the complete installation process in the United States. Because MHI made this transaction EPGTS, and historical cost variance (if The Department is concerned that, through a U.S. agent acting on behalf of the estimated cost is provided), (5) a because of the great number of parts the producer, we preliminarily schedule of parts shipments to be made involved, there is the potential that a determine that the use of CEP is pursuant to the particular EPGTS party may attempt to exclude its appropriate in this case. merchandise from the scope of this contract, if more than one shipment is We have preliminarily made this investigation on the basis of a lack of relevant, and (6) a schedule of EPGTS determination (see December 4, 1996 completion at the time of importation. production completion in the United Concurrence Memorandum) based on The Department’s concern in this case States. See ‘‘Suspension of Liquidation’’ the role of the parties in the sales has also been expressed in past cases section of this notice. transaction and not on the basis of the with similar fact patterns (e.g., Final We are presently soliciting comments corporate relationship between the Determination of Sales at Less Than from interested parties as to the merits parties. However, we are also Fair Value: Large Newspaper Printing of this approach and/or any other continuing to examine the nature of the Presses and Components Thereof, from approach that may be relevant for relationship between MHI and the Germany and Japan, 61 FR 38166, suspension of liquidation purposes in Japanese trading company within the 38139, July 23, 1996) (‘‘LNPPs from the final determination. Interested party context of section 771(33) (F) and (G) of Germany and Japan’’). comments on this topic are due no later the Act. Therefore, for suspension of than February 28, 1997. To determine whether sufficient liquidation purposes, the Department Period of Investigation (POI) control of one party over another exists must decide on a reasonable and pursuant to section 771(33) of the Act, administrable approach in determining The POI is April 1, 1995 through May the Department made inquiries on this what constitutes a subject incomplete 31, 1996. issue in this case through the issuance of separate questionnaires to both MHI EPGTS. Product Comparisons For purposes of this preliminary and the Japanese trading company and determination, we have defined a Although the home market was through a review of public source data. ‘‘complete’’ and an ‘‘incomplete’’ viable, in accordance with section 773 We collected information relevant to the EPGTS covered by the scope of our of the Act, we based normal value various control indicia set forth in the investigation. See ‘‘Scope of (‘‘NV’’) on CV because we determined Statement of Administrative Action Investigation’’ section of this notice. We that the merchandise sold in the home (‘‘SAA’’), and plan to gather additional have utilized this approach in the past market during the POI was not information as necessary to complete where the nature of the merchandise sufficiently similar to that sold in the our analysis and to verify the data and its importation lent itself to United States to permit proper price-to- submitted. See December 4, 1996, circumvention. (See LNPPs from price comparisons. Memorandum to Jeffrey Bialos from The Team Regarding Whether the Evidence Germany and Japan). Fair Value Comparisons In order to determine whether the on the Record of {this} Investigation imported merchandise constitutes a To determine whether MHI’s sales of Supports a Finding that {MHI} and {the subject incomplete EPGTS through EPGTS to the United States were made Japanese Trading Company} Are performance of this cost-based test, we at less than fair value, we compared Affiliated for Antidumping Purposes, will have to wait until all of the parts Constructed Export Price (‘‘CEP’’) to the and the Consequences of this Finding in comprising the EPGTS are imported and NV, as described in the ‘‘Constructed Determining the Appropriate Basis for Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65017

U.S. Price. In this case, the Department short-term interest rate reported for the Level of Trade (LOT) faces complex issues involving the POI because the sale was denominated As set forth in section 773(a)(1)(B)(i) interpretation of the affiliation in U.S. dollars. See LNPPs from Japan of the Act and in the SAA at 829–831, definition and the application of that and Germany and Oil Country Tubular to the extent practicable, the definition to the facts at issue. The Goods from Austria (60 FR 33551, 33555 Department will calculate NV based on central issue is whether MHI and the (1995)). sales (or in this case CV) at the same Japanese trading company are legally or Furthermore, we also deducted an level of trade as the U.S. sales. When the operationally in a position to exercise amount for the selling expenses Department is unable to find sales in the restraint or direction over the other or incurred by the Japanese trading comparison market at the same level of are under common control by third company and its U.S. subsidiary based trade as the U.S. sale(s), the Department parties. The question of control is a on facts available, as actual expense may compare sales in the U.S. and particularly complex one where, as in data was not available. As facts foreign markets at different levels of the instant case, it may not involve available, we calculated an amount trade. direct control of one party over another, equal to the difference between the In its questionnaire responses, MHI but may involve control exercised price MHI charged the Japanese trading did not state that there were differences through financial entities which each company, and the price the Japanese have debt relationships with the two in its selling activities by customer trading company’s U.S. subsidiary firms. Issues relevant to this categories within each market. charged the U.S. customer (net of the determination include: how to evaluate Therefore, in the absence of information value of the non-subject parts and post- the relative significance of debt in MHI’s questionnaire responses which POI price changes) as a surrogate for relationships as indicia of control in the might lead us to reach a different these expenses. Finally, we made an country under investigation (and conclusion, we have determined for adjustment for CEP profit in accordance whether any benchmarks are purposes of this preliminary with section 722(d)(3) of the Act. appropriate); when a close supplier determination that all sales in the home market and the U.S. market were made relationship exists and its implication; Normal Value/Constructed Value and how to weigh the control indicia set at the same level of trade. Therefore, all forth in the SAA, especially if the For the reasons outlined in the fair value comparisons are at the same Department finds that no single ‘‘Product Comparisons’’ section of this level of trade and no adjustment criterion is a sufficient indication of notice, we based NV on CV. pursuant to section 773(a)(7)(A) of the Act is warranted. control. In accordance with section 773(e)(1) Given the Department’s desire to of the Act, we calculated CV based on Price to CV Comparisons develop an appropriate analytical the sum of MHI’s cost of materials, framework to take into account all In comparing CEP to CV, we deducted fabrication, selling, general, and from CV the home market direct selling factors which, by themselves, or in administrative expenses (‘‘SG&A’’), and combination, may indicate affiliation in expenses pursuant to section 773(a)(8) profit, plus U.S. packing costs as of the Act. this case, we are continuing to reported in the U.S. sales database. investigate the issue for purposes of the Currency Conversion final determination. Additionally, we In accordance with section solicit comments from interested parties 773(e)(2)(A) of the Act, we based SG&A We made currency conversions into on the issues enumerated above. and profit on the amounts incurred and U.S. dollars based on the official Interested party comments on this topic realized by the respondent in exchange rates in effect on the date of are due no later than February 17, 1997. connection with the production and sale the U.S. sale as certified by the Federal In accordance with sections 772 (b) of the foreign like product in the Reserve Bank. The date of sale in this and (c) of the Act, we calculated CEP ordinary course of trade, for case is the earliest date on which the based on a packed, FOB Japanese port, consumption in the foreign country. For essential terms of sale were set by the duty paid price, inclusive of spare parts, selling expenses, we allocated the U.S. customer and MHI’s sales agent, to an unaffiliated customer in the reported home market selling expenses the U.S. subsidiary of the Japanese United States through an unaffiliated over the cost of manufacture (‘‘COM’’), trading company. See ‘‘Constructed trading company. We excluded from and applied the resulting percentage to Export Price’’ section of this notice. this price any post-POI price the COM. Section 773A(a) of the Act directs the amendments, in accordance with our We relied on the respondent’s CV Department to convert foreign standard practice. See LNPPs from data, except in the following specific currencies based on the dollar exchange Germany (61 FR 38166, 38181–2, July instances wherein the reported costs rate in effect on the date of sale of the 23, 1996). We made a deduction from were improperly valued: subject merchandise, except if it is the starting price for the value of the established that a currency transaction non-subject parts which were included 1. We included the costs associated on forward markets is directly linked to in the U.S. sale. We also made with performance tests in the COM an export sale. When a company deductions for foreign inland freight because based on the respondent’s demonstrates that a sale on forward expense, foreign inland insurance, description of the nature of these tests, markets is directly linked to a particular foreign brokerage and handling, and they did not appear to be ‘‘special tests’’ export sale in order to minimize its export insurance. specifically required by the customer exposure to exchange rate losses, the Pursuant to section 772(d) of the Act, that would go beyond routine quality Department will use the rate of we also made deductions for direct control tests or which would not exchange in the forward currency sale selling expenses, including imputed otherwise be performed on the subject agreement. credit and installation-related expenses, merchandise during the production Section 773A(a) also directs the and indirect selling expenses that process. Department to use a daily exchange rate related to economic activity in the 2. We adjusted the price of production in order to convert foreign currencies United States. We imputed credit inputs purchased by MHI from affiliated into U.S. dollars, unless the daily rate expenses for the U.S. sale using the U.S. parties at non-arm’s-length prices. involves a fluctuation. It is the 65018 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Department’s practice to find that a contract is produced, unless a The All Others rate applies to all fluctuation exists when the daily certification is provided by both the entries of subject merchandise except exchange rate differs from the foreign manufacturer/exporter and U.S. for entries of merchandise produced by benchmark rate by 2.25 percent. The importer that the parts to be imported, MHI. benchmark is defined as the rolling when taken altogether, constitute less ITC Notification average of rates for the past 40 business than 50 percent of the cost of days. When we determine a fluctuation manufacture of the complete EPGTS of In accordance with section 733(f) of existed, we substitute the benchmark for which they are a part. For those entries the Act, we have notified the ITC of our the daily rate, in accordance with which are accompanied by this determination. If our final established practice. Further, section certification, we will direct the U.S. determination is affirmative, the ITC 773A(b) directs the Department to allow Customs Service to suspend liquidation will determine before the later of 120 a 60-day adjustment period when a at a zero duty rate, subject to days after the date of this preliminary currency has undergone a sustained verification by the Department at a later determination or 45 days after our final movement. A sustained movement has date if necessary. We will also require determination whether these imports occurred when the weekly average of the interested parties to provide clearly are materially injuring, or threaten actual daily rates exceeds the weekly the following information on the material injury to, the U.S. industry. average of benchmark rates by more documentation accompanying each than five percent for eight consecutive entry from Japan of EPGTS parts: (1) the Public Comment weeks. (For an explanation of this EPGTS contract pursuant to which the Case briefs or other written comments method, see, Policy Bulletin 96–1: parts are imported, (2) a description of in at least ten copies must be submitted Currency Conversions, 61 FR 9434, the parts included in the entry, (3) the to the Assistant Secretary for Import March 8, 1996.) Such an adjustment actual cost of the imported parts, (4) the Administration no later than March 12, period is required only when a foreign actual or estimated cost (depending on 1997, and rebuttal briefs, no later than currency is appreciating against the U.S. what is available at the time of March 17, 1997. A list of authorities dollar. The use of an adjustment period importation) of the complete EPGTS, used and an executive summary of was not warranted in this case because and historical cost variance (if the issues should accompany any briefs the Japanese yen did not undergo a estimated cost is provided), (5) a submitted to the Department. Such sustained movement, nor were there any schedule of parts shipments to be made summary should be limited to five pages currency fluctuations during the POI. pursuant to a particular EPGTS contract, total, including footnotes. In accordance Verification if more than one shipment is relevant; with section 774 of the Act, we will and (6) a schedule of EPGTS production As provided in section 782(i) of the hold a public hearing, if requested, to completion in the United States. Act, we will verify all information used afford interested parties an opportunity in making our final determination. With respect to entries of EPGTS to comment on arguments raised in case spare and replacement/repair parts from or rebuttal briefs. Tentatively, the Suspension of Liquidation Japan, we will instruct the Customs hearing will be held on March 20, 1997, In accordance with section 733(d) of Service not to suspend liquidation of time and place to be determined, at the the Act, we are directing the Customs these entries if they are not included in U.S. Department of Commerce, 14th Service to suspend liquidation of all the original contract of sale for the Street and Constitution Avenue, N.W., entries of EPGTS from Japan, as defined EPGTS of which they are intended to be Washington, D.C. 20230. Parties should in the ‘‘Scope of Investigation’’ section a part. confirm by telephone the time, date, and of this notice, that are entered, or In addition, in order to ensure that place of the hearing 48 hours before the withdrawn from warehouse for our suspension of liquidation scheduled time. consumption, on or after the date of instructions are not so broad as to cover Interested parties who wish to request publication of this notice in the Federal merchandise imported for non-subject a hearing, or to participate if one is Register. We are also directing the uses, foreign producers/exporters and requested, must submit a written Customs Service to suspend liquidation U.S. importers shall be required to request to the Assistant Secretary for of all entries of parts of EPGTS imported provide certification that the imported Import Administration, U.S. Department pursuant to a contract for a complete merchandise would not be used to of Commerce, Room B–099, within ten EPGTS in the United States that are fulfill an EPGTS contract. We will also days of the publication of this notice. entered, or withdrawn from warehouse request that these parties register with Requests should contain: (1) the party’s for consumption, on or after the date of the Customs Service the EPGTS contract name, address, and telephone number; publication of this notice in the Federal numbers pursuant to which subject (2) the number of participants; and (3) Register. For these entries, the Customs merchandise is imported. These a list of the issues to be discussed. Oral Service will require a cash deposit or suspension of liquidation instructions presentations will be limited to issues posting of a bond equal to the estimated will remain in effect until further notice. raised in the briefs. If this investigation amount by which the normal value proceeds normally, we will make our exceeds the constructed export price as The weighted-average dumping final determination by 135 days after the shown below. margins are as follows: publication of this notice in the Federal The suspension of liquidation with Register. respect to EPGTS parts will remain in Weight- ed-aver- This determination is published effect provided that the sum of such age pursuant to section 733(f) of the Act. entries represents at least 50 percent of Exporter/Manufacturer margin the cost of manufacture of the complete percent- Dated: December 4, 1996. EPGTS of which they are part. This age Robert S. LaRussa, determination will be made only after Acting Assistant Secretary for Import Mitsubishi Heavy Industries, Ltd. Administration. all entries of parts imported pursuant to (MHI) ...... 34.37 [FR Doc. 96–31356 Filed 12–09–96; 8:45 am] an EPGTS contract are made and the All others ...... 34.37 complete EPGTS pursuant to that BILLING CODE 3510±DS±P Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65019

[A±557±805] Background 777A(d)(2), we calculated monthly weighted-average prices for normal Notice of Preliminary Results of On October 7, 1992, the Department published in the Federal Register (57 value and compared these to individual Antidumping Duty Administrative U.S. transactions. Review: Extruded Rubber Thread From FR 46150) the antidumping duty order Malaysia on extruded rubber thread from Export Price Malaysia. On October 30, 1995, the AGENCY: Import Administration, petitioner, North American Rubber The Department used the EP, as International Trade Administration, Thread, requested that the Department defined in section 772(a) of the Act, Department of Commerce. conduct an antidumping administrative where the subject merchandise was sold review for the following producers and by the manufacturer or exporter to ACTION: Notice of preliminary results of exporters of extruded rubber thread: unaffiliated purchasers in the United antidumping duty administrative Heveafil Sdn. Bhd. (‘‘Heveafil’’), review. States prior to importation and the CEP Rubberflex Sdn. Bhd. (‘‘Rubberflex’’), was not otherwise warranted based on Filati Lastex Elastfibre (Malaysia) SUMMARY: In response to a request by the facts of record. For each of the (‘‘Filati’’), and Rubfil Sdn. Bhd petitioner and four producers/exporters companies, we calculated EP based on (‘‘Rubfil’’). On October 31, 1995, these of the subject merchandise, the packed C&F, CIF, or FOB prices. We same producers and exporters requested made deductions, where appropriate, Department of Commerce (the to be reviewed. On November 16, 1995, Department) is conducting an for forwarding charges, insurance we published a notice of initiation of an expenses, and ocean freight in administrative review of the administrative review of this order for antidumping duty order on extruded accordance with section 772(c)(2) of the the period October 1, 1994, through Act. rubber thread from Malaysia. The September 30, 1995, (60 FR 57573) for review covers four manufacturers/ the following producers and exporters Constructed Export Price exporters. The period of review (the of extruded rubber thread: Heveafil, POR) is October 1, 1994, through Rubberflex, Filati, and Rubfil. The We calculated CEP, as defined in September 30, 1995. Department is conducting this section 772(b) of the Act, based on We have preliminarily determined administrative review in accordance packed, F.O.B. or delivered prices to that sales have been made below normal with section 751(a) of the Act. unaffiliated purchasers in the United value (NV) by all of the companies States (the starting price). We made subject to this review. If these Scope of Review deductions for movement expenses as preliminary results are adopted in the The product covered by this review is appropriate in accordance with section final results of this administrative extruded rubber thread. Extruded rubber 772(c)(2)(A) of the Act. review, we will instruct the U.S. thread is defined as vulcanized rubber In accordance with section 772(d)(1) Customs Service to assess antidumping thread obtained by extrusion of stable or of the Act and the Uruguay Round duties on all appropriate entries. concentrated natural rubber latex of any Agreements Act Statement of We invite interested parties to cross sectional shape, measuring from Administrative Action (SAA) (H. Doc. comment on these preliminary results. 0.18 mm, which is 0.007 inch or 140 316, 103d Cong., 2nd Sess. 823–824 Parties who submit comments in this gauge, to 1.42 mm, which is 0.056 inch (1996)), we made additional proceeding are requested to submit with or 18 gauge, in diameter. Extruded adjustments to the starting price by rubber thread is currently classified each argument (1) a statement of the deducting selling expenses associated under subheading 4007.00.00 of the issue and (2) a brief summary of the with economic activities in the United Harmonized Tariff Schedule of the argument. States, including movement expenses, United States (HTSUS). The HTSUS commissions, direct selling expenses, EFFECTIVE DATE: December 10, 1996. subheadings are provided for and U.S. indirect selling expenses. FOR FURTHER INFORMATION CONTACT: For convenience and Customs purposes. Finally, we made an adjustment for CEP further information, please contact Our written description of the scope of profit in accordance with sections Laurel LaCivita or Robert Blankenbaker this review is dispositive. 772(d)(3) and 772(f) of the Act. at Import Administration, International Verification Trade Administration, U.S. Department Normal Value of Commerce, Washington, D.C. 20230; We conducted a verification of telephone: (202) 482–4740 or (202) 482– information provided by Rubberflex A. Viability 0989, respectively. using standard verification procedures, including on-site inspection of In order to determine whether there SUPPLEMENTARY INFORMATION: Rubberflex’s sales and production was a sufficient volume of sales in the home market to serve as a viable basis The Applicable Statute facility, the examination of relevant sales and financial records, and original for calculating normal value (NV), we Unless otherwise indicated, all documentation containing relevant compared the respondent’s volume of citations to the Tariff Act of 1930, as information. home market sales of the foreign like amended (the Act), are references to the product to the volume of U.S. sales of provisions effective January 1, 1995, the Fair Value Comparisons the subject merchandise, in accordance effective date of the amendments made To determine whether sales of with section 773(a)(1)(C) of the Act. to the Act by the Uruguay Round extruded rubber thread to the United Because the aggregate volume of home Agreements Act (URAA). In addition, States were made at less than fair value, market sales of the foreign like product unless otherwise indicated, all citations we compared the export price (EP) or for each company was greater than five to the Department’s regulations are to constructed export price (CEP) to the percent of its aggregate volume of U.S. the current regulations, as amended by normal value (NV), as described in the sales of the subject merchandise, we the interim regulations published in the ‘‘Export Price’’, ‘‘Constructed Export found that the home market was viable Federal Register on May 11, 1995 (60 Price’’ and ‘‘Normal Value’’ sections of for all companies. Therefore, we have FR 25130). this notice. In accordance with section based NV on home market sales. 65020 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

B. Model Match by Filati and Rubfil, the Department We used the U.S. packing costs as In accordance with section 771(16) of determined that it had reasonable reported in the U.S. sales portion of the Act, we considered all products sold grounds to believe or suspect that sales each respondent’s questionnaire in the home market, fitting the by Filati and Rubfil of the foreign response. We based selling expenses description specified in the ‘‘Scope of product under consideration for the and profit on the information reported Review’’ section above, to be foreign determination of NV in this review may in the home market sales portion of the like products for purposes of have been made at prices below the COP respondent’s questionnaire response. determining appropriate product as provided by section 773(b)(2)(A)(i) of See Certain Pasta from Italy; Notice of comparisons to U.S. sales. We first the Act. Preliminary Determination of Sales at Therefore, pursuant to section Less Than Fair Value and Postponement searched for the home market model 773(b)(1) of the Act, we initiated a COP of Final Determination, 61 FR 1344, which is identical in characteristics to investigation of sales by Filati and 1349 (January 19, 1996). For SG&A each U.S. model. When there were no Rubfil in the home market. See COP expenses and actual profit, we used the contemporaneous sales of identical Initiation Memorandum, dated August average of actual amounts incurred and merchandise, we searched for the home 8, 1996. realized by respondents in connection market model which is most like or After calculating COP, we tested with the production and sale of the most similar in characteristics to each whether home market sales of the foreign like product in the ordinary U.S. model. In determining similar foreign like product were made at prices course of trade for consumption in the merchandise comparisons, in below COP within an extended period foreign country, in accordance with accordance with section 771(16) of the of time in substantial quantities and section 773(e)(2)(A) of the Act. Act, we considered the following whether such prices permitted the physical characteristics, which appear recovery of all costs within a reasonable D. Price-to-Price Comparisons in order of importance: (1) Quality (i.e., period of time in accordance with For those price-to-price comparisons first vs. second); (2) size; (3) finish; (4) section 773(b)(1). We compared model- where we did not resort to CV, we based color; (5) special qualities; (6) specific COPs to the reported home NV on the prices at which the foreign uniformity; (7) elongation; (8) tensile market prices less any applicable like products were first sold for strength; and (9) modulus. With the adjustments. consumption in the home market to an exception of quality, these Pursuant to section 773(b)(2)(C) of the unaffiliated party in the usual characteristics are in accordance with Act, where less than 20 percent of the commercial quantities and in the matching criteria set forth in the January respondent’s sales of a given model ordinary course of trade and, to the 26, 1994, memorandum to the file, on were at prices less than COP, we did not extent practicable, at the same level of the record for this review. Regarding disregard any below-cost sales of that trade as the CEP or EP, in accordance quality, we have added this model because the below-cost sales with section 773(a)(1)(B)(i) of the Act. characteristic in order to address were not made in substantial quantities. Respondents reported that they made all respondents’ concerns regarding Where 20 percent or more of the home market and CEP or EP sales of differences in value related to respondent’s sales of a given model subject merchandise at the same level of significant differences in quality. were at prices less than the COP, we trade (i.e, to manufacturers). For Regarding color, respondents assigned disregarded the below-cost sales if they purposes of this review, we determine separate codes to each shade of color. (1) were made within an extended that the same level of trade exists for all We reassigned color codes to sales of period of time in substantial quantities respondents in both markets. subject merchandise, in accordance in accordance with sections 773(b)(2) Accordingly, pursuant to section with the instructions contained in the (B) and (C) of the Act and (2) based on 777A(d)(2) of the Act, we compared the questionnaire. This resulted in our comparisons of prices to weighted- EPs of individual transactions to the treating all shades of a given color as average COPs for the POR, were at monthly weighted-average price of sales equally similar to each other instead of prices which would not permit recovery of the foreign like product. We treating a specific shade as most similar of all costs within a reasonable period increased home market price by U.S. to another specific shade. of time in accordance with section packing costs in accordance with 773(b)(2)(D) of the Act. Based on this C. Cost of Production and Constructed section 773(a)(6)(A) of the Act and test, we disregarded below-cost sales Value reduced it by home market packing with respect to Heveafil, Filati and costs in accordance with section Because the Department disregarded Rubfil. 773(a)(6)(B) of the Act. In accordance third country sales below the cost of In accordance with section 773(a)(4) with section 773(a)(6)(C) of the Act, we production (COP) for both Heveafil and of the Act, we used constructed value increased NV by adding U.S. credit Rubberflex in the original investigation (CV) as the basis for NV when there expense. We made circumstance of sale (see Final Determination of Sales at Less were no useable sales of comparable (COS) adjustments, in accordance with Than Fair Value: Extruded Rubber merchandise in the home market. In section 773(a)(6)(C)(iii) of the Act and Thread from Malaysia, 57 FR 38465 accordance with section 773(e) of the 19 CFR 353.56(a), by deducting home (August 25, 1992)), in accordance with Act, we calculated CV based on market direct selling expenses. We also section 773(b)(2)(A)(ii) of the Act, there respondents’ cost of materials and made adjustments, where applicable, for were reasonable grounds to believe or fabrication employed in producing the certain home market indirect selling suspect that both Heveafil and subject merchandise, selling, general expenses to offset U.S. commissions in Rubberflex had made home market sales and administrative expense (SG&A) and accordance with 19 CFR 353.56(b). No at prices below their COP in this review. profit incurred and realized in other adjustments were claimed or Thus, the Department initiated a COP connection with the production and sale allowed. investigation with respect to Heveafil of the foreign like product, and U.S. and Rubberflex in accordance with packing costs. We used the cost of Facts Available section 773(b)(1) of the Act. materials, fabrication, and G&A as In accordance with section Additionally, upon petitioner’s reported in the CV portion of each 776(a)(2)(D) of the Act, we preliminarily allegation of sales made below the COP respondent’s questionnaire response. determine that the use of the facts Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65021 available is appropriate as the basis for we have used Rubberflex’s own proceeding. Moreover, this rate has Rubberflex’s weighted-average dumping calculated rate from a prior segment of probative value because it is margin because, despite the this proceeding, (see Antidumping Duty Rubberflex’s calculated rate from the Department’s attempts to verify Order and Amendment of Final less than fair value (LTFV) information provided by Rubberflex, the Determination of Sales at Less Than investigation. Furthermore, there is no Department could not verify the Fair Value; Extruded Rubber Thread evidence on the record indicating that information as required under section from Malaysia, 57 FR 46150 (October 7, this selected margin is not appropriate 782(i) of the Act. Where a party 1992)), which is considered secondary as adverse facts available. (See, e.g., provides information requested by the information within the meaning of Fresh Cut Flowers.) Department but the information cannot section 776(c) of the Act. In summary, section 776(a)(2)(D) be verified, section 776(a)(2)(D) of the Section 776(c) of the Act provides that states that the Department ‘‘shall, Act requires the Department to use facts the Department shall, to the extent subject to section 782(d), use the facts otherwise available. Further, in practicable, corroborate secondary otherwise available in reaching the accordance with section 782(e)(2) of the information from independent sources applicable determination under this Act, the Department has declined to reasonably at its disposal. The title’’ if an interested party or any other consider information submitted by Statement of Administrative Action person provides such information but Rubberflex because the information (SAA) provides that ‘‘corroborate’’ the information cannot be verified. cannot be verified. Moreover, we means that the Department will satisfy Because we were unable to verify the preliminarily determine that, pursuant itself that the secondary information to information submitted by Rubberflex in to section 776(b) of the Act, Rubberflex be used has probative value (see SAA, this POR, we have used Rubberflex’s did not cooperate to the best of its H.R. Doc. 316, Vol. 1, 103d Cong., 2d highest rate from a prior segment of this ability and that therefore we are sess. 870 (1994)). proceeding (i.e., 20.38 percent). required to use adverse facts available. To corroborate secondary information, We found that responses provided by the Department will, to the extent Preliminary Results of Review Rubberflex could not be verified. The practicable, examine the reliability and As a result of our review, we inaccuracies which render the response relevance of the information to be used. preliminarily determine the weighted- unusable for purposes of margin However, unlike for other types of average dumping margins for the period calculations include: Rubberflex failed information, such as input costs or October 1, 1994, through September 30, to reconcile its original questionnaire selling expenses, there are no 1995 to be as follows: response with its current financial independent sources for calculated statements and current trial balance; dumping margins. Thus, in an Margin due to inconsistencies in Rubberflex’s administrative review, if the Department Manufacturer/exporter (per- cent) date of sale methodology, Rubberflex chooses as total adverse facts available failed to clarify which sales applied to a calculated dumping margin from a Filati Lastex Elastfibre (Malaysia) ... 13.86 this review period pursuant to the prior segment of this proceeding, it is Heveafil Sdn. Bhd ...... 9.75 Department’s methodology; Rubberflex not necessary to question the reliability Rubberflex Sdn. Bhd ...... 20.38 provided revised questionnaire of the margin for that time period. With Rubfil Sdn. Bhd ...... 44.44 responses at verification for home respect to the relevance aspect of market indirect selling expenses, direct corroboration, however, the Department Interested parties may request labor and packing labor expense, will consider information reasonably at disclosure within 5 days of the date of variable overhead and cost of goods its disposal as to whether there are publication of this notice. Any sold; for these same expenses circumstances that would render a interested party may request a hearing Rubberflex could not demonstrate how margin not relevant. Where within 10 days of the date of publication the original response was supported by circumstances indicate that the selected of this notice. A hearing, if requested, documentation, nor could it document margin is not appropriate as adverse will be held 44 days from the date of the difference between the original and facts available, the Department will publication of this notice at the main revised submission for these items; disregard the margin and determine an Commerce Department building. Rubberflex failed to have all the appropriate margin (see, e.g., Fresh Cut In accordance with 19 CFR 353.38, appropriate documentation required to Flowers from Mexico; Final Results of case briefs from interested parties are trace the pre-selected sales to its books Antidumping Duty Administrative due within 30 days of publication of and records, and; Rubberflex failed to Review, 61 FR 6812, 6814 (February 22, this notice. Rebuttal briefs, limited to report a trade-bill financing expense 1996) (Fresh Cut Flowers) (where the the issues raised in the respective case incurred on U.S. sales as an adjustment Department disregarded the highest briefs, may be submitted no later than to U.S. price. Furthermore, it failed to margin as adverse best information 37 days of publication of this notice. provide original source documentation available because the margin was based Parties who submit case briefs or for its reported managerial labor on another company’s uncharacteristic rebuttal briefs in this proceeding are expenses. The deficiencies are outlined business expense resulting in an requested to submit with each argument in detail in the public version of the unusually high margin)). (1) a statement of the issue and (2) a memorandum on Rubberflex’s Failed For Rubberflex, we examined the rates brief summary of the argument. The Verification from Holly Kuga to Jeffrey applicable to extruded rubber thread Department will subsequently publish P. Bialos, dated November 26, 1996. from Malaysia throughout the course of the final results of this administrative Rubberflex has not cooperated to the the proceeding. Given Rubberflex’s level review, including the results of its best of its ability, as demonstrated by of participation in this segment of the analysis of issues raised in any such the misreportings, inaccuracies, and proceeding, we preliminarily determine written briefs or hearing. The omissions we found at our attempted that 20.38 percent, which is Department will issue final results of verification which resulted from Rubberflex’s highest rate from a prior this review within 180 days of inconsistencies in data within segment of this proceeding, is publication of these preliminary results. Rubberflex’s control. Therefore, as sufficiently adverse to encourage full Interested parties who wish to request adverse facts available for Rubberflex, cooperation in future segments of the a hearing or to participate if one is 65022 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices requested, must submit a written others’’ rate made effective by the final are requested to submit with each request to the Assistant Secretary for determination of sales at LTFV (see comment (1) a statement of the issue Import Administration, Room B–099, Antidumping Duty Order and and (2) a brief summary of the comment. within ten days of the date of Amendment to Final Determination of EFFECTIVE DATE: December 10, 1996. publication of this notice. Requests Sales at Less Than Fair Value; Certain FOR FURTHER INFORMATION CONTACT:G. should contain: (1) the party’s name, Internal-Combustion, Industrial Forklift Leon McNeill or Maureen Flannery, AD/ address and telephone number; (2) the Trucks From Japan, 53 FR 20882 (June CVD Enforcement, Import number of participants; (3) a list of 7, 1988)). Administration, International Trade issues to be discussed. In accordance These deposit requirements, when Administration, U.S. Department of with 19 CFR 353.38(b), issues raised in imposed, shall remain in effect until Commerce, 14th Street and Constitution hearings will be limited to those raised publication of the final results of the Avenue, N.W., Washington D.C. 20230; in the respective case briefs and rebuttal next administrative review. telephone (202) 482–4733. briefs. This notice also serves as a The Department shall determine, and preliminary reminder to importers of SUPPLEMENTARY INFORMATION: the U.S. Customs Service shall assess, their responsibility under 19 CFR Applicable Statute antidumping duties on all appropriate 353.26 to file a certificate regarding the entries. Individual differences between reimbursement of antidumping duties Unless otherwise indicated, all export price and NV may vary from the prior to liquidation of the relevant citations to the statute are references to percentages stated above. The entries during this review period. the provisions effective January 1, 1995, Department will issue appropriate Failure to comply with this requirement the effective date of the amendments appraisement instructions directly to could result in the Secretary’s made to the Tariff Act of 1930 (the Act) the U.S. Customs Service upon presumption that reimbursement of by the Uruguay Round Agreements Act completion of this review. antidumping duties occurred and the (URAA). In addition, unless otherwise Furthermore, the following deposit subsequent assessment of double indicated, all citations to the requirements will be effective for all antidumping duties. Department’s regulations are to the shipments of the subject merchandise current regulations, as amended by the entered, or withdrawn from warehouse, This administrative review and notice are interim regulations published in the for consumption on or after the in accordance with section 751(a)(1) of the Federal Register on May 11, 1995 (60 Act and 19 CFR 353.22(c)(5). publication date of the final results of FR 25130). this administrative review, as provided Dated: November 26, 1996. Background by section 751(a)(1) of the Act: (1) The Robert S. LaRussa, cash deposit rates for the reviewed Acting Assistant Secretary for Import The Department published in the companies will be those rates Administration. Federal Register the antidumping duty established in the final results of this [FR Doc. 96–31355 Filed 12–9–96; 8:45 am] order on certain hot-rolled lead and review; (2) for previously reviewed or BILLING CODE 3510±DS±P bismuth carbon steel products from the investigated companies not listed above, United Kingdom on March 22, 1993 (58 FR 15324). On March 4, 1996, we the cash deposit rate will continue to be [A±412±810] the company-specific rate published for published in the Federal Register (61 the most recent period; (3) if the Certain Hot-Rolled Lead and Bismuth FR 8238) a notice of opportunity to exporter is not a firm covered in this Carbon Steel Products From the request an administrative review of the review, a prior review, or the original United Kingdom; Preliminary Results antidumping duty order on certain hot- LTFV investigation, but the of Antidumping Administrative Review rolled lead and bismuth carbon steel manufacturer is, the cash deposit rate products from the United Kingdom will be the rate established for the most AGENCY: Import Administration, covering the period March 1, 1995 recent period for the manufacturer of International Trade Administration, through February 29, 1996. the merchandise; and (4) the cash Department of Commerce. In accordance with 19 CFR deposit rate for all other manufacturers ACTION: Notice of preliminary results of 353.22(a)(1), BSES and the petitioner, or exporters will be 15.16 percent, the antidumping duty administrative Inland Steel Bar Company, requested ‘‘all others’’ rate made effective by the review; certain hot-rolled lead and that we conduct an administrative final determination of sales at LTFV, as bismuth carbon steel products from the review of BSES’s sales. We published a explained below. United Kingdom. notice of initiation of this antidumping On March 25, 1993, the Court of duty administrative review on April 25, International Trade (CIT) in Floral SUMMARY: The Department of Commerce 1996 (61 FR 18378). The Department is Trade Council v. United States, 822 (the Department) is conducting an conducting this administrative review F.Supp. 766 (CIT 1993) and Federal- administrative review of the in accordance with section 751 of the Mogul Corporation v. United States, 822 antidumping duty order on certain hot- Act. F.Supp. 782 (CIT 1993) decided that rolled lead and bismuth carbon steel once an ‘‘all others’’ rate is established products from the United Kingdom in Scope of the Review for a company it can only be changed response to requests by respondent, The products covered by this review through an administrative review. The British Steel Engineering Steels Limited are hot-rolled bars and rods of nonalloy Department has determined that in (BSES), and petitioner, Inland Steel Bar or other alloy steel, whether or not order to implement these decisions, it is Company. This review covers the period descaled, containing by weight 0.03 appropriate to reinstate the ‘‘all others’’ March 1, 1995 through February 29, percent or more of lead or 0.05 percent rate from the LTFV investigation (or that 1996. or more of bismuth, in coils or cut rate as amended for correction of We have preliminarily determined lengths, and in numerous shapes and clerical errors or as a result of litigation) that sales have been made below normal sizes. Excluded from the scope of this in proceedings governed by value (NV). Interested parties are invited review are other alloy steels (as defined antidumping duty orders. Therefore, the to comment on these preliminary by the Harmonized Tariff Schedule of Department is reinstating the ‘‘all results. Parties who submit comments the United States (HTSUS) Chapter 72, Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65023 note 1 (f)), except steels classified as 751(a)(4) of the amended statute. This prior segments of the proceeding, where other alloy steels by reason of approach assures that interested parties possible we matched U.S. sales to U.K. containing by weight 0.4 percent or will have the opportunity to request a sales within the same quantity group: 25 more of lead, or 0.1 percent or more of duty absorption determination on tons or more, or less than 25 tons. (See bismuth, tellurium, or selenium. Also entries for which the second and fourth Final Determination of Sales at Less excluded are semi-finished steels and years following an order have already Than Value; Certain Hot-Rolled Lead flat-rolled products. Most of the passed, prior to the time for sunset and Bismuth Carbon Steel Products products covered in this review are review of the order under section 751(c). from the United Kingdom, 58 FR 6207, provided for under subheadings Because the order on certain hot-rolled January 27, 1993; and Preliminary 7213.20.00 and 7214.30.00.00 of the lead and bismuth carbon steel products Results of Antidumping Duty HTSUS. Small quantities of these from the United Kingdom has been in Administrative Review; Certain Hot- products may also enter the United effect since 1993, this is a transition Rolled Lead and Bismuth Carbon Steel States under the following HTSUS order. Therefore, based on the policy Products from the United Kingdom, 50 subheadings: 7213.31.30.00, 60.00; stated above, the Department will first FR 10063, February 23, 1995.) 7213.39.00.30, 00.60, 00.90; consider a request for an absorption No other adjustments to EP were 7214.40.00.10, 00.30, 00.50; determination during a review initiated claimed or allowed. 7214.50.00.10, 00.30, 00.50; in 1996. This being a review initiated in Normal Value 7214.60.00.10, 00.30, 00.50; and 1996, we are making a duty-absorption 7228.30.80.00. HTSUS subheadings are determination as part of this segment of In order to determine whether there provided for convenience and Customs the proceeding. was a sufficient volume of sales in the purposes. The written description of the The statute provides for a home market to serve as a viable basis scope of this order remains dispositive. determination on duty absorption if the for calculating NV, we compared BSES’s This review covers the subject subject merchandise is sold in the volume of home market sales of the merchandise manufactured by BSES, United States through an affiliated foreign like product to the volume of and the period March 1, 1995 through importer. In this case, BSES is itself the U.S. sales of the subject merchandise, in February 29, 1996. importer of record, i.e., the exporter and accordance with section 773(a)(1)(B) of the importer are the same entity. the Act. Because BSES’s aggregate Duty Absorption Therefore, the importer and the exporter volume of home market sales of the On May 17, 1996, the petitioner are ‘‘affiliated’’ within the meaning of foreign like product was greater than requested that the Department 751(a)(4). Furthermore, we have five percent of its aggregate volume of determine whether antidumping duties preliminarily determined that there is a U.S. sales of the subject merchandise, had been absorbed by BSES during the dumping margin for BSES on 50 percent we determined that the home market period of review (POR) pursuant to of its U.S. sales during the POR. In provides a viable basis for calculating section 751(a)(4) of the Act. Section addition, we cannot conclude from the NV for BSES. 751(a)(4) provides for the Department, if record that the unaffiliated purchaser in Many of BSES’s home market sales requested, to determine, during an the United States will pay the ultimately were made to affiliated original administrative review initiated two assessed duty. Under these equipment manufacturers (OEMs). It is years or four years after publication of circumstances, therefore, we the Department’s practice, in situations the order, whether antidumping duties preliminarily find that antidumping where home market sales are made to have been absorbed by a foreign duties have been absorbed by BSES on affiliated parties, to determine whether producer or exporter subject to the 50 percent of its U.S. sales. sales to affiliated parties might be order, if the subject merchandise is sold appropriate to use as the basis of NV by in the United States through an importer United States Price comparing prices of those sales to prices who is affiliated with such foreign We based United States price on of sales to unaffiliated parties, on a producer or exporter. Section 751(a)(4) export price (EP), as defined in section model-by-model basis. See Final Results was added to the Act by the URAA. The 772(a) of the Act, because the of Antidumping Duty Administrative Department’s interim regulations do not merchandise was sold directly by the Reviews, Partial Termination of address this provision of the Act. exporter to unaffiliated U.S. purchasers Administrative Reviews, and Revocation For transition orders as defined in prior to the date of importation and in Part of Antidumping Duty Orders; section 751(c)(6)(C) of the Act, i.e., constructed export price was not Antifriction Bearings (Other Than orders in effect as of January 1, 1995, indicated by other facts of record. BSES Tapered Roller Bearings) and Parts section 351.213(j)(2) of the Department’s reported that EP was based on packed, Thereof from France, et al. 60 FR 10900, proposed antidumping regulations delivered prices to customers in the February 28, 1995. (See preliminary provides that the Department will make United States. We made deductions, notice for discussion.) Because BSES a duty absorption determination, if where applicable, for foreign inland made home market sales to affiliated requested, for any administrative review freight, FOB charges in the United OEMs during the POR, we tested these initiated in 1996 or 1998. See 61 FR Kingdom, ocean freight, marine OEM sales to ensure that, on average, 7308, 7366 (February 27, 1996). The insurance, U.S. Customs duties, the affiliated-party sales were made at preamble to the proposed antidumping brokerage and handling charges, arm’s length. To conduct this test, we regulations explains that reviews merchandising processing fees, and U.S. compared the gross unit prices of sales initiated in 1996 will be considered inland freight charges, in accordance to affiliated and unaffiliated customers initiated in the second year and reviews with 19 CFR 353.41(d). We also made an net of all movement charges, direct initiated in 1998 will be considered adjustment for invoice corrections selling expenses, invoice corrections, initiated in the fourth year. Id. at 7317. (billing adjustments) made after rebates and packing. As a result of our Although these proposed antidumping shipment. arm’s-length test, we disregarded sales regulations are not yet binding upon the BSES’s sales in the United Kingdom to the affiliated OEM customers in the Department, they do constitute a public and to the United States were made in home market because the prices charged statement of how the Department quantities of less than 25 metric tons to affiliated customers were less than expects to proceed in construing section and 25 metric tons or more. As in all 99.5 percent of the prices charged to 65024 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices unaffiliated customers. We did not information provided by BSES in its directly related to sales of the foreign require respondent to provide questionnaire responses. like product, we have treated these downstream sales by these customers home market expenses as direct selling B. Test of Home Market Prices because these customers further expenses. U.S. credit insurance and manufactured the subject merchandise After calculating COP, we tested product liability insurance are U.S. into merchandise not comparable to the whether home market sales of lead and direct selling expenses. Accordingly, we merchandise covered by the order. BSES bismuth steel were made at prices below made the circumstance-of-sale also sold through affiliated resellers to COP within an extended period of time adjustments by adding the amounts of unaffiliated customers and reported in substantial quantities, and whether U.S. credit insurance and product these unaffiliated-customer transactions. such prices permitted recovery of all liability insurance for each U.S. sale to We used these unaffiliated transactions costs within a reasonable period of time. the NV, and subtracting the home in our determination of NV. We compared the model-specific COP to market amounts from NV. We also BSES did not report its home market the reported home market prices less added U.S. commissions for each U.S. sales of leaded rod produced by any applicable movement charges, sale to the NV. In order to adjust for Scunthorpe Rod Mill (SRM), an rebates, and direct and indirect selling differences in packing between the two affiliated party, because it claimed that expenses. markets, we increased home market such merchandise was not a match to its C. Results of COP Test price by U.S. packing costs and reduced sales of leaded bar to the United States. it by home market packing costs. Prices Pursuant to section 773(b)(2)(C), were reported net of value added taxes BSES provided a list of all SRM’s where less than 20 percent of potential products, including their (VAT) and, therefore, no deduction for respondent’s sales of a given product VAT was necessary. We made product characteristics and product were at prices less than COP, we did not identification control numbers. In adjustments, where appropriate, for disregard any below-cost sales of that physical differences in merchandise in addition, BSES provided a theoretical product because we determined that the sales file that identified every leaded accordance with section 773(a)(6)(C)(ii) below-cost sales were not made in of the Act. rod product that SRM could possibly ‘‘substantial quantities.’’ Where 20 have produced or sold in each of the percent or more of a respondent’s sales Constructed Value months of the POR. Upon examination of a given product during the POR were In accordance with section 773(e) of of this information, we determined that at prices less than the COP, we the Act, we calculated CV based on the the leaded rod produced by SRM was disregarded the below-cost sales sum of BSES’s cost of materials and never the identical or most similar because we determined that the below- fabrication employed in producing the match to BSES’s sales of leaded bar to cost sales were made within an subject merchandise, SG&A and profit the United States during the POR. extended period of time in ‘‘substantial incurred and realized in connection Cost of Production Analysis quantities’’ in accordance with sections with production and sale of the foreign 773(b)(2) (B) and (C) of the Act, and like product, and U.S. packing costs. In Pursuant to section 773(b) of the Act, because, based on our comparisons of accordance with section 773(e)(2)(A), in this review we initiated a COP prices to weighted-average COPs for the we based SG&A and profit on the investigation of BSES. We did this POR, we determined that the below-cost amounts incurred and realized by BSES because, in the administrative review of sales of the product were at prices in connection with the production and BSES for the most recent period (as of which would not permit recovery of all sale of the foreign like product in the the time our decision to initiate a COP costs within a reasonable period of time, ordinary course of trade, for investigation was made), we disregarded as defined in section 773(b)(2)(D) of the consumption in the foreign country. We from our calculations BSES’s home Act. Based on this test, we disregarded used the costs of materials, fabrication, market sales found to be below the cost below-cost sales made by BSES. and general and administrative of production (COP). See Final Results expenses as reported in the CV portion Price-to-Price Comparisons of Antidumping Administrative Review; of BSES’s questionnaire response. We Certain Hot-Rolled Lead and Bismuth Pursuant to section 777A(d)(2), we used the U.S. packing costs as reported Carbon Steel Products from the United compared the EPs of individual in the U.S. sales portion of BSES’s Kingdom, 60 FR 44009, August 24, transactions to the monthly weighted- questionnaire response. We based 1995. Therefore, in accordance with average price of sales of the foreign like selling expenses and profit on the section 773(b)(2)(A)(ii) of the Act, the product where there were sales at prices information reported in the home Department had reasonable grounds to above COP, as discussed above. We market sales portion of BSES’s believe or suspect that sales below the based NV on packed, delivered prices to questionnaire response. For selling COP may have occurred during this unaffiliated purchasers in the home expenses, we used the average per-unit review period. market. We made adjustments, where home market selling expenses of home Before making any NV comparisons, applicable, in accordance with section market sales of the foreign like product, we conducted the COP analysis 773(a)(6) of the Act. Where applicable, exclusive of sales disregarded under the described below. we made adjustments to home market cost test, weighted by the total quantity price for invoice corrections, rebates, sold for these sales. For actual profit, we A. Calculation of COP and inland freight. We also made a first calculated the difference between We calculated the COP based on the circumstance-of-sale adjustment for the home market sales value and home sum of BSES’s cost of materials and differences in credit insurance and market COP, for all above-cost home fabrication employed in producing the product liability insurance expenses market sales of the foreign like product, foreign like product, plus amounts for pursuant to section 773(a)(6)(C)(iii) of exclusive of sales disregarded under the home market selling, general, and the Act. Respondent claimed home cost test, and divided the sum of these administrative expenses (SG&A) and market credit insurance expenses and differences by the total home market packing costs in accordance with product liability insurance expenses as COP for these sales. We then multiplied section 773(b)(3) of the Act. We relied direct adjustments to NV. Since such this percentage by the COP for each U.S. on the home market sales and COP expenses are on a sale-by-sale basis and model to derive an actual profit. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65025

Commission Offset We based the commission offset Preliminary Results of the Review Because there are commissions on amount on the amount of the home market indirect selling expenses. We As a result of our comparison of EP U.S. sales and not on home market and NV, we preliminarily determine sales, we made an adjustment for limited the home market indirect selling that the following weighted-average indirect selling expenses in the home expense deduction by the amount of the dumping margin exists: market to offset the U.S. commissions, commissions incurred on sales to the in accordance with 19 CFR 353.56(b)(1). United States.

Margin Manufacturer/exporter Period (percent)

British Steel Engineering Steels Limited (BSES) (formerly United Engineering Steels Limited) ...... 3/1/95±2/29/96 2.84

Parties to the proceeding may request recent period for the manufacturer of from Bangladesh. The period of review disclosure within 5 days of the date of the merchandise; and (4) for all other (POR) is March 1, 1995, through publication of this notice. Any producers and/or exporters of this February 29, 1996. This review covers interested party may request a hearing merchandise, the cash deposit rate shall four manufacturers/exporters. The within 10 days of publication. Any be 25.82 percent, the ‘‘all others’’ rate preliminary results of this review hearing, if requested, will be held 44 established in the LTFV investigation indicate the existence of dumping days after the publication of this notice, (58 FR 6207, January 27, 1993). margins during the period. or the first workday thereafter. These deposit rates, when imposed, Interested parties are invited to Interested parties may submit case briefs shall remain in effect until publication comment on these preliminary results. within 30 days of the date of publication of the final results of the next Parties who submit arguments are of this notice. Rebuttal briefs, which administrative review. requested to submit with each argument must be limited to issues raised in the This notice also serves as a (1) a statement of the issue and (2) a case briefs, may be filed not later than preliminary reminder to importers of brief summary of the argument. 37 days after the date of publication. their responsibility under 19 CFR EFFECTIVE DATE: December 10, 1996. The Department will publish a notice of 353.26 to file a certificate regarding the final results of this administrative reimbursement of antidumping duties FOR FURTHER INFORMATION CONTACT: review, which will include the results of prior to liquidation of the relevant Matthew Rosenbaum, Kristie Strecker or its analysis of issues raised in any such entries during this review period. Kris Campbell, Import Administration, comments. Failure to comply with this requirement International Trade Administration, The Department shall determine, and could result in the Secretary’s U.S. Department of Commerce, 14th the Customs Service shall assess, presumption that reimbursement of Street and Constitution Avenue, antidumping duties on all appropriate antidumping duties occurred and the Washington, D.C. 20230; telephone entries. Individual differences between subsequent assessment of double (202) 482–4733. EP and NV may vary from the antidumping duties. SUPPLEMENTARY INFORMATION: percentage stated above. Upon This administrative review and notice completion of this review, the are in accordance with section 751(a)(1) Applicable Statute Department will issue appraisement of the Act (19 U.S.C. 1675(a)) and 19 Unless otherwise indicated, all instructions directly to the Customs CFR 353.22. citations to the statute are references to Service. Dated: December 2, 1996. the provisions effective January 1, 1995, Furthermore, the following deposit Robert S. LaRussa, the effective date of the amendments rates will be effective upon publication Acting Assistant Secretary for Import made to the Tariff Act of 1930 (the Act) of the final results of this administrative Administration. by the Uruguay Round Agreements Act review for all shipments of certain hot- [FR Doc. 96–31250 Filed 12–9–96; 8:45 am] (URAA). rolled lead and bismuth carbon steel BILLING CODE 3510±DS±P Background products from the United Kingdom entered, or withdrawn from warehouse, On March 4, 1996, the Department for consumption on or after the [A±538±802] published a notice of ‘‘Opportunity to publication date, as provided for by Request an Administrative Review’’ (61 section 751(a)(2)(c) of the Act: (1) The Shop Towels From Bangladesh; FR 8238) of the antidumping duty order cash deposit rate for the reviewed Preliminary Results of Antidumping on shop towels from Bangladesh (57 FR company will be the rate established in Duty Administrative Review 9688, March 20, 1992) for the period the final results of this review; (2) for AGENCY: Import Administration, March 1, 1995, through February 29, merchandise exported by manufacturers International Trade Administration, 1996. On March 27, 1996, the petitioner, or exporters not covered in this review Department of Commerce. Milliken, requested an administrative but covered in the original less-than- ACTION: Notice of preliminary results of review of four manufacturers/exporters: fair-value (LTFV) investigation or a antidumping duty administrative Greyfab (Bangladesh) Ltd. (Greyfab); previous review, the cash deposit will review. Hashem International (Hashem); Khaled continue to be the company-specific rate Textile Mills Ltd. (Khaled); and published for the most recent period; (3) SUMMARY: In response to a request from Shabnam Textiles (Shabnam). We if the exporter is not a firm covered in the petitioner, Milliken & Company published a notice of initiation of the this or a previous review, or the original (Milliken), the Department of Commerce review on May 24, 1996 (61 FR 26158). LTFV investigation, but the (the Department) is conducting an The Department is now conducting a manufacturer is, the cash deposit rate administrative review of the review of these respondents pursuant to will be the rate established for the most antidumping duty order on shop towels section 751 of the Act. 65026 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Scope of the Review amounts for SG&A incurred and assumes that five percent of yarn used The products covered by this realized by the respondent as shown in for production becomes wastage. For Greyfab’s third-country sales, we administrative review are shop towels. the company’s financial statements. based NV on C&F prices to unrelated Shop towels are absorbent industrial Therefore, in accordance with section customers in comparable channels of wiping cloths made from a loosely 773(e)(2)(B)(iii) of the Act, we determined SG&A from the financial distribution as the U.S. customer. For woven fabric. The fabric may be either statements of the respondents. third-country price-to-price 100-percent cotton or a blend of We calculated profit for CV under comparisons, we made deductions, materials. Shop towels are currently section 773(e)(2)(B)(iii) of the Act. We where appropriate, for foreign-country classifiable under item numbers used this method because we had no forwarding charges (i.e., ocean freight, 6307.10.2005 and 6307.10.2015 of the information on actual profit amounts cost of lading, and cost of export Bill- Harmonized Tariff Schedules (HTS). earned by the exporters in connection of-Lading stamp) and inspection fees. Although HTS subheadings are with the production and sale of the We deducted third-country packing provided for convenience and customs merchandise for consumption in the costs from and added U.S. packing costs purposes, our written description of the home market or any information that to NV in accordance with section scope of this proceeding remains would permit us to use any of the other 773(a)(6) (A) and (B) of the Act. dispositive. alternatives for calculating profit under Preliminary Results of Review Export Price section 773(e)(2) of the Act. Instead, we applied another reasonable method We preliminarily determine that the The Department used export price under 773(e)(2)(B)(iii). We received a following dumping margins exist: (EP), as defined in section 772(a) of the submission containing factual Act, for Greyfab, Hashem, Khaled, and information regarding profit from two Margin Shabnam because the subject Manufacturer/exporter (per- respondents (Greyfab and Hashem) on cent) merchandise was sold by the November 6, 1996. For these manufacturer, prior to importation, to preliminary results, we have used, as Greyfab (Bangladesh), Ltd...... 0.00 unaffiliated purchasers in the United the profit amount for all respondents, Hashem International ...... 0.00 States and the constructed export price the actual profits of textile mills that Khaled Textile Mills, Ltd...... 0.00 was not otherwise warranted based on sold the same general category of Shabnam Textiles ...... 0.00 the facts of record. For each of the products as the subject merchandise in companies, we calculated EP based on the home market during the POR. Parties to the proceeding may request packed C&F or FOB prices. We made We have calculated amounts for disclosure within 5 days of the date of deductions, where appropriate, for scrap/wastage using the facts available publication of this notice. Any forwarding charges, insurance expenses, (FA). In both the original and interested party may request a hearing and ocean freight in accordance with supplemental questionnaires we within 10 days of publication. Any section 772(c)(2) of the Act. requested, for each company, hearing, if requested, will be held 44 days after the publication of this notice, Normal Value information concerning actual wastage and scrap percentages that occur in or the first workday thereafter. In accordance with section 773(a)(4) production. None of the respondents Interested parties may submit case briefs of the Act, we used constructed value were able to provide data indicating the within 30 days of the date of publication (CV) as normal value (NV) for Hashem, actual amount of wastage incurred. of this notice. Parties who submit Kahled, and Shabnam, because none of Therefore, the record contains no argument in this proceeding are these companies sold the foreign like information for a figure reflecting actual requested to submit with each argument product in the home market or in any wastage which we can reasonably use (1) a statement of the issue and (2) a third-country market during the POR. for our calculations. Section 776 of the brief summary of the argument. Rebuttal For Greyfab, we used sales to a third Act authorizes the Department’s use of briefs, which must be limited to issues country as NV where such sales were FA in certain situations, including raised in the case briefs, may be filed appropriate matches to the U.S. sales situations in which necessary not later than 37 days after the date of under review. Where we did not have information is not on the record or an publication. The Department will appropriate third-country matches, we interested party fails to provide publish a notice of final results of this used CV as NV. necessary information in the form and administrative review, which will We calculated CV, in accordance with the manner requested. In this case, data include the results of its analysis of section 773(e) of the Act, as the sum of which the Department needs in order to issues raised in any such comments, the cost of manufacturing (COM) of the calculate scrap/wastage is not on the within 120 days of publication of these product sold in the United States, record and responses to the preliminary results. selling, general and administrative Department’s requests for such data The Department shall determine, and (SG&A) expenses, profit, and U.S. were not provided in the form and the the Customs Service shall assess, packing expenses. The COM of the manner requested. Furthermore, data antidumping duties on all appropriate product sold in the United States is the provided by respondents was so entries. The Department will issue sum of direct material, direct labor, and incomplete that it could not serve as a appraisement instructions directly to variable and fixed factory overhead reliable basis for calculating scrap/ the Customs Service. The final results of expenses. wastage. Thus, in accordance with this review shall be the basis for the For these preliminary results, the Section 776 of the Act, we have decided assessment of antidumping duties on administrative record contains no to resort to FA in order to calculate entries of merchandise covered by the information reflecting overall SG&A scrap/wastage. As FA, we calculated an determination and for future deposits of levels in Bangladesh that the amount for wastage using the five- estimated duties. For duty assessment Department could use to calculate CV. percent figure petitioner submitted in its purposes, we calculated an importer- For each of the four responding October 16, 1996 comments on specific assessment rate by aggregating companies, the only facts available for respondents’ supplemental the dumping margins calculated for all these preliminary results were the questionnaire responses. This figure U.S. sales to each importer and dividing Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65027 this amount by the total quantity of The Johns Hopkins University; Notice review was requested of the Final subject merchandise sold to each of the of Decision on Application for Duty- Results of Antidumping Duty respective importers. This specific rate Free Entry of Scientific Instrument Administrative Review made by the calculated for each importer will be International Trade Administration This decision is made pursuant to used for the assessment of antidumping respecting Porcelain-On-Steel Cooking Section 6(c) of the Educational, duties on the relevant entries of subject Ware from Mexico. This determination Scientific, and Cultural Materials merchandise during the POR. was published in the Federal Register Importation Act of 1966 (Pub. L. 89– on October 21, 1996 (61 FR 54616). The Furthermore, the following deposit 651, 80 Stat. 897; 15 CFR part 301). NAFTA Secretariat has assigned Case rates will be effective upon publication Related records can be viewed between Number USA–96–1904–01 to this of the final results of this administrative 8:30 A.M. and 5:00 P.M. in Room 4211, request. review for all shipments of shop towels U.S. Department of Commerce, 14th and FOR FURTHER INFORMATION CONTACT: Constitution Avenue, N.W., from Bangladesh entered, or withdrawn James R. Holbein, United States Washington, D.C. from warehouse, for consumption on or Secretary, NAFTA Secretariat, Suite Docket Number: 96–106. Applicant: after the publication date, as provided 2061, 14th and Constitution Avenue, The Johns Hopkins University, for by section 751(a)(2)(C) of the Act: (1) Washington, D.C. 20230, (202) 482– Baltimore, MD 21218. Instrument: EPR The cash deposit rates for reviewed 5438. Spectrometer, Model EMX 10/2.7. companies will be the rates established SUPPLEMENTARY INFORMATION: Chapter in the final results of this review; (2) for Manufacturer: Bruker Instruments, Inc., Germany. Intended Use: See notice at 61 19 of the North American Free-Trade previously reviewed or investigated Agreement (‘‘Agreement’’) establishes a companies not listed above, the cash FR 55972, October 30, 1996. Comments: None received. Decision: mechanism to replace domestic judicial deposit rate will continue to be the Approved. No instrument of equivalent review of final determinations in company-specific rate published for the scientific value to the foreign antidumping and countervailing duty most recent period; (3) if the exporter is instrument, for such purposes as it is cases involving imports from a NAFTA not a firm covered in this review, a prior intended to be used, is being country with review by independent review or the original less-than-fair- manufactured in the United States. binational panels. When a Request for value investigation, but the Reasons: The foreign instrument Panel Review is filed, a panel is manufacturer is, the cash deposit rate provides measurement of electron spin established to act in place of national will be the rate established for the most resonance for characterization of courts to review expeditiously the final recent period for the manufacturer of paramagnetic centers in various determination to determine whether it the merchandise; and (4) for all other materials, identification of photo- and conforms with the antidumping or producers and/or exporters of this redox-active sites and elucidation of countervailing duty law of the country merchandise, the cash deposit rate shall reaction mechanisms. The National that made the determination. be the rate established in the Institutes of Health advises in its Under Article 1904 of the Agreement, investigation of sales at less than fair memorandum dated October 21, 1996 which came into force on January 1, value, which is 4.60 percent. that (1) these capabilities are pertinent 1994, the Government of the United to the applicant’s intended purpose and States, the Government of Canada and These deposit rates, when imposed, the Government of Mexico established shall remain in effect until publication (2) it knows of no domestic instrument or apparatus of equivalent scientific Rules of Procedure for Article 1904 of the final results of the next value to the foreign instrument for the Binational Panel Reviews (‘‘Rules’’). administrative review. applicant’s intended use. These Rules were published in the This notice also serves as a We know of no other instrument or Federal Register on February 23, 1994 preliminary reminder to importers of apparatus of equivalent scientific value (59 FR 8686). The panel review in this their responsibility under 19 CFR to the foreign instrument which is being matter will be conducted in accordance 353.26 to file a certificate regarding the manufactured in the United States. with these Rules. reimbursement of antidumping duties Frank W. Creel, A first Request for Panel Review was filed with The U.S. Section of the prior to liquidation of the relevant Director, Statutory Import Programs Staff. NAFTA Secretariat, pursuant to Article entries during this review period. [FR Doc. 96–31249 Filed 12–9–96; 8:45 am] Failure to comply with this requirement 1904 of the Agreement, on November BILLING CODE 3510±DS±P 20, 1996, requesting panel review of the could result in the Secretary’s final antidumping duty administrative presumption that reimbursement of review described above. North American Free-Trade Agreement antidumping duties occurred and the The Rules provide that: (NAFTA), Article 1904 Binational Panel subsequent assessment of double (a) a Party or interested person may Reviews; Request for Panel Review antidumping duties. challenge the final determination in This administrative review and notice AGENCY: NAFTA Secretariat, United whole or in part by filing a Complaint are in accordance with section 751(a)(1) States Section, International Trade in accordance with Rule 39 within 30 of the Act (19 U.S.C. 1675(a)(1)) and 19 Administration, Department of days after the filing of the first Request CFR 353.22. Commerce. for Panel Review (the deadline for filing a Complaint is December 20, 1996); Dated: December 2, 1996. ACTION: Notice of first request for panel review. (b) a Party, investigating authority or Robert S. LaRussa, interested person that does not file a Acting Assistant Secretary for Import SUMMARY: On November 20, 1996, Complaint but that intends to appear in Administration. General Housewares Corporation filed a support of any reviewable portion of the [FR Doc. 96–31357 Filed 12–9–96; 8:45 am] First Request for Panel Review with the final determination may participate in BILLING CODE 3510±DS±P U.S. Section of the NAFTA Secretariat the panel review by filing a Notice of pursuant to Article 1904 of the North Appearance in accordance with Rule 40 American Free Trade Agreement. Panel within 45 days after the filing of the first 65028 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Request for Panel Review (the deadline expected activity levels is needed to Dated: December 2, 1996. for filing a Notice of Appearance is measure the consequences of Linda Engelmeier, January 6, 1997); and management controls, and is an Acting Departmental Forms Clearance (c) the panel review shall be limited effective tool in the enforcement of Officer, Office of Management and to the allegations of error of fact or law, other fishery regulations. Experience Organization. including the jurisdiction of the has shown that fines for violations of [FR Doc. 96–31259 Filed 12–9–96; 8:45 a.m.] investigating authority, that are set out specific fishery regulations are not as BILLING CODE 3510±22±P in the Complaints filed in the panel effective as the threat of a permit review and the procedural and revocation that would exclude the substantive defenses raised in the panel vessel from the fishery altogether. [I.D. 112696A] review. Experimental fishing provides Incidental Take of Marine Mammals; Dated: November 27, 1996. information not otherwise available Bottlenose Dolphins and Spotted James R. Holbein, through research or commercial fishing Dolphins U.S. Secretary, NAFTA Secretariat. operations. AGENCY: National Marine Fisheries [FR Doc. 96–31263 Filed 12–9–96; 8:45 am] II. Method of Collection Service (NMFS), National Oceanic and BILLING CODE 3510±GT±M Each of the four permits is mandatory Atmospheric Administration (NOAA), for certain fishery participants. A permit Commerce. National Oceanic and Atmospheric is obtained through completion of an ACTION: Notice of issuance of letters of Administration application. authorization. III. Data Alaska Region Permit Family of Forms; SUMMARY: In accordance with the Marine Mammal Protection Act Proposed Collection; Comment OMB Number: 0648–0206. Request (MMPA) as amended, and implementing Form Number: None. regulations, notification is hereby given SUMMARY: The Department of Type of Review: Regular Submission. that 1-year letters of authorization to Commerce, as part of its continuing Affected Public: Individuals, take bottlenose and spotted dolphins effort to reduce paperwork and Businesses and other for-profit incidental to oil and gas structure respondent burden, invites the general (commercial fishermen, fish processors). removal activities were issued on public and other Federal agencies to Estimated Number of Respondents: December 4, 1996, to Ensearch take this opportunity to comment on 2,456. Exploration Inc., 4849 Greenville Ave., proposed and/or continuing information Suite 1200, Dallas, Texas, 75206–4186; collections, as required by the Estimated Time Per Response: 20 the Tennessee Gas Pipeline Co., 1010 Paperwork Reduction Act of 1995, minutes for Federal Fisheries Permits or Milam Street, Houston, TX 77252; and Public Law 104–13 (44 U.S.C. Federal Processor Permits, 30 minutes the Stone Petroleum Corporation, P.O. 3506(c)(2)(A)). for a High Seas Power Troller Permit in Box 52807, Lafayette, LA 70505. the Salmon Fishery, and 30 hours for an DATES: Written comments must be ADDRESSES: The applications and letters Experimental Fishing Permit. submitted on or before February 10, are available for review in the following 1997. Estimated Total Annual Burden offices: Office of Protected Resources, ADDRESSES: Direct all written comments Hours: 966 hours. NMFS, 1315 East-West Highway, Silver to Linda Engelmeier, Acting Estimated Total Annual Cost to Spring, MD 20910 and the Southeast Departmental Forms Clearance Officer, Public: $0—no capital, operations, or Region, NMFS, 9721 Executive Center Department of Commerce, Room 5327, maintenance costs are expected. Drive N, St. Petersburg, FL 33702. 14th and Constitution Avenue, NW, IV. Request for Comments FOR FURTHER INFORMATION CONTACT: Washington DC 20230. Kenneth R. Hollingshead, Office of FOR FURTHER INFORMATION CONTACT: Comments are invited on: (a) Whether Protected Resources, NMFS, (301) 713– Requests for additional information or the proposed collection of information 2055 or Charles Oravetz, Southeast copies of the information collection is necessary for the proper performance Region (813) 570–5312. instrument(s) and instructions should of the functions of the agency, including SUPPLEMENTARY INFORMATION: be directed to Patsy A. Bearden, F/ whether the information shall have Section 101(a)(5)(A) of the MMPA (16 AKO1, NOAA/NMFS, P.O. Box 21668, practical utility; (b) the accuracy of the U.S.C. 1361 et seq.) directs NMFS to Juneau, AK 99802–1668 (907–586– agency’s estimate of the burden allow, on request, the incidental, but not 7228). (including hours and cost) of the intentional, taking of small numbers of proposed collection of information; (c) SUPPLEMENTARY INFORMATION marine mammals by U.S. citizens who ways to enhance the quality, utility, and engage in a specified activity (other than I. Abstract clarity of the information to be commercial fishing) within a specified Fishermen wanting to fish in collected; and (d) ways to minimize the geographical region, if certain findings regulated fisheries in the Exclusive burden of the collection of information are made and regulations are issued. Economic Zone off Alaska must apply on respondents, including through the Under the MMPA, the term ‘‘taking’’ for a Federal Fisheries Permit, a Federal use of automated collection techniques means to harass, hunt, capture, or kill or Processor Permit, a High Seas Power or other forms of information to attempt to harass, hunt, capture or Troller Permit, or an Experimental technology. kill marine mammals. Fishing Permit. The issuance of a permit Comments submitted in response to Permission may be granted for periods is an essential ingredient in the this notice will be summarized and/or up to 5 years if NMFS finds, after management of fishery resources. included in the request for OMB notification and opportunity for public Identification of the participants, approval of this information collection; comment, that the taking will have a harvest gear types, descriptions of they also will become a matter of public negligible impact on the species or vessels or shoreside facilities, and record. stock(s) of marine mammals and will Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65029 not have an unmitigable adverse impact DATES: The meetings will be held on survey is part of our ongoing effort to on the availability of the species or December 16, 1996 at 1:00 p.m. through better understand the events during and stock(s) for subsistence uses. In December 19, 1996 at approximately after the Gulf War, and potential health addition, NMFS must prescribe noon. consequences. Respondents are current regulations that include permissible ADDRESSES: The meetings will be held at and former members of the US military methods of taking and other means the Holiday Inn SunSpree Resort, 39th who were within 50 kilometers of the effecting the least practicable adverse Street and Atlantic Avenue, Virginia munitions storage area near impact on the species and its habitat, Beach, VA 23451; telephone: (804) 428– Khamisiyah, Iraq. and on the availability of the species for 1711. Affected Public: Individuals or subsistence uses, paying particular Council address: Mid-Atlantic Fishery households. attention to rookeries, mating grounds Management Council, 300 S. New Frequency: One time. and areas of similar significance. The Street, Dover, DE 19901. Respondent’s Obligation: Voluntary. regulations must include requirements FOR FURTHER INFORMATION CONTACT: OMB Desk Officer: Ms. Allison Eydt. pertaining to the monitoring and David R. Keifer, Executive Director; Written comments and reporting of such taking. Regulations telephone: (302) 674–2331. recommendations on the proposed governing the taking of bottlenose and SUPPLEMENTARY INFORMATION: The initial information collection should be sent to spotted dolphins incidental to oil and Ms. Eydt at the Office of Management gas structure removal activities in the agenda published on December 2, 1996 (61 FR 63830). The meeting was and Budget, Desk Officer for DoD, Room Gulf of Mexico were published on 10235, New Executive Office Building, October 12, 1995 (60 FR 53139) and originally scheduled to begin at 8:00 a.m. on December 17, 1996. The meeting Washington, DC 20503, or via facsimile remain in effect until November 13, at (202) 395–6974. 2000. is now scheduled to begin on December 16, 1996 at 1:00 p.m. All other DOD Clearance Officer: Mr. William Summary of Request information as printed in the previous Pearce. Requests for copies of the information NMFS received requests for letters of publication also remains unchanged. collection proposal should be sent to authorization on November 4, 1996, Dated: December 4, 1996. Mr. Pearce at OSD/WHS/DIOR, 1215 from Ensearch Exploration, Inc.; on Bruce Morehead, Jefferson Davis Highway, Suite 1204, November 14, 1996, from the Tennessee Acting Director, Office of Sustainable Arlington, VA 22202–4302, or via Gas Pipeline Co; and on December 3, Fisheries, National Marine Fisheries Service. facsimile at (703) 604–6270, or 1996 from the Stone Petroleum [FR Doc. 96–31353 Filed 12–9–96; 8:45 am] requested telephonically at (703) 604– Corporation. These letters requested a BILLING CODE 3510±22±F 4582. take by harassment of a small number of bottlenose and spotted dolphins Dated: December 5, 1996. incidental to the described activity. DEPARTMENT OF DEFENSE Patricia L. Toppings, Issuance of these letters of authorization Alternate OSD Federal Register Liaison is based on a finding that the total Office of the Secretary Officer, Department of Defense. takings will have a negligible impact on [FR Doc. 96–31342 Filed 12–9–96; 8:45 am] the bottlenose and spotted dolphin Public Information Collection BILLING CODE 5000±04±M stocks of the Gulf of Mexico. Requirement Submitted to the Office of Dated: December 5, 1996. Management and Budget (OMB) for Review Contractor Alert List (CAL); Notice Michael Payne, Chief, Marine Mammal Division, Office of ACTION: Notice. November 26, 1996. Protected Resources, National Marine AGENCY: Defense Logistics Agency, Fisheries Service. The Department of Defense has Department of Defense. [FR Doc. 96–31354 Filed 12–9–96; 8:45 am] submitted to OMB for clearance, the ACTION: Notification of change in BILLING CODE 3510±22±F following proposal for collection of information under the provisions of the contractor alert list reason codes. Paperwork Reduction Act of 1995 (44 SUMMARY: This notice announces U.S.C. Chapter 35). [I.D. 112196C] proposed policy for managing for Title: Department of Defense Contractor Alert List. This policy will be Khamisiyah Survey. Mid-Atlantic Fishery Management included in the Defense Logistics Type of Request: New collection; Council; Change of Meeting Dates Agency Directive 5000.4, Contract Emergency Processing requested with Management (One Book). AGENCY: National Marine Fisheries shortened public comment period The proposed policy revises the Service (NMFS), National Oceanic and ending December 7, 1996. An approval criteria used to place Defense Atmospheric Administration (NOAA), date of December 24, 1996 is requested. contractors on the CAL. Commerce. Number of Respondents: 13,783. EFFECTIVE : Upon release of a Defense ACTION: Notice of change of public Responses Per Respondent: 1. Contract Management Command Policy meeting dates. Annual Responses: 13,783. Average Burden Per Response: 7 Memorandum. SUMMARY: The meetings of the Mid- minutes. FOR FURTHER INFORMATION CONTACT: Atlantic Fishery Management Council, Annual Burden Hours: 1,608 hours. Lieutenant Colonel Luc Degrate or Mr. which were scheduled for December Needs and uses: This collection of Mike Williams, Contractor Capability 17–19, 1996, in Virginia Beach, VA, are information is necessary to facilitate and Proposal Analysis, Defense now scheduled to begin on December investigation of the events surrounding Logistics Agency, Department of 16, 1996. See SUPPLEMENTARY the demolition of munitions near Defense, 8725 John J. Kingman Road, INFORMATION for specific information Khamisiyah, Iraq from 1–15 March 1991 Fort Belvoir, Virginia 22060–6221, (703) about the change. (immediately after the Gulf War). This 767–3379 or 767–3397, respectively. 65030 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

SUPPLEMENTARY INFORMATION: C. Process Administration Offices on contractors Contractor Alert List 1. Putting contractors on the CAL. under their cognizance. Contractors shall be placed on the CAL 2. The list is to serve as a notice to A. Reference when the CAO functional elements contracting officers that, based upon DLAD 5000.4, Contract Management become aware of any of the problems set information available at the cognizant (One Book). forth in Appendix 2. The company shall contract administration office, a be notified in writing at the time it is condition exists at the contractor’s B. General place on CAL. The CAL notification facility which the contracting officer 1. FAR 9.103 requires that contracts letter, at a minimum, will contain the should consider prior to awarding the be awarded to responsible contractors. following paragraph: ‘‘Your placement contract. At a minimum, the contracting Once the PCO determines a prospective on the CAL is not a determination of officer should consult with the contractor’s bid or proposal is your responsibility nor can it be used by Preaward Survey Manager (PSM) at the responsive, the PCO must further the Government as a basis for making a cognizant contract administration office determine that the firm is responsible. determination that you are not to determine the necessity for a formal The DLA Contractor Alert List (CAL) responsible. It merely indicates that a Preaward Survey, and to obtain the most assists with making that decision. condition exists which may or may not current, accurate and complete 2. The CAL notifies buying activities have to be resolved prior to awarding information. that information exists at Contract your company further contracts. It is to 3. The list shall not be used by Administration Offices (CAOs) which the mutual benefit of both your contracting officers as a basis for a indicates that certain contractors will company and the Government, as well responsibility determination. The fact require close examination to make a as in the public interest, to correct any that a contractor appears on the list does determination of responsibility. The condition that may interfere with your not indicate that the contractor is not CAL is prepared for use by the company’s successful performance of responsible. The contracting officer Department of Defense (DoD) and other any proposed contract.’’ must continue to make a responsibility Government procurement activities. 2. Update/remove from the CAL. a. determination on each contractor using Appendix 1 is the preface which The CAL Manager in each CAO shall all information available at the time of introduces the CAL report. make a monthly review and query the determination. 3. The Contractor Capability & originators of CAL information to ensure Appendix 2—Listing of CAL Reason Proposal Analysis Team (AQOD), is that a reason still exists for the company Codes designated the Office of Primary Interest remaining on the CAL. If the reason (OPI) for the CAL. The Product and code for a company being on the CAL Code Manufacturing Assurance Team has changed, the CAL shall be 1. The contractor has delivered (AQOG), is the point of contact for appropriately update. complete at least 12 contracts in the issues specifically related to Quality b. The cognizant CAO CAL manager prior 12 months, and the line item on- Assurance data on the CAL. will notify a company in writing when time delivery rate is less than 65 4. The Defense Contract Management it is removed from the CAL. percent. This will be calculated using: District CAL Manager: 3. Input data and disseminate reports. (i) the initial contract delivery schedule a. Is the District focal point for CAL a. CAO CAL managers shall ensure (unless schedule revision was caused by issues; monthly input of CAL data by the the Government); and (ii) data on line b. Is the team leader for uniform responsible elements. CAO will review, items from contracts delivered complete District-wide implementation of the validate, and transmit CAL input data during the prior 12 months (that is, CAL program; by the fifth workday of the month. percentage actually delivered late, not b. The Defense Information System c. Does periodic reviews to validate percentage delinquent of on-hand line Agency MegaCenter (DSC), Columbus, is that CAL policy is being followed by the items which have not been delivered the custodian of the CAL, and is CAOs; and yet). responsible for maintenance of the d. Provides CAO CAL Managers with 2. The contractor has been issued a system and dissemination of CAL CAL training, as necessary. Level III or IV corrective action request. reports to our customers (buying 5. The CAO CAL Manager: 3. The contractor’s financial condition activities) on a monthly basis. DCMDE would result in or did result in a a. Develops and promulgates CAO operates the electronic bulletin board negative preaward survey. CAL procedures consistent with the for electronic dissemination of the CAL Frank K. Toda, policy herein; data. b. Is responsible for the performance Colonel, USAF, Chief, Performance of the CAL program at the CAO level; D. Synopsis of Process Assessment Team. [FR Doc. 96–31329 Filed 12–9–96; 8:45 am] c. Is the focal point for all the internal 1. Inputs and external communications pertaining BILLING CODE 3620±01±M to CAL; a. CAO monthly CAL data. b. DSC monthly CAL data. d. Promptly answers queries pertaining to the CAL; 2. Process Outputs DEPARTMENT OF EDUCATION e. Review, validates, and inputs CAL a. DLA Contractor Alert List. Notice of Proposed Information data into MOCAS by the fifth workday b. DLA Contractor Alert List on Collection Requests of the month; DCMDE Electronic Bulletin Board. f. Ensures applicable reason codes set AGENCY: Department of Education. Appendix 1—Preface to CAL Report forth in Appendix 2 of this chapter are ACTION: Proposed collection; comment assigned; and 1. The enclosed DLA Contractor Alert request. g. Ensures CAL contains only List (CAL) contains information contractors that meet the Appendix 2 collected from the Defense Contract SUMMARY: The Director, Information criteria. Management Command’s Contract Resources Group, invites comments on Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65031 the proposed information collection collection on the respondents, including (44 U.S.C. Chapter 3507(j)), since public requests as required by the Paperwork through the use of information harm is reasonably likely to result if Reduction Act of 1995. technology. normal clearance procedures are DATES: Interested persons are invited to Dated: December 4, 1996. followed. Approval by the Office of submit comments on or before February Management and Budget (OMB) has 10, 1997. Gloria Parker, been requested by December 30, 1996. ADDRESSES: Written comments and Director, Information Resources Group. Interested persons are invited to submit comments on or before February 10, requests for copies of the proposed Office of Educational Research and 1997. information collection requests should Improvement be addressed to Patrick J. Sherrill, ADDRESSES: Written comments Department of Education, 600 Type of Review: Reinstatement. regarding the emergency review should Title: The Technology Innovation Independence Avenue, S.W., Room be addressed to the Office of Challenge Grants Program. 5624, Regional Office Building 3, Information and Regulatory Affairs, Frequency: Annually. Washington, DC 20202–4651. Attention: Wendy Taylor, Desk Officer: Affected Public: Business or other for- Department of Education, Office of FOR FURTHER INFORMATION CONTACT: profit; Not-for-profit institutions; State, Patrick J. Sherrill (202) 708–8196. Management and Budget, 725 17th local or Tribal Gov’t, SEAs for LEAs. Street, NW., Room 10235, New Individuals who use a Reporting Burden and Recordkeeping: Executive Office Building, Washington, telecommunications device for the deaf Responses: 500; Burden Hours: 12,000. D.C. 20503. Requests for copies of the (TDD) may call the Federal Information Abstract: This application will be proposed information collection request Relay Service (FIRS) at 1–800–877–8339 used by eligible consortia composed of should be addressed to Patrick J. between 8 a.m. and 8 p.m., Eastern time, local educational agencies, institutions Sherrill, Department of Education, 7th Monday through Friday. of higher education, private businesses, and D Streets, S.W., Room 5624, SUPPLEMENTARY INFORMATION: Section and other educational or Regional Office Building 3, Washington, 3506 of the Paperwork Reduction Act of telecommunications entities. The D.C. 20202–4651. Written comments 1995 (44 U.S.C. Chapter 35) requires information will be used to make grant regarding the regular clearance and that the Office of Management and awards for the Technology Innovation requests for copies of the proposed Budget (OMB) provide interested Challenge Grants Program and to ensure information collection requests should Federal agencies and the public an early that statutory and regulatory be addressed to Patrick J. Sherrill, opportunity to comment on information requirements are met. collection requests. OMB may amend or Department of Education, 600 waive the requirement for public Office of Educational Research and Independence Avenue, S.W., Room consultation to the extent that public Improvement 5624, Regional Office Building 3, participation in the approval process Type of Review: Reinstatement. Washington, DC 20202–4651, or should would defeat the purpose of the Title: Star Schools Program. be electronic mailed to the internet # information collection, violate State or Frequency: Annually. address [email protected], or should be Federal law, or substantially interfere Affected Public: State, local or Tribal faxed to 202–708–9346. with any agency’s ability to perform its Gov’t, SEAs for LEAs. FOR FURTHER INFORMATION CONTACT: statutory obligations. The Director of the Reporting Burden and Recordkeeping: Patrick J. Sherrill (202) 708–8196. Information Resources Group publishes Responses: 75; Burden Hours: 1,500. Individuals who use a this notice containing proposed Abstract: This application will be telecommunications device for the deaf information collection requests prior to used by telecommunications (TDD) may call the Federal Information submission of these requests to OMB. partnerships composed of local school Relay Service (FIRS) at 1–800–877–8339 Each proposed information collection, agencies, state education agencies, between 8 a.m. and 8 p.m., Eastern time, grouped by office, contains the institutions of higher education, Monday through Friday. following: (1) Type of review requested, television stations, and other SUPPLEMENTARY INFORMATION: Section e.g., new, revision, extension, existing telecommunications agencies including 3506(c)(2)(A) of the Paperwork or reinstatement; (2) Title; (3) Summary educational radio and TV stations. The Reduction Act of 1995 (44 U.S.C. of the collection; (4) Description of the information will be used to make Chapter 3506(c)(2)(A) requires that the need for, and proposed use of, the awards and to assure that statutory and Director of OMB provide interested information; (5) Respondents and regulatory requirements are met. Federal agencies and the public an early frequency of collection; and (6) opportunity to comment on information [FR Doc. 96–31300 Filed 12–9–96; 8:45 am] Reporting and/or Recordkeeping collection requests. The Office of burden. OMB invites public comment at BILLING CODE 4000±01±P Management and Budget (OMB) may the address specified above. Copies of amend or waive the requirement for the requests are available from Patrick J. Notice of Proposed Information public consultation to the extent that Sherrill at the address specified above. Collection Requests public participation in the approval The Department of Education is process would defeat the purpose of the especially interested in public comment AGENCY: Department of Education. information collection, violate State or addressing the following issues: (1) is ACTION: Notice of Proposed Information Federal law, or substantially interfere this collection necessary to the proper Collection Requests. with any agency’s ability to perform its functions of the Department, (2) will statutory obligations. The Director of the this information be processed and used SUMMARY: The Director, Information Information Resources Group, publishes in a timely manner, (3) is the estimate Resources Group, invites comments on this notice containing proposed of burden accurate, (4) how might the the proposed information collection information collection requests at the Department enhance the quality, utility, requests as required by the Paperwork beginning of the Departmental review of and clarity of the information to be Reduction Act of 1995. the information collection. Each collected, and (5) how might the DATES: An emergency review has been proposed information collection, Department minimize the burden of this requested in accordance with the Act grouped by office, contains the 65032 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices following: (1) Type of review requested, Notice of Proposed Information public consultation to the extent that e.g., new, revision, extension, existing Collection Requests public participation in the approval or reinstatement; (2) Title; (3) Summary process would defeat the purpose of the of the collection; (4) Description of the AGENCY: Department of Education. information collection, violate State or need for, and proposed use of, the ACTION: Notice of proposed information Federal law, or substantially interfere information; (5) Respondents and collection requests. with any agency’s ability to perform its frequency of collection; and (6) statutory obligations. The Director of the SUMMARY: The Director, Information Reporting and/or Recordkeeping Information Resources Group, publishes Resources Group, invites comments on burden. ED invites public comment at this notice containing proposed the proposed information collection the address specified above. Copies of information collection requests at the requests as required by the Paperwork the requests are available from Patrick J. beginning of the Departmental review of Reduction Act of 1995. Sherrill at the address specified above. the information collection. Each The Department of Education is DATES: An emergency review has been proposed information collection, especially interested in public comment requested in accordance with the Act grouped by office, contains the addressing the following issues: (1) is (44 U.S.C. Chapter 3507(j)), since public following: (1) Type of review requested, this collection necessary to the proper harm is reasonably likely to result if e.g., new, revision, extension, existing functions of the Department, (2) will normal clearance procedures are or reinstatement; (2) Title; (3) Summary this information be processed and used followed. Approval by the Office of of the collection; (4) Description of the in a timely manner, (3) is the estimate Management and Budget (OMB) has need for, and proposed use of, the of burden accurate, (4) how might the been requested by January 10, 1997. information; (5) Respondents and Department enhance the quality, utility, Interested persons are invited to submit frequency of collection; and (6) and clarity of the information to be comments on or before February 10, Reporting and/or Recordkeeping collected, and (5) how might the 1997. burden. ED invites public comment at Department minimize the burden of this ADDRESSES: Written comments the address specified above. Copies of collection on the respondents, including regarding the emergency review should the requests are available from Patrick J. through the use of information be addressed to the Office of Sherrill at the address specified above. technology. Information and Regulatory Affairs, The Department of Education is Attention: Wendy Taylor, Desk Officer: Dated: December 4, 1996. especially interested in public comment Department of Education, Office of addressing the following issues: (1) is Gloria Parker, Management and Budget, 725 17th this collection necessary to the proper Director, Information Resources Group. Street, NW., Room 10235, New functions of the Department, (2) will Office of Educational Research and Executive Office Building, Washington, this information be processed and used Improvement D.C. 20503. Requests for copies of the in a timely manner, (3) is the estimate proposed information collection request of burden accurate, (4) how might the Type of Review: Extension. should be addressed to Patrick J. Department enhance the quality, utility, Title: Application for Grants Under Sherrill, Department of Education, 7th & and clarity of the information to be Library Research and Demonstration D Streets, S.W., Room 5624, Regional collected, and (5) how might the Program, Title II–B of the Higher Office Building 3, Washington, D.C. Department minimize the burden of this Education Act of 1965, as amended, # 20202–4651. Written comments collection on the respondents, including CFDA 84–039. regarding the regular clearance and through the use of information Abstract: This form will be used by requests for copies of the proposed technology. institutions of higher education and information collection requests should Dated: December 4, 1996. library organizations and agencies to be addressed to Patrick J. Sherrill, Gloria Parker, apply for funds under the Title II–B of Department of Education, 600 the Higher Education Act (HEA) of Independence Avenue, S.W., Room Director, Information Resources Group. 1965, as amended, to carry out research, 5624, Regional Office Building 3, Office of Educational Research and demonstration and development to Washington, DC 20202–4651, or should Improvement improve libraries, training in be electronic mailed to the internet librarianship, and dissemination of # Type of Review: Reinstatement. address [email protected], or should be Title: Application for Grants Under information. The Department will use faxed to 202–708–9346. this information to make grant awards. the Library Research and Human FOR FURTHER INFORMATION CONTACT: Resource Development Program (Title Additional Information: This year, Patrick J. Sherrill (202) 708–8196. Congress passed legislation to repeal the II–B of the Higher Education Act of Individuals who use a 1965, as Amended). HEA II–B, to take effect FY 1998, telecommunications device for the deaf allowing the current program to Abstract: This form will be used by (TDD) may call the Federal Information institutions of higher education and continue for FY 1997. An emergency Relay Service (FIRS) at 1–800–877–8339 clearance is requested in order to allow library organizations or agencies to between 8 a.m. and 8 p.m., Eastern time, apply for funds under Title II–B of the applicants sufficient time to apply for Monday through Friday. funding. Higher Education Act (HEA) of 1965, as SUPPLEMENTARY INFORMATION: Frequency: Annually. Section amended. This descretionary grants 3506 (c)(2)(A) of the Paperwork Affected Public: Not-for-profit program assists in educating and Reduction Act of 1995 (44 U.S.C. institutions; State, local or Tribal Gov’t, training persons in library and Chapter 3506 (c)(2)(A) requires that the SEAs or LEAs. information science through fellowships Director of OMB provide interested and institutions. The Department will Annual Reporting and Recordkeeping Federal agencies and the public an early use the information to make grant Hour Burden: Responses: 50; Burden opportunity to comment on information awards. Hours: 1,800. collection requests. The Office of Additional Information: This year, [FR Doc. 96–31301 Filed 12–9–96; 8:45 am] Management and Budget (OMB) may Congress passed legislation to repeal the BILLING CODE 4000±01±P amend or waive the requirement for HEA II–B, to take effect FY 1998, Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65033 allowing the current program to Discussion of University-based High Transmission Limited Partnership, Docket continue for FY 1997. An emergency Energy Physics Programs No. RP97–141–000; Gulf States Transmission clearance is requested in order to allow Discussion of Planning for the Future of Corporation, Docket No. RP97–174–000; High applicants ample time to submit the National High Energy Physics Island Offshore System, Docket No. RP97– Program 147–000; Iroquois Gas Transmission System, applications for funding, be notified of L.P., Docket No. RP97–161–000; K N the award and recruit new students for Reports on and Discussions of Topics of Interstate Gas Transmission Co., Docket No. the school year beginning in Fall 1997. General Interest in High Energy RP97–142–000; K N Wattenberg Frequency: Annually. Physics Transmission Limited Liability Company, Affected Public: Not-for-profit Public Comment (10 minute rule) Docket No. RP97–144–000; Kentucky West institutions; State, local or Tribal Gov’t, Public Participation: The two-day Virginia Gas Company, Docket No. RP97– SEAs or LEAs. meeting is open to the public. The 104–000; Kern River Gas Transmission Annual Reporting and Recordkeeping Chairperson of the Panel is empowered Company, Docket No. RP97–178–000; Koch Hour Burden: Responses: 140; Burden to conduct the meeting in a fashion that Gateway Pipeline Company, Docket No. Hours: 5,040. RP97–154–000; Louisiana-Nevada Transit will, in his judgment, facilitate the Company, Docket No. RP97–140–000; [FR Doc. 96–31302 Filed 12–09–96; 8:45 am] orderly conduct of business. Any Michigan Gas Storage Company, Docket No. member of the public who wishes to BILLING CODE 4000±01±P RP97–152–000; Mid Louisiana Gas Company, make oral statements pertaining to Docket No. RP97–151–000; MIGC, Inc., agenda items should contact the Docket No. RP97–176–000; Mobile Bay Executive Secretary at the address or Pipeline Company, Docket No. RP97–155– DEPARTMENT OF ENERGY telephone number listed above. 000; Nora Transmission Company, Docket No. RP97–105–000; Oktex Pipeline Office of Energy Research Requests must be received at least 5 days prior to the meeting and reasonable Company, Docket No. RP97–103–000; Overthrust Pipeline Company, Docket No. High Energy Physics Advisory Panel; provision will be made to include the RP97–131–000; Ozark Gas Transmission Notice of Open Meeting presentation on the agenda. System, Docket No. RP97–179–000; Pacific Minutes: Available for public review Gas Transmission System, Docket No. RP97– AGENCY: Department of Energy. and copying at the Public Reading 134–000; Paiute Pipeline Company, Docket ACTION: Notice of open meeting. Room, Room 1E- 190, Forrestal No. RP97–136–000; Questar Pipeline Building, 1000 Independence Avenue, Company, Docket No. RP97–129–000; SUMMARY: Pursuant to the provisions of S.W., Washington, D.C. between 9:00 Richfield Gas Storage System, Docket No. the Federal Advisory Committee Act a.m. and 4:00 p.m., Monday through RP97–150–000; Riverside Pipeline Company, (Public Law 92–463, 86 Stat. 770), Friday, except Federal holidays. L.P., Docket No. RP97–169–000; Sabine Pipe notice is given of a meeting of the High Line Company, Docket No. RP97–109–000; Energy Physics Advisory Panel. Issued at Washington, D.C. on December 4, Shell Gas Pipeline Company, Docket No. 1996. DATES: Monday, January 13, 1997; 9:00 RP97–138–000; Southern Natural Gas a.m. to 6:00 p.m.; and Tuesday, January Rachel Murphy Samuel, Company, Docket No. RP97–137–000; Steuben Gas Storage Company, Docket No. 14, 1997; 9:00 a.m. to 4:00 p.m. Acting Deputy Advisory Committee Management Officer. RP97–177–000; T C P Gathering Co., Docket ADDRESSES: Stanford Linear Accelerator No. RP97–143–000; Transcontinental Gas [FR Doc. 96–31317 Filed 12–09–96; 8:45 am] Center, Central Laboratory, Bldg. 40, Pipe Line Corporation, Docket No. RP97– Orange Room, Stanford, California BILLING CODE 6450±01±P 159–000; Tuscarora Gas Transmission 94309. Company, Docket No. RP97–168–000; U–T FOR FURTHER INFORMATION CONTACT: Offhore System, Docket No. RP97–146–000; Dr. Federal Energy Regulatory Robert Diebold, Executive Secretary, Viking Gas Transmission Company, Docket Commission No. RP97–156–000; Western Gas Interstate High Energy, Physics Advisory Panel, Company, Docket No. RP97–160–000 and [Docket No. RP97±165±000, etc.] U.S. Department of Energy, ER–22, Williston Basin Interstate Pipeline Company, GTN, Germantown, Maryland 20874, Alabama-Tennessee Natural Gas Docket No. RP97–148–000 (Not Telephone: (301) 903–4801. Consolidated). Company, et al.; Proposed Changes in SUPPLEMENTARY INFORMATION: FERC Gas Tariff Take notice that the applicants Purpose of the Meeting: To provide referenced above tendered for filing pro advice and guidance on a continuing December 4, 1996. forma tariff sheets by the December 2, basis with respect to the high energy In the matter of: Alabama-Tennessee 1996 date for compliance with the physics research program. Natural Gas Company, Docket No. RP97– Commission’s directives in Order No. Tentative Agenda 165–000; ANR Pipeline Company, Docket 587. No. RP97–171–000; ANR Storage Company, Order No. 587 requires pipelines to Monday, January 13, 1997 and Tuesday, Docket No. RP97–172–000; Black Marlin reflect changes to conform to the January 14, 1997 Pipeline Company, Docket No. RP97–110– 000; Blue Lake Gas Storage Company, Docket standards adopted by the Gas Industry Discussion of Department of Energy No. RP97–170–000; Caprock Pipeline Standards Board and incorporated into High Energy Physics Programs and FY Company, Docket No. RP97–139–000; the Commission’s Regulations by Order 1997 Budget Carnegie Interstate Pipeline Company, No. 587, issued July 17, 1996 in Docket Discussion of National Science Docket No. RP97–173–000; Columbia Gas No. RM96–1–000. Foundation Elementary Particle Transmission Corporation, Docket No. RP97– Each applicant states that copies of its Physics Programs and FY 1997 Budget 167–000; Columbia Gulf Transmission filing are being mailed to its Discussion of the Status of the Large Company, Docket No. RP97–166–000; Cove jurisdictional customers and interested Hadron Collider Project and U.S. Point LNG Limited Partnership, Docket No. state regulatory agencies. RP97–162–000; Crossroads Pipeline Participation Company, Docket No. RP97–145–000; The above-referenced dockets are Discussion of the Stanford Linear Equitrans, Inc., Docket No. RP97–114–000; being noticed together due to the large Accelerator Center and Lawrence Gas Transport Inc., Docket No. RP97–157– number of filings received. The filings Berkeley National Laboratory High 000; Granite State Gas Transmission, Inc., are not being consolidated. Any party Energy Physics Programs Docket No. RP97–153–000; Great Lakes Gas who wishes to file a motion to intervene 65034 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices or protest must file a separate Copies of this filing are on file with the [Docket No. TM97±3±32±000] intervention or protest for each docket. Commission and are available for public Any person desiring to be heard or to inspection in the Public Reference Colorado Interstate Gas Company; protest any of the above filings should Room. Notice of Tariff Filing file a motion to intervene or protest for Linwood A. Watson, Jr., December 4, 1996. each with the Federal Energy Regulatory Acting Secretary. Commission, 888 First Street, N.E., Take notice that on November 27, Washington, D.C. 20426, in accordance [FR Doc. 96–31282 Filed 12–9–96; 8:45 am] 1996, Colorado Interstate Gas Company with Sections 385.214 and 385.211 of BILLING CODE 6717±01±M (CIG) tendered for filing as part of its the Commission’s Rules and FERC Gas Tariff, First Revised Volume Regulations. All such motions or No. 1, Second Revised Sheet No. 11A protests must be filed on or before [Docket No. RP97±27±001] reflecting an increase in the fuel December 23, 1996. Protests will be reimbursement percentage for Lost, considered by the Commission in Colorado Interstate Gas Company; Unaccounted-For and Other Fuel Gas determining appropriate action to be Notice of Tariff Compliance Filing from 0.62% to 0.71% effective January taken, but will not serve to make 1, 1997. December 4, 1996. protestants parties to the proceeding. CIG states that copies of this filing Any person wishing to become a party Take notice that on November 26 have been served on CIG’s jurisdictional must file a motion to intervene. Copies 1996, Colorado Interstate Gas Company customers and public bodies. of these filings are on file with the (CIG), tendered for filing as part of its Commission and are available for public FERC Gas Tariff, First Revised Volume Any person desiring to be heard or to inspection in the Public Reference No. 1, the tariff sheets identified below protest said filing should file a motion to intervene or a protest with the Room. to be effective November 15, 1996: Linwood A. Watson, Jr., Federal Energy Regulatory Commission, Substitute Second Revised Sheet No. 97 Acting Secretary. 888 First Street, N.E., Washington, D.C. Substitute Third Revised Sheet No. 123 [FR Doc. 96–31298 Filed 12–9–96; 8:45 am] 20426, in accordance with Sections Substitute First Revised Sheet No. 157 385.211 and 385.214 of the BILLING CODE 6717±01±M CIG states that the instant tariff sheets Commission’s Rules of Practice and are filed in compliance with the Procedure. All such motions or protests [Docket No. RP97±37±001] must be filed in accordance with section Commission’s Order issued November 154.210 of the Commission’s 14, 1996 in Docket No. RP97–27–000. Canyon Creek Compression Company; Regulations. Protests will be considered These tariff sheets specify Shipper’s Notice of Compliance Filing by the Commission in determining the Maximum Daily Injection Quantity and December 4, 1996. appropriate action to be taken, but will Maximum Daily Withdrawal Quantity not serve to make protestants parties to Take notice that on November 27, in CIG’s Rate Schedules NNT–1, NNT– 1996, Canyon Creek Compression the proceeding. Any person wishing to 2 and FS–1 Form of Service become a party must file a motion to Company (Canyon) tendered for filing as Agreements. The tariff sheets also part of its FERC Gas Tariff, Third intervene. Copies of this filing are on modify the Agreements to state that CIG file with the Commission and are Revised Volume No. 1, Substitute First will continue to state each Shipper’s Revised Sheet No. 132, to be effective available for public inspection in the Available Daily Withdrawal Quantity on December 1, 1996. Public Reference Room. CIG’s Xpress System. Canyon states that the purposes of the Linwood A. Watson, Jr., filing is to comply with the CIG states that copies of the filing Acting Secretary. Commission’s Letter Order issued on were served upon CIG’s jurisdictional [FR Doc. 96–31291 Filed 12–9–96; 8:45 am] customers and public bodies. November 14, 1996, in Docket No. BILLING CODE 6717±01±M RP97–37–000. Any person desiring to protest said Canyon requests waiver of the filing should file a protest with the Commission’s Regulations to the extent Federal Energy Regulatory Commission, [Docket No. CP96±128±000] necessary to permit the tariff sheet 888 First Street, NE, Washington, DC submitted to become effective December 20426, in accordance with Section Eastern Shore Natural Gas Company; 1, 1996. 385.211 of the Commission’s Rules of Canyon states that copies of the filing Notice of Technical Conference are being mailed to all parties on the Practice and Procedure. All such Take notice that a technical official service list in Docket No. RP97– protests must be filed as provided in conference will be convened in the 37–000. Section 154.210 of the Commission’s Any person desiring to protest said Regulations. Protests will be considered above-docketed proceeding on filing should file a protest with the by the Commission in determining the Thursday, December 12, 1996, at 9:00 Federal Energy Regulatory Commission, appropriate action to be taken, but will a.m., in a room to be designated at the 888 First Street, N.E., Washington, D.C. not serve to make the protestants parties offices of the Federal Energy Regulatory 20426, in accordance with Section to the proceedings. Copies of this filing Commission, 888 First Street, NE., 385.211 of the Commission’s Rules and are on file with the Commission and are Washington, DC, 20426. Any party, as Regulations. All such protests must be available for public inspection in the defined in 18 CFR 385.102(c), any filed as provided in Section 154.210 of Public Reference Room. person seeking intervenor status pursuant to 18 CFR 385.214, and any the Commission’s Regulations. Protests Linwood A. Watson, Jr., participant, as defined in 18 CFR will be considered by the Commission Acting Secretary. in determining the appropriate action to 385.102(b), is invited to participate. [FR Doc. 96–31281 Filed 12–9–96; 8:45 am] be taken, but will not serve to make For additional information, please protestants parties to the proceeding. BILLING CODE 6717±01±M contact Carolyn Van Der Jagt, 202–208– Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65035

2246, or Tom Gooding, 202–208–1123, intervene. Copies of this filing are on Development (R&D) Program in 1998 at the Commission. file with the Commission and are and 1999. Linwood A. Watson, Jr., available for public inspection. GRI states that its filing is made in Acting Secretary. Linwood A. Watson, Jr., compliance with the Commission’s [FR Doc. 96–31275 Filed 12–9–96; 8:45 am] Acting Secretary. directive that it must file by March 1, 1997 a proposed funding mechanism for BILLING CODE 6717±01±M [FR Doc. 96–31295 Filed 12–9–96; 8:45 am] post-1997 use. BILLING CODE 6717±01±M The proposed funding mechanism [Docket No. TQ97±2±23±000] involves the assessment of two separate surcharges: [Docket No. GT97±13±000] Eastern Shore Natural Gas Company; • a Discountable Commodity Notice of Proposed Changes in FERC Surcharge to Pipeline Shippers; and El Paso Natural Gas Company; Notice • Gas Tariff of Tariff Filing a Discountable Volumetric Interstate Delivery Charge to Local December 4, 1996. December 4, 1996. Distribution Companies and Intrastate Take notice that on November 25, Take notice that on November 27, Pipelines. 1996 Eastern Shore Natural Gas 1996, El Paso Natural Gas Company (El According to GRI, the Discountable Company (ESNG) tendered for filing Paso) tendered for filing to become part Commodity Surcharge to Pipeline certain revised tariff sheets in the above of its FERC Gas Tariff, Second Revised Shippers, which would still be subject captioned docket as part of its FERC Gas Volume No. 1–A, the following revised to the ‘‘discount GRI first’’ rule, would Tariff, First Revised Volume No. 1, with tariff sheets to become effective January be charged to shippers whenever a proposed effective date of December 1, 1, 1997: associated commodity charges and one- 1996. part rates are at or above maximum ESNG states that the revised tariff Third Revised Sheet No. 256 Third Revised Sheet No. 257 stated tariff rate levels, including service sheets included herein are being filed provided at negotiated rates. GRI pursuant to Section 21 of the General El Paso states that the tendered tariff proposes that this surcharge be assessed Terms and Conditions of ESNG’s Gas sheets update the identification of low on interstate transportation services Tariff to reflect changes in ESNG’s and high load factor shippers for (including storage) rendered by GRI’s jurisdictional rates. The sales rates set purposes of assessing the Gas Research interstate pipeline members. forth herein reflect an increase of Institute’s (GRI) surcharges. The revenue generated from the $1.0491 per dt in the Commodity Any person desiring to be heard or to assessment of this surcharge would go Charge, as measured against ESNG’s protest said filing should file a motion to fund the ‘‘Pipeline and Producer Out-Of-Cycle Quarterly PGA filing, to intervene or protest with the Federal Subprogram’’, which consists primarily Docket No. TQ97–1–23–000, et. al., filed Energy Regulatory Commission, 888 of R&D on supply, transmission, and on October 30, 1996 to be effective on First Street, N.E., Washington, D.C. related environment and safety, plus an November 1, 1996. 20426, in accordance with Sections appropriate share of Administrative and The commodity current purchased gas 385.214 and 385.211 of the General (A&G) expenses. cost adjustment reflects ESNG’s Commission’s Rules and Regulations. GRI states that the Discountable projected cost of gas for the months of All such motions or protests must be Volumetric Interstate Delivery Charge to December 1996 through January 1997, filed in accordance with Section Local Distribution Companies and and has been calculated using its best 154.210 of the Commission’s Intrastate Pipelines would be a estimate of available gas supplies to Regulations. Protests will be considered volumetric interstate delivery charge meet ESNG’s anticipated purchase by the Commission in determining the assessed on a monthly basis to local requirements. The increased gas costs in appropriate action to be taken, but will distribution companies (LDC’s) and this filing are a result of higher prices not serve to make protestants parties to intrastate pipelines to fund R&D which being paid to producers/suppliers under the proceeding. Any person wishing to would be of particular interest to LDC’s, ESNG’s market-responsive gas supply become a party must file a motion to intrastate pipelines, and customers contracts. intervene. Copies of this filing are on behind the city gate. This surcharge ESNG states that copies of the filing file with the Commission and are would be discountable only to a ‘‘floor’’ have been served upon its jurisdictional available for public inspection in the that is established for each LDC and customers and interested State Public Reference Room. intrastate pipeline. Commissions. Linwood A. Watson, Jr., The revenue generated from this Any person desiring to be heard or to Acting Secretary. surcharge would be used to fund the protest said filing should file a motion [FR Doc. 96–31276 Filed 12–9–96; 8:45 am] ‘‘LDC Subprogram’’, which consists to intervene or protest with the Federal primarily of R&D on distribution, end BILLING CODE 6717±01±M Energy Regulatory Commission, 888 use, environment and safety, plus an First Street, N.E., Washington, D.C. appropriate share of A&G expenses. 20426, in accordance with Sections [Docket No. RP97±149±000] GRI proposes to maintain separate 385.211 and 385.214 of the collection accounts for revenue Commission’s Rules of Practice and Gas Research Institute; Notice of generated for each subprogram, so that Procedure. All such motions or protests Petition for Approval of Post-1997 any amounts in excess of a particular must be filed in accordance with Funding Mechanism subprogram’s current year R&D funding Section 154.210 of the Commission’s requirement could be applied to that Regulations. Protests will be considered December 4, 1996. subprogram’s subsequent year R&D by the commission in determining the Take notice that on December 2, 1996, funding requirement. appropriate action to be taken, but will Gas Research Institute (GRI) filed a Any person desiring to be heard or to not serve to make protestants parties to petition requesting approval of a post- protest GRI’s petition should file a the proceeding. Any person wishing to 1997 funding mechanism for the motion to intervene or protest with the become a party must file a motion to purpose of funding its Research and Federal Energy Regulatory Commission, 65036 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

888 First Street, N.E., Washington, D.C. must file a motion to intervene. Copies [Docket No. MG±96±16±001] 20426, in accordance with Rules 214 of this filing are on file with the and 212 of the Commission’s Rules of Commission and are available for public Mojave Pipeline Operating Co.; Notice Practice and Procedure, 18 CFR 385.214 inspection. of Filing and 385.211. All protests, motions to Linwood A. Watson, Jr., December 4, 1996. intervene and comments should be filed Acting Secretary. Take notice that on November 15, on or before December 27, 1996. All [FR Doc. 96–31286 Filed 12–9–96; 8:45 am] 1996, Mojave Pipeline Operating comments and protests will be BILLING CODE 6712±01±M Company (Mojave) filed a report in considered by the Commission in response to the Commission’s October determining the appropriate action to be 18, 1996 order requiring Mojave to taken, but will not serve to make identify the date it commenced protestants parties to this proceeding. [Docket No. TM97±3±25±000] transportation transactions with each of Copies of this petition are on file with its marketing affiliates and explaining Mississippi River Transmission the Commission and are available for why it did not file standards of conduct Corporation; Notice of Proposed public inspection. with the first such transportation Changes in FERC Gas Tariff Linwood A. Watson, Jr., transaction began. 77 FERC ¶ 61,042 Acting Secretary. December 4, 1996. (1996). [FR Doc. 96–31296 Filed 12–9–96; 8:45 am] Mojave states that copies of this filing Take notice that on November 27, BILLING CODE 6717±01±M have been mailed to all parties on the 1996, Mississippi River Transmission official service list, all Mojave Corporation (MRT) tendered for filing to transportation customers and affected [Docket No. RP97±126±000] become part of its FERC Gas Tariff, state regulatory commissions. Third Revised Volume No. 1, the Any person desiring to be heard or to Iroquois Gas Transmission System, following tariff sheets with a proposed protest said filing should file a motion L.P.; Notice of Proposed Changes in effective date of January 1, 1997: to intervene or protest with the Federal FERC Gas Tariff Twenty-Second Revised Sheet No. 5 Energy Regulatory Commission, 888 December 4, 1996. Twenty-Second Revised Sheet No. 6 First Street, N.E., Washington, D.C. Take notice that on November 29, Nineteenth Revised Sheet No. 7 20426, in accordance with Rules 211 or 1996, Iroquois Gas Transmission 214 of the Commission’s Rules of System, L.P. (Iroquois) tendered for MRT states that the purpose of this Practice and Procedure (18 CFR 385.211 filing as part of its FERC Gas Tariff, First filing is to report the Miscellaneous or 385.214). All such motions to Revised Volume No. 1, the tariff sheets Revenues Flowthrough Adjustment intervene or protest should be filed on listed on Appendix A to the filing, with credit applicable to the period or before December 19, 1996. Protests an effective date of January 1, 1997. November 1, 1995 through August 31, will be considered by the Commission Iroquois states that the filing is the 1996 for the cashout of onsystem and in determining the appropriate action to second and final general Section 4 filing offsystem imbalances pursuant to be taken but will not serve to make contemplated in its initial certificate Section 18 of the General Terms and protestants parties to the proceeding. issued in Docket No. CP89–634. Conditions of MRT’s FERC Gas Tariff. Any person wishing to become a party According to Iroquois the proposed MRT states that a copy of this filing must file a motion to intervene. Copies changes would decrease its rates for is being mailed to each of MRT’s of this filing are on file with the transportation services and permit it to customers and to the state commissions Commission and are available for public recover its cost of service of of Arkansas, Illinois and Missouri. inspection. $150,382.130, based upon the twelve- Any person desiring to be heard or to Linwood A. Watson, Jr., month period ended July 31, 1996, as protest this filing should file a motion Acting Secretary. adjusted for changes through April 30, to intervene or protest with the Federal [FR Doc. 96–31277 Filed 12–9–96; 8:45 am] 1997. Iroquois also states that it is Energy Regulatory Commission, 888 BILLING CODE 6717±01±M making certain minor tariff revisions of First Street, N.W., Washington, DC a clarifying or conforming nature. 20426, in accordance with Sections [Docket Nos. TM97±4±16±000] Iroquois states that copies of its filing 385.211 and 385.214 of the were served on all jurisdictional Commission’s Rules and Regulations. National Fuel Gas Supply Corporation; customers and interested state All such motions or protests must be Notice of Tariff Filing commissions. filed as provided in Section 154.210 of Any person desiring to be heard or to the Commission’s Regulations. Protests December 4, 1996. protest said filing should file a motion will be considered by the Commission Take notice that on November 29, to intervene or protest with the Federal in determining the appropriate action to 1996, National Fuel Gas Supply Energy Regulatory Commission, 888 be taken, but will not serve to make Corporation (National) tendered for First Street, N.E., Washington, D.C. protestants parties to the proceeding. filing as part of its FERC Gas Tariff, 20426, in accordance with Section Any person wishing to become a party Third Revised Volume No. 1, Fifteenth 385.211 or 385.214 of the Commission’s must file a motion to intervene. Copies Revised Sheet No. 5A, with a proposed Rules of Practice and Procedure. All of this filing are on file with the effective date of December 1, 1996. such motions or protests must be filed Commission and are available for public National states that pursuant to in accordance with Section 154.210 of inspection in the Public Reference Article II, Section 2, of the approved the Commission’s Regulations. Protests Room. settlement at Docket Nos. RP94–367– will be considered by the Commission 000, et al., National is required to in determining the appropriate action to Linwood A. Watson, Jr., recalculation the maximum be taken but will not serve to make Acting Secretary. Interruptible Gathering (IG) rate protestants parties to the proceeding. [FR Doc. 96–31290 Filed 12–9–96; 8:45 am] monthly and to charge that rate on the Any person wishing to become a party BILLING CODE 6717±01±M first day of the following month if the Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65037 result is an IG rate more than 2 cents October 31 times the IG throughput for Federal Energy Regulatory Commission, above or below the IG rate as calculated that same period. The recalculation 888 First Street, N.E., Washington, DC under Section 1 of Article II. The produced an FG rate of $7.22 per dth. 20426, in accordance with Section October recalculation produced an IG Any person desiring to be heard or to 385.211 of the Commission’s Rules and rate of 9 cents per dth. protest said filing should file a motion Regulations. All such protests must be National further states that, as to intervene or protest with the Federal filed as provided in Section 154.210 of required by Article II, Section 4, Energy Regulatory Commission, 888 the Commission’s Regulations. Protests National is filing a revised tariff sheet First Street N.E., Washington, D.C., will be considered by the Commission within 30 days of the effective date for 20426, in accordance with Sections in determining the appropriate action to the revised IG rate. 385.211 or 385.214 of the Commission’s be taken, but will not serve to make Any person desiring to be heard or to Rules of Practice and Procedure. All protestants parties to the proceeding. protest said filing should file a motion such motions or protests must be filed Copies of this filing are on file with the to intervene or protest with the Federal in accordance with Section 154.210 of Commission and are available for public Energy Regulatory Commission, 888 the Commission’s Regulations. Protests inspection in the Public Reference First Street, N.E., Washington, D.C., will be considered by the Commission Room. 20426, in accordance with Sections in determining the appropriate action to Linwood A. Watson, Jr., 385.211 and 385.214 of the be taken but will not serve to make Acting Secretary. Commission’s Rules of Practice and protestants parties to the proceeding. [FR Doc. 96–31279 Filed 12–9–96; 8:45 am] Procedure. All such motions or protests Any person wishing to become a party BILLING CODE 6717±01±M must be filed in accordance with must file a motion to intervene. Copies Section 154.210 of the Commission’s of this filing are on file with the Regulations. Protests will be considered Commission and are available for public [Docket No. TM97±2±86±000] by the Commission in determining the inspection. appropriate action to be taken but will Linwood A. Watson, Jr., Pacific Gas Transmission Company; Notice of Compliance Filing not serve to make protestants parties to Acting Secretary. the proceeding. Any person wishing to [FR Doc. 96–31293 Filed 12–9–96; 8:45 am] December 4, 1996. become a party must file a motion to BILLING CODE 6717±01±M Take notice that on November 27, intervene. Copies of this filing are on 1996, Pacific Gas Transmission file with Commission and are available [Docket No. RP95±409±007] Company (PGT) tendered for filing as for public inspection. part of its FERC Gas Tariff, First Revised Linwood A. Watson, Jr., Northwest Pipeline Corporation; Notice Volume No. 1–A: Fifteenth Revised Acting Secretary. of Compliance Filing Sheet No. 5; and as part of its FERC Gas [FR Doc. 96–31292 Filed 12–9–96; 8:45 am] Tariff, Second Revised Volume No. 1: BILLING CODE 6717±01±M December 4, 1996. Twelfth Revised Sheet No. 7. PGT Take notice that on November 27, requested the above-referenced tariff 1996, Northwest Pipeline Corporation sheets become effective January 1, 1997. [Docket No. TM97±5±16±000] (Northwest) tendered for filing as part of PGT asserts that the purpose of this National Fuel Gas Supply Corporation; its FERC Gas Tariff, Third Revised filing is to comply with Paragraphs 37 Notice of Tariff Filing Volume No. 1, the following tariff and 23 of the terms and conditions of sheets, to become effective May 23, First Revised Volume No. 1–A and December 4, 1996. 1996: Second Revised Volume No. 1, Take notice that on November 29, Second Revised Sheet No. 204 respectively, of its FERC Gas Tariff, 1996, National Fuel Gas Supply Third Revised Sheet No. 250 ‘‘Adjustment for Fuel, Line Loss and Corporation (National) tendered for Second Revised Sheet No. 251 Other Unaccounted For Gas filing as part of its FERC Gas Tariff, Second Revised Sheet No. 252 Percentages.’’ These tariff changes Third Revised Volume No. 1, Sixteenth Northwest states that the purpose of reflect an increase in PGT’s fuel and line Revised Sheet No. 5A and Third this filing is to comply with the loss surcharge percentage to become Revised Sheet No. 29, with a proposed directives of the Commission’s October effective July 1, 1996. Also included, as effective date of January 1, 1997. 18, 1996 letter order in Docket Nos. required by Paragraphs 37 and 23, are National states that pursuant to RP95–409–000, 005, and 006, which workpapers showing the derivation of Article III, Section 1, of the approved addresses the Joint Offer of Settlement the current fuel and line loss percentage settlement at Docket Nos. RP94–367– Relating to Gas Processing filed on May in effect for each month the fuel 000, et al., National is required to 24, 1996, with respect to the processing tracking mechanism has been in effect. recalculate the maximum Firm of Northwest’s mainline gas at Williams PGT further states that a copy of this Gathering (FG) rate annually to reflect: Gas Processing filed on May 24, 1996, filing has been served on PGT’s (a) the changes in the FG reservation with respect to the processing of jurisdictional customers and interested determinants based on the FG Northwest’s mainline gas at Williams state regulatory agencies. throughput for the prior 12 months Gas Processing’s Ignacio Plant. Any person desiring to be heard or ended October 31; (b) an annual Northwest states that the purpose of protest said filing should file a motion reduction of 2.5 percent in direct this filing is to include a provision in to intervene or protest with the Federal Operation and Maintenance Costs; (c) Northwest’s tariff stating that it will Energy Regulatory Commission, 888 the costs resulting from operation of credit to its customers all revenues it First Street, N.E., Washington, D.C. Sections 2 and 3 of Article III of the receives from liquids processing of its 20426, in accordance with Sections settlement; and (d) changes in the IG mainline gas at the Ignacio Plant, 385.214 and 385.211 of the revenues to be subtracted from the pursuant to the terms of the Settlement Commission’s Rules of Practice and Gathering Cost-of-Service based on the with its jurisdictional customers. Procedure. All such motions or protests maximum IG rate in effect each month Any person desiring to protest this must be filed as provided in Section during the prior 12 months ended filing should file a protest with the 154.210 of the Commission’s 65038 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Regulations. Protests will be considered Mexico). The amendment sought herein All such motions or protests must be by the Commission in determining the would simply reflect the name change filed in accordance with Section appropriate action to be taken, but will from Gas Company of New Mexico. 154.210 of the Commission’s not serve to make protestants parties to PNM Gas Services states that the change Regulations. Protests will be considered the proceeding. Any person wishing to only reflects a change in the name of the by the Commission in determining the become a party must file a motion to division conducting business; no change appropriate action to be taken, but will intervene. Copies of this filing are on of ownership occurred. not serve to make protestants parties to file with the Commission and are Any person desiring to be heard or to the proceeding. Any person wishing to available for public inspection in the make any protest with reference to said become a party must file a motion to Public Reference Room. petition should, on or before December intervene. Copies of this filing are on Linwood A. Watson, Jr., 26, 1996, file with the Federal Energy file with the Commission and are Acting Secretary. Regulatory Commission, 888 First available for public inspection in the [FR Doc. 96–31288 Filed 12–9–96; 8:45 am] Street, N.E., Washington, DC 20426, a Public Reference Room. BILLING CODE 6717±01±M petition to intervene or protest in Linwood A. Watson, Jr., accordance with the requirements of the Acting Secretary. Commission’s Rules of Practice and [FR Doc. 96–31289 Filed 12–9–96; 8:45 am] [Docket No. RP96±348±000] Procedure (18 CFR 385.211 or 385.214) BILLING CODE 6717±01±M and the Regulations under the NGA (18 Panhandle Eastern Pipe Line CFR 157.10). All protests filed with the Corporation; Notice of Technical Commission will be considered by it in Conference determining the appropriate action to be [Docket No. RP97±39±001] taken but will not serve to make the December 5, 1996. Stingray Pipeline Company; Notice of protestants parties to the proceeding. In the Commission’s order issued on Compliance Filing September 30, 1996, in the above- Any person wishing to become a party captioned proceeding, the Commission to a proceeding or to participate as a December 4, 1996. held that the filing raises certain issues party in any hearing therein must file a Take notice that on November 27, for which a technical conference is to be petition to intervene in accordance with 1996, Stingray Pipeline Company convened. the Commission’s Rules. Any person (Stingray) tendered for filing as part of The conference to address the issues who has heretofore filed need not file its FERC Gas Tariff, Third Revised has been scheduled for Thursday, again. Volume No. 1, Substitute First Revised December 19, 1996, at 10:00 a.m. in a Lois D. Cashell, Sheet No. 140, to be effective December room to be designated at the offices of Secretary. 1, 1996. the Federal Energy Regulatory [FR Doc. 96–31389 Filed 12–9–96; 8:45 am] Stingray states that the purpose of the Commission, 888 First Street, N.E., BILLING CODE 6717±01±M filing is to comply with the Washington, D.C. 20426. Commission’s Letter Order issued on All interested persons and Staff are [Docket No. TM97±2±111±000] November 14, 1996, in Docket No. permitted to attend. RP97–39–000. Lois D. Cashell, Steuben Gas Storage Company; Notice Stingray requests waiver of the Secretary. of Proposed Changes in FERC Gas Commission’s Regulations to the extent [FR Doc. 96–31390 Filed 12–9–96; 8:45 am] Tariff Annual Charges Adjustment necessary to permit the tariff sheet BILLING CODE 6717±01±M Clause Provisions submitted to become effective December 1, 1996. December 4, 1996. [Docket No. CP93±98±002] Stingray states that copies of the filing Take notice that on November 17, are being mailed to all parties on the PNM Gas Services, a Division of Public 1996, Steuben Gas Storage Company official service list in Docket No. RP97– Service Company of New Mexico; (Steuben) tendered for filing as part of 39–000. its FERC Gas Tariff, Original Volume Notice of Amendment Any person desiring to protest said No. 1, First Revised Sheet No. 5, to filing should file a protest with the December 5, 1996. become effective October 1, 1996. Federal Energy Regulatory Commission, Take notice that on November 25, Steuben states that First Revised 888 First Street, N.E., Washington, D.C. 1996, PNM Gas Services, a Division of Sheet No. 5 reflects the new ACA rate 20426, in accordance with Section Public Service Company of New Mexico to be charged per the Annual Charge 385.211 of the Commission’s Rules and (PNM Gas Services), located at Alvarado Adjustment clause provisions Regulations. All such protests must be Square, Albuquerque, New Mexico established by the Commission in Order filed as provided in Section 154.210 of 87158, filed an amendment in Docket No. 472, issued on May 29, 1987. The the Commission’s Regulations. Protests No. CP93–98–002, pursuant to Section 3 new ACA rate to be charged by Steuben will be considered by the Commission of the Natural Gas Act (NGA) and Part will be effective October 1, 1996. in determining the appropriate action to 153 of the Commission’s Regulations Steuben states that copies of the filing be taken, but will not serve to make under the NGA, seeking to amend the were served upon the company’s protestants parties to the proceeding. Presidential Permit issued August 6, jurisdictional customers. Copies of this filing are on file with the 1993, to reflect the new name of the Any person desiring to be heard or to Commission and are available for public company holding the Presidential protest said filing should file a motion inspection in the Public Reference Permit. to intervene or protest with the Federal Specifically, the Presidential Permit Energy Regulatory Commission, 888 Room. issued in Docket No. CP93–98–000 was First Street, N.E., Washington, D.C. Linwood A. Watson, Jr., to Gas Company of New Mexico, a 20426, in accordance with Sections Acting Secretary. Division of Public Service Company of 385.214 and 385.211 of the [FR Doc. 96–31284 Filed 12–9–96; 8:45 am] New Mexico (Gas Company of New Commission’s Rules and Regulations. BILLING CODE 6717±01±M Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65039

[Docket No. RP97±38±001] Transwestern states that the purpose such motions or protests must be filed of this filing is to comply with the on or before December 11, 1996. Protests Trailblazer Pipeline Company; Notice Commission’s November 15, 1996 order will be considered by the Commission of Compliance Filing accepting Transwestern’s application for in determining the appropriate action to December 4, 1996. participation in a experimental pilot be taken but will not serve to make Take notice that on November 29, program removing the price ceilings protestants parties to the proceeding. 1996, Trailblazer Pipeline Company from secondary market transactions, and Any person wishing to become a party (Trailblazer) tendered for filing as part ordering Transwestern to file tariff must file a motion to intervene. Copies of its FERC Gas Tariff, Third Revised sheets to reflect participation in such of this filing are on file with the Volume No. 1, Substitute First Revised program. Commission and are available for public Sheet No. 139, to be effective December Transwestern states that copies of the inspection. filing were served on its gas utility 1, 1996. Linwood A. Watson, Jr., customers, interested state Trailblazer states that the purpose of Acting Secretary. the filing is to comply with the commissions, and all parties to this [FR Doc. 96–31285 Filed 12–9–96; 8:45 am] Commission’s Letter Order issued on proceeding. November 14, 1996, in Docket No. Any person desiring to protest said BILLING CODE 6717±01±M RP97–38–000. filing should file a protest with the Trailblazer requests waiver of the Federal Energy Regulatory Commission, Commission’s Regulations to the extent 888 First Street, NE., Washington, DC, [Docket No. TQ97±1±35±000] necessary to permit the tariff sheet 20426, in accordance with Section submitted to become effective December 385.211 of the Commission’s Rules of West Texas Gas, Inc.; Notice of 1, 1996. Practice and Procedure. All such Proposed Changes In FERC Gas Tariff Trailblazer states that copies of the protests must be filed in accordance filing are being mailed to all parties on with Section 154.210 of the December 4, 1996. the official service list in Docket No. Commission’s Regulations. Protests will Take notice that on November 27, RP97–38–000. be considered by the Commission in 1996, West Texas Gas, Inc. (WTG), Any person desiring to protest said determining the appropriate action to be tendered for filing proposed changes in filing should file a protest with the taken, but will not serve to make its FERC Gas Tariff, First Revised Federal Regulatory Commission, 888 protestants parties to the proceeding. Volume No. 1. WTG submitted Twenty- First Street, N.E, Washington, DC 20426, Copies of this filing are on file with the First Revised Sheet No. 4 to be effective in accordance with Section 385.211 of Commission and are available for public January 1, 1997. This tariff sheet and the the Commission’s Rules and inspection. accompanying explanatory schedules Regulations. All such protests must be Linwood A. Watson, Jr., constitute WTG’s quarterly PGA filing filed as provided in Section 154.210 of Acting Secretary. submitted in accordance with the the Commission’s Regulations. Protests [FR Doc. 96–31280 Filed 12–9–96; 8:45 am] purchased gas adjustment provisions of will be considered by the Commission BILLING CODE 6717±01±M Section 19 of the General Terms and in determining the appropriate action to Conditions of WTG’s FERC Gas Tariff, be taken, but will not serve to make First Revised Volume No. 1. protestants parties to the proceeding. [Docket No. RP97±106±000] Copies of this filing are on file with the WTG states that copies of the filing Viking Gas Transmission Company; Commission and are available for public were served upon WTG’s customers and Notice of It Revenue Crediting Report inspection in the Public Reference interested state commissions. Room. December 4, 1996. Any persons desiring to be heard or Linwood A. Watson, Jr., Take notice that on November 26, to protest said filing should file a Acting Secretary. 1996, Viking Gas Transmission motion to intervene or protest with the [FR Doc. 96–31283 Filed 12–9–96; 8:45 am] Company (Viking) tendered for filing a Federal Energy Regulatory Commission, BILLING CODE 6717±01±M report of interruptible throughput and 888 First Street, N.E., Washington, D.C. revenues for the period of November 1, 20426, in accordance with Sections 1995 through October 31, 1996. Viking 385.214 and 385.211 of the [Docket No. RP96±352±001] also stated that Viking did not have Commission’s Rules and Regulations. sufficient net interruptible revenues Transwestern Pipeline Company; All such motions or protests must be during that period to trigger an Notice of Proposed Changes in FERC filed as provided in Section 154.210 of obligation under Article 5, Section 4 of Gas Tariff the Commission’s Regulations. Protests Viking’s Rate Schedule IT, to credit net will be considered by the Commission December 4, 1996. interruptible revenues to Viking’s firm in determining the appropriate action to Take notice that on December 2, 1996, shippers. be taken, but will not serve to make the Transwestern Pipeline Company Viking states that copies of its filing protestants parties to the proceeding. (Transwestern) tendered for filing as have been mailed to all of its Any person wishing to become a party part of its FERC Gas Tariff, Second jurisdictional customers and to affected must file a motion to intervene. Copies Revised Volume No. 1, the following state regulatory commissions. of this filing are on file with the tariff sheets, with an effective date of Any person desiring to be heard or to Commission and are available for public January 1, 1997: protest said filing should file a motion inspection in the Public Reference to intervene or protest with the Federal 14th Revised Sheet No. 48 Room. Energy Regulatory Commission, 888 3rd Revised Sheet No. 64A Linwood A. Watson, Jr., Original Sheet No. 64A.1 First Street, N.E., Washington, D.C., Acting Secretary. Original Sheet No. 64A.2 20426, in accordance with Sections Original Sheet No. 64A.3 385.211 or 385.214 of the Commission’s [FR Doc. 96–31294 Filed 12–9–96; 8:45 am] 12th Revised Sheet No. 80 Rules of Practice and Procedure. All BILLING CODE 6717±01±M 65040 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

[Docket No. MT97±2±000] Second Revised Volume No. 1 No. 4) with the following entities: (i) Fourth Revised Sheet No. 6B Duke Power Company; (ii) Heartland Williams Natural Gas Company; Notice Alternate Fourth Revised Sheet No. 6B Energy Services, Inc.; (iii) LG&E Power of Proposed Changes in FERC Gas Original Volume No. 2 Marketing, Inc.; (iv) Santee Cooper; (v) Tariff Koch Power Services, Inc.; (vi) The Third Revised Sheet No. 362 December 4, 1996. Power Company of America; (vii) WNG states that this filing is being Take notice that on November 26, MidCon Power Services Corp; and (viii) made pursuant to Article 13 of the 1996, Williams Natural Gas Company IUC Power Services. SCSI states that the General Terms and Conditions of its (WNG) tendered for filing to become service agreements will enable Southern FERC Gas Tariff to reflect revised fuel part of its FERC Gas Tariff, Second Companies to engage in short-term and loss reimbursement percentages. Revised Volume No. 1, the following market-based rate transactions with this The percentages are based on actual fuel tariff sheet to be effective December 26, entity. and loss for the twelve months ended 1996: Comment date: December 18, 1996, in September 30, 1996. accordance with Standard Paragraph E Third Revised Sheet No. 221 WNG states that a copy of its filing at the end of this notice. was served on all jurisdictional WNG states that this filing is being 2. MidAmerican Energy Company made to update WNG’s tariff in customers and interested state compliance with 18 CFR Part commissions. [Docket No. ER97–552–000] 250.16(b)(1), which requires an Any person desiring to be heard or to Take notice that on November 22, interstate natural gas pipeline to report protest this filing should file a motion 1996, MidAmerican Energy Company any changes which occur to the list of to intervene or a protest with the (MidAmerican), 106 East Second Street, operating personnel and facilities Federal Energy Regulatory Commission, Davenport, Iowa 52801, filed with the shared by the interstate natural gas 888 First Street, N.E., Washington, D.C. Commission a Non-Firm Transmission pipeline and its marketing or brokering 20426, in accordance with Sections Service Agreement with NorAm Energy affiliates. 385.214 and 385.211 of the Services, Inc. (NorAm) dated October WNG states that a copy of its filing Commission’s Rules and Regulations. 28, 1996, entered into pursuant to was served on all jurisdictional All such motions or protests must be MidAmerican’s Open Access customers and interested state filed as provided in Section 154.210 of Transmission Tariff. commissions. the Commission’s Regulations. Protests MidAmerican requests an effective Any person desiring to be heard or to will be considered by the Commission date of October 28, 1996, for the protest said filing should file a motion in determining the appropriate action to Agreement with NorAm, and to intervene or a protest with the be taken, but will not serve to make accordingly seeks a waiver of the Federal Energy Regulatory Commission, protestants parties to the proceedings. Commission’s notice requirement. 888 First Street, N.E., Washington, D.C. Any person wishing to become a party MidAmerican has served a copy of the 20426, in accordance with Sections must file a motion to intervene. Copies filing on NorAm, the Iowa Utilities 385.214 or 385.211 of the Commission’s of this filing are on file with the Board, the Illinois Commerce Rules and Regulations. All such motions Commission and are available for public Commission and the South Dakota or protests must be filed as provided in inspection in the Public Reference Public Utilities Commission. Section 154.210 of the Commission’s Room. Comment date: December 18, 1996, in Regulations. Protests will be considered Linwood A. Watson, Jr., accordance with Standard Paragraph E by the Commission in determining the Acting Secretary. at the end of this notice. appropriate action to be taken, but will [FR Doc. 96–31287 Filed 12–9–96; 8:45 am] 3. Allegheny Power Service not serve to make protestants parties to BILLING CODE 6717±01±M Corporation, on behalf of Monongahela the proceedings. Any person wishing to Power Company, The Potomac Edison become a party must file a motion to Company and West Penn Power intervene. Copies of this filing are on [Docket No. ER97±551±000, et al.] Company (Allegheny Power) file with the Commission and are Southern Company Services, Inc., et available for public inspection in the al. Electric Rate and Corporate [Docket No. ER97–553–000] Public Reference Room. Regulation Filings Take notice that on November 22, Linwood A. Watson, Jr., 1996, Allegheny Power Service Acting Secretary. December 4, 1996. Corporation on behalf of Monongahela [FR Doc. 96–31278 Filed 12–9–96; 8:45 am] Take notice that the following filings Power Company, The Potomac Edison BILLING CODE 6717±01±M have been made with the Commission: Company and West Penn Power Company (Allegheny Power) filed 1. Southern Company Services, Inc. Supplement No. 17 to add two (2) new [Docket No. ER97–551–000] Customers to the Standard Generation [Docket No. TM97±2±43±000] Take notice that on November 22, Service Rate Schedule under which Williams Natural Gas Company; Notice 1996, Southern Company Services, Inc. Allegheny Power offers standard of Proposed Changes in FERC Gas (SCSI), acting on behalf of Alabama generation and emergency service on an Tariff Power Company, Georgia Power hourly, daily, weekly, monthly or yearly Company, Gulf Power Company, basis. Allegheny Power requests a December 4, 1996. Mississippi Power Company and waiver of notice requirements to make Take notice that on November 27, Savannah Electric and Power Company service available as of November 21, 1996, Williams Natural Gas Company (collectively referred to as ‘‘Southern 1996, to Equitable Power Services (WNG) tendered for filing to become Companies’’) filed eight (8) service Company and Illinova Power Marketing, part of its FERC Gas Tariff, the following agreements under Southern Companies’ Inc. tariff sheets to be effective January 1, Market-Based Rate Power Sales Tariff Copies of the filing have been 1997: (FERC Electric Tariff, Original Volume provided to the Public Utilities Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65041

Commission of Ohio, the Pennsylvania Edison states that it has served a copy 9. Boston Edison Company Public Utility Commission, the of this filing on PSE&G and the [Docket No. ER97–561–000] Maryland Public Service Commission, Massachusetts Department of Public Take notice that on November 22, the Virginia State Corporation Utilities. 1996, Boston Edison Company (Boston Commission, the West Virginia Public Comment date: December 18, 1996, in Edison), tendered for filing a Service Service Commission, and all parties of accordance with Standard Paragraph E Agreement under Original Volume No. record. at the end of this notice. 8, FERC Order 888 Tariff (Tariff) for Comment date: December 18, 1996, in Citizens Lehman Power Sales (Citizens). accordance with Standard Paragraph E 6. Boston Edison Company Boston Edison requests that the Service at the end of this notice. [Docket No. ER97–558–000] Agreement become effective as of 4. British Columbia Power Exchange Take notice that on November 22, November 1, 1996. Corporation British Columbia Power 1996, Boston Edison Company (Boston Edison states that it has served a copy Exchange Corporation Edison), tendered for filing a Service of this filing on Citizens and the Massachusetts Department of Public [Docket No. ER97–556–000; Docket No. Agreement under Original Volume No. EL95–62–000 (Not Consolidated)] 8, FERC Order 888 Tariff (Tariff) for AIG Utilities. Comment date: December 18, 1996, in Take notice that on November 22, Trading Corporation (AIG). Boston Edison requests that the Service accordance with Standard Paragraph E 1996, the British Columbia Power at the end of this notice. Exchange Corporation (Powerex), Agreement become effective as of tendered for filing pursuant to Rules 205 November 1, 1996. Standard Paragraph and 207, 18 CFR 385.205 and 385.207, Edison states that it has served a copy E. Any person desiring to be heard or a petition for waivers and blanket of this filing on AIG and the to protest said filing should file a approvals under various regulations of Massachusetts Department of Public motion to intervene or protest with the the Commission and for an order Utilities. Federal Energy Regulatory Commission, accepting its FERC Electric Rate Comment date: December 18, 1996, in 888 First Street, N.E., Washington, D.C. Schedule No. 1 to be effective at the accordance with Standard Paragraph E 20426, in accordance with Rules 211 earliest possible date but no later than at the end of this notice. and 214 of the Commission’s Rules of 60 days from the date of its filing. Practice and Procedure (18 CFR 385.211 Powerex intends to market electrical 7. Boston Edison Company and 18 CFR 385.214). All such motions energy and capacity to wholesale [Docket No. ER97–559–000] or protests should be filed on or before customers at delivery points within the the comment date. Protests will be Take notice that on November 22, United States. In transactions where considered by the Commission in 1996, Boston Edison Company (Boston Powerex sells electric energy or determining the appropriate action to be Edison), tendered for filing a Service capacity, it proposes to make such sales taken, but will not serve to make Agreement under original Volume No. at rates and on terms and conditions protestants parties to the proceeding. 8, FERC Order 888 Tariff (Tariff) for agreed to with the purchasing party. Any person wishing to become a party Morgan Stanley Capital Group Inc. Powerex will enter into both physical must file a motion to intervene. Copies (Morgan). Boston Edison requests that and financial transactions. As outlined of this filing are on file with the the Service Agreement become effective in the petition, Powerex is an affiliate of Commission and are available for public as of November 1, 1996. the British Columbia Hydro and Power inspection. Authority, an integrated electric utility Edison states that it has served a copy Linwood A. Watson, Jr., of this filing on Morgan and the serving customers in British Columbia, Acting Secretary. Massachusetts Department of Public Canada. [FR Doc. 96–31299 Filed 12–9–96; 8:45 am] If the Commission grants such Utilities. BILLING CODE 6717±01±P waivers and authorizations, then Comment date: December 18, 1996, in Powerex requests that the Commission accordance with Standard Paragraph E terminate Docket No. EL95–62–000, at the end of this notice. without prejudice to Powerex ENVIRONMENTAL PROTECTION reasserting the arguments raised in its 8. Boston Edison Company AGENCY Petition for Declaratory Order in Docket [Docket No. ER97–560–000] [FRL±5661±4] No. EL95–62–000 in other Commission Take notice that on November 22, proceedings. Toxic Chemicals; PCBs; Submission to 1996, Boston Edison Company (Boston Comment date: December 18, 1996, in OMB; Agency Information Collection Edison), tendered for filing a Service accordance with Standard Paragraph E Activities; EPA ICR No 1001.06 Agreement and Appendix A under at the end of this notice. Original Volume No. 6, Power Sales and AGENCY: Environmental Protection 5. Boston Edison Company Exchange Tariff (Tariff) for CNG Power Agency (EPA). ACTION: Notice of submission to OMB. [Docket No. ER97–557–000] Services Corporation (CNG). Boston Edison requests that the Service SUMMARY: Take notice that on November 22, Agreement become effective as of In compliance with the 1996, Boston Edison Company (Boston November 1, 1996. Paperwork Reduction Act (44 U.S.C. Edison), tendered for filing a Service 3501 et seq.), this notice announces that Agreement and Appendix A under Edison states that it has served a copy the Information Collection Request (ICR) Original Volume No. 6, Power Sales and of this filing on CNG and the entitled: Polychlorinated Biphenyls Exchange Tariff (Tariff) for Public Massachusetts Department of Public (PCBs): Exclusions, Exemptions and Use Service Electric & Gas Company Utilities. Authorizations [EPA ICR #1001.06; (PSE&G). Boston Edison requests that Comment date: December 18, 1996, in OMB Control #2070–0008] has been the Service Agreement become effective accordance with Standard Paragraph E forwarded to the Office of Management as of November 1, 1996. at the end of this notice. and Budget (OMB) for review and 65042 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices approval pursuant to the OMB byproducts or impurities. To be eligible recently approved by OMB, from 925 procedures in 5 CFR 1320.12. The ICR, for such an exclusion, chemical hours currently to an estimated 1,030 which is abstracted below, describes the manufacturers must comply with hours. This reflects an analysis of the nature of the information collection and certain certification, reporting and submissions in the past three years, its estimated cost and burden. recordkeeping requirements. These showing that the total number of The Agency is requesting that OMB requirements provide the means for EPA submissions has been higher than had renew for 3 more years the existing to verify that companies indeed generate been anticipated in the most recently approval for this ICR, which is only trace quantities of PCBs in their approved ICR. scheduled to expire on January 31, products and thus do not present an According to the procedures 1997. A Federal Register notice unreasonable risk of injury to human prescribed in 5 CFR 1320.12, EPA has announcing the Agency’s intent to seek health or the environment. EPA also submitted this ICR to OMB for review the renewal of this ICR and the 60 day uses the data to identify sites for and approval. Any additional comments public comment opportunity, requesting compliance inspections. related to the renewal of this ICR should comments on the request and the Responses to the collection of be submitted within 30 days, as contents of the ICR, was issued on June information are mandatory (see 40 CFR described above. 28, 1996 (61 FR 33732). EPA received parts 761). Respondents may claim all Dated: December 3, 1996. one comment on this ICR during the or part of a notice confidential. EPA will Joseph Retzer, disclose information that is covered by comment period, and has amended the Director, Regulatory Information Division. a claim of confidentiality only to the ICR as appropriate and filed the [FR Doc. 96–31270 Filed 12–9–96; 8:45 am] comments as an attachment to the ICR extent permitted by, and in accordance BILLING CODE 6560±50±P submitted to OMB. with, the procedures in TSCA section 14 and 40 CFR part 2. DATES: Additional comments may be Burden Statement: The annual public [FRL±5661±2] submitted on or before January 9, 1997. reporting burden for this collection of FOR FURTHER INFORMATION OR A COPY information is estimated to average Pesticides; Trade Secret Clearance; CONTACT: Sandy Farmer at EPA, (202) approximately 25 hours per response. Submission to OMB; Agency 260–2740, and refer to EPA ICR No. The annual recordkeeping burden is Information Collection Activities 1001.06 and OMB Control No. 2070– estimated to average approximately 5 AGENCY: 0008. hours per respondent. This estimate Environmental Protection Agency (EPA). ADDRESSES: Send comments, referencing includes the time needed to review EPA ICR No. 1001.06 and OMB Control instructions; develop, acquire, install ACTION: Notice of submission to OMB. No. 2070–0008, to the following and utilize technology and systems for SUMMARY: In compliance with the addresses: the purposes of collecting, validating Paperwork Reduction Act (44 U.S.C. Ms. Sandy Farmer, U.S. Environmental and verifying information, processing 3501 et seq.), this notice announces that Protection Agency, OPPE, Regulatory and maintaining information, and the Information Collection Request (ICR) Information Division (2137), 401 M disclosing and providing information; entitled: Trade Secret Clearance Street, S.W., Washington, DC 20460 adjust the existing ways to comply with Justification (EPA ICR # 0613.06; OMB And to: any previously applicable instructions Control No. 2070–0053) has been Office of Information and Regulatory and requirements; train personnel to be forwarded to the Office of Management Affairs, Office of Management and able to respond to a collection of and Budget (OMB) for review and Budget (OMB), Attention: Desk information; search data sources; approval pursuant to the OMB Officer for EPA, 725 17th Street, N.W., complete and review the collection of procedures in 5 CFR 1320.12. The ICR, Washington, DC 20503 information; and transmit or otherwise which is abstracted below, describes the SUPPLEMENTARY INFORMATION: disclose the information. No person is nature of the information collection and required to respond to a collection of Review Requested: This is a request to its expected cost and burden, and information unless it displays a includes a copy of the actual data renew a currently approved information currently valid OMB control number. collection pursuant to 5 CFR 1320.12. collection instrument. The OMB control numbers for EPA’s The Agency is requesting that OMB ICR Numbers: EPA ICR No. 1001.06; regulations are displayed in 40 CFR Part OMB Control No. 2070–0008. renew for 3 more years the existing 9. approval for this ICR, which is Current Expiration Date: Current Respondents/Affected Entities: OMB approval expires on January 31, scheduled to expire within 60 days. A Entities potentially affected by this Federal Register notice announcing the 1997. action are companies that manufacture Title: Polychlorinated Biphenyls Agency’s intent to seek the renewal of chemical products, the manufacture of this ICR and the 60-day public comment (PCBs): Exclusions, Exemptions and Use which is accompanied by the Authorizations. opportunity, requesting comments on inadvertent generation of PCBs as trace the request and the contents of the ICR, Abstract: Section 6(e) of the Toxic byproducts or impurities, and Substances Control Act (TSCA) was issued on July 15, 1996 (61 FR companies that import chemical 36875). EPA did not receive any generally prohibits the manufacture, products that contain PCBs as trace processing, distribution in commerce comments on this ICR during the 60 day byproducts or impurities. comment period provided in that notice. and use of polychlorinated biphenyls Estimated No. of Respondents: 176. (PCBs). However, federal regulations Estimated Total Annual Burden on DATES: Additional comments may be exclude certain manufacturing Respondents: 1,030 hours. submitted on or before January 9, 1997. processes from these prohibitions, Frequency of Collection: One time. FOR FURTHER INFORMATION OR A COPY enabling chemical manufacturers to Changes in Burden Estimates: There CALL: Sandy Farmer at EPA, (202) 260– continue to manufacture essential is an increase of 105 hours in the total 2740, and refer to EPA ICR No. 0613.06. chemical products, the manufacture of estimated respondent burden as ADDRESSES: Send comments, referencing which is accompanied by the compared with that identified in the EPA ICR No. 0613.06, to the following inadvertent generation of PCBs as trace information collection request most addresses: Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65043

Ms. Sandy Farmer, U.S. Environmental reviewing information to identify information should contact Ms. Dorothy Protection Agency, OPPE, Regulatory potential confidential portions; Clark, Staff Secretary, Science Advisory Information Division (2137), 401 M processing, compiling, and reviewing Board (1400), US EPA, 401 M Street, Street, S.W., Washington, DC 20460 claims of confidentiality for accuracy SW, Washington, DC 20460, telephone And to: and appropriateness; reporting and (202) 260–8414, fax (202) 260–7118, or Office of Information and Regulatory substantiating findings; and storing, Internet at: Affairs, Office of Management and filing, or maintaining the information. [email protected]. Budget (OMB), Attention: Desk No person is required to respond to a Dated: December 3, 1996. Officer for EPA, 725 17th Street, N.W., collection of information unless it Donald G. Barnes, displays a currently valid OMB control Washington, DC 20503 Staff Director, Science Advisory Board. number. The OMB control numbers for SUPPLEMENTARY INFORMATION: EPA’s regulations are displayed in 40 [FR Doc. 96–31271 Filed 12–9–96; 8:45 am] BILLING CODE 6560±50±P Review Requested: This is a request CFR Part 9. for extension of a currently approved Respondents/Affected Entities: Entities potentially affected by this information collection pursuant to 5 [PF±676; FRL±5575±8] CFR 1320.12. action are registrants of pesticide ICR Numbers: EPA ICR No. 0613.06; products subject to Freedom of Merck Co., Inc.; Notice of Pesticide OMB Control No. 2070–0053. Information Act (FOIA) requests. Petition Filing Current Expiration Date: December Estimated No. of Respondents: 90. 31, 1996. Estimated Total Annual Burden on AGENCY: Environmental Protection Title: Trade Secret Clearance Respondents: 1890 hours. Agency (EPA). Justification. Frequency of Collection: once per ACTION: Notice of Filing. Abstract: This information collection event. Changes in Burden Estimates: The activity will affect registrants of SUMMARY: This notice announces the administering office is fully automated pesticide products subject to Freedom of filing of a pesticide petition proposing and no longer utilizes contractor Information Act (FOIA) requests. The the renewal/reissuance of regulations support for this ICR. Overall Agency purpose of the collection is to determine establishing tolerances for residues of and respondent costs have increased the confidentiality of information the pesticide chemical abamectin based on rates provided by the Bureau submitted to the Agency under the (avermectin B1) in or on various of Labor Statistics. Federal Insecticide, Fungicide, and agricultural commodities. This notice According to the procedures Rodenticide Act (FIFRA). The collection includes a summary of the petition that prescribed in 5 CFR 1320.12, EPA has is usually prompted by a request under was prepared by the petitioner, Merck submitted this ICR to OMB for review the Freedom of Information Act (FOIA) Co., Inc. and approval. Any comments related to for a record which may be entitled to DATES: Comments, identified by the the renewal of this ICR should be confidential treatment. The collection docket number PF–676, must be submitted within 30 days, as described instrument consists of nine questions received on or before January 9, 1997. above. codified under 40 CFR Part 2, Subpart ADDRESSES: By mail, submit written B. A final determination on the Dated: December 3, 1996. comments to: Public Response and releasability of the requested record is Joseph Retzer, Program Resources Branch, Field issued by EPA upon evaluation of the Director, Regulatory Information Division. Operations Division (7506C), Office of business’s response. [FR Doc. 96–31273 Filed 12–9–96; 8:45 am] Pesticide Programs, Environmental EPA may not disclose information BILLING CODE 6560±50±P Protection Agency, 401 M St., SW., which is described by FIFRA section Washington, DC 20460. In person, bring 10(d)(1) (A), (B), or (C). Under 40 CFR comments to: Rm. 1132, CM #2, 1921 2.204(a), EPA may take action to [FRL±5661±3] Jefferson Davis Hwy., Arlington, VA 22202. determine whether business information Science Advisory Board; Emergency Comments and data may also be is entitled to confidential treatment Notification of a Public Advisory submitted electronically by sending when a request for disclosure is Committee Meeting received under FOIA, when the Agency electronic mail (e-mail) to: opp- anticipates receiving a request under Pursuant to the Federal Advisory [email protected]. Electronic FOIA, or when the Agency wishes to Committee Act, Public Law 92–463, comments must be submitted as an determine if information in its emergency notice is hereby given that ASCII file avoiding the use of special possession is confidential. When the location of the December 19–20, characters and any form of encryption. determining whether information is 1996 meeting of the Integrated Human Comments and data will also be entitled to confidential treatment, EPA Exposure Committee (IHEC) of the accepted on disks in WordPerfect in 5.1 is required by 40 CFR 2.204(e) to notify Science Advisory Board (SAB) has been file format or ASCII file format. All the affected business and provide an changed in order to accommodate the comments and data in electronic form opportunity for comment. The expected attendance by the public. This must be identified by the docket number requirements are mandatory to obtain a meeting will review the EPA’s draft PF–676. No Confidential Business benefit. Exposure Factors Handbook, and was Information (CBI) should be submitted Burden Statement: The annual public announced in the Federal Register for through e-mail. Electronic comments on reporting and recordkeeping burden for November 18, 1996 (Volume 61, this proposed rule may be filed online this collection of information is Number 223, [Page 58683–58684). at many Federal Depository Libraries. estimated to average 21 hours per The new location for the meeting is Additional information on electronic response. This estimate includes the the Hyatt Arlington Hotel, 1325 Wilson submissions can be found in Unit II of time needed for: reading collection Boulevard, Arlington, VA 22209. The this document. request; conferring with EPA; gathering hotel telephone number is 703–525– Information submitted as a comment resources and coordinating actions; 1234. Anyone desiring additional concerning this notice may be claimed 65044 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices confidential by marking any part or all limits for pesticide chemical residues address listed under ‘‘FOR FURTHER of that information as CBI. Information consisting of the insecticide abamectin INFORMATION CONTACT’’ above. so marked will not be disclosed except (avermectin B ) and or its delta 8,9- 1 B. Abamectin Safety Data in accordance with procedures set forth isomer in or on the following food in 40 CFR part 2. No CBI should be items: cottonseed; citrus, whole fruit; To date Merck has submitted submitted through e-mail. A copy of the citrus, oil; citrus, dried citrus pulp; approximately 78 toxicology studies, comment that does not contain CBI hops, dried; milk; cattle, meat; cattle, including the following principal must be submitted for inclusion in the meat byproducts; cattle, fat; and studies, to support the tolerances for public record. Information not marked potatoes. These tolerances were abamectin (studies conducted with the confidential may be disclosed publicly originally requested in petitions 7F3500, delta 8,9-isomer of abamectin are by EPA without prior notice. 8F3592, 4E04419, and 5F04508, and noted): food additive petition 8H5550. 1. Acute studies. A rat acute oral FOR FURTHER INFORMATION CONTACT: study with a LD of 4.4 to 11.8 mg/kg On April 30, 1996, the time-limited 50 George LaRocca (PM–13), Rm. 204, (males) and 10.9 to 14.9 mg/kg tolerances for abamectin use on Crystal Mall #2, 1921 Jefferson Davis (females). Hwy., Arlington, VA 22202. Mail cottonseed, citrus food and feed items, A rabbit acute dermal study with a address: Registration Division (7505C), milk, and cattle food items expired. A LD50 >2,000 mg/kg. A rat acute proposal by EPA to extend the Environmental Protection Agency, inhalation study with a LC50 >5.73 mg/ Washington, DC 20460. Telephone (703) tolerances was published in the Federal L. 305–6100; e-mail Register; no public comments were A primary eye irritation study in [email protected]. received in response. However, the rabbits which showed irritation. SUPPLEMENTARY INFORMATION: EPA has Agency did not publish a final rule prior A primary dermal irritation study in received a pesticide petition from Merck to the enactment of FQPA. On October rabbits which showed no irritation. Co., Inc., Agricultural Research and 21, 1996, in response to procedural A primary dermal sensitization study Development, Hillsborough Rd., Three guidance from EPA, Merck submitted to in guinea pigs which showed no skin Bridges, NJ 08487. The petition EPA a request for reissuance of the sensitization potential. proposes amending 40 CFR 180.449 to tolerances. With one exception An acute oral toxicity study in renew/reissue the regulations that (potatoes), the requested tolerances monkeys with a no observed adverse established tolerances for the insecticide would replace the time-limited effects level (NOAEL) of 1.0 mg/kg abamectin (avermectin B1) and its delta- abamectin tolerances that have been based upon emesis at 2.0 mg/kg. 8,9-isomer in or on cottonseed at 0.005 issued in the past by EPA and that 2. Subchronic studies. A rat 8–week parts per million (ppm); citrus, whole recently expired or will soon expire. feeding study with a NOAEL of 1.4 mg/ fruit, at 0.02 ppm; citrus oil, at 0.1 ppm; Merck requested that EPA issue kg/day based upon tremors. citrus dried pulp, at 0.1 ppm; cattle, permanent tolerances for these A rat 14–week oral toxicity study with meat, at 0.02 ppm; cattle, meat commodities, saying that the time a NOAEL of 0.4 mg/kg/day, the highest byproducts, at 0.02 ppm; cattle, fat, at limitations associated with these earlier dose tested. 0.015 ppm; milk, at 0.005 ppm; and tolerances were a result of aquatic A dog 12–week feeding study with a hops, dried, at 0.5 ppm. These exposure issues, and that it understood NOAEL of 0.5 mg/kg/day based upon tolerances were originally established in that the Agency no longer imposes time mydriasis. A dog 18–week oral study with a response to pesticide petitions 7F3500, limitations on tolerances because of NOAEL of 0.25 mg/kg/day based upon 8F3592, 4E04419, and food additive non-dietary issues. mortality. petition 8H5550. The petition also A. Residue Data A CD-1 mouse 84–day feeding study proposes to establish a tolerance in or with a NOAEL of 4 mg/kg/day based Abamectin (also known as avermectin on the raw agricultural commodity upon decreased body weights. potatoes at 0.005 ppm. As required by B1) is an effective miticide/insecticide 3. Chronic studies. A rat 53–week section 408(d) of FFDCA, as recently that is used on various crops at the oncogenicity feeding study, negative for amended by the Food Quality Protection maximum use rate of 0.025 pounds oncogenicity, with a NOAEL of 1.5 mg/ Act, Merck included in the petition a active ingredient per acre. Residue data kg/day based upon tremors. summary of the petition and covering all the uses associated with the A CD-1 mouse 94–week oncogenicity authorization for the summary to be tolerances requested by this petition feeding study, negative for oncogenicity, published in the Federal Register in a have been previously submitted to EPA with a NOAEL of 4 mg/kg/day based notice of receipt of the petition. The for review and have been found by EPA upon decreased body weights. summary represents the views of Merck; to support the requested tolerances and A dog 53–week chronic feeding study, EPA is in the process of evaluating the preharvest intervals. See 54 FR 23209, with a NOAEL of 0.25 mg/kg/day based petition. As required by section 408 May 31, 1989 (cottonseed); 54 FR 31836, upon mydriasis. (d)(3) EPA is including the summary as Aug. 2, 1989 (citrus food and feed items, 4. Developmental toxicity studies. An a part of this notice of filing. EPA has cattle food items, and milk); and 60 FR oral teratology study in the CF–1 mouse made minor edits to the summary for 47529, Sept. 13, 1995 (hops). Merck has with a maternal NOAEL of 0.05 mg/kg/ the purpose of clarity. submitted practical analytical methods day based upon decreased body weights (high density liquid chromatography— I. Merck Co., Inc.’s Petition Summary and tremors. The fetal NOAEL was 0.20 fluorescence, with crop-specific cleanup mg/kg/day based upon cleft palates. This is a petition by Merck Co., Inc. methods) for detecting and measuring An oral teratology study with the (Merck), under section 408 of the levels of abamectin and its delta 8,9- delta 8,9-isomer in CF–1 mice with a Federal Food, Drug, and Cosmetic Act isomer in or on food with residues at or maternal NOAEL of 0.10 mg/kg/day (FFDCA), as most recently amended by above the proposed tolerance levels. based upon decreased body weights. the Food Quality Protection Act (FQPA), EPA has provided information on these The fetal NOAEL was 0.06 mg/kg/day asking that the Environmental methods to EPA, and the methods are based upon cleft palate. Protection Agency (EPA) issue available to anyone interested in An oral teratology study in rabbits permanent tolerances without time pesticide residue enforcement at the with a maternal NOAEL of 1.0 mg/kg/ Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65045 day based upon decreased body weights the subpopulation of CF–1 mice to the factor of 3 to account for the severity of and tremors. The fetal NOAEL was 1.0 absence of P-glycoprotein, a major the effects). mg/kg/day based upon clubbed feet. component of the blood-brain barrier. As noted above, this acute toxicity in An oral teratology study in rats with Neonatal rat sensitivity has been rat pups results solely from their a maternal and fetal NOAEL at 1.6 mg/ attributed in part to the lack of a fully exposure to abamectin in the milk they kg/day, the highest dose tested. developed blood-brain barrier. The ingest. It is well understood that An oral teratology study with the neonatal blood-brain barrier is not abamectin concentrates in fat and that delta 8,9-isomer with a maternal complete until after 2 weeks following rat milk has considerably more fat NOAEL in CF–1 mice that expressed P- birth, while the blood-brain barrier in content than that of most other species glycoprotein greater than 1.5 mg/kg/day, humans is completed pre-natally. The (including humans), so that the the highest and only dose tested. No extensive human use of ivermectin has exposure level for the rat dams cleft palates were observed in fetuses not identified a subpopulation of considerably understates the exposure that expressed normal levels of P- humans with deficient P-glycoprotein. level of the affected rat pups. As glycoprotein, but fetuses with low or no Furthermore, the animal and human discussed earlier, the blood-brain barrier levels of P-glycoprotein had increased data bases do not indicate increased of the neonatal rat pup is not fully incidence of cleft palates. concerns for infants and children. formed until a week or more after birth, 5. Reproductive effects study. A two- 2. Developmental effects. Tests of while in humans the barrier is complete generation study in rats with a NOAEL abamectin and ivermectin have been well before birth. Due to these of 0.12 mg/kg/day in pups based upon conducted in a variety of species, and differences between rats and humans, retinal folds, decreased body weight, ivermectin is widely used as a human using the neonatal rat to model risks to and mortality. The NOAELs for systemic and animal drug. In livestock species infants arguably is inappropriate; and reproductive toxicity were 0.4 mg/ there is no suggestion that ivermectin is certainly use of the 0.0004 mg/kg/day kg/day. a developmental toxicant. In mice and RfD derived from the abamectin level in 6. Mutagenicity studies. The Ames rabbits there is evidence that dosing the rat dams’ diet introduces additional assays conducted with and without with either abamectin or ivermectin conservative safety factors. Additional metabolic activation were both negative. may produce malformations, but only at assurance comes from the absence of The V-79 mammalian cell doses that are clearly maternally toxic as adverse effects in studies using neonatal mutagenesis assays conducted with and well. However, the delta 8,9-isomer of and juvenile monkeys and from the without metabolic activation did not abamectin has been shown to produce absence of adverse effects in nursing produce mutations. In an alkaline cleft palate malformations in the CF–1 human infants whose mothers have elution/rat hepatocyte assay, abamectin mouse at dose levels that are not been treated with ivermectin. was found to induce single strand DNA maternally toxic and that are much Notwithstanding these issues, Merck breaks without significant toxicity in rat lower than the dose levels that show has calculated chronic exposure hepatocytes treated in vitro at doses any indication of developmental estimates and compared them to this greater than 0.2 mM. This in vitro dose toxicity in other species or in other RfD. Using mean anticipated residues, of 0.2 mM is biologically unobtainable mouse strains. Merck research has adjusted for percent crop treated with in vivo, due to the toxicity of the shown that the subpopulation of CF–1 abamectin, the chronic exposure for the compound. However, at these mice with these malformations have overall U.S. population was estimated to potentially lethal doses, in vivo inherited a genetic deficiency that be 0.000005 mg/kg/day, which is treatment did not induce DNA single prevents or severely limits their approximately 1.4% of the RfD. For strand breaks in hepatocytes. In the production of a P-glycoprotein which is infants, exposure was similarly mouse bone marrow assay, abamectin a principal factor of the blood-brain estimated to be 0.000005 mg/kg/day was not found to induce chromosomal barrier and which Merck hypothesizes (1.4% of the RfD). The exposure damage. Merck has also conducted may perform a protective function in estimates for the two most highly many studies and accumulated a great fetal development as well, perhaps by exposed population subgroups, children deal of clinical and follow-up playing a role in the blood-placenta 1 to 6 years old and children 7 to 12 experience with regard to ivermectin, a barrier. Based upon extensive use of years old, were 0.000013 mg/kg/day closely similar human and animal drug. ivermectin in humans without observed (3.2% of the RfD) and 0.000008 mg/kg/ adverse effects, this deficiency is not day (2.1) of the RfD), respectively. C. Toxicity Issues expected to occur in humans. 2. Acute exposure assessments. In 1. Acute toxicity. Typical symptoms 3. Other toxicity issues. There are no evaluating the potential hazard of of classical CNS abamectin/ivermectin nonthreshold effects and no other toxic abamectin acute exposure for women of acute toxicity include mydriasis (dilated endpoints of concern. The oncogenicity childbearing age, EPA currently uses a pupils, a marker effect occurring at assays and chronic feeding studies NOAEL of 0.05 mg/kg/day for relatively low exposure levels); fatigue revealed no indication of carcinogenic maternotoxic effects of abamectin in or lethargy; and tremors. At sufficiently potential. Abamectin was found to be CF–1 mice and a NOAEL of 0.06 mg/kg/ high exposure levels, coma and non-mutagenic. day for developmental effects of the sometimes death may result. Once delta 8,9-isomer in CF–1 mice. To assess exposure ceases, recovery in affected D. Exposure Analysis for Threshold the potential hazard of acute exposure living animals is rapid (typically within Effects of infants and children, EPA uses the rat a few days). 1. Chronic exposure assessments. 2-generation reproduction study NOAEL Some species of animals are more EPA’s chronic dietary exposure of 0.12 mg/kg/day based upon the sensitive generally to this classical assessments for abamectin currently use toxicity observed in the nursing pups. pattern of abamectin toxicity than other a reference dose (RfD) of 0.0004 mg/kg/ The relevance of the neonatal rat species. In particular, a subpopulation day based upon a NOAEL of 0.12 mg/ model has already been discussed. As to of CF–1 mice and the neonatal rat have kg/day from effects on neonatal pups in the relevance of the CF–1 mouse been observed to be sensitive to the rat multigeneration reproduction studies, Merck research has shown that abamectin/ivermectin toxicity. Merck study and an uncertainty factor of 300 both the induction of cleft palate in research has attributed the sensitivity of (including an additional modifying fetuses and the induction of maternal 65046 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices toxicity at low dose levels result from a of exposure was estimated to be 0.0028 estrous cycle, on mating behavior, or on heritable genetic deficiency that mg/kg/day (MOE of 4,244). male or female fertility at doses up to 0.4 mg/kg/day, the highest dose tested. precludes some animals of that strain E. Aggregate Exposure from producing P-glycoprotein. In a Furthermore, the range finding study recent study, where dams that expressed The dietary assessments (both acute demonstrated no adverse effect on P-glycoprotein were treated with the and chronic) accounts for all anticipated female fertility at doses up to 1.5 mg/kg/ delta 8,9-isomer of abamectin and mated dietary exposure for tolerances that are day, the highest dose tested. Similarly, to males with and without P- subject to this request (citrus and chronic and subchronic toxicity studies glycoprotein, every fetus that did not derivatives, cottonseed, meat, meat in mice, rats, and dogs did not inherit the ability to express P- byproducts, milk, and hops), and all demonstrate any evidence of toxicity to other active and pending tolerances for glycoprotein developed cleft palate the male or female reproductive tract, or abamectin. The other active tolerances while every fetus that inherited the to the thyroid or pituitary (based upon are for tomatoes, strawberries, celery, ability to express P-glycoprotein fully organ weights and gross and lettuce, cucurbits, peppers, apples, histopathologic examination). In the was free of the malformation. pears, almonds, and walnuts. The Additionally, in the dams (all of whom developmental studies, the pattern of tolerance petition for potatoes is toxicity observed does not seem were chosen because they possessed the pending. The assessments also take into suggestive of any endocrine effect. ability to express the P-glycoprotein) no account the use on grapes under an Finally, experience with ivermectin in effects were seen at the 1.5 mg/kg/day emergency exemption. breeding animals, including sperm dose (the only dose tested), in contrast Additional uses of abamectin include evaluations in multiple species, shows to the much lower maternotoxicity a bait for fire ants, an indoor crack and no adverse effects suggestive of NOAELs (as low as 0.05 mg/kg/day) crevice treatment, and a roach bait; endocrine disruption. seen in comparable studies using however, significant exposure from abamectin or its delta 8,9-isomer in CF– these products is not likely. The fire ant G. International Tolerances 1 mice that had not been tested for bait contains approximately 0.011% The U.S. tolerances for pears and ability to express P-glycoprotein. abamectin and is used primarily in the citrus are greater than the Codex Epidemiological studies of humans southern portion of the United States, proposals, reflecting the differences in treated with ivermectin, as well as where the fire ant is most prevalent. how the United States and Codex CCPR breeding-animal studies on ivermectin Post application exposure resulting from treat the highest residue values from conducted to obtain its approval as mound-directed treatment is considered field studies. The differences in animal drug and surveys of adverse unlikely, and significant exposure from tolerances for cottonseed and milk are reaction reports (billions of treatments the broadcast treatment is also unlikely the result of differences in the limits of have been administered to animals) all since the treatment rate is very low (1.0 detection of the analytical methods indicate a lack of a human population lb of bait, containing only 50 mg of accepted by the two organizations. susceptible to the induction of birth abamectin, per acre). In a recent Assuming label directions are followed, defects by ivermectin or abamectin. exposure study using the crack and actual anticipated residues in foods in Accordingly, the CF–1 mouse is not an crevice treatment, no measurable air or commerce should not be affected by the appropriate model to assess the toxicity surface residues were detected. different tolerances, since the same of the avermectins. Significant exposure is not expected residue database has been used to set Despite these issues, Merck has from the roach bait because of the child both the Codex and U.S. tolerances. incorporated these toxicity endpoints resistant safety packaging and the H. Safety to Infants and Children essentially non-existent vapor pressure from the CF–1 mouse into acute Merck’s petition notes that EPA has exposure assessments. (For purposes of of abamectin. Based upon the available studies of evaluated abamectin repeatedly since its simplification, Merck has used the abamectin’s fate in the environment, introduction in 1985 and has found NOAEL of 0.05 mg/kg/day for acute there is no reason to expect human repeatedly that the level of dietary exposure assessments for the overall exposure to residues of abamectin in exposure is sufficiently low to provide U.S. population and also for women of drinking water. It has been clearly ample margins of safety to guard against childbearing age.) These assessments demonstrated that abamectin does not any potential adverse effects of show that the margins of exposure leach. abamectin. The FQPA authorizes the (MOEs) at the 95th percentile of The typical therapeutic dose of employment of an additional safety exposure (using a Monte Carlo analysis ivermectin as a human drug is 200 µg/ factor of up to 10X to guard against the conducted in accordance with Tier 3 of kg (0.2 mg/kg). Merck is in the process possibility of prenatal or postnatal EPA’ June 1996 ‘‘Acute Dietary of quantitatively assessing the total toxicity, or to account for an incomplete Exposure Assessment’’guidance dietary exposure resulting from database on toxicity or exposure. Merck document) are significantly greater than abamectin and ivermectin uses. states that the database for abamectin is the EPA standard of 100 for all Generally, use of ivermectin in food- complete and argues that there is no subpopulations. The 95th percentile of producing animals is only once per year need for an additional safety factor exposure for the overall U.S. population and the ivermectin residues in most because of the conservatism in the end was estimated to be 0.000023 mg/kg/day treated animals are below the level of points selected for risk assessment. (MOE of 2,146), while that for women detection. Additionally, there is much more greater than 13 years of age was information regarding human risk 0.000017 mg/kg/day (MOE of 2,970). For F. Endocrine Effects potential than is the case with most children 1 to 6 years old, the 95th There is no evidence that abamectin pesticides, because of the widespread percentile of exposure was estimated to is an endocrine disrupter. Evaluation of animal-drug and human-drug uses of be 0.000042 mg/kg/day (MOE of 2,863), the rat multigenerational study ivermectin, the closely related analog of while that for children 7 to 12 years old demonstrated no effect on the time to abamectin. was 0.000030 mg/kg/day (MOE of mating or on the mating and fertility It is the opinion of Merck that the use 3,965). For infants, the 95th percentile indices, suggesting no effects on the of an additional safety factor to address Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65047 risks to infants and children is not described above will be kept in paper in the administrative record supporting necessary. The established endpoints for form. Accordingly, EPA will transfer all this notice. abamectin in the CF–1 mouse and the comments received electronically into EFFECTIVE DATE: November 19, 1996. neonatal rat have been shown by Merck printed, paper form as they are received Because CWA section 301(a) prohibits to be overly conservative. Similar and will place the paper copies in the new discharges until they are endpoints for ivermectin are not used by official record which will also include authorized by an NPDES permit, this the Food and Drug Administration to all comments submitted directly in action is immediately effective to avoid support the allowable daily intake for writing. The official record is the paper further suspension of permitting actions ivermectin residues in food from treated record maintained at the address in in Oklahoma and the unnecessary animals. ‘‘ADDRESSES’’ at the beginning of this burden such a suspension would No evidence of toxicity was observed document. impose on new dischargers. in neonatal rhesus monkeys after 14 days of repeated administration of 0.1 List of Subjects FOR FURTHER INFORMATION CONTACT: Ms. mg/kg/day (highest dose tested) and in Environmental protection, Ellen Caldwell at U.S. EPA, Region 6, juvenile rhesus monkeys after repeated Agricultural commodities, Pesticides Water Quality Protection Division, 1445 administration of 1.0 mg/kg/day and pests, Reporting and recordkeeping. Ross Avenue, Dallas, Texas 75202, or by calling (214) 665–7513, or electronically (highest dose tested). The comparative Authority: 7 U.S.C. 136a. data on abamectin and ivermectin in at Dated: December 3, 1996. primates also clearly demonstrate the [email protected] dose response for exposure to either Stephen L. Johnson, or Norma Aldridge, Department of compound is much less steep than that Acting Director, Office of Pesticide Programs. Environmental Quality, Water Quality seen in the neonatal rat. Single doses as Division, 1000 N.E. 10th Street, high as 24 mg/kg of either abamectin or [FR Doc. 96–31303 Filed 12–09–96; 8:45 am] Oklahoma City, Oklahoma 73117–1212, ivermectin in rhesus monkeys did not BILLING CODE 6560±50±F or by calling (405) 271–5205. result in mortality; however, this dose SUPPLEMENTARY INFORMATION: was more than two times the LD in the 50 [FRL±5655±4] Oklahoma’s application for OPDES adult rat and more than 20 times the program approval was submitted on LD50 in the neonatal rat. The absence of State Program Requirements; June 10, 1996, and final supplements a steep dose-response curve in primates Approval of Application by Oklahoma were received on August 20, 1996. The provides a further margin of safety to Administer the National Pollutant documents were described in the regarding the probability of toxicity Discharge Elimination System Federal Register Notice of August 29, occurring in infants or children exposed (NPDES) Program 1996, (61 FR 45420) in which EPA to avermectin compounds. The requested comments and gave notice of significant human clinical experience AGENCY: Environmental Protection public hearing. Further notice was also and widespread animal drug uses of Agency. provided by way of publication ivermectin without systemically toxic, ACTION: Final approval of the Oklahoma published on August 28, 1996, in The developmental, or postnatal effects Pollutant Discharge Elimination System Lawton Constitution, the Daily supports the safety of abamectin to under the Clean Water Act. Oklahoman, the Tulsa World, the infants and children.’’ SUMMARY: On November 19, 1996, the McAlester News Capital & Democrat, II. Administrative Matters Regional Administrator for the the Guymon Daily Herald, and the A record has been established for this Environmental Protection Agency Woodward News. Copies of the notice of filing under docket number (EPA), Region 6, approved the application were made available at the PF–677 (including comments and data application by the State of Oklahoma to addresses below and could also be submitted electronically as described administer and enforce the National purchased from the State for the cost of below). A public version of this record, Pollutant Discharge Elimination System $358.65 (the cost of the principal including printed, paper versions of (NPDES) program for regulating documents, i.e the Attorney General’s electronic comments, which does not discharges of pollutants into waters of Statement, Memorandum of Agreement, include any information claimed as CBI, the State. The authority to approve state Program Description, and the is available for inspection from 8:30 programs is provided to EPA in Section Enforcement Management System all a.m. to 4:00 p.m., Monday through 402(b) of the Clean Water Act (CWA). without their associated appendices is Friday, excluding legal holidays. The The approved state program i.e., the $163.35). An electronic copy of the public record is located in Room 1132 Oklahoma Pollutant Discharge documents stored on computer disk was of the Public Response and Program Elimination System (OPDES) program is provided at no cost to interested parties Resources Branch, Field Operations a partial program to the extent described which supply disks to ODEQ for that Division (7506C), Office of Pesticide in this Notice (see section titled ‘‘Scope purpose. (Citizens may still request a Programs, Environmental Protection of the OPDES program), which will disc copy and should supply 3 new, Agency, Crystal Mall #2, 1921 Jefferson operate in lieu of the EPA administered 3.5’’ high density/double sided Davis Highway, Arlington, VA. NPDES program pursuant to Section 402 microdisk. The documents will be in Electronic comments can be sent of the CWA. The OPDES program will WordPerfect 6.0.) EPA provided copies directly to EPA at: be administered by the Oklahoma of the public notice to permitted [email protected] Department of Environmental Quality facilities, Indian tribes, and other (ODEQ). In making its decision, EPA has federal and state agencies. Electronic comments must be considered all comments and issues As a part of the public participation submitted as an ASCII file avoiding the raised during the publicly noticed process, both a public meeting and use of special characters and any form comment period. Summaries of the hearing were held in MidWest City, of encryption. comments and EPA responses are Oklahoma, on September 30, 1996. The The official record for this notice of contained in this notice. The comments public meeting provided as an informal filing, as well as the public version, as and public hearing record are contained question and answer session, and began 65048 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices at 2 pm ending at 4:30 pm. The hearing criteria expressed in 61 FR 20972 (May —All existing and new discharges started at 7 pm and lasted until 7:30 pm. 8, 1996). Based on a review of resulting from implementing Oral comments were recorded during Oklahoma legal authority, the corrective action plans, as required by the hearing and are contained in the explanation provided in the State’s AG 40 CFR 280, for cleanup of administrative record supporting this Statement and discussions with ODEQ groundwater contaminated by releases action. Written comments were attorneys, it appears that Oklahoma law from Petroleum Underground Storage accepted by EPA through October 21, meets the amended State NPDES Tank Systems (UST). 1996. All comments presented during program requirement. Case-by-case transfers for individual the public comment process, either at Changes to the OPDES Proposed storm water and UST dischargers will the hearing or in writing, were Documents be made using the following procedures: considered by EPA in its decision. —ODEQ may request early transfer of an EPA’s responses to the issues raised No changes were made to the individual facility or a class of storm during the comment period are proposed OPDES program documents water dischargers at any time. All contained in the Responsiveness based on information obtained in the requests will be in writing and will Summary provided in this notice. A public comments received, however, include a brief rationale. copy of EPA’s decision and its EPA has requested two changes to the —If ODEQ and EPA agree to provide an Responsiveness Summary has been sent Memorandum of Agreement (MOA) individual permit in lieu of general to all commenters and interested parties clarifying how the OPDES program will permit coverage, the State will (those persons requesting to be on the be consistent with federal requirements include outfalls for the affected mailing list for EPA actions in and policy. These changes are minor discharges in a draft OPDES permit Oklahoma). and do not require additional public and the public notice of the draft Copies of the final program notice. No commenter noted these permit will concurrently notice the documents for the OPDES program are portions of the MOA or issues in any transfer of authority for the facility’s available to the public during normal submitted comments. discharges to ODEQ. business hours, Monday through Friday, 1. Section C of the Oklahoma/EPA —A permittee with a wastewater excluding holidays, at: MOA (Jurisdiction over Permits) has discharge or storm water discharge EPA Region 6, 12th Floor Library, 1446 been revised to clarify that EPA is that is not eligible for coverage under Ross Avenue, Dallas, Texas 75202, retaining authority for the an EPA storm water general permit (214) 665–7513; administration of EPA issued general must apply to DEQ for an individual ODEQ Headquarters, Department of permits, and not NPDES program permit. Environmental Quality, Water Quality authority over those classes of Final transfer of general permitting Division, 1000 N.E. 10th Street, discharges which are covered by those authority for storm water and UST Oklahoma City, Oklahoma 73117– general permits (See below ‘‘Scope of discharges will be made using the 1212. the OPDES Program’’ A.6.). This would following procedures: The Regional Administrator notified include the general permit for —No later than three years from the date the State of the program approval discharges from UST remediation water of program assumption, the State will decision by letter dated November 19, discharges and the following storm make the necessary changes to State 1996, and notice of EPA’s final decision water general permits: Baseline statutes in order to qualify for general has been published in the newspapers construction storm water general permit permitting authority. in which the public notice of the (57 FR 41209), NPDES permit numbers —Within 90 days of the effective date of ### proposed program appeared (listed OKR10* ; Baseline non-construction the new statutes, the State will submit above). As of November 19, 1996, EPA storm water general permit (57 FR a supplemental Attorney General’s suspended issuance of NPDES permits 41297), NPDES permit numbers statement, along with a copy of the ### in Oklahoma (except for those permits OKR00* ; and Multi-sector storm relevant statutes, certifying that the which EPA retained jurisdiction as water general permit (60 FR 51108), Executive Director has the authority ### specified below in the section titled NPDES permit numbers OKR05* . to issue general permits. ‘‘Scope of the OPDES Program’’). The (For an individual facility’s permit —If EPA concurs with the Attorney State’s OPDES program will implement number, the * is a letter and the #’s are General’s statement, the Agency will federal law and operate in lieu of the numbers—e.g. OKR00Z999). The publish notice of the transfer of EPA-administered NPDES program. EPA revised language is as follows: general permits for the remaining does, however, retain the right to object EPA will temporarily retain authority storm water and UST discharges to to OPDES permits proposed by ODEQ, to administer general permits for: ODEQ and send a copy to the and if the objections are not resolved, to —All existing discharges of storm water appropriate mailing list. issue the permit itself. associated with industrial or —Once the Executive Director of ODEQ On May 8, 1996, EPA issued a final construction activity (40 CFR assumes authority in accordance with rule amending minimum State program 122.26(b)(14)), including allowable a promulgated final rule to issue requirements. The amendment non-storm water, authorized to general permits, the State will become explicitly requires that all states that discharge under an NPDES storm the permitting authority (subject to seek to administer an NPDES program water general permit as of the date of EPA oversight) for all discharges of must provide an opportunity for judicial program assumption. storm water associated with industrial review in state court of final permit —New discharges of storm water and construction activity, UST decisions that is sufficient to provide associated with industrial or remediation discharges. EPA storm for, encourage, and assist public construction activity, including water general permits and any participation in the permitting process. allowable non-storm water, eligible effective general permits for UST The Attorney General Statement for coverage under an NPDES storm remediation discharges will then be submitted by Oklahoma addresses the water general permits, excluding new transferred to ODEQ for issue of judicial standing, asserting that discharges subject to a new source administration. Within 30 days of the Oklahoma complies with the review performance standard. transfer of authority, EPA will provide Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65049

ODEQ with a list of all facilities disposal of sewage sludge (in is legally responsible for implementing authorized to discharge under these accordance with section 405 of the Act the pretreatment program at OOWA. general permits. and 40 CFR part 503). ODEQ does not 6. Authority over EPA issued general 2. Oklahoma proposed a regulation for have regulatory authority over facilities permits: EPA will retain authority to consideration for self-reporting of regulated by other agencies in the State administer general permits in noncompliance (Title 252:2–117). At the of Oklahoma, therefore EPA will remain accordance with 40 CFR 123.1. As time of this authorization the regulation the NPDES regulatory authority for the explained in the Federal Register Notice is not finalized. As agreed by EPA and following discharges: proposing approval of the OPDES ODEQ, language has been added to page 1. Agricultural industries regulated by program, Oklahoma is revising its 39 of the MOA ensuring that the final the Oklahoma Department of statutes and regulations to provide the regulation will be consistent with Agriculture including concentrated Executive Director of the Oklahoma NPDES program requirements. The new animal feeding operations and Department of Environmental Quality language is as follows: silviculture. EPA will remain the with the full authority to issue general NPDES permitting authority for all point permits under the OPDES program. This ‘‘The DEQ’s proposed audit rule and any source discharges associated with revision of Oklahoma Law is to ensure associated policy and/or guidance which agricultural production, services, that the Oklahoma general permitting may be used to mitigate penalties for silviculture, feed yards, livestock program is consistent with the delegated facilities under the OPDES program, must receive final EPA concurrence markets and animal wastes. requirements of 40 CFR 123.25(c). In the prior to implementation by the State.’’ 2. Oil and Gas exploration and Federal Register Notice concerning the production related industries and proposal of the OPDES program, EPA Once the regulation is finalized, pipeline operations regulated by the asserted that ‘‘Until the state completes ODEQ will send a revised Program Oklahoma Corporation Commission. this transfer of authority, EPA will Description and/or Enforcement EPA will retain NPDES authority over retain full permitting and enforcement Management System explaining the these industries and their discharges to authority for those discharges which are rule’s implementation with regard to the surface waters of the state. covered, or proposed to be covered by OPDES program. The State will also 3. Discharges in Indian Country. The EPA issued general permits.’’ EPA send a supplemental Attorney General’s State of Oklahoma does not seek provided that it would transfer this Statement to ensure the regulation will jurisdiction over Indian Country. EPA authority and the administration of the be consistent with NPDES requirements. will retain NPDES authority to regulate general permits to the State once ODEQ To the extent EPA finds that a final rule discharges in Indian Country (as defined has revised its program to include modifies or supplements the OPDES in 18 U.S.C. 1151). The state of general permitting authority. EPA now program and constitutes a program Oklahoma has undertaken steps to wishes to clarify that the State has revision, in accordance with 40 CFR revise regulation 252:605–1–3(c) program authority over all classes of 123.62 these revisions of the original clarifying ODEQ does not seek to issue discharges (except as listed above). EPA OPDES program will be publicly authorized OPDES permits to discharges will not retain program authority over noticed in the Federal Register and in Indian Country. EPA and ODEQ will those discharges except to the extent it major newspapers in the State to work together with tribal authorities to will continue to administer EPA issued provide for public comment on the resolve questions of permitting general permits. revision. authority for individual discharges. This clarification will translate into 4. Discharges of radioactive materials only minor changes for permittees in the Scope of the OPDES Program and regulated by the federal government (i.e. Clarifications on EPA Authority and State of Oklahoma. Until the transfer of those radioactive materials covered by general permit authority to ODEQ, EPA Oversight the Atomic Energy Act of 1954, as will continue to administer those All NPDES files under the jurisdiction amended (42 U.S.C. 2011 et. seq.)). EPA general permits it has issued or of ODEQ will be transferred from EPA does not have the authority to approve proposed in Oklahoma. Until otherwise to the state within 30 days. NPDES the OPDES program to regulate notified by EPA or the State, permittees permits under ODEQ’s jurisdiction will radioactive wastes governed by the covered by those general permits will become state administered OPDES Atomic Energy Act. The regulatory continue to report all compliance permits and will be reissued (upon authority for radioactive materials will information to EPA Region 6. Also, any expiration) or modified by the ODEQ. remain under the jurisdiction of the U.S. facility eligible for coverage under these All permits brought to public notice by Department of Energy and the Nuclear permits will send its notice of intent to ODEQ after this authorization and under Regulatory Commission. (Some EPA rather than ODEQ. Until otherwise its OPDES authority will be OPDES industrial discharges which contain notified by the State or EPA, all Notices permits providing NPDES authorization very low level radioactive wastes (e.g. of Intent and Termination (NOIs and to those dischargers. manufacturers of watches may discharge NOTs) for coverage under EPA’s general trace amounts of radium, and hospital permits for storm water (only) should A. EPA Authority wastes sometimes contain iodine continue to be sent to the EPA NOI Oklahoma’s OPDES program is a isotopes) which are not regulated under Processing Center (mail code 4203), 401 partial program, which conforms to the the Atomic Energy Act and may be M Street, SW, Washington, DC 20460. requirements of section 402(n)(3) of the regulated by EPA; upon authorization of The only variation from the proposed Clean Water Act. The OPDES program the OPDES program, the authority to program will be authority to reissue the applies to all discharges covered by the regulate those discharges may become general permits. ODEQ is the permitting authority of ODEQ. This includes most the responsibility of ODEQ.) authority, and as such, will reissue the discharges of pollutants subject to the 5. Oklahoma Ordinance Works general permits once that authority has federal NPDES program (e.g. municipal Authority (OOWA). EPA will retain been transferred to ODEQ. EPA may not wastewater discharges, pretreatment, enforcement authority for OOWA reissue the general permits once they and most industrial point source (NPDES permit No. OK0034568), have expired. If ODEQ has not been able discharges, and point source discharges located in Pryor, Oklahoma, and all to revise its program to include general from federal facilities), including the industries served by this facility. ODEQ permitting authority prior to the 65050 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices expiration of a general permit, it could evidentiary hearings have been associations, and municipalities issue individual permits instead. In the requested until such time as they are supporting authorization of the OPDES interim, any discharger covered by an resolved. As each request is resolved, program. These commenters cite EPA general permit may request that its EPA will notify ODEQ and transfer examples of good working relationships discharge be covered by an individual jurisdiction of the permit to ODEQ. EPA with the ODEQ and confidence in the permit issued by the State as described shall also maintain enforcement lead technical skill and ethics of the staff and in the MOA language quoted above over discharge permits with a pending management of that agency. These (Changes to the OPDES Proposed evidentiary hearing request; these will commenters also point out the benefits Documents #1). be transferred to the state upon of having a system run at the state level The Federal Register Notice of August resolution of the issue for which the that is more readily accessible and cost 29, 1996, proposing approval of the hearing was requested. effective than the system of having both OPDES program (61 FR 45420–45426), Enforcement Actions: EPA Region 6 a state and federal permitting program. at page 45422, paragraph 2 refers to will retain primary enforcement Response: EPA is pleased with the ‘‘Phased Program Authority.’’ To authority after the date the OPDES apparent confidence the citizens of eliminate any confusion that EPA meant program is approved for a number of Oklahoma have in their Department Of that Oklahoma’s NPDES Program is a facilities which have unresolved Environmental Quality. EPA believes ‘‘partial and phased’’ program in the compliance issues. These permittees that approval of the OPDES program context of Section 402(n)(4) of the Clean will continue to report to EPA on all will provide both an environmentally Water Act, 33 USC 1342(n)(4), EPA is compliance issues including regular protective permitting program, as well clarifying that the word ‘‘phased’’ was submittals of Discharge Monitoring as one which will be responsive to the used in a generic sense and not the Reports for their NPDES permits. needs of citizens and businesses in statutory meaning of a ‘‘phased Authority for these permits can Oklahoma. program’’ as that term is used in subsequently be transferred to the State 2. Issue: Some municipalities 402(n)(4). A phased program in one of two ways: (1) The outstanding expressed concern about the need to accordance with CWA section 402(n)(4) compliance issue can be resolved and raise fees to support the OPDES provides a state up to 5 years to assume the permittee has returned to program. These commenters support administration for categories of compliance, or, (2) the State can issue EPA approval of the program, while dischargers considered ‘‘point sources’’ a parallel administrative action to calling for more proportional fee system by the CWA. ODEQ has the legal address the outstanding compliance or financial support for municipalities. authority to administer the program to issue. As a practical consideration, Only one municipality supported the include those discharges covered by enforcement authority for municipal or authorization of the OPDES program EPA’s general permits using individual county facilities that are operated by the conditioned upon no additional cost to permits, thus, EPA considers the OPDES same governmental entity will not be ‘‘mandated participants’’ of the program as covering all discharges transferred to the State as long as one of program. under the jurisdiction of the ODEQ in its major facilities has an unresolved Response: States applying to Oklahoma. Therefore, Oklahoma’s compliance issue. NOTE: EPA in administer the NPDES program must program is not a ‘‘phased’’ program as coordination with ODEQ will inform all establish that they have the financial that term is used in section 402(n)(4) of permittees in writing of their reporting ability and structure to run the program the Clean Water Act. responsibilities. Permittees should which EPA would approve (40 CFR 7. Status of applications, proposed continue to report as specified by both 123.21). In the sources of funding identified by ODEQ for the OPDES permits, contested permit actions, and their State and Federal permits until program there is a fee system for unresolved EPA enforcement actions: otherwise notified. Except for the files listed below, all permittees. The structure and necessity pending NPDES permit applications and B. Status of Regulation Changes and for the fee system was researched by issued NPDES permits under Corrections ODEQ, reviewed by EPA, and jurisdiction of ODEQ will be transferred 1. Indian Country. Amendments to reevaluated by an independent, third to Oklahoma within 30 days of the regulation OAC 252:605–1 will be party study. EPA is satisfied the fee approval of the OPDES program. In presented to ODEQ’s Environmental system outlined in the OPDES program accordance with the signed MOA, EPA Quality Board (EQB) in March for is appropriate. will retain temporary authority for all approval. 3. Issue: A national trade association proposed permits until final issuance; 2. General Permitting Authority. This sent comments objecting to EPA’s permits contested under evidentiary change of authority will be proposed to assertion that authorization of a state hearing proceedings until those are the 1997 Legislative session as an program under NPDES was a ‘‘federal resolved; and compliance files and amendment to 27A O.S. Section 2–14– action’’ requiring consultation under authority for all open enforcement 181 et seq. section 7 of the Endangered Species Act orders until such time as ODEQ has 3. Finalization of Audit Privilege (ESA). The association draws the issued parallel orders or EPA has Regulation. This proposed regulation conclusion from the ESA that EPA is not resolved the enforcement action. will be before the EQB on November 26, authorized nor is under any obligation Proposed Permits: EPA shall retain 1996, and will be codified as OAC to consult on any action that would not permit decision-making authority over 252:2–11–7 once the rulemaking process jeopardize a species. The association permits which have been publicly is completed. asserted that EPA approval of a state noticed until they are issued and program is no more of a ‘‘federal’’ action effective. Once these permits are Responsiveness Summary than its review of state-issued permits; effective, they will be transferred to The following is a summary of the that EPA’s authorization is not a ODEQ unless contested. The permit files issues raised by persons commenting on ‘‘discretionary’’ action and therefore is will be transferred to the state as the EPA’s proposed approval and EPA’s not subject to the requirements of ESA. permits become effective. responses to those issues. The commenters added that EPA is Contested Permit Actions: EPA will 1. Issue: EPA received many under no obligation to initiate formal retain permits for which variances or comments from industry, businesses, consultation where the action is not Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65051 likely to adversely affect listed species. No environmental baseline exists for the why it feels competent to take The commenters believe that because proposed state run program. If any responsibility for the NPDES program; the state must administer the same ‘‘programmatic’’ environmental baseline and ask EPA if it is not an important program EPA does, there is no change exists, it applies only to past permitting link in the protection of environmental to the ‘‘environmental baseline,’’ and actions issued by EPA and not future resources. These citizens also express therefore jeopardy ‘‘ * * * is not actions that may be issued by the State. concern regarding agricultural remotely likely.’’ The commenters A state program is operated in lieu of industries. object to the conditions of the the federally administered NPDES Response: While the commenters may agreements reached by EPA, ODEQ and program. The program is based not on have a legitimate concern about the FWS during informal consultation, and CWA and its implementing regulations, impacts of Simmons Industries on the believes them to be equivalent to but instead on state regulations and water quality of Cave Springs and ‘‘reasonable and prudent measures’’ statutes. A state program cannot be Honey Creek, the wastewater discharges more appropriate to a formal judged on the baseline of the federal cited by the citizens are regulated by the consultation. The commenter does not system that preceded it. Missouri Department of Natural believe EPA has the authority to object While it may not be clear that the Resources (MDNR), not ODEQ. ODEQ to state issued permits for their potential section 7 consultation is specifically may comment on the issuance of effects on listed or proposed species. required for a program authorization, permits outside its jurisdiction which Additionally, the commenter does not ESA and its implementing regulations may impact water quality in Oklahoma, agree with EPA, ODEQ, and FWS to do not restrict any agency from and may appeal to EPA if permits issued include proposed species or habitat in voluntarily consulting and conferring in Missouri do not meet water quality the consultation agreements. with Fish and Wildlife Service on standards for that stream segment in Response: The commenters refer to actions it believes may affect listed Oklahoma. However ODEQ is not ‘‘EPA’s review and approval of a state species. The commenter for the authorized to take enforcement action permitting program’’ and compares it to association himself stated that ‘‘ *** against dischargers in neighboring EPA’s review of state issued permits. It whether EPA was required to consult states. It is the understanding of Region is from this comparison that some with FWS is not the issue * * *.’’ EPA 6 that ODEQ has communicated its confusion for the commenters may arise. working cooperatively with ODEQ and concerns and those of the citizens to The approval of a state program under FWS did informally confer and consult MDNR and EPA, requesting action to section 402 of the CWA is a federal on species and habitat protection in the protect the water quality in these authorization and not simply a review State of Oklahoma. This cooperation streams. Recently ODEQ has been of the state’s documents. EPA views the resulted in the agreements cited by the communicating with Missouri’s approval as ‘‘discretionary’’ in that it commenters. Region 6 believes authorized agency recommending more must work with the state to develop consultation conducted on the stringent limits in the permit which mutual agreements in the MOA which authorization of a state NPDES program MDNR is currently drafting. is then signed by both agencies. is consistent with the intent, definitions While ODEQ does not have the The regulations implementing the and the requirements of the ESA and authority to address pollutants from ESA includes in the term ‘‘action * ** CWA. The conditions of the agreements agricultural industries, ODEQ is all activities or programs of any kind were placed in the EPA/ODEQ MOA to working to address all point and non- authorized, funded, carried out, in ensure that EPA and ODEQ had clear whole or in part, by Federal agencies in responsibilities with regard to carrying point sources of pollutants within its the U.S. or on the high seas.’’ (50 CFR out the agreements. jurisdiction. Authorization of the 402.02) When an action is determined EPA’s authority to object to state OPDES program under the CWA may by the agency to have the potential to issued permits is outlined in 40 CFR help Oklahoma develop more ‘‘affect’’ listed species or critical habitat, 123.44 which provides that EPA may comprehensive programs to improve the agency must consult or confer with object to the issuance of a permit which water quality in the State. However, the FWS (and for marine species does not comply with the CWA, EPA’s specific authorization of the National Marine Fisheries Service) to regulations, or the MOA; or, would in OPDES program does not extend to determine if species will be adversely any other respect be outside the programs regulating air and solid effected. The agencies involved may requirements of the CWA or its wastes, nor does it include point elect to start with informal consultation. implementing regulations. CWA section sources which are not within the During this optional process the FWS 301(b)(1)(C) incorporates in the Act’s jurisdiction of ODEQ or the CWA (see ‘‘ * * * may suggest modifications to protection any more stringent Scope of the OPDES Program and the action that the Federal agency and requirements required by any other Clarifications on EPA Authority and any applicant could implement to avoid Federal law or regulation. Region 6 does Oversight. A.1. above). the likelihood of adverse effects to listed not believe that the conditions of the The written agreements of this species or critical habitat.’’ (50 CFR consultation agreements go beyond the authorization process will formalize the 402.13) This process may also be authority of EPA to object to state issued partnership which has existed between applied to avoid jeopardy of a species NPDES permits. EPA and ODEQ since the Oklahoma which have been proposed for listing 4. Issue: A citizens group located in agency’s formation, and will provide the (50 CFR 402.10). Including agency Grove, Oklahoma expressed concern structure for the side-by-side ‘‘conferences’’ on proposed species and that they had not been satisfied with relationship between the two agencies. their habitat helps avoid the need for ODEQ response to complaints they had Region 6 will continue to be ready and reinitiation of consultation after made regarding the water quality of available to work with ODEQ and the proposed species have been formally Cave Springs and Honey Creek, and the citizens of Oklahoma to ensure the listed. discharge of wastewater from Simmons environment is protected. The consultation conducted by Industries in Missouri. These citizens The OPDES program, the 43rd state Region 6, ODEQ, and FWS applies to were bothered that the tone of the program to be authorized under section future actions by the state which could notices proposing this program were 402 of the CWA, includes pretreatment, jeopardize listed or proposed species. ‘‘pro-industry.’’ These citizens ask DEQ federal facilities and sewage sludge. 65052 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

STATE NPDES PROGRAM STATUS

Approved Approved state NPDES Approved to state Approved gen- permit pro- regulate fed- pretreatment eral permits gram eral facilities program program

Alabama ...... 10/19/79 10/19/79 10/19/79 06/26/91 Arkansas ...... 11/01/86 11/01/86 11/01/86 11/01/86 California ...... 05/14/73 05/05/78 09/22/89 09/22/89 Colorado ...... 03/27/75 ÐÐ 03/04/82 Connecticut ...... 09/26/73 01/09/89 06/03/81 03/10/92 Delaware ...... 04/01/74 ÐÐ 10/23/92 Florida ...... 05/01/95 Ð 05/01/95 05/01/95* Georgia ...... 06/28/74 12/08/80 03/12/81 01/28/91 Hawaii ...... 11/28/74 06/01/79 08/12/83 09/30/91 Illinois ...... 10/23/77 09/20/79 Ð 01/04/84 Indiana ...... 01/01/75 12/09/78 Ð 04/02/91 Iowa ...... 08/10/78 08/10/78 06/03/81 08/12/92 Kansas ...... 06/28/74 08/28/85 Ð 11/24/93 Kentucky ...... 09/30/83 09/30/83 09/30/83 09/30/83 Louisiana ...... 08/27/96 08/27/96 08/27/96 08/27/96 Maryland ...... 09/05/74 11/10/87 09/30/85 09/30/91 Michigan ...... 10/17/73 12/09/78 04/16/85 11/29/93 Minnesota ...... 06/30/74 12/09/78 07/16/79 12/15/87 Mississippi ...... 05/01/74 01/28/83 05/13/82 09/27/91 Missouri ...... 10/30/74 06/26/79 06/03/81 12/12/85 Montana ...... 06/10/74 06/23/81 Ð 04/29/83 Nebraska ...... 06/12/74 11/02/79 09/07/84 07/20/89 Nevada ...... 09/19/75 08/31/78 Ð 07/27/92 New Jersey ...... 04/13/82 04/13/82 04/13/82 04/13/82 New York ...... 10/28/75 06/13/80 Ð 10/15/92 North Carolina ...... 10/19/75 09/28/84 06/14/82 09/06/91 North Dakota ...... 06/13/75 01/22/90 Ð 01/22/90 Ohio ...... 03/11/74 01/28/83 07/27/83 08/17/92 Oregon ...... 09/26/73 03/02/79 03/12/81 02/23/82 Pennsylvania ...... 06/30/78 06/30/78 Ð 08/02/91 Rhode Island ...... 09/17/84 09/17/84 09/17/84 09/17/84 South Carolina ...... 06/10/75 09/26/80 04/09/82 09/03/92 South Dakota ...... 12/30/93 12/30/93 12/30/93 12/30/93 Tennessee ...... 12/28/77 09/30/86 08/10/83 04/18/91 UtahÐ(06/14/96 Approved Sludge Prgm) ...... 07/07/87 07/07/87 07/07/87 07/07/87 Vermont ...... 03/11/74 Ð 03/16/82 08/26/93 Virgin Islands ...... 06/30/76 ÐÐÐ Virginia ...... 03/31/75 02/09/82 04/14/89 04/20/91 Washington ...... 11/14/73 Ð 09/30/86 09/26/89 West Virginia ...... 05/10/82 05/10/82 05/10/82 05/10/82 Wisconsin ...... 02/04/74 11/26/79 12/24/80 12/19/86 Wyoming ...... 01/30/75 05/18/81 Ð 09/24/91

Totals ...... 42 36 30 31 Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 27. Number of Fully Authorized Programs, Including Sludge = 1. *: Phased Federal facilities & storm water programs by 2000.

Other Federal Statutes permitting program under section 402 of oversight role and objection procedures the Clean Water Act is a federal on permits when the two state agencies A. National Historic Preservation Act undertaking subject to this requirement, can not agree on the protection of Section 106 of the National Historic but the State’s subsequent issuance of historic properties. The EPA/ODEQ Preservation Act (NHPA) requires that OPDES permits may not be. EPA has MOA includes conditions for EPA and all federal agencies must consult with thus consulted in accordance with ODEQ to follow to ensure that the the State Historic Preservation Officer section 106 of the NHPA to assure requirements of the consultation with (SHPO) and the Advisory Council on protection of eligible properties will be the SHPO are met. provided in connection with State Historic Preservation (ACHP) on all B. Endangered Species Act federal undertakings which may affect permit actions. In the consultation, EPA, historic properties or sites listed or the SHPO and ODEQ outlined Section 7 of the Endangered Species eligible for listing in the National procedures by which ODEQ and the Act (ESA) requires that all federal Register of Historic Places. Regulations SHPO will confer on permit actions agencies consult on federal actions outlining the requirements of a section likely to affect historic properties. These which may affect federally listed species 106 consultation on a federal processes are reflected in a to insure they are unlikely to jeopardize undertaking are found at 36 CFR part memorandum of understanding signed the continued existence of those species 800. EPA’s approval of the State NPDES by EPA and the SHPO on EPA’s or adversely modify their critical Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65053 habitat. Regulations controlling Estimated Annual Burden: 138,175.5 EFFECTIVE DATE: January 9, 1997. consultation under ESA section 7 are total annual hours; 266.2 hours per FOR FURTHER INFORMATION CONTACT: codified at 50 CFR part 402. EPA’s respondent (avg.); 519 respondents. William P. Stewart, Real Estate approval of the State permitting Estimated Annual Reporting and Specialist, ORE, FDIC (202) 416–4229; program under section 402 of the Clean Recordkeeping Cost Burden: $435,000. David N. Wall, Senior Counsel, FDIC Water Act is a federal action subject to Description: In the Second Report and Legal Division (202) 736–0115; or David this requirement, but the State’s Order (Order), adopted in CC Docket Fisher, Counsel, FDIC Legal Division subsequent OPDES permit actions are No. 96–61, the Commission eliminated (202) 736–3103. not. EPA completed informal the requirement that nondominant SUPPLEMENTARY INFORMATION: consultation with the U.S. Fish and interexchange carriers file tariffs for Wildlife Service (FWS or the Service). interstate, domestic interexchange Paperwork Reduction Act telecommunications services. In order to In the consultation, EPA, the Service, The Statement of Policy does not facilitate enforcement of such carriers’ and ODEQ outlined procedures by require any collections of paperwork statutory obligation to geographically which ODEQ and FWS, will confer on pursuant to section 3504(h) of the average and integrate their rates, and to permits which are likely to affect Paperwork Reduction Act, 44 U.S.C. make it easier for customers to compare federally listed species. These processes 3501, et seq. Accordingly, no carriers’ service offerings, the Order are reflected in a Memorandum of information has been submitted to the requires affected carriers to maintain, Understanding between the State and Office of Management and Budget for and to make available to the public in FWS. In addition, a consultation review. agreement has been reached between at least one location, information EPA and FWS on EPA’s oversight role concerning their rates, terms and Regulatory Flexibility Act and objection procedures when ODEQ conditions for all of their interstate, Pursuant to section 605(b) of the and FWS cannot agree on the protection domestic interexchange services. Regulatory Flexibility Act, 5 U.S.C. 601, of species in an individual State permit Federal Communications Commission. et seq., it is certified that the Statement action. These conditions are reflected in William F. Caton, of Policy will not have a significant the EPA/ODEQ MOA. Acting Secretary. economic impact on a substantial I hereby authorize the OPDES [FR Doc. 96–31257 Filed 12–9–96; 8:45 am] number of small entities. In addition, program in accordance with 40 CFR part BILLING CODE 6712±01±F the Statement of Policy will not impose 123. regulatory compliance requirements on depository institutions of any size. Dated: November 19, 1996. Jane N. Saginaw, FEDERAL DEPOSIT INSURANCE DISCUSSION CORPORATION Regional Administrator. I. Introduction [FR Doc. 96–31274 Filed 12–9–96; 8:45 am] Statement of Policy Regarding the Section 15 of the Federal Deposit BILLING CODE 6560±50±P Payment of State and Local Property Insurance Act (‘‘FDIA’’), 12 U.S.C. 1825, Taxes provides immunity from all taxation imposed by any state, county, AGENCY: Federal Deposit Insurance municipal, or local taxing authority, FEDERAL COMMUNICATIONS Corporation (FDIC). except for ad valorem real property COMMISSION ACTION: Revision and Reissuance of taxation. This immunity from taxation, Policy Statement. and its limited exception for real Public Information Collections property taxation, apply to the FDIC Approved by Office of Management SUMMARY: The Statement of Policy both in its corporate capacity and when and Budget revises and reissues the FDIC’s ‘‘Statement of Policy Regarding the it is acting as a receiver for a failed December 3, 1996. Payment of State and Local Property financial institution. 12 U.S.C. 1825 (a) and (b),1 respectively. See also 12 U.S.C. The Federal Communications Taxes’’ issued on June 4, 1991. As 1823(d)(3)(A). Commission (FCC) has received Office required by section 303(a) of the Riegle Community Development and On June 4, 1991, the FDIC and the of Management and Budget (OMB) RTC each issued a ‘‘Statement of Policy approval for the following public Regulatory Improvement Act of 1994 (‘‘the RCDRIA’’), the FDIC is conducting Regarding the Payment of State and information collections pursuant to the Local Property Taxes.’’ The two policy Paperwork Reduction Act of 1995, a systematic review of its regulations and statements of policy that might be statements were essentially identical. Public Law 104–13. An agency may not The RTC statement was published at 56 conduct or sponsor and a person is not inefficient, cause unnecessary burden, or contain outmoded, duplicative, or FR 28426 (June 20, 1991); the FDIC required to respond to a collection of statement was not published in the information unless it displays a inconsistent provisions (see 60 FR 62345 (Dec. 6, 1995)). The FDIC has Federal Register but was made publicly currently valid control number. For available in FDIC’s Law, Regulations, further information contact Shoko B. reviewed its 1991 Policy Statement and has concluded that it should be revised and Related Acts. Since their issuance, Hair, Federal Communications several cases involving the FDIC’s and Commission, (202) 418–1379. and reissued. This revised Statement of Policy would replace the 1991 Policy RTC’s tax immunity and the OMB Number: 3060–0704. Statement. Corporations’ implementation of their Expiration Date: 05/31/97. The revised Statement of Policy policy statements have been litigated to Title: Policy and Rules Concerning the would reflect (1) the statutory ‘‘sunset’’ conclusion. Moreover, on December 31, Interstate, Interexchange Marketplace; of the Resolution Trust Corporation 1995, the RTC terminated and the FDIC Implementation of Section 254(g) of the (‘‘RTC’’) on December 31, 1995, Communications Act of 1934, as 1 Section 219 of the Financial Institutions Reform, resulting in the FDIC’s succession to the Recovery, and Enforcement Act of 1989 (‘‘FIRREA’’) amended, CC Docket No. 96–61. RTC’s remaining responsibilities; and added subsection (b) to clarify that the FDIC’s Form Number: N/A. (2) the developing caselaw in the area. immunity extends to receiverships. 65054 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices succeeded to its remaining similarity of powers and duties of proper tax obligations, but recognizes responsibilities. Accordingly, the RTC conservators and receivers, suggest that that prompt payment must be consistent termination, the developing judicial the FDIC, as conservator, should enjoy with sound business judgement and the interpretation of the FDIC’s tax similar tax immunity. On the other orderly administration of receiverships. immunity, and the requirements of the hand, the FDIC recognizes that financial It confirms that Section 15 immunity RCDRIA warrant a reissuance of the institutions in conservatorship continue applies to all assets acquired in the FDIC policy statement with certain to operate as business entities. Similar course of the FDIC’s liquidation minor changes. considerations obtain with respect to a operations. bridge bank, and when the FDIC is II. Background 2. Taxes on Owned Real Property managing a special asset pool arising In providing for the orderly out of a large bank assisted transaction. Section 15(b) of the FDIA expressly liquidation of a failed financial Accordingly, the Revised Policy waives the FDIC’s immunity with institution, the FDIC has only a limited conforms with the former Policy and respect to ad valorem real property ability to prepare in advance for provides that the FDIC, when acting in taxation. Accordingly, like the original managing the assets of a financial such capacities, will not assert the tax Policy, the Revised Policy acknowledges institution for which it has been immunity recognized in section 15(b), that property which the FDIC owns in appointed receiver. Moreover, the although it reserves the right to fee, however acquired, is subject to ad difficulties of administration may often reconsider this position in the future. valorem real property taxation. Like the be compounded by the poor quality of The FDIC is sometimes appointed as original Policy, the Revised Policy also the affected institution’s records, which conservator for an institution that has recognizes that the waiver of immunity may be incomplete or in disarray, or acquired certain assets and assumed in section 15(b) is only for real property both. certain liabilities from a receiver taxes assessed according to the Frequently, records regarding ad pursuant to a purchase and assumption property’s value. Thus, immunity has valorem real property tax liabilities are agreement. In such cases, the liabilities not been waived for taxes imposed on not current. In many instances, taxes assumed generally do not include all tax real property that are not based on that are already delinquent at the time obligations. The Revised Policy value, and the Revised Policy so states. the receiver is appointed become further provides, as did the original Policy, that For example, some types of special delinquent, and taxes that are not the FDIC, as conservator, will not be assessments, which traditionally are delinquent become so. Because of the liable for those obligations not assumed based on property factors other than importance of property tax revenues for from the receiver. This disclaimer of value, such as front footage, are not ad state and local municipal finances, and liability is not based on a claim of valorem real property taxes and given the magnitude of the FDIC conservatorship immunity; rather, therefore the FDIC is not liable for them. holdings of real property and the liability is disclaimed because the See Federal Reserve Bank of St. Louis v. potential effect thereon of section 15(b) institution in conservatorship has not Metrocentre Improvement District #1, of the FDIA, the FDIC in 1991 adopted legally assumed those obligations. A City of Little Rock, Arkansas, 657 F.2d a Statement of Policy Regarding the bridge bank that has acquired assets and 183 (8th Cir. 1981); United States v. City Payment of State and Local Property assumed liabilities in a similar manner of Adair, 539 F.2d 1185 (8th Cir. 1976). Taxes (‘‘Policy’’) to provide guidance is also entitled to disclaim tax-related 3. Taxes on Secured Interests in Real concerning its payment of such taxes. obligations it has not legally assumed. Property Having had five years of experience Section 15 of the FDIA is also silent with that Policy, the FDIC now adopts as to whether immunity applies to the The largest category of assets which a revised policy (hereinafter ‘‘Revised operations of a subsidiary of an the FDIC acquires as receiver is loans Policy’’) to reflect certain minor changes institution in receivership or secured by mortgage interests in real now deemed advisable as a result of conservatorship. Certain legal and property. Like the original Policy, the litigation and practical experience. policy considerations may support the Revised Policy acknowledges that real position that immunity applies to the property which is the subject of such Application to Resolution Trust operations of a subsidiary in the same interests is also subject to ad valorem Corporation Assets manner as it applies to the operations of real property taxation. On December 31, 1995, the RTC the receivership or conservatorship. 4. Taxes on Personal Property terminated. Pursuant to 12 U.S.C. Nevertheless, because of various Because section 15 of the FDIA 1441a(m), the FDIC has succeeded the concerns, including the maintenance of waives immunity only for ad valorem RTC as receiver for all institutions for the separate corporate identities of real property taxation, the Revised which the RTC was acting as receiver at subsidiaries, the Revised Policy Policy, like the original Policy, provides the time of its termination, as well as to provides that such immunity will not be that the FDIC is immune from all forms any assets which the RTC held in its asserted at this time. The FDIC reserves of personal property taxation. corporate capacity at that point. the right to reconsider whether Therefore, it is appropriate to issue this immunity applies to the operations of 5. Other Related Taxes Revised Policy to clarify that its subsidiaries. Like the original Policy, the Revised provisions apply equally to all The Revised Policy eliminates the Policy makes clear that the FDIC is receiverships and assets transferred discussion of these points appearing in immune from taxes imposed on it as a from the RTC. Section A of the original Policy in favor result of transactions involving real of the more extensive discussion in III. Explanation property, even if the tax is measured by Section H. the value of the property. Such taxes are A. Scope and Applicability B. Taxes not taxes on the property itself, but Section 15 of the FDIA is silent about rather excise taxes on transactions the immunity of the FDIC when acting 1. Payment of Taxes involving real property. Among these as conservator. The legislative history of Like the original Policy, the Revised are transfer and recordation taxes, and section 15(b), however, as well as the Policy provides that the FDIC will pay certain fees for handling foreclosure Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65055 sales, which the FDIC will not pay. For Historically, the United States and its charges which state law denominates as example, in Resolution Trust instrumentalities have always been ‘‘interest’’ at the state statutory rate. In Corporation v. Lanzaro, 140 N.J. 244, immune from claims for interest, except some states, although the state statute 658 A.2d 282 (N.J. 1995), the New Jersey where Congress has expressly waived denominates a charge as ‘‘interest,’’ the Supreme Court held that a sheriff’s fee such immunity. See, e.g., Library of supreme court of the state has held that for handling a foreclosure sale so far Congress v. Shaw, 478 U.S. 310 (1986). the charge is a penalty. In such exceeded the value of the services Section 15 of the FDIA is silent as to instances, the judicial rule will be rendered that it amounted to a tax from whether immunity is waived for interest applied and no interest will be paid.2 which the RTC was immune under accruing on delinquent tax amounts, In addition, state law will continue to section 15(b) of the FDIA. and that silence suggests immunity has be monitored and, in the event that a not been waived. In analogous state legislature or court characterizes as C. Interest and Penalties situations, courts have utilized varying interest a charge which is clearly and State statutes typically provide for the analytical approaches to determine demonstrably a penalty, the FDIC will accrual of interest and penalties if real whether the waiver of immunity from not pay such amount. This could be the property taxes are not paid when due. real property taxes implicitly carried result, for example, if a fixed ‘‘interest’’ The character and amount of such with it a waiver for interest. Compare, amount is charged without reference to charges vary from state to state. Section Reconstruction Finance Corp. v. Texas, the time the base tax amount is 15(b)(3) of the FDIA expressly provides 229 F.2d 9 (5th Cir. 1956), cert. denied, delinquent. The FDIC specifically that the FDIC is not liable for any 351 U.S. 907 (1956), with United States reserves all rights to challenge any amounts ‘‘in the nature of penalties or v. Consumers Scrap Iron Corp., 384 F.2d interest charge it believes to be a fines, including those arising from the 62 (6th Cir. 1967). penalty. Recent Supreme Court decisions raise failure of any person to pay any . . . tax D. Tax Liens .. . when due.’’ This provision further uncertainty whether immunity expresses the common law rule, see, from interest should be considered to be 1. Foreclosure e.g., Missouri Pacific Railway Co. v. waived in the absence of an express Section 15(b)(2) of the FDIA provides Ault, 256 U.S. 554 (1921), and is provision. Compare, Loeffler v. Frank, that ‘‘no property of the Corporation consistent with the general rule that 486 U.S. 549 (1988), with Library of shall be subject to levy, attachment, receivers (and innocent creditors) Congress v. Shaw, 478 U.S. 310 (1986). garnishment, foreclosure, or sale should not be burdened by punitive The FDIC recognizes the importance to without the consent of the Corporation.’’ assessments. See Professional Asset state and local governments of revenues Even in the absence of such an express Management v. Penn Square Bank, 566 derived from real property taxes. Thus, provision, the courts have held that a F. Supp. 134 (W.D. Okla. 1983). The the Revised Policy continues to provide real estate tax lien could not be Revised Policy implements this that the FDIC generally will pay interest foreclosed in derogation of an interest provision by providing that the FDIC on delinquent real property taxes, but (whether fee or mortgage interest) held will neither pay, nor recognize liens for, adds language clarifying that payment of by an entity invested with federal such amounts. Similarly, the FDIC will a delinquency charge in the nature of immunity where that immunity had not not pay attorneys’ fees or other costs interest for periods before and during been waived. See New Brunswick v. which state law may impose upon FDIC ownership will be made only to United States, 276 U.S. 547 (1928); Rust the extent the interest payment delinquent taxpayers. Irving v. Johnson, 597 F.2d 174 (9th Cir. 1979). obligation is secured by a valid lien. Independent School District, et. al v. Section 15(b)(2) makes clear that, Otherwise, post-ownership interest will Packard Properties Ltd., et. al., 762 F. notwithstanding the waiver of immunity be paid pursuant to generally applicable Supp. 699 (N.D. Texas 1991). for ad valorem real property taxation, FDIC rules and procedures. While the FDIC is not liable for state and local taxing authorities may The purpose of interest is to not sell or foreclose against property in penalties arising from taxes not timely compensate for the loss of the use of paid either by it or by previous owners which the FDIC holds an interest funds resulting from the failure to pay without fully protecting that interest. of the property, the Fifth Circuit Court taxes when due. Thus, interest is to be This prohibition recognizes the of Appeals has held that liens for such distinguished from additional amounts considerable burden faced by the FDIC penalties that were imposed prior to the which are charged as punishment for in administering the assets involuntarily FDIC’s ownership remain on the failure to pay when due. There is no acquired by it, and that substantial property during the FDIC’s ownership. uniformity among the states regarding value would be lost to the Corporation And, while the FDIC is not obligated to the imposition of interest or penalties solely because of lack of knowledge of pay the penalties secured by such liens for late payment of taxes. Some states the property interest if real estate tax during its ownership of the property, impose both an interest charge and a liens could be enforced through the liens remain on the property, and penalty, while others impose only traditional sale or foreclosure remedies. the penalties so secured become the interest or a penalty. obligation of any subsequent owner. The characterization of the charge The original Policy asserted the Irving Independent School District, et al. under state law as ‘‘interest,’’ ‘‘penalty,’’ v. Packard Properties Ltd., et. al., 970 2 While this was formerly the case in the State of ‘‘compensatory,’’ or ‘‘punitive’’ is not Texas, its legislature amended the pertinent Texas F.2d 58 (5th Cir. 1992). determinative. That is a question Tax Code section, effective August 26, 1991, to The FDIC believes that the Fifth determined under federal law. See provide that interest payable under that section ‘‘is Circuit decision is directly contrary to Missouri Pacific Railroad v. Ault, 256 to compensate the taxing unit for revenue lost because of the delinquency.’’ Tex. Tax Code Ann. the decision of the United States U.S. 554 (1921). Compare United States section 33.01(c). The purpose of that amendment Supreme Court in Simonson v. v. La Franca, 282 U.S. 568 (1931). was to reverse the Texas Supreme Court’s decision Grandquist, 287 U.S. 489 (1961). Nonetheless, the FDIC has determined in Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130 Accordingly, the FDIC reserves the right to follow generally the characterization (Tex. 1931), which held that amounts denominated as interest were in reality penalties imposed for to challenge this position in of additional charges as ‘‘interest’’ or failure of duty to pay taxes in a timely manner, jurisdictions not covered by the Fifth ‘‘penalty’’ as determined by the law of rather than charges made for the use or detention Circuit Court of Appeals. the state, and will normally pay those of money. 65056 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices position, based on the New Brunswick foreclosure, can control the time and 5. Liens for Undetermined Amounts and Rust cases, that a mortgage interest manner in which property is sold. A new section has been added to the held by the FDIC is ‘‘property’’ and that The FDIC takes the same position former Policy Statement to address a a taxing authority could not foreclose with respect to such tax liens when it minor difference between the FDIC’s out that interest without the FDIC’s holds only a mortgage interest in the and the RTC’s treatment of certain non consent. ad valorem taxes. Generally, the FDIC In Matagorda County, et al. v. Law, et property. Thus, a valid lien for ad does not recognize claims against a al., 19 F.3d 215 (5th Cir. 1994), the Fifth valorem real property taxes and interest receiver unless the amount of the claim Circuit Court of Appeals upheld the will be recognized as being entitled to is fixed and certain at the time of FDIC’s position that a mortgage lien priority over the FDIC’s mortgage receivership. In most cases, property tax interest held by it is ‘‘property’’ within interest (assuming that the tax lien assessments are for fixed amounts, and the meaning of section 15(b)(2) of the would be entitled to priority under state a statutory lien arises on the tax FDIA. Thus, the court of appeals law over a non-federal mortgage holder). assessment date to secure that fixed concluded that, while the taxing unit’s The FDIC will recognize any state law amount. If such a fixed tax obligation lien was valid and senior to the FDIC’s priority given to property tax liens that arises prior to the receiver’s ownership lien interest, the tax lien could not be attached prior to its obtaining any foreclosed so as to extinguish the FDIC’s of the property, section 15(b)(1) does not interest in the property. However, eliminate the liability. Similarly, the interest in the property unless the FDIC because immunity is not waived for so consents. Accordingly, like the lien may attach if the FDIC does not taxes other than ad valorem real own the property (although under some original Policy, the Revised Policy property taxes (such as personal continues to provide that a mortgage circumstances the lien may effectively property taxes), any liens for taxes other be subordinated to the FDIC’s interest— lien held by the FDIC cannot be than ad valorem real property taxes that eliminated without its consent. See also, see discussion under D.3., supra). attach to property after the FDIC Under some municipal tax Simon v. Cebrick, et al., 53 F.3d 17 (3rd acquires a lien or security interest in Cir. 1995). procedures, however, such as those such property will be subordinate to the established pursuant to the California 2. Attachment Corporation’s interest. Such Mello-Roos Community Facilities Act of Section 15(b)(2) of the FDIA provides subordination is required because if the 1982, a non ad valorem tax lien may be that no involuntary lien shall attach to value of the property is not sufficient to recorded at the time such tax is the property of the Corporation. One cover both the FDIC’s lien and the tax authorized (such as upon the example of an involuntary lien is a lien lien, to provide priority for the tax lien establishment of a community facilities that automatically attaches for would diminish the value of the district), but the amount of a particular delinquent taxes. Because the assets of Corporation’s interest, thereby periodic tax obligation will not be fixed a financial institution for which the subjecting it to the taxation from which until a date in the future. The amount FDIC has been appointed receiver do it is immune. may fluctuate from period to period not become the ‘‘property of the depending on a factor such as a 4. Sale of Tax Liens Corporation’’ until the receivership prevailing interest rate or the rate of appointment, any involuntary liens that Some states provide for a different, delinquency in the tax district. attached prior to the appointment of the usually higher rate of interest if the tax Such a tax is in fact not imposed until receiver are valid. Although in most lien has been sold in satisfaction of tax the date the amount is determined and therefore is barred by section 15(b)(1) if states a real estate mortgage interest claims. Moreover, this rate is applied to that date does not precede the date upon represents an interest in the real the entire amount of taxes, interest, and which the receiver became owner of the property, it is not tantamount to penalties paid by the tax lien or property. Similarly, any lien that ownership of the property itself. property purchaser. In this case, if a tax purports to secure such a tax is inchoate Because the involuntary lien for sale takes place before the FDIC obtains and therefore void under section delinquent real property taxes attaches a fee interest in the property, or with to the property itself, nonconsensual 15(b)(2), even if the lien was recorded respect to a tax lien that has priority prior to the receiver’s ownership of the liens purporting to attach to property over a lien held by the Corporation, the owned in fee by the FDIC are considered property. The RTC as a matter of policy FDIC will pay the entire amount due to elected to pay such taxes in the void, but liens may attach to property in the purchaser of the lien. The charges which the FDIC holds only a mortgage particular case of California Mello-Roos are considered to be merged together in interest as security for a loan. See New special taxes when the notice of lien the hands of the purchaser to whom the Brunswick v. U.S., supra. was recorded prior to receivership. In amount paid is simply the purchase view of the past reliance of California 3. Priority price for the release of the lien or local community facilities districts on The waiver of immunity from ad property, subject to redemption. For a the RTC policy (particularly in their valorem real property taxes indicates sale that takes place with respect to a assumptions as to revenues), and the that, with respect to liens that properly lien that is junior to the lien of the FDIC, potentially disruptive effect of any attached to property before the FDIC or after the FDIC obtains a fee interest change in such policy, the FDIC has obtained fee title to such property in the property, the sale must protect elected to continue the RTC’s policy in (whether by appointment as receiver, fully the FDIC’s fee interest or lien. California with respect to Mello-Roos lien foreclosure, or otherwise), the Some states may provide for the accrual assessments on those properties now taxing authority is entitled to have its of an additional penalty after the tax owned by the FDIC that (1) were owned lien satisfied from the value of the lien on the property has been sold in by the RTC on December 31, 1995, or (2) property. With respect to property satisfaction of the tax claims. Regardless have become property of the FDIC owned in fee, therefore, the effect of the of when the sale takes place with through foreclosure of a security interest prohibition against foreclosure or sale respect to the FDIC’s acquisition of an held by the RTC on that date. by the taxing authority is that the FDIC, interest in the property, such penalties Otherwise, the FDIC may challenge such by granting or withholding consent to will not be paid. assessments. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65057

E. Challenges to Assessed Valuation such payment will not prejudice any FDIC is subject to ad valorem taxes and challenge. taxes assessed on other bases. Section 15(b)(1) of the FDIA provides The text of the Revised Policy Personal Property: The Corporation is that ‘‘notwithstanding the failure of any Statement follows: immune from all forms of taxation on person to challenge an assessment personal property. under State law of such property’s FDIC Statement of Policy Regarding the Other Related Taxes: The Corporation value, such value, and the tax thereon, Payment of State and Local Property is immune from taxes other than ad shall be determined as of the period for Taxes valorem real property taxes. Taxes on which such tax is imposed.’’ This After considering (1) the powers sales, transfers, or other dispositions of language permits the receiver to granted to it under the Constitution and Corporation property are generally in challenge the assessed value of a real federal law, (2) its obligation to the nature of excise taxes which are property it currently owns whether or maximize recoveries from the levied on the transaction and not on the not the receiver was the owner of the disposition of financial institutions and property (although the calculation of the property at the time of assessment. their assets, and (3) the potential effect amount of tax may be based on the The statute is very broad on its face. of its actions upon state and local tax property’s sales price); the Corporation For example, it authorizes a receiver to administration, the Federal Deposit is immune from such taxes. Insurance Corporation (the ‘‘FDIC’’) has challenge a prior assessment which D. Interest and Penalties served as the basis for a tax paid by a issued the following policy statement to borrower prior to the receivership, when provide guidance as to how it will Interest: The Corporation will pay the institution held only a mortgage administer its statutory responsibilities interest for periods before and during interest. The apparent purpose of this in this area. FDIC ownership on delinquent taxes provision, however, was to permit the properly owed at the rate provided A. Authority receiver to contest tax assessments made under state law but only to the extent at the time property was owned in fee This Statement of Policy is issued the interest payment obligation is and especially where such tax has not pursuant to the FDIC’s powers and secured by a valid lien. The Corporation been paid, on the ground that the taxes authorities granted by the Federal will generally follow a state’s own were based on an incorrect assessed Deposit Insurance Act (‘‘FDIA’’), 12 characterization as to whether a valuation. U.S.C. §§ 1811, et seq., and in particular delinquency charge constitutes a Because high assessed valuations section 15 of the FDIA, 12 U.S.C. § 1825. penalty, but will reserve its right to challenge any charge (or portion thereof) could help a troubled institution avoid B. Scope and Applicability required regulatory write downs, it was called interest that is demonstrably a This policy statement supersedes the often not in the institution’s interest to penalty. Statements of Policy issued by the FDIC Penalties: The Corporation is not challenge overstated assessment and the Resolution Trust Corporation liable for any amounts in the nature of valuations. Like the original Policy, the (‘‘RTC’’) in 1991. It generally applies to fines or penalties. The Corporation will Revised Policy focuses on this and the Corporation when it is liquidating not pay, or recognize liens for, such provides that challenges generally will assets of an insured depository amounts. The Corporation will not pay be limited to the current and institution in its corporate or attorneys’ fees or other similar costs that immediately preceding tax years, and to receivership capacities (the may be imposed under state law in situations involving previously filed tax ‘‘Corporation’’). It applies to any tax, connection with the resolution of tax protests. The Revised Policy also penalty, interest, or other related charge disputes. recognizes, however, that where imposed or sought to be imposed on substantial amounts are at issue, and the E. Tax Liens property to whose ownership the FDIC likelihood of success is great, succeeds in such capacities. General Principles: If any ad valorem assessments may be challenged to the real property taxes (including interest) full extent permitted by federal law, C. Taxes on Corporation owned property are including periods when the property Payment of Taxes: The Corporation secured by a valid lien (in effect before was owned in fee by the FDIC as will pay its proper tax obligations when the property became owned by the receiver or by an institution they come due. Furthermore, the Corporation), the Corporation will pay subsequently placed in receivership. Corporation will pay claims for those claims. With respect to property The Tenth Circuit Court of Appeals has delinquencies as promptly as is not owned by the Corporation, but in affirmed the FDIC’s position, holding consistent with sound business practice which the Corporation has a lien that ‘‘we perceive nothing in the plain and the orderly administration of the interest, any ad valorem real property language of the statute temporally insured depository institution’s affairs. taxes (including interest) will be paid so limiting the right of the FDIC to seek The Corporation may decline to pay long as they are secured by a valid lien and obtain revaluation. The Congress property taxes, including delinquency with priority over the Corporation’s lien established that right without limitation, charges or other claims, in situations interest. Any taxes other than ad and it is improper to judicially ingrain where abandonment of its interest in the valorem real property taxes which are such a restriction on that right.’’ FDIC v. property is appropriate. secured by a valid lien in effect before Lowery, et al., 12 F.3d 995, 997 (10th Owned Real Property: Owned real the Corporation acquired an interest in Cir. 1993). property of the Corporation is subject to the property, and which have priority Although under the statute the FDIC state and local real property taxes, if under state law over any lien interest of is not obligated to pay any amounts those taxes are assessed according to the the Corporation, will be paid. However, based on a challenged assessment until property’s value. The Corporation is if abandonment of its interest in the the challenge is resolved, the Revised immune from real property taxes property is appropriate, the Corporation Policy permits the Corporation to tender assessed on other bases. may elect not to pay such claims. payment of taxes during the pendency Secured Interests in Real Property: Foreclosure: No property of the of a challenge based on the assessment Real property which is subject to a Corporation is subject to levy, level it deems appropriate, provided security or lien interest in favor of the attachment, garnishment, foreclosure, or 65058 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices sale without the Corporation’s consent. will not prejudice the challenge. The Additionally, for the present, the Furthermore, a lien for taxes and Corporation will generally limit Corporation has determined generally interest may attach to property in which challenges to the current and not to assert section 15 tax immunity on the Corporation has a lien or security immediately preceding taxable year and behalf of state-chartered corporations, interest, but the Corporation will not to the pursuit of previously filed tax the stock of which is wholly or partially permit a lien or security interest held by protests. However, the Corporation may, owned by the Corporation acting in any it to be eliminated by foreclosure in the exercise of its business judgment, of its capacities. without the Corporation’s consent. challenge any prior taxes and By Order of the Board of Directors. Dated Sale of Tax Liens: In cases in which assessments provided that (1) the at Washington, D.C., this 26th day of a tax lien has been sold to a private Corporation’s records (including November 1996. party under state law, if (1) the sale appraisals, offers or bids received for the Federal Deposit Insurance Corporation. takes place before the Corporation purchase of the property, etc.) indicate Jerry Langley, obtains a fee interest in the property, or that the assessed value is clearly if the Corporation has a lien interest in excessive, (2) a successful challenge will Executive Secretary. the property and the tax lien has result in a substantial savings to the [FR Doc. 96–31208 Filed 12–9–96; 8:45 am] priority over the Corporation’s lien, and Corporation, (3) the challenge will not BILLING CODE 6714±01±P (2) the Corporation desires to eliminate unduly delay the sale of the property, the tax lien purchaser’s interest, the and (4) there is a reasonable likelihood Corporation will pay the amount of a successful challenge. FEDERAL FINANCIAL INSTITUTIONS required by state law to satisfy such EXAMINATION COUNCIL interest (other than any fees or penalties G. Dispute and Notification Procedures specifically imposed to redeem such Disputes: The Corporation will Appraisal Subcommittee; Agency interest). If the tax lien does not have attempt to advise taxing authorities of Information Collection Activities: priority, the Corporation will take its statutory rights and resolve all tax Proposed Collection; Comment whatever action is necessary to ensure disputes as taxes become due. In order Request to dispose of property subject to that its own interest is satisfied first. If AGENCY: Appraisal Subcommittee, disputed tax claims, the Corporation the Corporation has a fee interest, the Federal Financial Institutions may, as business judgment dictates, sale must protect the Corporation’s Examination Council. interest. enter into agreements with taxing Liens for Undetermined Amounts: authorities, title companies, or ACTION: Notice and request for The Corporation generally will not pay prospective purchasers which provide comments. non ad valorem taxes, including special for the disputed amount to be held in SUMMARY: The Appraisal Subcommittee assessments, on property in which it has escrow. When the closing of a of the Federal Financial Institutions a fee interest unless the amount of tax transaction is threatened because of the Examination Council (‘‘ASC’’), as part of is fixed at the time that the Corporation disputed tax amounts, the Corporation its continuing effort to reduce acquires its fee interest in the property, may, as business judgment dictates, paperwork and respondent burden, nor will it recognize the validity of any elect to pay the disputed tax claims invites the general public and other lien to the extent it purports to secure under protest. In all such cases the Federal agencies to comment on this the payment of any such amounts. With Corporation shall reserve its legal rights continuing information collection, as respect to property in California now to a refund of such disputed amounts required by the Paperwork Reduction owned by the Corporation that was and may pursue, through litigation if Act of 1995 (Public Law 104–13 (44 owned by the RTC on December 31, necessary, a reimbursement of the U.S.C. 3506(c)(2)(A)). The ASC is 1995, or that became property of the disputed amounts and any attendant soliciting comments on 12 CFR part Corporation through foreclosure of a costs, expenses and interest. 1102, subpart D, entitled, ‘‘Description security interest held by the RTC on that Notification: The Corporation will of Office, Procedures, Public date, the Corporation will continue the attempt to notify state and local taxing Information,’’ regarding: (a) whether the RTC practice of paying special taxes authorities of the existence of an interest proposed collection of information is imposed pursuant to the Mello-Roos in property which the Corporation necessary for the proper performance of Community Facilities Act of 1982 if the believes to be within the authority’s the ASC’s functions, including whether taxes were imposed prior to the RTC’s jurisdiction. the information shall have practical acquisition of an interest in the H. Subsidiaries, Bridge Banks and utility; (b) the accuracy of the ASC’s property. Conservatorships burden estimates; (c) ways to enhance F. Challenges to Assessments For the present, the Corporation will the quality, utility and clarity of the The Corporation is only liable for not assert section 15 tax immunity for information collected; and (d) ways to state and local taxes which are based on bridge banks, special asset pools minimize the burden of collection on the value of the property during the covered by assistance transactions respondents, including the use of period for which the tax is imposed, where the Corporation does not retain automated collection techniques or notwithstanding the failure of any ownership, or conservatorships. other forms of information technology. person, including prior record owners, However, a bridge bank, DATES: Written comments and to challenge an assessment under the conservatorship of a newly-formed recommendation on this proposal must procedures available under state law. In institution, or an assisted acquirer is not be received on or before February 10, the exercise of its business judgment, liable for any obligations not 1997. the Corporation may challenge specifically assumed from a receiver (as ADDRESSES: Send comments to Marc L. assessments which do not conform with in a ‘‘pass-through receivership’’). In Weinberg, General Counsel, Appraisal the statutory provisions, and during the this situation, the acquiring institution Subcommittee, 2100 Pennsylvania challenge may pay tax claims based on may not be liable for any penalties that Avenue, N.W., Suite 200; Washington, the assessment level deemed continue to accrue after the D.C. 20037., or via Internet e-mail to appropriate, provided such payment establishment of the de novo institution. marcw1(@)asc.gov. All written Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65059 comments will become a matter of • Approval of 1997 FHLBank considered in acting on the notices are public record and will be summarized Presidents’ Appointments and Base set forth in paragraph 7 of the Act (12 in the ASC’s request for Office of Salaries. U.S.C. 1817(j)(7)). • Management and Budget (‘‘OMB’’) Approval of 1997 Office of Finance The notices are available for approval. Managing Director’s Appointment and immediate inspection at the Federal FOR FURTHER INFORMATION CONTACT: Base Salary. Reserve Bank indicated. Once the • Marc L. Weinberg, General Counsel, via Final Adption of Superisory notices have been accepted for mail to the Appraisal Subcommittee, Determination Appeal Procedures. processing, they will also be available 2100 Pennsylvania Avenue, N.W., Suite CONTACT PERSON FOR MORE INFORMATION: for inspection at the offices of the Board 200; Washington, D.C. 20037; Internet e- Elaine L. Baker, Secretary of the Board, of Governors. Interested persons may mail at marcw1(@)asc.gov; or telephone (202) 408–2837. express their views in writing to the at (202) 634–6520, from whom copies of Rita I. Fair, Reserve Bank indicated for that notice the information collection and Managing Director. or to the offices of the Board of supporting documents are available. [FR Doc. 96–31490 Filed 12–6–96; 3:06 pm] Governors. Comments must be received SUPPLEMENTARY INFORMATION: BILLING CODE 6725±01±M not later than December 24, 1996. Title: ‘‘Description of Office, A. Federal Reserve Bank of Kansas Procedures, Public Information,’’ 12 City (John E. Yorke, Senior Vice CFR part 1102, subpart D. FEDERAL MARITIME COMMISSION President) 925 Grand Avenue, Kansas OMB Control No.: 3139–0006. City, Missouri 64198: Type of Request: Extension of Notice of Agreement(s) Filed 1. Gene Bihlmaier Trust No.1, and currently approved collection. Steve Bihlmaier Co-Trustee, both of Form no.: None. The Commission hereby gives notice of the filing of the following Osborne, Kansas; to acquire a total of 25 Description of respondents: All percent of the voting shares of Osborne members of the public. agreement(s) under the Shipping Act of 1984. Investments, Inc., Osborne, Kansas, and Frequency of collection: On occasion. thereby indirectly acquire Farmers Needs and uses: The information Interested parties can review or obtain National Bank of Osborne, Osborne, collection will enable the ASC to copies of agreements at the Washington, Kansas. comply with the Freedom of DC offices of the Commission, 800 Information Act, as amended, (‘‘FOIA’’) North Capitol Street, N.W., Room 962. Board of Governors of the Federal Reserve 5 U.S.C. 552. It will be used by the ASC Interested parties may submit comments System, December 4, 1996. and its staff in determining whether on an agreement to the Secretary, Jennifer J. Johnson, requests for access to ASC records Federal Maritime Commission, Deputy Secretary of the Board. should be provided and whether Washington, DC 20573, within 10 days [FR Doc. 96–31308 Filed 12-9-96; 8:45 am] appeals from adverse agency decisions of the date this notice appears in the BILLING CODE 6210-01-F regarding access should be granted Federal Register. under FOIA. Agreement No.: 207–011552–002. Estimated number of respondents: 11. Title: Colombia Express Cooperative Formations of, Acquisitions by, and Frequency of response: Once. Working Agreement. Mergers of Bank Holding Companies Estimated total average burden per Parties: Associated Transport Line, respondent: 20 minutes. Inc. (‘‘ALT’’); Smith & Johnson Carriers, The companies listed in this notice Estimated total annual burden: 3.67 Inc. (‘‘S&J’’); Colombia Express (the have applied to the Board for approval, hours. ‘‘Joint Service’’). pursuant to the Bank Holding Company By the Appraisal Subcommittee of the Synopsis: The proposed modification Act of 1956 (12 U.S.C. 1841 et seq.) Federal Financial Institutions Examination would permit the parties to restructure (BHC Act), Regulation Y (12 CFR Part Council. their agreement as a joint service and 225), and all other applicable statutes Dated: December 4, 1996. rename it the Columbia Express Joint and regulations to become a bank Ben Henson, Service Agreement. holding company and/or to acquire the Executive Director. Dated: December 4, 1996. assets or the ownership of, control of, or the power to vote shares of a bank or [FR Doc. 96–31318 Filed 12–9–96; 8:45 am] By Order of the Federal Maritime BILLING CODE 6201±01±M Commission. bank holding company and all of the banks and nonbanking companies Joseph C. Polking, owned by the bank holding company, Secretary. including the companies listed below. FEDERAL HOUSING FINANCE BOARD [FR Doc. 96–31254 Filed 12–9–96; 8:45 am] The applications listed below, as well Sunshine Act Meeting; announcing an BILLING CODE 6730±01±M as other related filings required by the Open Meeting of the Board Board, are available for immediate inspection at the Federal Reserve Bank TIME AND DATE: 2:00 p.m., Wednesday, FEDERAL RESERVE SYSTEM indicated. Once the application has December 18, 1996. Change in Bank Control Notices; been accepted for processing, it will also PLACE: Board Room, Second Floor, be available for inspection at the offices Federal Housing Finance Board, 1777 F Acquisitions of Shares of Banks or Bank Holding Companies of the Board of Governors. Interested Street N.W., Washington, D.C. 20006. persons may express their views in STATUS: The entire meeting will be open The notificants listed below have writing on the standards enumerated in to the public. applied under the Change in Bank the BHC Act (12 U.S.C. 1842(c)). If the MATTERS TO BE CONSIDERED DURING Control Act (12 U.S.C. 1817(j)) and § proposal also involves the acquisition of PORTIONS OPEN TO THE PUBLIC: 225.41 of the Board’s Regulation Y (12 a nonbanking company, the review also • Final Rule—FHLBank System CFR 225.41) to acquire a bank or bank includes whether the acquisition of the Corporation. holding company. The factors that are nonbanking company complies with the 65060 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices standards in section 4 of the BHC Act, Notice of Proposals to Engage in 225.25(b)(1)(iii) of the Board’s including whether the acquisition of the Permissible Nonbanking Activities or Regulation Y. nonbanking company can ‘‘reasonably to Acquire Companies that are B. Federal Reserve Bank of Kansas be expected to produce benefits to the Engaged in Permissible Nonbanking City (John E. Yorke, Senior Vice public, such as greater convenience, Activities President) 925 Grand Avenue, Kansas increased competition, or gains in City, Missouri 64198: efficiency, that outweigh possible The companies listed in this notice adverse effects, such as undue have given notice under section 4 of the 1. Platte Valley Financial Service concentration of resources, decreased or Bank Holding Company Act (12 U.S.C. Companies, Inc., Scottsbluff, Nebraska; unfair competition, conflicts of 1843) (BHC Act) and Regulation to acquire Platte Valley Ag Credit Co.; interests, or unsound banking practices’’ Y, (12 CFR Part 225) to engage de novo, Platte Valley Lending Company; Platte (12 U.S.C. 1843). Any request for or to acquire or control voting securities Valley Investment Center, Inc.; and a hearing must be accompanied by a or assets of a company that engages Platte Valley National Mortgage statement of the reasons a written either directly or through a subsidiary or Company; all of Scottsbluff, Nebraska, presentation would not suffice in lieu of other company, in a nonbanking activity and thereby engage in making and a hearing, identifying specifically any that is listed in § 225.25 of Regulation servicing loans, pursuant to §§ questions of fact that are in dispute, Y (12 CFR 225.25) or that the Board has 225.25(b)(1) and (b)(4), and in securities summarizing the evidence that would determined by Order to be closely brokerage activities, pursuant to §§ be presented at a hearing, and indicating related to banking and permissible for 225.25(b)(4) and (b)(15), of the Board’s how the party commenting would be bank holding companies. Unless Regulation Y. aggrieved by approval of the proposal. otherwise noted, these activities will be Board of Governors of the Federal Reserve Unless otherwise noted, nonbanking conducted throughout the United States. System, December 4, 1996. activities will be conducted throughout Each notice is available for inspection Jennifer J. Johnson, the United States. at the Federal Reserve Bank indicated. Deputy Secretary of the Board. Unless otherwise noted, comments Once the notice has been accepted for [FR Doc. 96–31309 Filed 12-9-96; 8:45 am] regarding each of these applications processing, it will also be available for BILLING CODE 6210-01-F must be received at the Reserve Bank inspection at the offices of the Board of indicated or the offices of the Board of Governors. Interested persons may Governors not later than January 6, express their views in writing on the Sunshine Act Meeting 1997. question whether the proposal complies A. Federal Reserve Bank of Atlanta with the standards of section 4 of the AGENCY HOLDING THE MEETING: Board of (Zane R. Kelley, Vice President) 104 BHC Act, including whether Governors of the Federal Reserve Marietta Street, N.W., Atlanta, Georgia consummation of the proposal can System. 30303: ‘‘reasonably be expected to produce TIME AND DATE: 12:00 noon, Monday, 1. Pinnacle Bancshares, Inc., Jasper, benefits to the public, such as greater December 16, 1996. Alabama; to become a bank holding convenience, increased competition, or company by acquiring 100 percent of gains in efficiency, that outweigh PLACE: Marriner S. Eccles Federal the voting shares of Pinnacle Bank, possible adverse effects, such as undue Reserve Board Building, C Street Jasper, Alabama. concentration of resources, decreased or entrance between 20th and 21st Streets, B. Federal Reserve Bank of St. Louis unfair competition, conflicts of N.W., Washington, D.C. 20551. (Randall C. Sumner, Vice President) 411 interests, or unsound banking practices’’ STATUS: Closed. Locust Street, St. Louis, Missouri 63166: (12 U.S.C. 1843). Any request for a 1. First Security Bancorp, Searcy, hearing on this question must be MATTERS TO BE CONSIDERED: Arkansas; to acquire 100 percent of the accompanied by a statement of the 1. Proposed 1997 Federal Reserve Board voting shares of First Community Bank, reasons a written presentation would officer salary structure and merit program. National Association, Conway, not suffice in lieu of a hearing, 2. Proposals regarding a Federal Reserve Arkansas, a de novo bank, the successor identifying specifically any questions of Bank’s building requirements. by merger with First Community Bank, fact that are in dispute, summarizing the 3. Personnel actions (appointments, Conway, Arkansas. promotions, assignments, reassignments, and evidence that would be presented at a salary actions) involving individual Federal C. Federal Reserve Bank of Dallas hearing, and indicating how the party Reserve System employees. (Genie D. Short, Vice President) 2200 commenting would be aggrieved by 4. Any items carried forward from a North Pearl Street, Dallas, Texas 75201- approval of the proposal. previously announced meeting. 2272: Unless otherwise noted, comments 1. Keene Bancorp, Inc. 401(K) regarding the applications must be CONTACT PERSON FOR MORE INFORMATION: Employee Stock Ownership Plan & received at the Reserve Bank indicated Mr. Joseph R. Coyne, Assistant to the Trust, Keene, Texas; to acquire 30.87 or the offices of the Board of Governors Board; (202) 452–3204. You may call percent of the voting shares of Keene not later than December 24, 1996. (202) 452–3207, beginning at approximately 5 p.m. two business days Bancorp, Inc., Keene, Texas, and A. Federal Reserve Bank of before this meeting, for a recorded thereby indirectly acquire First State Richmond (Lloyd W. Bostian, Jr., Senior announcement of bank and bank Bank, Keene, Texas, and Itasca State Vice President) 701 East Byrd Street, holding company applications Bank, Itasca, Texas. Richmond, Virginia 23261: scheduled for the meeting. Board of Governors of the Federal Reserve 1. City Holding Company, Charleston, System, December 4, 1996. West Virginia; to acquire certain assets Dated: December 6, 1996. Jennifer J. Johnson, of and assume certain liabilities of Jennifer J. Johnson, Deputy Secretary of the Board. Prime Financial Corporation, Costa Deputy Secretary of the Board. [FR Doc. 96–31310 Filed 12-9-96; 8:45 am] Mesa, California, and thereby engage in [FR Doc. 96–31493 Filed 12–6–96; 3:37 pm] BILLING CODE 6210-01-F servicing mortgage loans, pursuant to § BILLING CODE 6210±01±P Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65061

FEDERAL TRADE COMMISSION Public comment is invited. Such provision and other standard comments or views will be considered compliance provisions. [File No. 932±3143] by the Commission and will be available The purpose of this analysis is to Progressive Mortgage Corporation; for inspection and copying at its facilitate public comment on the Sanford Cramer; Analysis to Aid Public principal office in accordance with proposed order, and is not intended to Comment Section 4.9(b)96)(ii) of the constitute an official interpretation of Commission’s Rules of Practice (16 CFR the agreement and proposed order, or to AGENCY: Federal Trade Commission. 4.9(b)(6)(ii)). modify in any way their terms. ACTION: Proposed consent agreement. Analysis of Proposed Consent Order to Donald S. Clark, Secretary. SUMMARY: In settlement of alleged Aid Public Comment [FR Doc. 96–31266 Filed 12–9–96; 8:45 am] violations of federal law prohibiting The Federal Trade Commission has unfair or deceptive acts or practices and accepted an agreement to a proposed BILLING CODE 6750±01±M unfair methods of competition, this consent order from Progressive consent agreement, accepted subject to Mortgage Corporation, a mortgage final Commission approval, would banker and its president Sanford DEPARTMENT OF HEALTH AND require, among other things, the Ohio- Cramer. HUMAN SERVICES based mortgage banker, and its The proposed consent order has been Program Support Center; Agency president, to provide full and accurate placed on the public record for sixty Information Collection Activities: disclosure of finance charges, annual (60) days for the reception of comments Submission for OMB Review; percentage rates, and other terms and by interested persons. Comments Comment Request conditions of financing, in compliance received during this period will become with the Truth in Lending Act (TILA). part of the public record. After sixty (60) The Department of Health and Human The agreement settles allegations that days, the Commission will again review Services, Program Support Center, Progressive Mortgage provided false and the agreement and will decide whether publishes a list of information misleading information about payment it should withdraw from the agreement collections it has submitted to the Office schedules and the cost of credit to or make final the agreement’s proposed of Management and Budget (OMB) for mortgage applicants, in violation of the order. clearance in compliance with the TILA. The Commission’s complaint charges Paperwork Reduction Act of 1995 (44 DATES: Comments must be received on that proposed respondents failed to U.S.C. Chapter 35) and 5 CFR 1320.5. or before February 10, 1997. include premiums for mortgage The following are those information insurance in calculating the finance ADDRESSES: Comments should be collections recently submitted to OMB. charge and the annual percentage rate directed to: FTC/Office of the Secretary, 1. HHS Payment Management System for mortgage loans. Respondents failed Room 159, 6th St. and Pa. Ave., N.W., Forms (PMS–270 and PMS–272)—0937– to accurately disclose to consumers the Washington, D.C. 20580. 0200—Extension. payment schedule and total of payments The PMS–270, Request for Advance FOR FURTHER INFORMATION CONTACT: scheduled to repay the obligation in its or Reimbursement is used to make John M. Mendenhall, Federal Trade Truth in Lending Act disclosures. advances or reimbursement payments to Commission, Cleveland Regional Office, The Complaint also alleges that grantees. It serves in place of the SF– 668 Euclid Avenue, Suite 520–A, Sanford Cramer President provided false 270. Cleveland, OH 44114. (216) 522–4210. and misleading written disclosures Respondents: State and local SUPPLEMENTARY INFORMATION: Pursuant relating to the Truth in Lending Act governments; profit and nonprofit to Section 6(f) of the Federal Trade about consumer credit transactions. businesses and organizations receiving Commission Act, 38 Stat. 721, 15 U.S.C. The proposed Consent order contains grants from HHS; Total Number of 46, and Section 2.34 of the provisions designed to remedy the Respondents: 25; Frequency of Commission’s Rules of Practice (16 CFR violations charged and to prevent the Response: monthly; Average Burden per 2.34), notice is hereby given that the proposed respondents from engaging in Response: 15 minutes; Estimated above-captioned consent agreement similar acts and practices in the future. Annual Burden: 75 hours. containing a consent order to cease and Part I of the order prohibits Progressive The PMS–272, Federal Cash desist, having been filed with and from engaging in the alleged practices in Transactions Report, is used to monitor accepted, subject to final approval, by the future. Part I also requires Federal cash advances to grantees and the Commission, has been placed on the Progressive to calculate and make all obtain Federal cash disbursement data. public record for a period of sixty (60) disclosures required by the Truth in It serves in place of the SF–272. days. The following Analysis to Aid Lending Act and cease from Respondents: State and local Public Comment describes the terms of misrepresenting any term or condition governments; profit and nonprofit the consent agreement, and the of financing for any consumer credit businesses and institutions receiving allegations in the accompanying transaction. grants from HHS; Total Number of complaint. An electronic copy of the Paragraph II of the Order addresses Respondents: 11,050; Frequency of full text of the consent agreement the specific practices at issue by Response: quarterly; Average Burden package can be obtained from the prohibiting Cramer from per Response: 4 hours; Estimated Commission Actions section of the FTC misrepresenting the annual percentage Annual Burden: 176,800 hours. Home Page (for November 25, 1996), on rate, the finance charge, the monthly Total Burden: 176,875 hours. the World Wide Web, at ‘‘http:// payment amount or the total of OMB Desk Officer: Allison Eydt. www.ftc.gov/os/actions/htm.’’ A paper payments in any written disclosure. He Copies of the information collection copy can be obtained from the FTC is also prohibited from misrepresenting packages listed above can be obtained Public Reference Room, Room H–130, any term or condition of financing for by calling the PSC Reports Clearance Sixth Street and Pennsylvania Avenue, any consumer credit transaction. Officer on (301) 443–2045. Written N.W., Washington, D.C. 20580, either in The remainder of the proposed order comments and recommendations for the person or by calling (202) 326–3627. consists of a six year recordkeeping proposed information collection should 65062 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices be sent directly to the OMB desk officer Section RA–20 Functions. A. training programs regarding equal designated above at the following Immediate Office the Administrator opportunity and civil rights; (7) address: Human Resources and Housing (RA). Leads and directs programs and promotes the awarding of contracts Branch, Office of Management and activities of the Agency and advises the under Section 8(a) of the Small Business Budget, New Executive Office Building, Office of the Secretary of Health and Act which pertains to minorities and Room 10235, 725 17th Street N.W., Human Services on policy matters women; (8) approves settlement Washington, D.C. 20503. concerning them. agreements and attorney fees; and (9) Comments may also be sent to B. AIDS Program Office (RAA). applies all applicable laws, guidelines, Douglas F. Mortl, PSC Reports Clearance Coordinates all AIDS-related activities rules and regulations in accordance Officer, Room 17A08, Parklawn within the Agency; (2) advises the with those of the DHHS Office of Equal Building, 5600 Fishers Lane, Rockville, Administrator on policy, clinical, and Employment Opportunity, and Civil MD 20857. Written comments should be educational issues pertaining to the Rights Staffs. received within 30 days of this notice. administration of HRSA’s AIDS D. Office of Policy and Information program; (3) keeps the Administrator Dated: December 14, 1996. Coordination (RA3). Advises the informed of any difficulties arising Administrator and other key Agency Lynnda M. Regan, within or outside HRSA that might Director, Program Support Center. officials on program priorities and adversely affect the Agency’s ability to policy issues; (2) establishes and [FR Doc. 96–31370 Filed 12–9–96; 8:45 am] carry out its AIDS responsibilities; (4) maintains review and tracking BILLING CODE 4160±17±M coordinates the formulation of an mechanisms and systems that provide overall strategy and policy for the HRSA agencywide coordination and clearance AIDS programs; (5) working with the of policies, regulations and guidelines; Health Resources and Services Office of Planning, Evaluation and Administration; Statement of (3) contributes to the analysis, Legislation, coordinates the preparation development and implementation of Organization, Functions and of HRSA’s AIDS-related programmatic, Delegations of Authority agencywide programs and policies budgetary and legislative proposals; (6) through coordination of information This notice amends Part R of the monitors and analyzes AIDS-related from relevant Agency program Statement of Organization Functions policy and legislative developments for components and other related sources; their impact on HRSA’s AIDS activities; and Delegations of Authority of the (4) plans, organizes and directs the (7) reviews AIDS-related program Department of Health and Human Agency’s Executive Secretariat with activities to determine their consistency Services (DHHS), Health Resources and primary responsibility for preparation with established policies; (8) Services Administration (60 FR 56605 and management of written policy and coordinates HRSA’s comments on AIDS- as amended November 6, 1995; as last other routine communications to and related reports, position papers, amended at 61 FR 24939–40). This from the Administrator; (5) coordinates legislative proposals including requests notice reflects the reorganization of the the preparation of proposed rules and from other agencies; (9) represents the Office of the Administrator and the regulations relating to Agency programs Agency and the Department at AIDS- establishment of two independent and coordinates Agency review and related meetings, conferences, task comment on other DHHS regulations components in the Health Resources forces etc; (10) plans and carries out that may affect the Agency’s programs; and services Administration (HRSA). special AIDS-related assignments for the The changes are as follows: Administrator. and (6) oversees and coordinates the I. Delete the Office of the C. Office of Equal Opportunity and Agency’s committee management Administrator in its entirety and replace Civil Rights (RA2). Directs, coordinates, system. with the following: develops, and administers the Agency’s E. Office of Planning, Evaluation and Section RA–00 Mission. The mission equal opportunity, civil rights, and Legislation (RA5). Serves as the of the Immediate Office of the ethics programs. Specifically: (1) Administrator’s primary staff element Administrator is to improve the health provides advice, counsel and and principal source of advice on of the Nation by assuring quality health recommendations to Agency personnel, program planning, program evaluation care to underserved, vulnerable and including the field offices, on equal and legislative affairs; (2) develops the special-need populations and by opportunity, and civil rights, and Agency’s long-range program plan; (3) promoting appropriate health represents HRSA in all EEO areas; (2) develops the Agency’s strategic plan professions work force capacity and administers affirmative action programs encompassing its long-range goals, practice, particularly in primary care to ensure equality of opportunity in objectives and priorities; (40) directs all and public health. employment; (3) manages the civil Agency efforts to analyze cost/benefit of Section RA–10 Organization. The service complaints system and prepares Agency’s programs; (5) develops and Office of the Administrator (OA) is final Agency decisions; (4) manages the implements comprehensive Agency headed by the Administrator, who complaints system for Commissioned evaluation programs; (6) conducts reports directly to the Secretary. The OA Corps personnel under provisions of policy analyses and develops policy includes the following components: Public Health Service Personnel positions in Agency programmatic (A) Office of the Administrator (R) Instruction 6 and issues proposed areas; (7) directs Agency’s legislative (B) Aids Program Office (RAA) dispositions; (5) develops and directs affairs to develop legislative proposals (C) Office of Equal Opportunity and implementation of the requirements of and an agencywide legislative program; Civil Rights (RA2) Section 504 of the Rehabilitation Act of (8) develops and coordinates the (D) Office of Policy and Information 1973, Title VI of the Civil Rights Act of Agency’s health services research plan; Coordination (RA3) 1964, the Age Discrimination Act of (9) directs performance measurement (E) Office of Planning, Evaluation and 1975 and the Americans With activities, including technical assistance Legislation (RA5) Disabilities Act, as they apply to and standards development and (F) Office of Communications (RA6) recipients of HRSA funds; (6) provides assessment; and (10) coordinates the (G) Office of Public Health Affairs (RA8) technical assistance and guidance to the program data activities across the (H) Office of Minority Health (RA9) Agency on developing education and Agency, including the design and Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65063 management of program tracking and officials to assure an appropriate share activities and programs in the Agency, surveillance. of funds is devoted to minority health Department and with other federal F. Office of Communications (RA6). programs; (4) consults with public and agencies; (5) supports rural health Provides communications expertise, private sector agencies and center research and keeps informed of advice and support to the Administrator organizations to assure minority health research and demonstration projects and other Agency officials; (2) provides issues are addressed; (5) participates in funded by States and foundations in the leadership and directs Agency strategic focusing Agency activities and field of rural health care delivery’ (6) communications policies and programs; objectives to assure equity in access to establishes and maintains a resource (3) serves as focal point for coordination resources and health careers for center for the collection and of Agency communications with other minorities and the disadvantaged; (6) dissemination of the latest information DHHS agencies and with field, State, establishes and manages an agencywide and research findings related to the local, voluntary and professional data collection system for minority delivery of health services in rural areas; organizations; (4) develops and health activities and initiatives, (7) coordinates congressional and implements national communications including White House, DHHS, private sector inquiries related to rural initiatives to inform and educate the Historically Black Colleges and health; (8) advises the Agency, public, health care professionals, Universities, and Educational Administrator and Department on the policymakers and the media; (5) Excellence for Hispanic Americans effects of current policies and proposed researches, writes and prepares initiatives; (7) reviews inter/intra- statutory, regulatory, administrative, speeches and audiovisual presentations Agency agreements related to racial/ and budgetary changes in the programs for the Administrator; (6) develops and ethnic minority and disadvantaged established under titles XVIII and XIX of implements policies, guidelines, and populations; (8) participates in the the Social Security Act on the financial procedures and coordinates Agency formulation of HRSA’s goals, policies, viability of small rural hospitals, the external and internal communications legislative proposals, priorities, and ability of rural areas to attract and retain including those for the development, strategies as they affect medical, public physicians and other health review, processing, quality control, and health and other professional professionals; (9) oversees compliance dissemination of Agency organizations and institutions of higher by HCPA with the requirement that communications products, including education involved in or concerned rural hospital impact analyses are those disseminated electronically; (7) with the delivery of health services to developed whenever proposed serves as Agency Communications and minorities and disadvantaged regulations might have a significant Public Affairs Officer establishing and populations; and (9) links HRSA impact on a substantial number of small maintaining productive relationships minority and disadvantaged program rural hospitals; (10) oversees with the media; (8) implements the efforts to potential partners at the compliance by HCFA with the Freedom of Information Act for the Federal, State, and local levels and requirement that 10 percent of its Agency; and (9) conducts and provides agencywide expertise on the research and demonstration budget is coordinates the Agency’s exhibits and development of culturally appropriate used for rural projects; (11) supports graphics design activities to promote the programs and materials. specialized rural programs on minority agencywide identity. II. Establish the Office of Rural Health health, mental health, and agricultural G. Office of Public Health Affairs Policy (RH) as follows: health and safety; (12) plans and (RA8). Serves as the Agency’s principal manages a nationwide rural health Section RH–00 Mission advisor and coordinator for clinical, grants program; and (13) plans and Section RH–10 Organization public health, women’s, international manages a program of grants to States to Section RH–20 Function and other health affairs. Specifically: (1) initiate and expand offices of rural provides consultation and assistance to Section RH–00 Mission. The Office health. senior Agency officials and others on of Rural Health Policy serves as a focal III. Establish the Office of clinical and health professional issues; point within the Department and as a management and Program Support (RS), (2) serves as the Agency’s focal point on principal source of advice to the as follows: efforts to strengthen the practice of Administrator and Secretary for Section RS–00 Mission public health as it pertains to the HRSA coordinating efforts to strengthen and Section RS–10 Organization mission; (3) coordinates the Agency’s improve the delivery of health services Section RS–20 Function international health activities; (4) to populations in the nation’s rural Section RS–00 Mission. The Office advises on policies and promotes areas. of Management and Program Support internal and external program activities Section RH–10 Organization. The provides the highest quality that address women’s health; and (5) Office of Rural Health Policy. management, financial, personnel and establishes and maintains Section RH–20 Function. Placed administrative leadership and service in communications with health before Director, Maternal and Children support of the Health Resources and organizations in the public and private Health Bureau (RM), as follows: (1) Services Administration. sectors to support the mission of HRSA. Collects and analyzes information Section RS–10 Organization. The H. Office of Minority Health (RA9). regarding the special problems of rural Office of Management and Program Serves as the principal Agency advisor health care providers and populations; Support (RS) consists of the following: and coordinator for the special needs of (2) works with States, State hospital A. Office of Management and Program minority and disadvantaged populations associations, private associations, Support (RS) including advice on committee foundations, and other organizations to B. Division of Management Services membership; (2) establishes short and focus attention on, and promote (RS1) long-term objectives for health activities solutions to, problems related to the C. Division of Financial Management addressing minority and disadvantaged delivery of health services in rural (RS2) populations; (3) participates in communities; (3) provides staff support D. Office of Human Resources and organization and planning activities to to the National Advisory Committee on Development (RS3) meet national minority health needs and Rural Health; (4) stimulates and E. Division of Grants and Procurement collaborates with Agency budget coordinates interaction on rural health Management (RS4) 65064 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

F. Office of Field Coordination (RS5) the management of the Parklawn other assistance mechanisms; (2) G. Office of Information Resources Building complex; and (9) advises on exercises the sole responsibility within Management (RS6) and coordinates agencywide policies HRSA for the award and management of A. Office of Management and Program and procedures required to implement contracts; (3) provides advice and Support (RS). Provides agencywide General Services Administration and consultation of interpretation and leadership, program direction and departmental regulations governing application of the Department of Health coordination to all phases of materiel management, including and Human Services policies and management; (2) provides management transportation, motor vehicle, and procedures governing contracts and expertise and staff advice and support to utilization and disposal of property. grants management; (4) develops and the Administrator in program and C. Division of Financial Management issues policy and procedural materials policy formulation and execution; (3) (RS2). Provides advice and assistance to for the Agency’s contracts and grants plans, directs, and coordinates the the Administrator and the Associate programs; (5) establishes standards and Agency’s activities in the areas of Administrator for Management and guides for and evaluates contracts and administrative management, financial Program Support on financial policy grants management operations management, human resources planning and analysis; (2) maintains throughout the Agency; (6) coordinates management, debt management, liaison with the Office of the Secretary the Agency’s positions and actions with information resources management, on all activities relating to the Agency’s respect to the audit of grants and grants and contracts management, financial, fiscal and audit contracts, and also coordinates procurement, real and personal property responsibilities; (3) develops the long- responses to General Accounting Office accountability and management, and range program and financial plan for the audit reports and monitors the administrative services; (4) oversees the Agency collaboration with the Office of implementation of General Accounting development of annual operating Planning, Evaluation and Legislation Office recommendations; (7) provides objectives and coordinates HRSA work and other administrative components; professional accounting advice relative planning and appraisals; (5) serves as (4) develops policies and instructions to the management of grants and the Agency’s focal point for field for budget preparation and presentation; contracts; and (8) maintains liaison programs and activities except those (5) prepares budget submissions and directly or through the Office of Field field functions of the Division of Federal participates in budget hearings; (6) Coordination with grantee and Occupational Health; (6) coordinates allocates resources, including dollars contractor institutions and organizations DHHS tort claims panel and associated and positions; (7) manages a system of and other components of the activities; (7) administers the Agency’s budgetary fund and full-time equivalent Department. internal controls and integrity activities; personnel controls; and (8) maintains and administers the Agency’s Ethics Agency oversight of fiscal and auditing F. Office of Field Coordination (RS5). program. services provided to HRSA by the Serves as the Agency’s focal point for B. Division of Management Services Program Support Center. Field programs and activities. (RS1). Provides agencywide leadership D. Office of Human Resources and Specifically: (1) oversees and manages and direction in the areas of Development (RS3). Plans, conducts and HRSA activities in the field; (2) advises management policies and procedures, evaluates the Agency’s human resource the Administrator on appropriate and property management and serves as studies, programs, policies and reports; resource allocation for field activities; the Executive Officer for the Office of (2) provides advice and assistance to (3) at the direction of the Administrator, Management and Program Support and management officials on individual assists in the implementation and the Office of the Administrator. actions arising from headquarters and evaluation of HRSA programs in the Specifically: (1) provides advice and field components; (3) administers the field through coordination of activities, guidance for the establishment or Agency’s training functions; (4) acts as and assessing the effectiveness of modification of organizational the focal point for the Agency’s labor programs to identify opportunities for structures, functions, and delegations of relations activities; (5) develops and improving policies and service delivery authority: (2) conducts and coordinates provides guidelines and regulation for systems; (4) develops and implements the Agency’s issuances, records, reports, the Agency’s personnel programs; (6) activities in the field designed to forms, and mail management programs; administers the Agency’s merit and improve customer service and (3) manages the intra- and interagency performance awards programs; (7) relationships; (5) at the direction of the agreements process; (4) conducts plans, directs and administers the Administrator, develops and agencywide management improvement appointing and processing of civil coordinates the field implementation of programs; (5) conducts management and service employees; (8) plans and special program initiatives which information studies and surveys; (6) conducts position management surveys; involve multiple HRSA field oversees and coordinates the (9) operates and oversees the Agency’s components and/or multiple HRSA implementation of legislation, directives merit promotion program; (10) manages programs; (6) serves as field liaison to and policies relating to the Privacy Act; and coordinates the Agency’s personnel the Administrator, Bureau Directors, (7) plans, directs, and coordinates security program; (11) ensures that State and local health officials as well administrative management activities management practices and policies as private and professional and services including personnel, related to the Commissioned Corps are organizations; (7) acts as liaison to financial, materiel management, and coordinated throughout the Agency; (12) provide administrative and financial general administrative services for the ensures compliance with established support services to HRSA field Office of the Administrator and the personnel rules and regulations components; (8) provides technical Office of Management and Program governing HRSA; (13) and administers assistance to the Agency’s Field Support; (8) acts for the Associate the Agency’s Ethics program. Council; and (9) exercises line Administrator for Management and E. Division of Grants and Procurement management authority as delegated from Program Support concerning space, Management (RS4). Provides leadership the Administrator to the Field parking and communications in the planning, development, and Coordinators related to general management for headquarters and implementation of policies and administrative and management represent him/her in matters relating to procedures for grants, contracts, and functions. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65065

G. Office of Information Resources Agency for Health Care Policy and 1. A list sample of employers selected Management (RS6). Provides leadership Research from sample frames available from the in the development, review and Bureau of the Census; and implementation of policies and Agency Information Collection 2. A group of employers and other procedures to promote improved Activities: Proposed Collection; health insurance providers identified by information resources management Comment Request respondents in the 1996 MEPS- capabilities and practices throughout Household Component (HC). The AGENCY: HRSA; (2) develops and coordinates Agency for Health Care Policy MEPS–HC is a household survey which HRSA-wide plans and budgets for the and Research, HHS. collects information concerning health management of information technology ACTION: Notice. care expenditures and related data for and services, including centralized data individuals. This household survey processing, office automation, and SUMMARY: This notice announces the collects information similar to the 1987 telecommunications; (3) develops and Agency for Health Care Policy and National Medical Expenditure Survey. recommends policies and procedures Research’s (AHCPR) intention to request Data collected from each employer relating to information resources the Office of Management and Budget will include a description of the management and support services; (4) (OMB) to allow a proposed information business (e.g., size, industry) and identifies and coordinates HRSA-wide collection project. In accordance with descriptions of health insurance plans information needs and develops or the Paperwork Reduction Act of 1995, available, plan enrollments, total plan coordinates with others the Public Law 104–13 (44 U.S.C. costs, and costs to employees. development of creative answers to 3506(c)(2)(A)), AHCPR invites the For employers that can be matched to these needs; (5) plans, manages, public to comment on this proposed the MEPS–HC respondents, data will administers and coordinates the HRSA- information collection. also be collected indicating the actual wide microcomputer network including DATES: Comments on this notice must be plan selected by the respondent and the all required linkages to other networks received by January 9, 1997. plan costs. inside and outside HRSA including ADDRESSES: Written comments on the Data will be produced in two forms: mainframe systems; (6) provides proposed information collection should (1) files containing employer information support to the Office of the be submitted within 30 working days of information from the list sample of Administrator; (7) designs, develops, this notice directly to the OMB Desk selected employers; and (2) files catalogues and manages data bases, Officer at the following address: Allison containing linked 1996 MEPS–HC information resources, including those Eydt, Human Resources and Housing respondent and employer information. data bases developed within the HRSA Branch, Office of Information and The data are intended to be used for Bureaus, and the acquisition and use of Regulatory Affairs, (OMB); New purposes, such as: external bases and information Executive Office Building, Room 10235; • Generating national and State resources that support HRSA needs; (8) Washington, D.C. 20503. estimates of employer health care manages and coordinates state-of-the-art FOR FURTHER INFORMATION CONTACT: offerings; expertise for information science and • Ruth A. Celtnieks, AHCPR Reports Producing aggregate data on technology; (9) provides consultation, national and State estimates of spending technical advice and assistance and Clearance Officer, (303) 594–1406, ext. 1497. on employer-sponsored health coordinates training in the use of ADP insurance for analyzing results of resources; (10) develops and coordinates SUPPLEMENTARY INFORMATION: national and State health care policy the implementation of information Proposed Project data to model the demand for health security programs; (11) maintains insurance; and liaison and coordinates information The 1997 Medical Expenditure Panel • When pooled with data from the resources management with the HRSA Survey—Insurance Component (MEPS– 1996 MEPS–HC survey, providing a Bureaus; (12) maintains liaison with IC). In early 1997, AHCPR intends to valuable source of information HHS, PHS, other Federal agencies, conduct a survey of establishments to concerning household responses States and professional organizations collect information from employees regarding choices of health plans and and associations concerning health concerning employer-sponsored health costs and benefits of these plans. information interests allied to the HRSA insurance. This survey is an integration These data provide the basis for mission; and (13) reviews all HRSA of two previous surveys, now researchers to address significant requests for DP resources, providing components of MEPS–IC. The two questions for employers and ADP clearance for all appropriately surveys, which collected similar policymakers alike. justified requests. information, were: Method of Collection Section R–30 Delegations of 1. The 1987 Health Insurance Plans Authority. All delegations and Survey (HIPS) sponsored by AHCPR’s The data will collected using a redelegations of authority which were in predecessor, the National Center for combination of modes. AHCPR intends effect immediately prior to the effective Health Services Research; and to first contact the employers by date hereof have been continued in 2. The 1994 National Employer Health telephone. This contact will provide effect in them or their successors Insurance Survey (NEHIS) sponsored by information on the availability of health pending further redelegation. AHCPR, the National Center for Health insurance from that employer and This reorganization is effective upon Statistics (NCHS) and the Health Care essential persons to contact. Based upon date of signature. Financing Administration (HCFA). this information, AHCPR will send a The MEPS–IC survey will be mail questionnaire to employers and Dated: November 14, 1996. conducted using a sample of employers others identified by employers. In order Ciro V. Sumaya, (including both public and private to assure high response rates, AHCPR Administrator. sectors) and health insurance providers. will followup with a second mailing at [FR Doc. 96–31371 Filed 12–9–96; 8:45 am] The sample will be comprised of two an acceptable time interval, followed by BILLING CODE 4160±15±M parts: a telephone call to collect data from 65066 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices those who have not responded to the Centers for Disease Control and interventions for CF, (4) ethics and health mailings. Prevention policy of newborn screening for CF, (5) update on international newborn screening As part of this process, for large Announcement of Workshop programs, followed by break-out group respondents reflecting high burdens, discussions and final conclusions. such as State employers and large firms, The National Center for Agenda items are subject to change as AHCPR will, if needed, perform Environmental Health (NCEH) of the priorities dictate. personal visits and do customized Centers for Disease Control and For Further Information Contact: Dwight collection, such as, acceptance of data Prevention (CDC), the National Jones, Division of Birth Defects and Institutes of Health (NIH), the Cystic Developmental Disabilities, NCEH, CDC, in computerized formats. 4770 Buford Highway, NE, Atlanta, Georgia, Fibrosis Foundation, and the University Data 30341, telephone 770/488–7160, FAX 770/ of Washington announce the following 488–7197. Registration is not required. A workshop. Type of review: Regular Submission. limited number of hotel rooms are reserved Name: Newborn Screening for Cystic for the ‘‘Cystic Fibrosis Workshop’’ until Affected Public: Employers. Fibrosis: A Paradigm for Public Health December 20, 1996, at the Emory Inn, 1634 Estimated Annual Number of Genetics Policy Development. Clifton Road, Atlanta, Georgia 30333, Respondents: 38,500. Times and Dates: 8 a.m.–5:30 p.m., January telephone 404/712–6700. 13, 1997. 8 a.m.–4 p.m., January 14, 1997. Dated: December 4, 1996. Estimated Time Per Respondent: .83. Place: CDC, Auditorium B, 1600 Clifton Nancy C. Hirsch, Road, NE, Atlanta, Georgia 30333. Estimated Total Annual Burden Acting Director, Management Analysis and Hours: 32,000. Status: Open to the public, limited only by the space available. Services Office, Centers for Disease Control Estimated Annual Total Costs to Purpose: The Workshop will enable and Prevention (CDC). Government: $5,700,000. academic and public health professionals to [FR Doc. 96–31325 Filed 12–9–96; 8:45 am] discuss and clarify issues and to provide BILLING CODE 4163±18±M Request for Comments individual input to develop guidance on population-based newborn screening for Comments are invited on: (a) the cystic fibrosis. This workshop will bring Administration for Children and necessity of the proposed collection; (b) together leaders from the fields of cystic Families the accuracy of the Agency’s estimate of fibrosis research, clinical practice, public burden (including hours and cost) of the health, and newborn screening for an Submission for OMB Review; updated discussion of the benefits and risks proposed collection of information; (c) of newborn screening for cystic fibrosis. Comment Request ways to enhance the quality, utility and Nationally, a wide range of newborn clarity of the information to be screening tests are now widely accepted and Title: The Office of Child Support collected; and (d) ways to minimize the used. Since the immunotrypsinogen test for Enforcement OCSE–156, Child Support burden of the collection of information cystic fibrosis has been available, experts Enforcement Program Quarterly Report have been discussing adding this test to the and OCSE–158, Child Support upon the respondents, including the use newborn screening panel. Previous of automated collection techniques or Enforcement Program Annual Data symposiums, held in 1983 and 1991, Summary Report. other forms of information technology. concluded that routine newborn screening OMB No.: 0970–0057. Comments submitted in response to for cystic fibrosis should not be more widely implemented until newborn diagnosis has Description: The authority to collect this notice will be summarized and/or been demonstrated to lead to significant and report the information requested on included in the request for OMB clinical benefits. Recently, the discovery of these forms is found in sections approval of this information collection the Cystic Fibrosis Transmitbrain Conductive 452(a)(4), 452(a)(5), 452(a)(10), 469 of and they will become a matter of public Regulator (CFTR) gene renewed interest in the Social Security Act. These data are record. this possibility, as the sensitivity and specificity of testing could be improved. highly aggregated and used in a Copies of these proposed collection Since cystic fibrosis is a genetic disease of management function to establish the plans and instruments can be obtained public health importance, public awareness effectiveness and efficiency of State from the AHCPR Reports Clearance of cystic fibrosis is generating increased child support programs. The Federal Officer (see above). interest in health policies related to newborn Office of Child Support Enforcement screening. will use the data to carry out its Dated: December 2, 1996. Matters to be discussed: The Workshop oversight role and submit the Annual Clifton R. Gaus, will include sessions on the following: (1) Report to Congress. Administrator. decision making in newborn screening for Cystic Fibrosis (CF), (2) laboratory Respondents: State governments, [FR Doc. 96–31255 Filed 12–9–96; 8:45 am] considerations in newborn screening for CF, District of Columbia, Guam, Virgin BILLING CODE 4160±90±M (3) progress in newborn screening and Islands and Puerto Rico.

ANNUAL BURDEN ESTIMATES

Number Aver- Num- of re- age ber of sponses burden Total Instrument re- per re- hours burden spond- spond- per re- hours ents ent sponse

OCSE±156 ...... 54 4 3.7 799.2 OCSE±158 ...... 54 1 1.2 64.8 Estimated Total Annual Burden Hours: 864.0 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65067

Additional Information: Dockets Management Branch (HFA– the safety of the substance under its Copies of the proposed collection may 305), Food and Drug Administration, intended conditions of use must be be obtained by writing to The 12420 Parklawn Dr., rm. 1–23, established, and a food additive Administration for Children and Rockville, MD 20857. All comments regulation issued, before the substance Families, Office of Information Services, should be identified with the docket can be used in food. In accordance with Division of Information Resource number found in brackets in the section 409 of the act, manufacturers of Management Services, 370 L’Enfant heading of this document. all components of a food-contact article Promenade, S.W., Washington, D.C. FOR FURTHER INFORMATION CONTACT: (e.g., food packaging or food processing 20447, Attn: ACF Reports Clearance Margaret R. Wolff, Office of Information equipment) whose use meets the food Officer. Resources Management (HFA–250), additive definition in 201(s) of the act Food and Drug Administration, 5600 (21 U.S.C. 321(s)) must submit a petition OMB Comment: Fishers Lane, rm. 16B–19, Rockville, establishing the safe conditions of use OMB is required to make a decision MD 20857, 301–827–1223. before such food-contact articles may be marketed, unless they are the subject of concerning the collection of information SUPPLEMENTARY INFORMATION: Under the an exemption for investigational use between 30 and 60 days after Paperwork Reduction Act of 1995 (44 under section 409(i) of the act. publication of this document in the U.S.C. 3501–3520), Federal agencies Federal Register. Therefore, a comment Section 170.39 establishes a process must obtain approval from the Office of that provides a manufacturer with an is best assured of having its full effect Management and Budget (OMB) for each if OMB receives it within 30 days of opportunity to demonstrate that the collection of information they conduct likelihood or extent of migration to food publication. Written comments and or sponsor. ‘‘Collection of information’’ recommendations for the proposed of a substance used in a food-contact is defined in 44 U.S.C. 3502(3) and 5 article is so trivial that the use need not information collection should be sent CFR 1320.3(c) and includes agency directly to the following: Office of be the subject of a food additive listing requests or requirements that members regulation (Federal Register of July 17, Management and Budget, Paperwork of the public submit reports, keep Reduction Project, 725 17th Street, 1995 (60 FR 36582)). The agency has records, or provide information to a established two thresholds for the N.W., Washington, D.C. 20503, Attn: third party. Section 3506(c)(2)(A) of the Ms. Wendy Taylor. regulation of substances used in food- Paperwork Reduction Act of 1995 (44 contact articles. The first exempts those Dated: October 21, 1996 U.S.C. 3506(c)(2)(A)) requires Federal substances used in food-contact articles Doug Godesky, agencies to provide a 60-day notice in where the resulting dietary Reports Clearance Officer. the Federal Register concerning each concentration is at or below 0.5 part per [FR Doc. 96–31258 Filed 12–9–96; 8:45 am] proposed collection of information, billion. The second exempts regulated BILLING CODE 4184±01±M including each proposed extension of an direct food additives for use in food- existing collection of information, contact articles where the resulting before submitting the collection to OMB dietary exposure is 1 percent or less of Food and Drug Administration for approval. To comply with this the acceptable daily intake for these [Docket No. 96N±0433] requirement, FDA is publishing notice substances. of the proposed collection of In order to determine whether the Agency Information Collection information listed below. intended use of a substance in a food- Activities: Proposed Collection; With respect to the following contact article meets the threshold Comment Request; Extension collection of information, FDA invites criteria, certain information specified in comments on: (1) Whether the proposed § 170.39(c) must be submitted to FDA. AGENCY: Food and Drug Administration, collection of information is necessary This information includes: (1) The HHS. for the proper performance of FDA’s chemical composition of the substance ACTION: Notice. functions, including whether the for which the request is made; (2) information will have practical utility; detailed information on the conditions SUMMARY: The Food and Drug (2) the accuracy of FDA’s estimate of the of use of the substance; (3) a clear Administration (FDA) is announcing an burden of the proposed collection of statement of the basis for the request for opportunity for public comment on the information, including the validity of exemption from regulation as a food proposed collection of certain the methodology and assumptions used; additive; (4) data that will enable FDA information by the agency. Under the (3) ways to enhance the quality, utility, to estimate the daily dietary Paperwork Reduction Act of 1995, and clarity of the information to be concentration resulting from the Federal agencies are required to publish collected; and (4) ways to minimize the proposed use of the substance; (5) notice in the Federal Register burden of the collection of information results of a literature search for concerning each proposed collection of on respondents, including through the toxicological data on the substance and information, including each proposed use of automated collection techniques, its impurities; and (6) information on extension of an existing collection of when appropriate, and other forms of the environmental impact that would information, and to allow 60 days for information technology. result from the proposed use. public comment in response to the FDA uses this information to Threshold of Regulation for Substances notice. This notice solicits comments on determine whether the food-contact Used in Food-Contact Articles— requests for exemption from the food article meets the threshold criteria. § 170.39—(OMB Control Number 0910– additive listing requirements that are Respondents to this information 0298)—Extension submitted under § 170.39 (21 CFR collection are individual manufacturers 170.39). Under section 409(a) of the act (21 and suppliers of substances used in DATES: Submit written comments on the U.S.C. 348(a)), the use of a food additive food-contact articles (i.e., food collection of information by February is deemed unsafe unless it either packaging and food processing 10, 1996. conforms to the terms of a regulation equipment) or of the articles themselves. ADDRESSES: Submit written comments prescribing its use or to an exemption FDA estimates the burden of this on the collection of information to the for investigational use. Consequently, collection of information as follows: 65068 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

ESTIMATED ANNUAL REPORTING BURDEN

Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response

170.39 60 1 60 88 5,280 There are no capital costs or operating and maintenance costs associated with this collection of information.

This annual reporting estimate is number found in brackets in the when appropriate, and other forms of based on information received from heading of this document. information technology. representatives of the food packaging FOR FURTHER INFORMATION CONTACT: Application for Exemption From and processing industries and on agency Judith V. Bigelow, Office of Information records. Typically, FDA receives 60 Federal Preemption of State and Local Resources Management (HFA–250), Medical Device Requirements—21 CFR threshold of regulation exemption Food and Drug Administration, 5600 requests per year; these requests are Part 808 (OMB Control No. 0910– Fishers Lane, rm. 16B–19, Rockville, 0129—Reinstatement) equally divided between simple and MD 20857, 301–827–1479. complex type submissions. These requests require between 26 to 110 SUPPLEMENTARY INFORMATION: Under the Section 521(a) of the Federal Food, hours to prepare. Paperwork Reduction Act of 1995 (44 Drug, and Cosmetic Act (the act) (21 U.S.C. 3501–3520), Federal agencies U.S.C. 360k(a)) provides that no State or Dated: December 3, 1996. must obtain approval from the Office of local government may establish, or William K. Hubbard, Management and Budget (OMB) for each continue in effect, any requirement with Associate Commissioner for Policy collection of information they conduct respect to a medical device that is Coordination. or sponsor. ‘‘Collection of information’’ different from, or in addition to, any [FR Doc. 96–31320 Filed 12–9–96; 8:45 am] is defined in 44 U.S.C. 3502(3) and 5 Federal requirement applicable to the BILLING CODE 4160±01±F CFR 1320.3(c) and includes agency device under the act. Under section requests or requirements that members 521(b) of the act, following receipt of a of the public submit reports, keep written application from the State or [Docket No. 96N±0445] records, or provide information to a local government involved, FDA may third party. FDA submitted a copy of exempt from preemption a requirement Agency Information Collection this notice to OMB for its review of this that is more stringent than the Federal Activities: Proposed Collection; information collection and requested requirement, or that is necessitated by Reinstatement emergency processing. OMB approved compelling local conditions and the information collection through compliance with the requirement would AGENCY: Food and Drug Administration, March 31, 1997, and assigned OMB HHS. not cause the device to be in violation Control No. 0910–0129. Section of any portion of any requirement under ACTION: Notice. 3506(c)(2)(A) of the Paperwork the act. Exemptions are granted by Reduction Act of 1995 (44 U.S.C. SUMMARY: The Food and Drug regulation issued after notice and 3506(c)(2)(A)) requires Federal agencies opportunity for an oral hearing. Administration (FDA) is announcing an to provide a 60-day notice in the opportunity for public comment on the Federal Register concerning each The regulations in 21 CFR 808.20 proposed collection of certain proposed collection of information, require a State or local government that information by the agency. Under the including each proposed reinstatement is seeking an exemption from Paperwork Reduction Act of 1995, of an existing collection of information, preemption to submit an application to Federal agencies are required to publish before submitting the collection to OMB FDA. The application must include a notice in the Federal Register for approval. To comply with this copy of the State or local requirement, concerning each proposed collection of requirement, FDA is publishing notice as well as information about its information, including each proposed of the proposed collection of interpretation and application, and a reinstatement of an existing collection information listed below. statement as to why the applicant of information, and to allow 60 days for With respect to the following believes that the requirement qualifies public comment in response to the collection of information, FDA invites for exemption from preemption under notice. This notice solicits comments on comments on: (1) Whether the proposed the act. FDA will use the information in FDA’s requirements for State and local collection of information is necessary the application to determine whether governments’ applications for for the proper performance of FDA’s the requirement meets the criteria for exemption from preemption for medical functions, including whether the exemption in the act and whether device requirements. information will have practical utility; granting an exemption would be in the DATES: Submit written comments on the (2) the accuracy of FDA’s estimate of the interest of the public health. collection of information by February burden of the proposed collection of In addition, 21 CFR 808.25 provides 10, 1997. information, including the validity of that an interested person may request a ADDRESSES: Submit written comments the methodology and assumptions used; hearing on an application by submitting on the collection of information to the (3) ways to enhance the quality, utility, a letter to FDA following the publication Dockets Management Branch (HFA– and clarity of the information to be 305), Food and Drug Administration, collected; and (4) ways to minimize the by FDA of a proposed response to the 12420 Parklawn Dr., rm. 1–23, burden of the collection of information application. Rockville, MD 20857. All comments on respondents, including through the FDA estimates the burden of this should be identified with the docket use of automated collection techniques, collection of information as follows: Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65069

ESTIMATED ANNUAL REPORTING BURDEN

Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response

808.20 3 1 3 100 300 808.25 3 1 3 10 30 Total Burden Hours 6 2 6 110 330 There are no capital costs or operating and maintenance costs associated with this collection of information.

FDA based its estimates of the number ADDRESSES: Submit written comments There are two case reports in the of submissions expected in the future on the collection of information to the literature in which adverse events are contained in the above table on the Office of Information and Regulatory attributed to the use of adhesive-backed, number of submissions submitted in the Affairs, OMB, New Executive Office colored tape to mark surgical last 3 years and on the number of Bldg., 725 17th St. NW., rm. 10235, instruments (Journal of Oral inquiries received indicating that Washington, DC, Attn: Desk Officer for Maxillofacial Surgery, 41:687–688, applications would be submitted in the FDA. 1983; and British Journal of Surgery, next year. FDA based its estimates of the FOR FURTHER INFORMATION CONTACT: Judy 74:696, 1987). Two additional adverse time required to prepare submissions on V. Bigelow, Office of Information event reports have been submitted to discussions with those who have Resources Management (HFA–250), FDA. prepared submissions in the last 3 years. Food and Drug Administration, 5600 The purpose of the survey is to Persons are not required to respond to Fishers Lane, rm. 16B–19, Rockville, estimate the proportion of the a collection of information unless it MD 20857, 301–827–1479. population at risk from this practice, displays a valid control number. and to determine if use of operating SUPPLEMENTARY INFORMATION: In room nurse managers as proxies for Dated: November 29, 1996. compliance with section 3507 of the William K. Hubbard, sampling health care facilities for this Paperwork Reduction Act of 1995 (44 purpose is effective. In addition, data Associate Commissioner for Policy U.S.C. 3507), FDA has submitted the Coordination. will be collected to identify tape following proposed collection of durability, extent of use, and whether [FR Doc. 96–31321 Filed 12–9–96; 8:45 am] information to OMB for review and there are any practices or procedures for BILLING CODE 4160±01±F clearance. marking surgical instruments and/or Surgical Instrument Marking Tape any human factors that could be altered Survey to better protect the public health. [Docket No. 96N±0266] Labeling information will also be The mandate of FDA’s Center for collected. Agency Information Collection Devices and Radiological Health under The proposed randomized survey will Activities; Submission for OMB the authority of sections 201–905 of the be a one-time data collection effort. Review; Comment Request; Federal Food, Drug, and Cosmetic Act Completion of the survey is voluntary, Reinstatement (the act) (21 U.S.C. 321–395), and and anonymity of individuals and regulations contained in Title 21 of the institutions will be protected. Survey AGENCY: Food and Drug Administration, Code of Federal Regulations includes results will be available to participants HHS. the approval and adequate labeling of upon request. ACTION: Notice. medical devices. Section 903(b)(2)(c) of The only respondent burden will the act (21 U.S.C. 393(b)(2)(c)) derive from the time needed to respond SUMMARY: The Food and Drug authorizes FDA to conduct research to survey questions. This will occur on Administration (FDA) is announcing relating to medical devices. a one-time basis. The length of the that the proposed collection of The regulatory status of adhesive- screening portion (questions 1–7) is information listed below has been backed, colored tape on medical devices estimated at 5 minutes, and the full submitted to the Office of Management is under review by FDA. The tape is survey length is estimated at an and Budget (OMB) for review and frequently applied to medical devices, additional 25 minutes. Burden estimates clearance under the Paperwork particularly surgical instruments, to are based on the need to have 308 Reduction Act of 1995. facilitate sorting. It may be considered surveys returned to achieve a DATES: Submit written comments on the an accessory to medical devices used in statistically significant sampling. collection of information by January 9, surgical treatment as defined by 21 CFR FDA estimates the burden of this 1997. 878.4800. collection of information as follows:

ESTIMATED ANNUAL REPORTING BURDEN

Annual Burden Element No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response

Screening Questions Only (30%) 92 1 92 0.083 7.63 Complete Survey (70%) 216 1 216 0.50 108 Total 308 115.63 There are no capital costs or operating and maintenance costs associated with this survey. 65070 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Dated: December 3, 1996. Advisory Committee, an FDA advisory (21 CFR 5.10) and redelegated to the William K. Hubbard, panel, for review and recommendation Director, Center for Devices and Associate Commissioner for Policy because the information in the PMA Radiological Health (21 CFR 5.53). Coordination. substantially duplicates information Dated: October 24, 1996. previously reviewed by this panel. [FR Doc. 96–31360 Filed 12–9–96; 8:45 am] Joseph A. Levitt, BILLING CODE 4160±01±F On September 20, 1996, CDRH approved the application by a letter to Deputy Director for Regulations Policy, Center the applicant from the Director of the for Devices and Radiological Health. [Docket No. 96M±0473] Office of Device Evaluation, CDRH. [FR Doc. 96–31359 Filed 12–9–96; 8:45 am] A summary of the safety and BILLING CODE 4160±01±F Medirex, Inc.; Premarket Approval of effectiveness data on which CDRH the Tripter-X1 Series Extracorporeal based its approval is on file in the Shock Wave Lithotripters (Tripter-X1, Dockets Management Branch (address National Institutes of Health Tripter-X1 Nova, and Tripter-X1 above) and is available from that office National Cancer Institute; Notice of Compact) upon written request. Requests should Meeting President's Cancer Panel AGENCY: Food and Drug Administration, be identified with the name of the HHS. device and the docket number found in Pursuant to Pub. L. 92–463, notice is brackets in the heading of this ACTION: Notice. hereby given of the meeting of the document. President’s Cancer Panel. SUMMARY: The Food and Drug Opportunity for Administrative Review This meeting will be closed in Administration (FDA) is announcing its accordance with the provisions set forth approval of the application by Medirex, Section 515(d)(3) of the act authorizes any interested person to petition, under in sec. 552b(c)(9)(B), Title 5, U.S.C. for Inc., Wellesley Hills, MA, for premarket discussion and preparation of the approval, under the Federal Food, Drug, section 515(g) of the act, for administrative review of CDRH’s Annual Report of the Chairman to the and Cosmetic Act (the act), of the President for 1996. These discussions Tripter-X1 Series Extracorporeal Shock decision to approve this application. A petitioner may request either a formal could disclose information, the Wave Lithotripters (Tripter-X1, Tripter- premature disclosure of which would be X1 Nova, and Tripter-X1 Compact). hearing under 21 CFR part 12 of FDA’s administrative practices and procedures likely to significantly frustrate FDA’s Center for Devices and implementation of proposed action the Radiological Health (CDRH) notified the regulations or a review of the application and CDRH’s action by an Panel may plan to take. applicant, by letter of September 20, Carole Frank, Committee Management 1996, of the approval of the application. independent advisory committee of experts. A petition is to be in the form Specialist, National Cancer Institute, DATES: Petitions for administrative of a petition for reconsideration under Executive Plaza North, Room 630, 9000 review by January 9, 1997. 21 CFR 10.33(b). A petitioner shall Rockville Pike, National Institutes of ADDRESSES: Written requests for copies identify the form of review requested Health, Bethesda, Maryland 20892 (301– of the summary of safety and (hearing or independent advisory 496–5708) will provide a roster of the effectiveness data and petitions for committee) and shall submit with the committee members upon request. administrative review to the Dockets petition supporting data and Dr. Maureen O. Wilson, Executive Management Branch (HFA–305), Food information showing that there is a Secretary, President’s Cancer Panel, and Drug Administration, 12420 genuine and substantial issue of National Cancer Institute, Building 31, Parklawn Dr., rm. 1–23, Rockville, MD material fact for resolution through Room 4A48, National Institutes of 20857. administrative review. After reviewing Health, Bethesda, Maryland 20892 (301– FOR FURTHER INFORMATION CONTACT: the petition, FDA will decide whether to 496–1148) will provide a roster of the Russell P. Pagano, Center for Devices grant or deny the petition and will Panel members and substantive program and Radiological Health (HFZ–472), publish a notice of its decision in the information upon request. Food and Drug Administration, 9200 Federal Register. If FDA grants the Name of Committee: President’s Cancer Corporate Blvd., Rockville, MD 20850, petition, the notice will state the issue Panel. 301–594–2194. to be reviewed, the form of the review Date: December 16, 1996. SUPPLEMENTARY INFORMATION: On to be used, the persons who may Place: LaGuardia Marriott, 102–05 Ditmars September 29, 1993, Medirex, Inc., participate in the review, the time and Blvd., E. Elmhurst, New York 11369. Wellesley Hills, MA 02181, submitted to place where the review will occur, and Closed: 9:30 am to 4 pm. CDRH an application for premarket other details. Agenda: Discussion of preparation of the mandatory Annual Report of the Chairman to approval of the Tripter-X1 Series Petitioners may, at any time on or the President. Extracorporeal Shock Wave before January 9, 1997, file with the Contact Person: Maureen O. Wilson, Ph.D., Lithotripters (Tripter-X1, Tripter-X1 Dockets Management Branch (address Executive Secretary, National Cancer Nova, and Tripter-X1 Compact). These above) two copies of each petition and Institute, NIH, Building 31, Room 4A48, 9000 devices are indicated for use in the supporting data and information, Rockville Pike, Bethesda, MD 20892; (301) fragmentation of urinary tract stones identified with the name of the device 496–1148. (i.e., renal calyceal, renal pelvic, and and the docket number found in This notice is being published less than 15 upper ureteral stones). brackets in the heading of this days prior to the meeting due to the urgent In accordance with the provisions of document. Received petitions may be need to proceed with the meeting as section 515(c)(2) of the act (21 U.S.C. scheduled to address this issue in a timely seen in the office above between 9 a.m. manner. 360e(c)(2)) as amended by the Safe and 4 p.m., Monday through Friday. Medical Devices Act of 1990 (Pub. L. This notice is issued under the Dated: December 5, 1996. 101–629), this premarket approval Federal Food, Drug, and Cosmetic Act Paula N. Hayes, application (PMA) was not referred to (secs. 515(d), 520(h) (21 U.S.C. 360e(d), Acting Committee Management Officer, NIH. the Gastroenterology and Urology 360j(h))) and under authority delegated [FR Doc. 96–31369 Filed 12–9–96; 8:45 am] Devices Panel of the Medical Devices to the Commissioner of Food and Drugs BILLING CODE 4140±01±M Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65071

National Institute of Child Health and discussions could reveal confidential trade Public Health Service Human Development; Notice of Closed secrets or commercial property such as Meeting patentable material and personal information National Institutes of Health; Statement concerning individuals associated with the of Organization, Functions, and Pursuant to Section 10(d) of the applications and/or proposals, the disclosure Delegations of Authority Federal Advisory Committee Act, as of which would constitute a clearly amended (5 U.S.C. Appendix 2), notice unwarranted invasion of personal privacy. Part N, National Institutes of Health, is hereby given of the following This notice is being published less than of the Statement of Organization, National Institute of Child Health and fifteen days prior to the meeting due to the Functions, and Delegations of authority Human Development Special Emphasis urgent need to meet timing limitations for the Department of Health and Panel (SEP) meeting: imposed by the review and funding cycle. Human Services (40 FR 22859, May 27, Purpose/Agenda: To review individual (Catalog of Federal Domestic Assistance 1975, as amended most recently at 61 grant applications. Program Numbers 93.242, 93.281, 93.282) FR 47952, September 11, 1996, and redesignated from Part HN as Part N at Name of SEP: Adolescent Medicine HIV/ Dated: December 5, 1996. AIDS Research Network FRA 60 FR 56605, November 9, 1995), is (Teleconference). Paula N. Hayes, amended as set forth below to reflect the Date: January 9, 1997. Acting Committee Management Officer, NIH. reorganization of the National Cancer Time: 9:00 a.m. (EST)—12:00 noon. [FR Doc. 96–31367 Filed 12–9–96; 8:45 am] Institute as follows: In the Office of the Place: 6100 Executive Boulevard, 6100 Director, the name of the Office of Building, Room 5E01, Rockville, Maryland BILLING CODE 4140±01±M 20852. Program Operations and Planning is Contact Person: Hameed Khan, Ph.D., changed to the Office of Science Policy. Scientific Review Administrator, NICHD, Division of Research Grants; Notice of Section N–B, Organization and 6100 Executive Boulevard, 6100 Building, Closed Meeting Functions, under the heading National Room 5E01, Rockville, Maryland 20852. Cancer Institute (NC, formerly HNC), Telephone: 301–496–1485. Pursuant to Section 10(d) of the Office of the Director (NCI, formerly The meeting will be closed in accordance Federal Advisory Committee Act, as HNC1), is amended by deleting the with the provisions set forth in secs. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. The amended (5 U.S.C. Appendix 2), notice name Office of Program Operations and discussions of these applications could is hereby given of the following Division Planning (NC16, formerly HNC16) and reveal confidential trade secrets or of Research Grants Special Emphasis substituting the following new name: commercial property such as patentable Panel (SEP) meeting: Office of Science Policy (NC16, formerly material and personal information Purpose/Agenda: To review individual HNC16). concerning individuals associated with the Dated: December 2, 1996. applications, the disclosure of which would grant applications. constitute a clearly unwarranted invasion of Name of SEP: Biological and Physiological Harold Varmus, personal privacy. Sciences. Director, National Institutes of Health. (Catalog of Federal Domestic Assistance Date: December 20, 1996. [FR Doc. 96–31365 Filed 12–9–96; 8:45 am] Time: 1:00 p.m. Program Nos. 93.864, Population Research BILLING CODE 4140±01±M and No. 93.865, Research for Mothers and Place: NIH, Rockledge 2, Room 5112, Children, National Institutes of Health.) Telephone Conference. Dated: December 5, 1996. Contact Person: Dr. Harish Chopra, Paula N. Hayes, Scientific Review Administrator, 6701 DEPARTMENT OF HOUSING AND Acting Committee Management Officer, NIH. Rockledge Drive, Room 5112, Bethesda, URBAN DEVELOPMENT Maryland 20892, (301) 435–1169. [FR Doc. 96–31366 Filed 12–9–96; 8:45 am] This notice is being published less than 15 [Docket No. FR±4123±N±02] BILLING CODE 4140±01±M days prior to the above meeting due to the urgent need to meet timing limitations Notice of Submission of Proposed Information Collection to OMB National Institute of Mental Health; imposed by the grant review and funding Notice of Closed Meeting cycle. AGENCY: Office of Administration, HUD. The meeting will be closed in accordance ACTION: Notice. Pursuant to Section 10(d) of the with the provisions set forth in secs. Federal Advisory Committee Act, as 552b(c)(4) and 552(c)(6), Title 5, U.S.C. SUMMARY: The proposed information amended (5 U.S.C. Appendix 2), notice Applications and/or proposals and the collection requirement described below is hereby given of the following meeting discussions could reveal confidential trade has been submitted to the Office of of the National Institute of Mental secrets or commercial property such as Management and Budget (OMB) for Health Special Emphasis Panel: patentable material and personal information emergency review and approval, as concerning individuals associated with the Agenda/Purpose: To review and evaluate required by the Paperwork Reduction grant applications. applications and/or proposals, the disclosure Act. The Department is soliciting public Committee Name: National Institute of of which would constitute a clearly comments on the subject proposal. Mental Health Special Emphasis Panel. unwarranted invasion of personal privacy. DATES: Date: December 19, 1996. The due date for comments is: (Catalog of Federal Domestic Assistance December 17, 1996. Time: 3:30 p.m. Program Nos. 93.306, 93.333, 93.337, 93.393– Place: Parklawn, Room 9C–18, 5600 93.396, 93.837–93.844, 93.846–93.878, ADDRESSES: Interested persons are Fishers Lane, Rockville, MD 20857. 93.892, 93.893, National Institutes of Health, invited to submit comments regarding Contact Person: Phyllis L. Zusman, HHS) this proposal. Comments must be Parklawn, Room 9C–18, 5600 Fishers Lane, Dated: December 4, 1996. received within seven (7) days from the Rockville, MD 20857, Telephone: 301, 443– date of this Notice. Comments should 4868. Paula N. Hayes, The meeting will be closed in accordance refer to the proposal by name and Acting Committee Management Officer, NIH. with the provisions set forth in secs. should be sent to: Joseph F. Lackey, Jr., 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. [FR Doc. 96–31368 Filed 12–9–96; 8:45 am] HUD Desk Officer, Office of Applications and/or proposals and the BILLING CODE 4140±01±M management and Budget, New 65072 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Executive Office Building, Washington, 2. Evidence that the HA has provided sent to: Joseph F. Lackey, Jr., OMB Desk D.C. 20503. for citizen and public housing Officer, Office of Management and FOR FURTHER INFORMATION CONTACT: residents participation Budget, room 10235, New Executive Kay F. Weaver, Reports Management 3. Assurances of an established Office Building, Washington, DC 20503. Officer, Department of Housing and reasonable rent policy FOR FURTHER INFORMATION CONTACT: Kay Urban Development, 451 Seventh Street, 4. Compliance with the Housing Quality F. Weaver, Reports Management Officer, SW., Washington, D.C. 20410 telephone Standards (HQS) (24 CFR 982.401) Department of Housing and Urban (202) 708–0050. This is not toll-free for housing assisted under MTW Development, 451 7th Street, number. Copies of available documents 5. Compliance with reporting Southwest, Washington, DC 20410, submitted to OMB may be obtained requirements telephone (202) 708–0050. This is not a from Ms. Weaver. (3) Description of the need for the toll-free number. Copies of the proposed SUPPLEMENTARY INFORMATION: This information and its proposed use: forms and other available documents Notice informs the public that the To determine that HAs meet the submitted to OMB may be obtained Department of Housing and Urban selection criteria required by the Notice, from Ms. Weaver. Development (HUD) has submitted to preliminary MTW plan, current PHMAP SUPPLEMENTARY INFORMATION: The OMB, for emergency processing, an score, assurances, compliance with Department has submitted the proposal information collection package with HQSs and reporting requirements. for the collection of information, as respect to the proposed ‘‘Public (4) Description of the likely described below, to OMB for review, as Housing/Section 8 Moving to Work respondents, and proposed frequency of required by the Paperwork Reduction Demonstration’’. the response to the collection of Act (44 U.S.C. Chapter 35). Section 204 of the Omnibus information: Respondents will be HAs. The Notice lists the following Consolidated Rescissions and The estimated number of respondents information: (1) The title of the Appropriations Act of 1996 (Pub. L. 1– is 50. The proposed frequency of the information collection proposal; (2) the 4–134, approved April 26, 1996) response to the collection of information office of the agency to collect the authorized a new demonstration is one-time. information; (3) the OMB approval program known as the public Housing/ (5) Estimate of the total reporting and number, if applicable; (4) the Section 8 Moving to Work recordkeeping burden that will result description of the need for the Demonstration (MTW). HUD is from the collection of information: information and its proposed use; (5) authorized to select up to 30 Housing Reporting Burden: the agency form number, if applicable; Number of respondents: 50 Agencies (HAs) that administer the (6) what members of the public will be Total burden hours: 4400 public and Indian housing and Section affected by the proposal; (7) how (@ 15 Hours per response) 8 programs to participate in MTW. Total Estimated Burden House: 4400 frequently information submissions will Eligibility for MTW is limited to: (1) be required; (8) an estimate of the total high-performing HAs; and (2) HAs that Authority: Section 3507 of the Paperwork number of hours needed to prepare the are selected for MTW through the Jobs- Reduction Act of 1995, 44 U.S.C. Chapter 35, information submission including as amended. Plus initiative. HUD will select HAs for number of respondents, frequency of MTW through a merit-based process Dated: December 3, 1996. response, and hours of response; (9) using specified selection criteria. A David S. Cristy, whether the proposal is new, an Federal Register Notice will invite HAs Director, IRM Policy and Management extension, reinstatement, or revision of apply for MTW. Submission of an MTW Division. an information collection requirement; plan, including comments from the [FR Doc. 96–31337 Filed 12–9–96; 8:45 am] and (10) the names and telephone public hearing, other public comments, BILLING CODE 4210±01±M numbers of an agency official familiar and comments from current and with the proposal and of the OMB Desk prospective residents, and compliance [Docket No. FR±4056±N±06] Officer for the Department. with other submission and eligibility Authority: Section 3507 of the Paperwork requirements are also required. HUD Submission for OMB Review: Reduction Act of 1995, 44 U.S.C. 35, as reserves the right to implement a second Comment Request amended. stage in the selection process, giving Dated: November 22, 1996. AGENCY: Office of Administration, HUD. HAs an opportunity to further develop David S. Cristy, and revise their MTW plans.) ACTION: Notice. Acting Director, Information Resources, The Department has submitted the SUMMARY: The proposed information Management Policy and Management proposal for the collection of Division. information to OMB for review, as collection requirement described below required by the Paperwork Reduction has been submitted to the Office of Notice of Submission of Proposed Act (44 U.S.C. Chapter 35). The Management and Budget (OMB) for Information Collection to OMB review, as required by the Paperwork Department has requested emergency Title of Proposal: Community Reduction Act. The Department is clearance of the collection of Outreach Partnership Centers Program soliciting public comments on the information, as described below, with (COPC). approval being sought by December 10, subject proposal. Office: Policy Development and 1996: DATES: Comments due date: January 9, Research. (1) Title of the Information collection 1997. OMB Approval Number: 2528–0180. proposal: Public Housing/Section 8 ADDRESSES: Interested persons are Description of the Need for the Moving to Work Demonstration: invited to submit comments regarding Information and its Proposed Use: The (2) Summary of the collection of this proposal. Comments must be Community Outreach Partnership information: Each respondent would be receive within thirty (3) days from the Centers Program is a demonstration required to submit the following date of this Notice. Comments should program designed to provide applied information: refer to the proposal by name and/or research and Outreach activities to 1. MTW Plan OMB approval number and should be communities and neighborhoods to help Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65073 resolve locally identified urban spending their funds in accordance with Respondents: Not-For-Profit problems. HUD selects and awards statutory requirements and program Institutions. grants after a competitive selection goals. Frequency of Submission: Annually, process. The information collection will Form Number: None. Semi-annually, and Recordkeeping. be used to ensure that grantees are Reporting Burden:

Number of re- × Frequency of × Hours per Burden spondents response response = hours

Applications ...... 120 1 80 9,600 Semi-Annual Report ...... 25 2 16 800 Final Report ...... 25 1 16 400 Recorddkeeping ...... 25 1 16 400

Total Estimated Burden Hours: FOR FURTHER INFORMATION CONTACT: Kay with the proposal and of the OMB Desk 11,200. F. Weaver, Reports Management Officer, Officer for the Department. Status: Extension, with changes. Department of Housing and Urban Authority: Section 3507 of the Paperwork Contact: Jane Karadbil, HUD, (202) Development, 451 7th Street, Reduction Act of 1995, 44 U.S.C. 35, as 708–1537; Joseph F. Lackey, Jr., OMB, Southwest, Washington, DC 20410, amended. (202) 395–7316. telephone (202) 708–0050. This is not a Dated: December 3, 1996. [FR Doc. 96–31338 Filed 12–9–96; 8:45 am] toll-free number. Copies of the proposed David S. Cristy, forms and other available documents BILLING CODE 4210±01±M Acting Director, Information Resources, submitted to OMB may be obtained Management Policy and Management from Ms. Weaver. Division. [Docket No. FR±4174±N±02] SUPPLEMENTARY INFORMATION: The Notice of Submission of Proposed Department has submitted the proposal Information Collection to OMB Submission for OMB Review: for the collection of information, as Comment Request Title of Proposal: HUD-Administered described below, to OMB for review, as Small Cities Program Application for AGENCY: Office of Administration, HUD. required by the Paperwork Reduction CDBG Funds and Performance Act (44 U.S.C. Chapter 35). ACTION: Notice. Assessment Report (FR–4174). The Notice lists the following Office: Community Planning and SUMMARY: The proposed information information: (1) the title of the Development. collection requirement described below information collection proposal; (2) the OMB Approval Number: 2506–0020. has been submitted to the Office of office of the agency to collect the Description of the Need for the Management and Budget (OMB) for information; (3) the OMB approval Information and its Proposed use: The review, as required by the Paperwork number, if applicable; (4) the information obtained through the Reduction Act. The Department is description of the need for the submission of form HUD–4124 will be soliciting public comments on the information and its proposed use; (5) used by HUD to rate and rank proposed subject proposal. the agency form number, if applicable; projects for funding under the Small DATES: Comments due date: January 9, (6) what members of the public will be Cities CDBG Program. Form HUD–4052 1997. affected by the proposal; (7) how is the Performance Assessment Report ADDRESSES: Interested persons are frequently information submissions will (PAR) which successful applicants (i.e., invited to submit comments regarding be required; (8) an estimate of the total grantees) are required to submit on an this proposal. Comments must be number of hours needed to prepare the annual basis to report on program received within thirty (30) days from the information submission including progress. date of this Notice. Comments should number of respondents, frequency of Form Number: HUD–4124 and HUD– refer to the proposal by name and/or response, and hours of response; (9) 4052. OMB approval number and should be whether the proposal is new, an Respondents: State, Local, or Tribal sent to: Joseph F. Lackey, Jr., OMB Desk extension, reinstatement, or revision of Government and the Federal Officer, Office of Management and an information collection requirement; Government. Budget, Room 10235, New Executive and (10) the names and telephone Frequency of Submission: Annually. Office Building, Washington, DC 20503. numbers of an agency official familiar Reporting Burden:

Number of × Frequency of × Hours per Burden respondents response response = hours

Form HUD±4124 ...... 300 1 40 12,000 Form HUD±4052 ...... 585 1 8 4,680 65074 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Total Estimated Burden Hours: Resource Area, 355 Hemsted Dr., ‘‘The lands shall remain subject to 16,680. Redding, CA 96002. administration by the Secretary of Status: Reinstatement, with changes. Charles M. Schultz, Agriculture under applicable laws and regulations. The lands listed under the Contact: Robert Duncan, HUD, (202) Area Manager. × [FR Doc. 96–31262 Filed 12–9–96; 8:45 am] subheading ‘‘Kuiu Island,’’ located 708–2690 4681; Cornelia Robertson- solely within the Tongass National BILLING CODE 4310±40±M Terry, HUD, (202) 708–1322; Joseph F. Forest, are returned to unrestricted Lackey, Jr., OMB, (202) 395–7316. national forest status, and are open to [FR Doc. 96–31339 Filed 12–9–96; 8:45 am] [AK±931±1430±01; AA±66900] such forms of disposition as may by law BILLING CODE 4210±01±M be made of National Forest System Public Land Order No. 6439; lands, including mining and mineral Revocation of Public Land Order No. leasing. The remaining lands, which are 5549; Alaska; Correction also part of the Admiralty Island DEPARTMENT OF THE INTERIOR AGENCY: Bureau of Land Management, National Monument and the Admiralty Interior. Island National Monument Wilderness Bureau of Land Management ACTION: Correction. pursuant to Sections 503(b) and 703(a) of the Alaska National Interest Lands [CA±360±1920±00±4503] SUMMARY: This order will correct the Conservation Act, 94 Stat. 2399 and Summary and Paragraph 2 of Public 2418, remain closed to operation of the Emergency Closure of Public Lands; Land Order No. 6439, 48 FR 33713– public land laws, including mining and California 33714, FR Doc. 83–19996. mineral leasing.’’ EFFECTIVE DATE: December 10, 1996. Dated: November 26, 1996. AGENCY: Bureau of Land Management, FOR FURTHER INFORMATION CONTACT: United States Department of Interior. Robert C. Fisk, Shirley J. Macke, BLM Alaska State Acting Resources Group Administrator, ACTION: Emergency closure of certain Office, 222 W. 7th Avenue, #13, Division of Lands, Minerals, and Resources. public lands to motorized vehicle use in Anchorage, Alaska 99513–7599, 907– [FR Doc. 96–31261 Filed 12–9–96; 8:45 am] Trinity County, California. 271–5477. BILLING CODE 4310±JA±P On page 33713, second column, the SUMMARY: In accordance with title 43, ‘‘SUMMARY’’ paragraph in Public Land Code of Federal Regulations, §§ 8364.1 Order No. 6439, which reads ‘‘This DEPARTMENT OF JUSTICE and 8341.2, notice is hereby given that order totally revokes a withdrawal of all the below listed lands and roads 46,080 acres of national forest lands. Of Attorney General; Certification of the therein, administered by the Bureau of this acreage, 3,190 acres was conveyed Attorney General, Galveston County, Land Management, have been closed to to Shee Atika, Inc. The remaining Texas all motorized vehicle use; except for 42,890 acres remain closed to operation emergency vehicles, fire suppression of the general land laws, including In accordance with Section 6 of the and rescue vehicles, BLM operation and mining and mineral leasing.’’ is hereby Voting Rights Act of 1965, as amended, maintenance vehicles, law enforcement corrected to read: ‘‘This order totally 42 U.S.C. 1973d, I hereby certify that in vehicles and other motorized vehicles revokes a withdrawal of 46,080 acres of my judgment the appointment of specifically approved by an authorized national forest lands. Of this acreage, examiners is necessary to enforce the officer of the Bureau of Land 3,190 acres were conveyed to Shee guarantees of the Fourteenth and Management Atika, Inc. Approximately 19,810 acres Fifteenth Amendments of the of the lands are returned to national Constitution of the United States in This closure affects all of the public forest status, subject to such forms of Galveston County, Texas. This county is lands and roads located within the disposition as may by law be made of included within the scope of the following lands of Trinity County, National Forest System lands. The determinations of the Attorney General California. remaining 23,080 acres of national forest and the Director of the Census made on T.33N., R9W., M.D.M., lands are also within the boundary of September 18, 1975, under Section 4(b) SE/4 Sec. 23, SW/4 Sec. 24, NE/4 Sec. 26. the Admiralty Island National of the Voting Rights Act of 1965 and A total of approximately 340 acres. Monument and the Admiralty Island published in the Federal Register on National Monument Wilderness, as September 23, 1975 (40 FR 43746). DATES: This emergency closure action established and designated by the Dated: December 5, 1996. goes into effect February 1, 1997 and Alaska National Interest Lands will remain in effect until the Janet Reno, Conservation Act.’’ Attorney General of the United States. Authorized Officer determines it is no On page 33714, first column, [FR Doc. 96–31404 Filed 12–9–96; 8:45 am] longer needed. Paragraph 2, which reads ‘‘The lands BILLING CODE 4410±01±M SUPPLEMENTARY INFORMATION: The shall remain subject to administration authority for this closure and rule by the Secretary of Agriculture under making is 43 CFR 8341.2 and 43 CFR applicable laws and regulations as part Attorney General; Certification of the 8364.2. Any person whol fails to comply of the Tongass National Forest and the Attorney General, Jefferson County, with a closure order or rulemaking is Admiralty Island National Monument as Texas subject to arrest and fines of up to established in Sec. 503(b) of the Alaska $1,000 and/or imprisonment not to National Interest Lands Conservation In accordance with Section 6 of the exceed 12 months. Act of December 2, 1980 (94 Stat. 2399). Voting Rights Act of 1965, as amended, Accordingly, the lands remain closed to 42 U.S.C. 1973d, I hereby certify that in FOR FURTHER INFORMATION CONTACT: operation of the general public land my judgment the appointment of Charles M. Schultz, Area Manager, laws, including mining and mineral examiners is necessary to enforce the Bureau of Land Management, Redding leasing.’’ is hereby corrected to read: guarantees of the Fourteenth and Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65075

Fifteenth Amendments of the confirmed that Respondent’s license to nom Kirk v. Mullen, 749 F.2d 297 (6th Constitution of the United States in practice medicine in Arizona had not Cir. 1984; see also NLRB v. International Jefferson County, Texas. This county is been restored. Association of Bridge, Structural and included within the scope of the On March 14, 1996, Judge Bittner Ornamental Ironworkers, AFL–CIO, 549 determinations of the Attorney General issued an order providing Respondent F.2d 634 (9th Cir. 1977). and the Director of the Census made on up to and including April 5, 1996, to file Therefore, having considered the facts September 18, 1975, under Section 4(b) a response to the Government’s motion. and circumstances in this matter, the of the Voting Rights Act of 1965 and However, the Respondent did not file a Acting Deputy Administrator concludes published in the Federal Register on response, and on April 30, 1996, Judge that Respondent’s DEA Certificate of September 23, 1975 (40 FR 43746). Bittner issued her Opinion and Registration should be revoked due to Recommended Decision. Judge Bittner Dated: December 5, 1996. his lack of authorization to handle found that Respondent lacked controlled substances in the State of Janet Reno, authorization to handle controlled Arizona. Attorney General of the United States. substances in the State of Arizona; Accordingly, the Acting Deputy [FR Doc. 96–31403 Filed 12–9–96; 8:45 am] granted the Government’s motion for Administrator of the Drug Enforcement BILLING CODE 4410±01±M summary disposition; and Administration, pursuant to the recommended that Respondent’s DEA authority vested in him by 21 U.S.C. 823 Certificate of Registration be revoked. and 824 and 28 CFR 0.100(b) and 0.014, Drug Enforcement Administration Neither party filed exceptions to her hereby orders that DEA Certificate of [Docket No. 96±20] decision, and on May 30, 1996, Judge Registration, AA2034306, previously Bittner transmitted the record of these issued to Jonathan Agbebiyi, M.D., be, Jonathan Agbebiyi, M.D.; Revocation proceedings to the Deputy and it hereby is, revoked, and that any of Registration Administrator. pending applications for renewal of The Acting Deputy Administrator has such registration be, and they hereby On September 5, 1995, the Deputy considered the record in its entirety, Assistant Administrator, Office of are, denied. This order is effective and pursuant to 21 CFR 1316.67, hereby January 9, 1997. Diversion Control, Drug Enforcement issues his final order based upon Administration (DEA) issued an Order findings of fact and conclusions of law Dated: December 3, 1996. to Show Cause to Jonathan A. Agbebiyi, as hereinafter set forth. The Acting James S. Milford, M.D. (Respondent) of Phoenix, Arizona, Deputy Administrator adopts, in full, Acting Deputy Administrator. notifying him of an opportunity to show the Opinion and Recommended Ruling [FR Doc. 96–31251 Filed 12–9–96; 8:45 am] cause as to why DEA should not revoke of the Administrative Law Judge. BILLING CODE 4410±09±M his DEA Certificate of Registration, The Acting Deputy Administrator AA2034306, under 21 U.S.C. 824(a)(3), finds that on January 26, 1994, the [Docket No. 94±41] and deny any pending applications for Board of Medical Examiners for the renewal of such registration as a State of Arizona revoked Respondent’s Anibal P. Herrera, M.D.; Continuation practitioner under 21 U.S.C. 823(f). license to practice medicine in the State of Registration with Restriction Specifically, the Order to Show Cause of Arizona. Therefore, Respondent is not alleged that on or about January 26, currently authorized to handle On August 31, 1994, the Deputy 1994, the Arizona Board of Medical controlled substances in the State of Assistant Administration, Office of Examiners revoked the Respondent’s Arizona. The Drug Enforcement Diversion Control, Drug Enforcement state medical license, and consequently, Administration lacks statutory authority Administration (DEA), issued an Order the Respondent was no longer to issue or maintain the registration of to Show Cause to Anibal P. Herrera, authorized to handle controlled a practitioner who is not duly M.D. (Respondent) of Middletown, New substances in the State of Arizona. authorized to handle controlled York, notifying him of an opportunity to By letter dated February 24, 1996, the substances in the state in which he show cause as to why DEA should not Respondent filed a timely request for a conducts has practice. 21 U.S.C. revoke his DEA Certificate of hearing, and the matter was docketed 802(21), 823(f) and 824(a)(3). This Registration, AH3517298, under 21 before administrative Law Judge Mary prerequisite has been consistently U.S.C. 824(a)(5), and deny any pending Ellen Bittner. On March 5, 1996, Judge upheld. See Therial L. Bynum, M.D., 61 applications for renewal of such Bittner issued an Order for Prehearing FR 3948 (1996); Charles L. Novosad, Jr., registration as a practitioner, under 21 Statements. On March 14, 1996, in lieu M.D., 60 FR 47182 (1995); Dominick A. U.S.C. 823(f), for reason that he has been of filing such a statement, the Ricci, M.D., 58 FR 51104 (1993). excluded from participation in a Government filed a motion for summary Judge Bittner also properly granted program pursuant to 42 U.S.C. 1320a– disposition, which was accompanied by the Government’s motion for summary 7(a). a copy of the Board of Medical disposition. Respondent did not file a By letter dated September 19, 1994, Examiners of the State of Arizona’s response to the Government’ motion. the Respondent, acting pro se, filed a (Board) Findings of Fact, Conclusions of Respondent presented no evidence to timely request for a hearing, and Law and Order of Revocation dated contradict the fact that his license to following prehearing procedures, a January 26, 1994. Also attached to the practice medicine in the State of hearing was held in New York, New Government’s motion was a copy of a Arizona has been revoked, and therefore York on April 27, 1995, before letter from a medical investigator for the he is unable lawfully to handle Administrative Law Judge Mary Ellen Board to DEA dated August 31, 1995, controlled substances in that state. It is Bittner. At the hearing, both parties stating that Respondent’s license to well-settled that when no question of called witnesses and introduced practice medicine in Arizona remained fact is involved, a plenary, adversary documentary evidence. After the revoked. In addition, Government administrative proceeding involving hearing, Government counsel submitted counsel represented in its motion that evidence and cross-examination of proposed findings of fact, conclusions of on March 14, 1996, he had witnesses is not obligatory. See Philip E. law and argument. On July 13, 1995, an telephonically contacted the Board and Kirk, M.D., 48 FR 32887 (1983), aff’d sub attorney entered a notice of appearance 65076 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices as counsel for Respondent, and county that would prescribe medication Before the last undercover visit on submitted proposed findings of fact, and provide counseling when needed. June 11, 1992, two investigators went to conclusions of law, and argument. In In 1991, the New York Deputy Respondent’s office in their official addition, the Administrative Law Judge Attorney General for Medicaid Fraud capacity to discuss his billing practices. considered as post-hearing filings letters initiated an investigation of Respondent Respondent told the investigators that submitted by Respondent dated May 29 because his Medicaid billing was high he had been participating in the and June 30, 1995, and the for psychiatrists in his geographic area. Medicaid system since the 1960’s and Government’s response dated June 12, A provider profile of Respondent’s had always been reimbursed $30.00 for 1995. On March 12, 1996, Judge Bittner Medicaid billings for 1988 through an office visit. Respondent stated that he issued her Opinion and Recommended 1992, revealed that almost all of the had received the Medicaid manuals and Ruling, Findings of Fact, Conclusions of claims specified the code 90844 with updates and even showed them to the Law and Decision, recommending that the modifier ‘‘WA’’. During the time investigators. Respondent told the Respondent’s DEA Certificate of period covered by the investigation, the investigators that Medicaid patients Registration be restricted to require the code 90844 represented psychiatric accounted for 50% of his practice and submission of a log of his controlled service of approximately 45–50 minutes that his secretary handles the office substance handling on a quarterly basis with a minimum of 37 minutes, and billing. Respondent initially told the for three years. On April 1, 1996, provides for a $25.00 fee. The ‘‘WA’’ investigators that he spent 30 to 35 Government counsel filed exceptions to indicated that the service was rendered minutes or longer with his Medicaid Judge Bittner’s Opinion and in an office setting and allows the patients depending on their needs. Recommended Ruling, and on April 17, provider to bill an additional $5.00. Respondent was then asked whether he 1996, the record of these proceedings Other codes were available for other ever gave his patients less time and he was transmitted to the Deputy types and lengths of services. Prior to stated that he sometimes only spent 20 Administrator. Subsequently, on April 1988, a different code was used for to 30 with those patients. When the 22, 1996, Respondent’s counsel services similar to those covered by investigators revealed that they had requested an extension of time to file a code 90844. Providers are furnished a conducted surveillance of his office, response to the Government’s manual with billing guidelines. Respondent admitted that he had not exceptions, which was granted on April Revisions to the code are made spent the required amount of time with 29, 1996. Respondent then filed his periodically and providers are sent code his Medicaid patients. Respondent response to the Government’s changes in their specialty field. stated however, that he did not look at exceptions on May 8, 1996. As part of the investigation of his watch, but gave each patient as The Acting Deputy Administrator has Respondent, an undercover investigator much time as needed. During this interview, Respondent never stated that considered the record in its entirety, went to Respondent’s office on he was purposely overbilling the including the Government’s exceptions approximately 15 occasions between Medicaid system, but he accepted and Respondent’s response thereto, and May 1991 and June 1992. The pursuant to 21 CFR 1316.67, hereby responsibility for the billing. undercover investigator presented Later on June 11, 1992, the issues his final order based upon legitimate medical reasons for the visits undercover investigator made her last findings of fact and conclusions of law and was prescribed Xanax, a controlled visit to Respondent’s office. During this as hereinafter set forth. The Acting substance. The Acting Deputy visit, the undercover investigator told Deputy Administrator adopts, with one Administrator concludes that Respondent that she had received a noted exception, the Opinion and Respondent’s proper prescribing of letter from the Department of Social Recommended Ruling, Findings of controlled substances to the undercover Services questioning how much time Facts, and Conclusions of Law and investigator is not an issue in these she spent in her sessions with Decision of the Administrative Law proceedings. The purpose of these visits Respondent. The Government asserts Judge. His adoption is in no manner was to determine whether Respondent that the tape recording of this visit diminished by any recitation of facts, was properly billing Medicaid based indicates that Respondent told the issues and conclusions herein, or of any upon the amount of time spent with his undercover investigator to lie about the failure to mention a matter of fact or Medicaid patients. amount of time spent with Respondent. law. The first two undercover visits were Respondent submitted a certified The Acting Deputy Administrator for 24 and 20 minutes respectively, and transcript of the recording which finds that Respondent is a physician Respondent billed Medicaid using the indicates that Respondent said, ‘‘[y]ou specializing in psychiatry. He graduated code 90844. An investigator that cannot lie.’’ The Acting Deputy from the University of Buenos Aires testified at the hearing before Judge Administrator concurs with Judge Medical Center in 1955 and came to the Bittner stated that although these visits Bittner’s finding that Respondent told United States in 1958, receiving his were shorter than the required 37 the investigator, ‘‘[y]ou cannot lie.’’ license to practice medicine in New minutes, they were long enough that On several occasions, while waiting to York in 1965. He held various positions investigators ‘‘didn’t make anything out see Respondent, the undercover at local psychiatric centers and a local of that.’’ The third visit lasted 14 investigator timed other patients, and hospital, including staff psychiatrist, minutes and the remaining visits ranged observed that they spent between 6 and supervisor, unit chief, and director of from between 4 and 10 minutes. The 20 minutes with Respondent. The psychiatric service at the hospital, until investigator testified that Respondent Acting Deputy Administrator agrees he retired in 1989. Since his retirement, billed Medicaid using the Code 90844 with Judge Bittner however, that there is Respondent has had a part-time for all of these visits despite their no evidence in the record that these psychiatric practice in Orange County, duration. The Administrative Law Judge were Medicaid patients, and therefore New York which has a Spanish found, and the Acting Deputy does not find that these observations are speaking population of about 20,000. Administrator concurs that the record is relevant to this proceeding. Respondent testified at the hearing not clear as to whether Respondent in As part of the investigation, before Judge Bittner that he was the only fact billed Medicaid for two of these approximately 25 of Respondent’s Spanish speaking physician in the visits. Medicaid patients filled out Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65077 questionnaires indicating the amount of from participation in the Medicare, whether the Acting Deputy time spent with Respondent. The Medicaid, Maternal and Child Health Administrator, in exercising his questionnaires are not in evidence; Services Block Grant, and Block Grants discretion, should revoke or suspend however, the investigator testified that to States for Social Services programs Respondent’s DEA Certificate of the answers varied, ‘‘but the majority for a period of 5 years effective 20 days Registration. was like about 15 minutes or so.’’ after June 21, 1993. This is a mandatory The Government contends that As a result of the investigation, exclusion pursuant to 42 U.S.C. 1320a– Respondent’s registration should be Respondent was convicted on December 7(a). revoked since he continues to deny that 3, 1992, in the City Court of On March 27, 1995, the State Board he intentionally overbilled Medicaid Middletown, County of Orange, State of for Professional Medical Conduct for the and therefore has shown no remorse for New York, following this guilty plea of State of New York suspended his actions. Respondent does not deny filing a false instrument in the second Respondent’s license to practice that he overbilled Medicaid and that he degree, a misdemeanor, in violation of medicine for three years, but stayed the was convicted of filing a false section 175.30 of the Penal Law of the suspension and placed his license on instrument. Respondent contends, State of New York. Respondent was probation, during which time his billing however, that he did not overbill ordered to pay a fine and restitution of records will be closely monitored. Medicaid intentionally, and that he did $22,000, which was the estimated Respondent testified that there have not admit intent when he pled guilty, amount of Respondent’s overbilling to never been any complaints about his but did so to accept responsibility for Medicaid. Respondent paid both the treatment of patients, and there have the improper billing and to put the fine and the restitution amount. never been any malpractice suits or civil matter behind him. Respondent also An element of the offense for which actions brought against him. He argues that his DEA registration should Respondent was convicted is ‘‘knowing introduced 80 letters of support from not be revoked because there has never that a written instrument contains a patients and other doctors. All of the been a complaint about his practice of false statement or false information.’’ patients stated that they were very medicine and his services are badly N.Y. Penal Law section 175.30 happy with Respondent’s services, and needed in the community in which he (emphasis added). Respondent testified many emphasized that Respondent gave practices. at the hearing before Judge Bittner that them the time that they needed. The Administrative Law Judge he did not know that the claims were Respondent testified before Judge recommended that Respondent’s false when he submitted them to Bittner that revocation of his DEA registration not be revoked, but that he Medicaid, but pled guilty because he Certificate of Registration would impair be required to submit a log of his accepted responsibility for improperly his ability to properly treat his patients. controlled substance handling on a billing. He further testified that his plea The Deputy Administrator may quarterly basis for three years. Judge resulted from bad legal advice and a revoke or suspend a DEA Certificate of Bittner found that Respondent has desire to put the episode behind him. Registration under 21 U.S.C. 824(a), admitted that he overbilled Medicare for Respondent testified before Judge upon a finding that the registrant: some or all of the undercover visits, and Bittner, and argues in his post-hearing for most of his other patients, and that filing, that he entered an Alford plea to (1) Has materially falsified any application his explanation for the overbilling is the charge against him, whereby he filed pursuant to or required by this plausible. In her opinion, Judge Bittner subchapter or subchapter II of this chapter; admitted the facts, but not the criminal (2) Has been convicted of a felony under addressed the Government’s contention intent. See, North Carolina versus this subchapter or subchapter II of this that Respondent’s assertion of lack of Alford, 91 S.Ct. 160 (1970). Other than chapter or any other law of the United States, knowledge of the proper Medicaid Respondent’s testimony, there is no or of any State relating to any substance billing codes is not credible. The other evidence in the record regarding defined in this subchapter as a controlled Government, in its brief as well as its the circumstances surrounding substance; exceptions, points to the investigator’s Respondent’s guilty plea and its (3) Has had his State license or registration testimony that Respondent changed his acceptance by the court. suspended, revoked, or denied by competent story as to the amount of time spent Respondent explained that he had State authority and is no longer authorized with Medicaid patients after learning always billed Medicaid $30.00 for each by State law to engage in the manufacturing, that his office had been under session. According to Respondent, in distribution, or dispensing of controlled substances or has had the suspension, surveillance; admitted to reading the the 1970’s, if there was an approved revocation, or denial of his registration Medicaid manuals; stated that he treatment plan on file for a patient, a recommended by competent State authority; believed that the Medicaid system lent doctor could bill Medicaid $30.00 for (4) Has committed such acts as would itself to wrongdoing; and told the each session regardless of the duration render his registration under section 823 of undercover investigator to lie about the of the session. In 1985, the system this title inconsistent with the public interest amount of time spent with Respondent. changed and treatment plans were no as determined under such section; or However, as Judge Bittner notes in her longer required, and billing codes were (5) Has been excluded (or directed to be opinion, the Respondent testified that established based upon the type and excluded) from participation in a program he told the investigator that he accepted duration of service. Respondent claims pursuant to section 1320a–7(a) of Title 42. responsibility for the overbilling; that he that he was not aware of the time It is undisputed that subsection (5) of did not tell the investigator that he read requirements. He testified that he told 21 U.S.C. 824(a) provides the sole basis the Medicaid manual; that he did not his part-time secretary who handles his for the revocation of Respondent’s DEA recall stating that the Medicaid system billing to bill Medicaid $30.00 for each Certificate of Registration. Pursuant to lent itself to dishonesty; and that the Medicaid patient he saw. The secretary 42 U.S.C. 1320a–7(a), Respondent has tape recording of the last visit of the looked for the appropriate billing code been excluded from participation in the undercover officer did not indicate that that reimbursed for $30.00, which was Medicare, Medicaid, Maternal and Child Respondent told the investigator to lie, 90844. Health Services Block Grants to States but on the contrary stated that ‘‘[y]ou As a result of his conviction, the for Social Services programs for a five- cannot lie.’’ Judge Bittner then United States Department of Health and year period until approximately mid- concluded that she could not find that Human Services excluded Respondent July 1998. The issue remaining is the investigator’s recollection of the 65078 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices interview was more accurate than registrant or applicant’s conviction is (1993). However, in those cases, there Respondent’s, and therefore could not the result of a guilty plea, he/she is not were serious questions as to the find that Respondent was lying in his precluded from arguing in the integrity of the registrant. explanation of his billing practices. administrative proceedings any issues The Acting Deputy Administrator The Acting Deputy Administrator relating to the conviction since they finds that in this case, Respondent agrees with Judge Bittner’s conclusion. were not actually litigated in an earlier advanced a plausible explanation for his The Government continues to argue in proceeding. As the Government points overbilling, yet never denied that he did its exceptions that it is significant that out in its exceptions, DEA has in fact overbill the Medicaid system. He Respondent changed his story during consistently construed a guilty plea as has accepted full responsibility for the his interview on June 11, 1992, an admission of the elements of the filing of the claims and has paid regarding the amount of time spent with offense. In Pearce v. United States restitution to the State of New York. In his Medicaid patients. The Acting Department of Justice, 867 F.2d 253 (6th addition, given the needs of the Deputy Administrator does not find this Cir. 1988), a physician’s revocation was community in which he practices and troubling, since Respondent also stated affirmed where the physician argued the action already taken by the during the interview that he was not one that even though he pled nolo Department of Health and Human to look at his watch. contendere to a drug related felony, he Services regarding his Medicaid The Administrative Law Judge found was not really guilty of the charges since privileges and by the State of New York that even though Respondent was the prescriptions in question were regarding his license to practice convicted for filing a false instrument, issued for a legitimate medical purpose. medicine, the Acting Deputy he was not estopped from denying that In rejecting the physician’s argument, Administrator agrees with Judge Bittner he knew that his billing was wrong the United States Court of Appeals that revocation of Respondent’s DEA since ‘‘the doctrine of issue preclusion stated that: registration is not appropriate. applies only to issues actually litigated The Administrative Law Judge The statute, however, does not require the in an earlier proceeding.’’ Judge Bittner recommended that in light of went on to conclude that since government to prove the substance of the criminal violation at the administrative Respondent’s failure to comply with Respondent pled guilty, the element of hearing. The purpose of the hearing is not to laws related to his medical practice, it his knowledge was not actually give the petitioner a chance to go behind or is appropriate for DEA to monitor litigated. to set aside a guilty plea, or the equivalent Respondent’s handling of controlled The Government filed an exception to of a guilty plea, in this case. Id. at 255. substances. Judge Bittner therefore this conclusion arguing that ‘‘it is However, the Acting Deputy recommended that for three years axiomatic that one who pleas [sic] guilty following issuance of the final order, the admits to all essential elements of the Administrator is uncomfortable in this case with precluding Respondent from following restriction be placed on offense * * * ’’ and that ‘‘DEA has Respondent’s DEA registration: consistently over a long period of time arguing that he did not intend to file construed a guilty plea as an admission false Medicaid claims. Respondent At the end of every calendar quarter, of the elements of that offense.’’ The argues that he entered an Alford plea to Respondent must submit a log of all the misdemeanor charge of filing a false controlled substances he has prescribed, Government expressed concern that to administered, or otherwise dispensed during adopt the Administrative Law Judge’s instrument whereby he admitted the facts in the indictment, but not the the previous quarter to the Special Agent in conclusion, ‘‘DEA would now allow Charge of the nearest DEA office or his registrants and applicants to collaterally elements of the offense. Respondent designee. The log shall include each patient’s attack convictions based upon guilty does not argue that there was no name, address, date of prescription or other pleas in administrative revocation conviction, but argues that his plea was dispensing, and the name and quantity of the proceedings.’’ In its response to the entered and accepted by a state controlled substance. The log shall be Government’s exceptions, Respondent’s arraignment court where there was no prepared by and signed by Respondent counsel argues that Respondent entered allocution surrounding the plea. Given personally, except that he may ask an an Alford plea to the misdemeanor of the confusion over what exactly employee to verify its accuracy. filing a false record in a court that is not Respondent admitted, and without more The Government filed an exception to a court ‘‘of record’’ and therefore there evidence in the record regarding the this recommended disposition, is no record surrounding Respondent’s exact circumstances surrounding contending that since there are no plea. Respondent maintain that all of Respondent’s plea, the Acting Deputy allegations that Respondent improperly the cases cited by the Government for Administrator is unable to determine if handled controlled substances, the proposition that DEA should not ‘‘go he’s precluded from exploring maintenance of a log would be behind’’ guilty please involved pleas to Respondent’s intent when filing the unnecessary. The Acting Deputy felony offenses which required an false claims. Consequently, the Acting Administrator disagrees with the allocution in a court of record. Deputy Administrator has considered Government and agrees with Judge Respondent further argues that by Respondent’s explanation regarding his Bittner ‘‘that some controls are entering an Alford plea, Respondent overbilling of Medicaid. necessary to ensure that he complies ‘‘pled to the underlying facts without The Acting Deputy Administrator with laws relating to his dispensing and acknowledging fraudulent intent in finds that the Drug Enforcement prescribing controlled substances.’’ positioning those admitted acts.’’ ‘‘He Administration has previously held that Accordingly, the Acting Deputy did not admit to the offense, he misconduct, like that at issue in this Administrator of the Drug Enforcement admitted to the facts set forth in the proceeding, which does not involve Administration, pursuant to the indictment * * * (and t)here is no controlled substances may constitute authority vested in him by 21 U.S.C. 823 allocution on which to base a contrary grounds under 21 U.S.C. 824(a)(5) for and 824, and 28 U.S.C. 0.100(b) and finding inasmuch as he was allowed to the revocation of a DEA Certificate of 0.104, hereby orders that DEA plea in an arraignment court * * * .’’ Registration. See Gilbert L. Franklin, Certificate of Registration AH3517298, The Acting Deputy Administrator D.D.S., 57 FR 3441 (1992); George D. issued to Anibal P. Herrera, M.D., be cannot concur with the Administrative Osafo, M.D., 58 FR 37508 (1993); Nelson continued, and any pending Law Judge’s conclusion that if a Ramirez-Gonzalez, M.D., 58 FR 52787 applications be granted, subject to the Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65079 above restriction. This order is effective The Acting Deputy Administrator signing the log book using different December 10, 1996. finds that Jon R. Martin, R.Ph. names. Dated: December 2, 1996. purchased Respondent pharmacy, On January 30, 1991, the detective interviewed Jon Martin, Respondent’s James S. Milford, located in Gahanna Ohio, in the late 1980’s. Respondent is a high volume owner and pharmacist, and asked him Acting Deputy Administrator. drug store that employees 10 to 15 how long it would take someone to [FR Doc. 96–31252 Filed 12–9–96; 8:45 am] individuals, and provides services not become addicted to codeine if he/she BILLING CODE 4410±09±M generally available from chain drank a bottle of cough syrup every day pharmacies, such as charge accounts or every other day. Mr. Martin stated and deliveries to the elderly. that in his opinion it would take [Docket No. 95±4] In November 1990, a detective with approximately 60 days. The detective the Narcotics Bureau of the Columbus, then asked Mr. Martin why he Roger Pharmacy; Revocation of Ohio Police Department conducted a continued to sell cough syrup to the Registration routine inspection of Respondent same individuals. Mr. Martin replied On October 7, 1994, the Deputy pharmacy and its exempt narcotics log that as long as customers stayed within Assistant Administrator. Office of book. Under both Federal and state law the 48 hour rule, he would sell the Diversion Control, Drug Enforcement a prescription is not required to cough syrup to them because if he did Administration (DEA), issued an Order purchase certain Schedule V cough not, they would just buy it elsewhere. Mr. Martin went on to state that the to show Cause to Roger Pharmacy syrups, however a log book must be pharmacy business is a tough business (Respondent) of Gahanna, Ohio, maintain containing the name and address of the purchaser, the name and and he might as well make money. notifying the pharmacy of an In April 1991, the Columbus Police quantity of the controlled substance opportunity to show cause as to why Department informed DEA of the results purchased, the date of purchase, and the DEA should not revoke its DEA of its investigation of Respondent. DEA name of the dispensing pharmacist. In Certificate of Registration, BR1448655, compared the amount of exempt addition, there is a limit on the amount and deny any pending applications for narcotics sold by Respondent with the of cough syrup that may be purchased renewal of such registration as a retail amount sold by the other five by an individual within a 48 hour pharmacy under 21 U.S.C. 823(f), for pharmacies located in Gahanna, Ohio, period. The inspection revealed that on reason that the pharmacy’s continued and discovered that during an average 11 occasions, between February 1989 registration would be inconsistent with month in 1991, Respondent sold twice and November 1990, individuals had the public interest pursuant to 21 U.S.C. the quantity of exempt narcotic 824(a)(4). purchased Schedule V exempt narcotic products as all the other local On November 2, 1994, the cough syrups from Respondent more pharmacies combined. On April 18, Respondent, through counsel, filed a than once in a 48 hour period in 1991, DEA went to Respondent timely request for a hearing, and violation of both Federal and state law. pharmacy to evaluate its compliance following prehearing procedures, a Further examination of Respondent’s with the Controlled Substances Act. It hearing was held in Cleveland, Ohio on exempt narcotic log book revealed that was discovered that Respondent did not June 27, 1995, before Administrative certain individuals bought exempt have a biennial inventory as required by Law Judge Mary Ellen Bittner. At the narcotics from Respondent frequently Federal regulations. At the hearing hearing, both parties called witnesses to and over an extended period of time. before Judge Bittner, when asked about testify, and the Government introduced Specifically, between February 20, 1989 this Respondent stated that, ‘‘I suspect documentary evidence. After the and November 18, 1990, an individual it was just a matter of being a little lax hearing, counsel for both parties purchased exempt narcotics from on getting things done. It was nothing submitted proposed findings of fact, Respondent on 126 occasions; between intentional. There’s a lot of things for conclusions of law and argument. On March 24, 1989 and February 7, 1990, me to do. * * * Some of them are nit- April 9, 1996, Judge Bittner issued her an individual purchased exempt picky things I neglected doing. I’m Opinion and Recommended Ruling, narcotics from Respondent on 63 sorry.’’ The DEA investigators also Findings of Fact, Conclusions of Law occasions; another individual purchased discovered that Respondent could not and Decision, recommending that exempt narcotics from Respondent on account for 18 of the 126 Schedule II Respondent’s DEA Certificate of 97 occasions between January 2, 1989 order forms that it had been issued by Registration be revoked. Neither party and February 3, 1991; between January DEA between January 1989 and April filed exceptions to her decision, and on 15, 1989 and December 29, 1990, an 1991. Respondent testified at the May 10, 1996, Judge Bittner transmitted individual purchased exempt narcotics hearing before Judge Bittner that he was the record of these proceedings to the from Respondent on 104 occasion; an surprised that the order forms were Deputy Administrator. individual purchased exempt narcotics missing, and that ‘‘paperwork has not The Acting Deputy Administrator has on 87 occasions between January 16, always been one of (his) strong suits.’’ considered the record in its entirety, 1989 and February 10, 1991; and As part of its investigation, DEA and pursuant to 21 CFR 1316.67, hereby another individual purchased exempt conducted an accountability audit at issues his final order based upon narcotics from Respondent on 34 Respondent pharmacy of eight findings of fact and conclusions of law occasions between August 25, 1990 and controlled substances. The audit as hereinafter set forth. The Acting February 2, 1991. revealed both overages and shortages of Deputy Administrator adopts, in full, The detective interviewed three of all but one of the audited substances. the Findings of Fact, Conclusions of these individuals who all admitted For example, Respondent pharmacy Law, and Recommended Ruling of the purchasing exempt narcotics from could account for 164 tablets of Administrative Law Judge, and his Respondent. One stated that when he Dilaudid 2 mg. (a Schedule II controlled adoption is in no manner diminished by went to Respondent, there would be a substances) more than it was any recitation of facts, issues and bottle of cough syrup waiting for him by accountable, and could not account for conclusions herein, or of any failure to the time he reached the pharmacy 1,160 tablets of APAP with codeine (a mention a matter of fact or law. counter. Another individual admitted to Schedule III controlled substance) for 65080 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices which it was accountable. At the dispensing since the investigation in in 1992, the Ohio State Board of hearing before Judge Bittner, Mr. Martin 1991. Mr. Martin testified at the hearing Pharmacy found that Mr. Martin had stated that had he been informed of the that he assumes full responsibility for dispensed coedine cough syrup for no shortages at the time of the what happened at Respondent legitimate medical purpose and in investigation, he probably could have pharmacy, and that he has instituted violation of the prohibition against accounted for the shortages. However, procedural changes so nothing like it dispensing more than once in a 48 hour both the DEA investigator that testified will happen again. The pharmacy no period to the same individual. As a at the hearing and Mr. Martin testified longer sells exempt narcotics without a result, the Board suspended Mr. that at the time of the accountability prescription even though a prescription Martin’s license to practice pharmacy audit, the investigator asked Mr. Martin is not required by Federal or state law. for one year. Mr. Martin’s license to several times if he had given or shown Mr. Martin has hired a pharmacist to be practice pharmacy and Respondent’s the investigator all of the pharmacy’s responsible for all controlled substance license are currently unrestricted. While controlled substances and records. inventories, Schedule II order forms, it is relevant that Respondent and its The DEA investigator returned to and other DEA requirements. It is now owner possess unrestricted state Respondent pharmacy on April 25, the pharmacy’s policy to call authorization to handle controlled 1991, to verify refill information, and prescribing doctors to verify refill substances, the Acting Deputy discovered that Respondent’s records information, and to note that Administrator does not find it did not indicate dates of refills or information on the prescription and in dispositive of whether Respondent’s verification by the dispensing the computer. continued registration is in the public pharmacist. The investigator also However, Mr. Martin admitted at the interest. discovered that Respondent’s records of hearing that he was aware that certain As to factor two, the Respondent’s oral prescriptions did not include individuals came to his pharmacy to ‘‘experience in dispensing * ** information required by Federal buy Schedule V cough syrup because he controlled substances,’’ the Acting regulations. The investigator seized always sold it to them. When asked why Deputy Administrator concurs with the seven controlled substance the pharmacy stopped selling exempt Administrative Law Judge that ‘‘this prescriptions issued to an individualy narcotics without a prescription, Mr. factor strongly weighs in favor of purportedly by one doctor. On April 30, Martin testified, ‘‘it’s cost me a lot of finding that Respondent’s registration 1991, the investigator met with the money and a lot of time and a lot of would not be in the public interest.’’ In doctor who advised the investigator that anguish in my life that I really don’t the case of Schedule V exempt narcotic he had not authorized one of the need. And besides that, I certainly cough syrups dispensed without a prescriptions at all and that another wasn’t helping the people.’’ prescription, the responsibility to prescription that he had issued had Pursuant to 21 U.S.C. 823(f) and ensure that these substances are been refilled five times, when he had 824(a)(4), the Deputy Administrator may dispensed for a legitimate medical only authorized one refill. revoke a DEA Certificate of Registration purpose rests solely with the As a result of the investigation by the and deny any pending applications, if pharmacist. See Arthur Sklar, R.Ph., Columbus Police Department, the Ohio he determines that the continued d/b/a/ King Pharmacy, 54 FR 34,623 State Board of Pharmacy (Board) found registration would be inconsistent with (1989). The Ohio State Board of that on nine occasions between March the public interest. Section 823(f) Pharmacy found that Mr. Martin 1989 and November 1990, Mr. Martin requires that the following factors be dispensed exempt narcotics to certain had violated the 48 hour rule regarding considered: individuals for no legitimate medical the dispensing of exempt narcotics, and (1) The recommendation of the purpose. Mr. Martin admitted that he that he had sold codeine cough syrup appropriate State licensing board or was aware that certain individuals came for other than a legitimate medical professional disciplinary authority. to his pharmacy to buy Schedule V purpose. The Board concluded that Mr. (2) The applicant’s experience in cough syrup for no legitimate medical Martin was guilty of gross immorality, dispensing, or conducting research with purpose, because he always sold it to dishonesty and unprofessional conduct respect to controlled substances. them. He stated that if he didn’t sell it in the practice of pharmacy, and on (3) The applicant’s conviction record to them, they’d just go buy it elsewhere. August 11, 1992, suspended his license under Federal or State laws relating to He violated the prohibitions against to practice pharmacy for one year, fined the manufacture, distribution, or dispensing exempt narcotics to the same him $5,000.00, but permitted the dispensing of controlled substances. individual more than once in a 48 hour pharmacy to continue operating without (4) Compliance with applicable State, period. It was Mr. Martin’s opinion that restriction. Federal, or local laws relating to an individual who took Schedule V Mr. Martin pled guilty in the United controlled substances. cough syrup every day or every other States District Court for the Southern (5) Such other conduct which may day, could become addicted within 60 District of Ohio to one misdemeanor threaten the public health and safety. days, yet he continued to dispense these count of unlawful distribution of a These factors are to be considered in the substances to individuals on a regular codeine-based exempt narcotic, and in disjunctive; the Deputy Administrator basis over several years. The Acting September 1993, he was placed on may rely on any one or a combination Deputy Administrator agrees with Judge probation for one year, fined $2,500.00 of factors and may give each factor the Bittner’s finding that ‘‘Mr. Martin and ordered to perform 50 hours of weight he deems appropriate in abrogated his professional and legal community service. Mr. Martin paid the determining whether a registration responsibilities with respect to fine, but was excused from performing should be revoked or an application for dispensing controlled substances.’’ some of the community service, and his registration be denied. See Henry J. Regarding factor three, it is probation was terminated early. Schwarz, Jr., M.D., Docket No. 88–42, 54 uncontested that in September 1993, Both the Columbus detective and the FR 16,422 (1989). In this case, factors Mr. Martin pled guilty in the United DEA investigator testified at the hearing one, two, three and four are relevant in States District Court for the Southern in this matter that they have not determining the public interest. District of Ohio to one misdemeanor received any complaints regarding As to factor one, ‘‘recommendation of count of unlawful distribution of a Respondent’s controlled substance the appropriate licensing board * * *’’ codeine-based exempt narcotic, and he Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65081 was placed on probation for one year, practitioner and the dispensing appreciation for the responsibilities of a fined $2,500.00 and ordered to perform pharmacist have the responsibility to DEA registrant. Consequently, the 50 hours of community service. ensure that the substances are being Acting Deputy administrator concludes As to factor four, the Respondent’s dispensed for a legitimate medical that Respondent’s continued registration ‘‘[c]ompliance with applicable State, purpose. In this case, however, there is is inconsistent with the public interest. Federal, or local laws relating to no prescribing practitioner. Therefore, Accordingly, the Acting Deputy controlled substances,’’ the evidence the dispensing pharmacist bears the sole Administrator of the Drug Enforcement presented at the hearing in this matter responsibility for evaluating the purpose Administration, pursuant to the clearly supports the conclusion that and necessity for the dispensing of authority vested in him by 21 U.S.C. 823 Respondent committed numerous controlled substances. Mr. Martin and 824 and 28 CFR 0.100(b) and 0.104, violations of applicable laws and himself admits that he ignored his hereby orders that DEA Certificate of regulations. Respondent failed to responsibilities and dispensed the Registration BR1448655, issued to Roger maintain complete and accurate records Schedule V cough syrups for no Pharmacy, be, and it hereby is revoked of its controlled substances as required legitimate medical purpose. He and any pending applications for by 21 U.S.C. 827 and 21 CFR 1304.21, attempted to justify his behavior by renewal of such registration, be, and as evidenced by the results of the stating that if he did not sell the cough they hereby are, denied. This order is accountability audit. Respondent failed syrup, the customers would just go effective January 9, 1997. to conduct a biennial inventory of its elsewhere. His only concern was to Dated: December 2, 1996. make money. Based upon these controlled substances as required by 21 James S. Milford, CFR 1304.13. Pursuant to 21 CFR numerous violations of Federal and Acting Deputy Administrator. 1305.13, Respondent was required to state laws and regulations relating to the preserve all Schedule II order forms. Its dispensing of controlled substances, [FR Doc. 96–31253 Filed 12–9–96; 8:45 am] inability to account for 18 of its order factor four is extremely significant in BILLING CODE 4410±09±M forms indicates a violation of this evaluating the public interest in this case. regulation. Immigration and Naturalization Service Respondent’s maintenance of records Like Judge Bittner, the Acting Deputy Administrator notes Mr. Martin’s regarding oral prescriptions and Agency Information Collection testimony regarding the procedural prescriptions refills was also deficient. Activities: Extension of Existing changes that he has instituted to ensure Under 21 CFR 1306.21, a pharmacist Collection; Comment Request may dispense a Schedule III or IV that Respondent would comply with controlled substance pursuant to an oral applicable laws and regulations in the AGENCY: Notice of information prescription that is promptly reduced to future. However, he has delegated most collection under review; application for writing by the pharmacist. The writing of the responsibility concerning waiver of ground of excludability. must contain all of the information compliance to a pharmacist at Office of Management and Budget required for a written prescription, Respondent. As the owner of approval is being sought for the including the date of issuance, the name Respondent, Mr. Martin is ultimately information collection listed below. and address of patient, and the name, responsible for compliance, and by his This proposed information collection address, and registration number of the own admission, he has not spent much was previously published in the Federal prescribing practitioner. Respondent’s time at Respondent recently. Register on August 23, 1996, at 61 FR oral prescription information failed to The Acting Deputy Administrator 43561, allowing for a 60-day public include the name and address of both concludes that regardless of whether comment period. No comments were the patient and the practitioner. Mr. Martin is present at the pharmacy received by the Immigration and Respondent’s prescription refill records or not, Respondent’s continued Naturalization Service. failed to include the date of the refill or registration is inconsistent with the public interest. Judge Bittner found that The purpose of this notice is to allow verification information by the an additional 30 days for public dispensing pharmacist, in violation of ‘‘Mr. Martin displayed a total disregard for federal and State laws and comments until January 9, 1997. This 21 CFR 1306.22(b) (1) and (3). process is conducted in accordance with Respondent violated Section 3719.16 regulations, and for his responsibilities 5 CFR Part 1320.10. of the Ohio Revised Code and 21 CFR as a licensed pharmacist and owner of a DEA registrant.’’ The Acting Deputy Written comments and/or suggestions 1306.32 by selling codeine cough syrup regarding the item contained in this on 11 occasions to the same individual administrator concurs with Judge Bittner’s assertion that ‘‘Mr. Martin notice, especially regarding the more than once within a 48 hour period. estimated public burden and associated Of considerable concern to the Acting testified that he accepted responsibility response time, should be directed to the Deputy Administrator is Respondent’s for his misconduct and recognized that Office of Management and Budget, violation of 21 CFR 1306.04(a), which he used poor judgment; however, his Office of Regulatory Affairs, Attention: provides that: expression of regret was directed more to the consequences to himself of his Department of Justice Desk Office, A prescription for a controlled substance to action—the aggravation and loss of time Washington, DC 20530. Additionally, be effective must be issued for a legitimate and money—than to the conduct itself.’’ comments may be submitted to OMB via medical purpose by an individual practitioner acting in the usual course of his Mr. Martin turned a blind eye to his facsimile to (202) 395–7285. Comments professional practice. The responsibility for duty as a DEA registrant to ensure that may also be submitted to the the proper prescribing and dispensing of controlled substances were dispensed Department of Justice (DOJ), Justice controlled substances is upon the prescribing for a legitimate medical purpose. He Management Division, Information practitioner, but a corresponding characterized many of the registration Management and Security Staff, responsibility rests with the pharmacist who requirements as ‘‘nit-picky things.’’ Attention: Department Clearance fills the prescription * * * Those requirements are in place to Officer, Suite 850, 1001 G Street, NW., Accordingly, in situations where a guard against the diversion of controlled Washington, DC 20530. Additionally, prescription for a controlled substance substances. To minimize these comments may be submitted to DOJ via is issued, both the prescribing requirements demonstrates a lack of facsimile to (202) 514–1534. 65082 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Written comments and suggestions Dated: December 3, 1996. (3) Enhance the quality, utility, and clarity from the public and affected agencies Robert B. Briggs, of the information to be collected; and concerning the proposed collection of Department Clearance Officer, United States (4) Minimize the burden of collection information should address one or more Department of Justice. of information on those who are to of the following four points: [FR Doc. 96–31203 Filed 12–9–96; 8:45 am] respond, including through the use of (1) Evaluate whether the proposed BILLING CODE 4410±18±M appropriate automated, electronic, collection of information is necessary mechanical, or other technological for the proper performance of the collection techniques or other forms of functions of the agency, including Immigration and Naturalization Service information technology, e.g., permitting whether the information will have electronic submission of responses. practical utility; Submission for OMB Emergency Review, Comment Request Overview of this information (2) Evaluate the accuracy of the collection: agency’s estimate of the burden of the ACTION: Notice of Information Collection (1) Type of Information Collection: proposed collection of information, Under Review; Reengineered Foreign New Collection. including the validity of the Students Pilot Program. methodology and assumptions used; (2) Title of the Form/Collection: (3) Enhance the quality, utility, and The Department of Justice, Reengineered Foreign Students Pilot clarity of the information to be Immigration and Naturalization Service Program. collected; and has submitted the following information (3) Agency form number, if any, and (4) Minimize burden of the collection request (ICR) utilizing emergency the applicable component of the of information on those who are to review procedures, to the Office of Department of Justice sponsoring the respond, including through the use of Management and Budget (OMB) for collection: No agency form number. appropriate automated, electronic, review and clearance in accordance Office of Examinations—Adjudications mechanical, or other technological with the Paperwork Reduction Act of Division, Immigration and collection techniques or other forms of 1995. The INS was mandated by Naturalization Service. information technology, e.g., permitting Congress under Subtitle D, Section 641 (4) Affected public who will be asked electronic submission of responses. of the Illegal Immigration Reform and or required to respond, as well as a brief Immigrant Responsibility Act of 1996 to abstract: Primary: Not-for-profit Overview of This Information test a prototype of a reengineered Collection institutions, Business or other for-profit. Foreign Student and School Program. The INS and the United States and (1) Type of Information Collection: The statutory time line for Information Agency (USIA) are Extension of a currently approved implementation of this pilot program initiating a pilot project to test a collection. mandated by the Attorney General prototype of a reengineered Foreign (2) Title of the Form/Collection: requires an emergency review of this Student and School Program as Application for Waiver of Ground of information collection. A copy of this mandated under Subtitle D, Section 641 Excludability. ICR, with applicable supporting of the Illegal Immigration Reform and documentation, may be obtained by (3) Agency form number, if any, and Immigrant Responsibility Act of 1996. calling the Immigration and the applicable component of the The pilot effort will test an Naturalization Service, Director, Policy Department of Justice sponsoring the administrative process to use a Directives and Instructions Branch, collection: Form I–601. Office of computer-supported notification and Richard Sloan (202–616–7600). This Examinations, Adjudications Division, reporting process from schools to the request for emergency approval, if Immigration and Naturalization Service. INS regarding foreign students and approved, is good until June 9, 1997. (4) Affected public who will be asked exchange visitors through the duration Additionally, this notice will also serve of their status in the United States. or required to respond, as well as a brief as the 60 day public notification for abstract: Primary: Individuals or comments as required by the Paperwork (5) As estimate of the total number of Households. The information collected Reduction Act of 1995. respondents and the amount of time on this form will be the Immigration Comments and questions about the estimated for an average respondent to and Naturalization Service (INS) to ICR listed below should be forwarded to respond: 50 respondents at 60 hours per determine whether the applicant is the Office of Information and Regulatory response. eligible for a waiver of excludability Affairs, Attn: OMB Desk Officer for the (6) An estimate of the total public under section 212 of the Act. Immigration and Naturalization Service, burden (in hours) associated with the (5) An estimate of the total number of Office of Management and Budget, collection: 3,000 annual hours. respondents and the amount of time Room 10235, Washington, DC 20530 If additional information is required estimated for an average respondent to (202–395–7316). respond: 3,000 respondents at 30 contact: Mr. Robert B. Briggs, Clearance The Office of Management and Budget is Officer, United States Department of minutes (.500) per response. particularly interested in comments which: Justice, Information Management and (6) An estimate of the total public (1) Evaluate whether the proposed Security Staff, Justice Management burden (in hours) associated with the collection of information is necessary Division, Suite 850, Washington Center, collection: 1,500 annual burden hours. for the proper performance of the 1001 G Street, NW., Washington, DC If additional information is required functions of the agency, including 20530. contact: Mr. Robert B. Briggs, Clearance whether the information will have Officer, United States Department of practical utility; Dated: December 4, 1996. Justice, Information Management and (2) Evaluate the accuracy of the Robert B. Briggs, Security Staff, Justice Management agencies/components estimate of the Department Clearance Officer, United States Division, Suite 850, Washington Center, burdens of the proposed collection of Department of Justice. 1001 G Street, NW, Washington, DC information, including the validly of the [FR Doc. 96–31314 Filed 12–9–96; 8:45 am] 20530. methodology and assumptions used; BILLING CODE 4410±18±M Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65083

DEPARTMENT OF LABOR For additional information contact: 3. How often the collection is Tom Hall, Division of Consumer Affairs, required: As needed per facility; Occupational Safety and Health Room N3647, Telephone 202–219–8615, generally once or less per year. Administration at the Occupational Safety and Health 4. Who is required or asked to report: Administration, 200 Constitution All reactor licensees and applicants for Advisory Committee on Construction Avenue, NW, Washington, DC, 20210. an operating license at power and non- Safety and Health; Notice of Open An official record of the teleconference power reactors. Meeting by Teleconference meeting will be available for public 5. The number of annual respondents: inspection at the OSHA Docket Office, 75 for power reactors and 30 for non- Notice is hereby given that the Room N2625, Telephone 202–219–7894. power reactors annually. Advisory Committee on Construction 6. The number of hours needed Safety and Health (ACCSH), established Signed at Washington, DC, this 5th day of annually to complete the requirement or December 1996. under section 107(e)(1) of the Contract request: 27,882 hours annually for Work Hours and Safety Standards Act Joseph A. Dear, power reactor licensees and 124 hours (40 U.S.C. 333) and section 7(b) of the Assistant Secretary of Labor. annually for non-power reactor Occupational Safety and Health Act of [FR Doc. 96–31453 Filed 12–9–96; 8:45 am] licensees. 1970 (29 U.S.C. 656), will hold an open BILLING CODE 4510±26±M 7. Abstract: The NRC requests copies full committee meeting by of initial and requalification training teleconference on December 18, 1996, at material and examinations from reactor the Frances Perkins Building, U.S. LEGAL SERVICES CORPORATION licensees/applicants. The training Department of Labor, 200 Constitution material is used by the NRC staff to Avenue, NW, Room N3437A and B, Sunshine Act Meeting of the Board of develop operator and senior operator Washington, DC. The teleconference Directors Operations and Regulations licensing and requalification meeting will begin at 1:00 p.m. and end Committee examinations. The initial examinations at approximately 3:00 p.m. are reviewed, modified, and approved Correction The purpose of ACCSH is to provide by the NRC staff for use in licensing continuing advice and In the meeting notice published on operators and senior operators; the recommendations to the Occupational Dec. 6, 1996, page 64767, please make requalification examinations are Safety and Health Administration the following corrections to the agenda: inspected to verify regulatory (OSHA) on matters relating to safety and In items 3–12, replace ‘‘draft interim’’ compliance. health in construction employment. with ‘‘draft final’’ wherever it appears. Submit, by February 10, 1997, OSHA is seeking advice and In item 13, replace ‘‘proposed comments that address the following recommendations of ACCSH on how to revisions’’ with ‘‘draft final revisions’’ questions: 1. Is the proposed collection of evaluate the practical application of Dated: December 6, 1996. OSHA’s construction safety and health information necessary for the NRC to Suzanne B. Glasow, properly perform its functions? Does the standards to the residential construction Senior Counsel for Operations & Regulations. industry. Accordingly, the information have practical utility? [FR Doc. 96–31484 Filed 12–6–96; 2:40 pm] 2. Is the burden estimate accurate? teleconference meeting will explore 3. Is there a way to enhance the ways ACCSH can assist OSHA, such as BILLING CODE 7050±01±M quality, utility, and clarity of the through the utilization of an ACCSH information to be collected? workgroup or outside consultants. Due 4. How can the burden of the to scheduling difficulties, OSHA is NUCLEAR REGULATORY information collection be minimized, unable to wait until the regularly COMMISSION including the use of automated scheduled meeting of ACCSH in march Agency Information Collection collection techniques or other forms of 1997 to request assistance. For the same information technology? reason, OSHA is unable to provide the Activities: Proposed Collection; Comment Request A copy of the draft supporting usual 15-day advance notice of this statement may be viewed free of charge teleconference meeting. However, a AGENCY: U. S. Nuclear Regulatory at the NRC Public Document Room, discussion of the teleconference meeting Commission (NRC). 2120 L Street, NW (lower level), will take place at the March 1997 ACTION: Washington, DC. Members of the public ACCSH meeting. Notice of pending NRC action to submit an information collection who are in the Washington, DC area can Anyone who wishes to make an oral request to OMB and solicitation of access this document via modem on the presentation should notify the Division public comment. Public Document Room Bulletin Board of Consumer Affairs before the meting. (NRC’s Advanced Copy Document The request, which can be in writing or SUMMARY: The NRC is preparing a Library), NRC subsystem at FedWorld, by phone, should state the amount of submittal to OMB for review of 703–321–3339. Members of the public time desired, the capacity in which the continued approval of information who are located outside of the person will appear and a brief outline of collections under the provisions of the Washington, DC area can dial the content of the presentation. Persons Paperwork Reduction Act of 1995 (44 FedWorld, 1–800–303–9672, or use the who request the opportunity to address U.S.C. Chapter 35). FedWorld Internet address: the Advisory Committee may be Information pertaining to the fedworld.gov (Telnet). The document allowed to speak, as time permits, at the requirement to be submitted: will be available on the bulletin board discretion of the chairman of the 1. The title of the information for 30 days after the signature date of Advisory Committee. Individuals with collection: Reactor Operator and Senior this notice. If assistance is needed in disabilities who wish to attend the Reactor Operator Licensing Training accessing the document, please contact meeting should contact Tom Hall, at the and Requalification Programs. the FedWorld help desk at 703–487– phone number listed below, if special 2. Current OMB approval number: 4608. Additional assistance in locating accommodations are needed. 3150–0101. the document is available from the NRC 65084 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Public Document Room, nationally at 1– when an exemption is granted by the the common defense and security, and 800–397–4209, or within the Commission under 10 CFR 50.12. (2) when special circumstances are Washington, DC area at 202–634–3273. To prevent low-temperature present. Special circumstances are Comments and questions about the overpressure transients that would present whenever, according to 10 CFR information collection requirements produce pressure excursions exceeding 50.12(a)(2)(ii), ‘‘Application of the may be directed to the NRC Clearance the P/T limits of Appendix G to 10 CFR regulation in the particular Officer, Brenda Jo. Shelton, U.S. Nuclear Part 50 while the reactor is operating at circumstances would not serve the Regulatory Commission, T–6 F33, low temperatures, the licensee installed underlying purpose of the rule or is not Washington, DC, 20555–0001, by a low-temperature overpressure necessary to achieve the underlying telephone at (301) 415–7233, or by protection (LTOP) system. The system purpose of the rule.’’ Internet electronic mail at includes pressure-relieving devices The underlying purpose of 10 CFR [email protected]. called power-operated relief valves Part 50, Appendix G, is to establish Dated at Rockville, Maryland, this 3rd day (PORVs). The PORVs are set at a fracture toughness requirements for of December, 1996. pressure low enough so that if an LTOP ferritic materials of pressure-retaining For the Nuclear Regulatory Commission. transient occurred, the mitigation components of the reactor coolant Gerald F. Cranford, system would prevent the pressure in pressure boundary to provide adequate the reactor vessel from exceeding the P/ Designated Senior Official for Information margins of safety during any condition Resources Management. T limits of Appendix G to 10 CFR Part of normal operation, including 50. To prevent the PORVs from lifting [FR Doc. 96–31322 Filed 12–9–96; 8:45 am] anticipated operational occurrences, to as a result of normal operating pressure BILLING CODE 7590±01±P which the pressure boundary may be surges (e.g., starting reactor coolant subjected over its service lifetime. pumps, and shifting operating charging Section IV.A.2 of this appendix requires [Docket Nos. STN 50±454, STN 50±455] pumps) with the reactor coolant system that the reactor vessel be operated with in a solid water condition, the operating P/T limits at least as conservative as Commonwealth Edison Company pressure must be maintained below the those obtained by following the (Byron Station, Units 1 and 2); PORV setpoint. Applying LTOP methods of analysis and the required Exemption instrument uncertainties as required by margins of safety of Appendix G of the WCAP–14040, Revision 1, results in an I. ASME Code. LTOP setpoint that would have resulted Appendix G of Section XI of the Commonwealth Edison Company in an operating window between the ASME Code requires that the P/T limits (ComEd, the licensee) is the holder of LTOP setpoint and the minimum be calculated (a) using a safety factor of Facility Operating License Nos. NPF–37 pressure required for reactor coolant two on the principal membrane and NPF–66, which authorize operation pump seals, which is too small to (pressure) stresses, (b) assuming a flaw of Byron Station, Units 1 and 2, permit continued operation. respectively. The licenses provide, The licensee has requested the use of at the surface with a depth of one- among other things, that the licensee is the American Society of Mechanical quarter (1/4) of the vessel wall thickness subject to all rules, regulations, and Engineers (ASME) Boiler and Pressure and a length of six (6) times its depth, orders of the Commission now or Vessel Code (Code) Case N–514, ‘‘Low and (c) using a conservative fracture hereafter in effect. Temperature Overpressure Protection,’’ toughness curve that is based on the The facility consists of two which allows exceeding the safety limits lower bound of static, dynamic, and pressurized-water reactors located at the of 10 CFR Part 50, Appendix G, by 10 crack arrest fracture toughness tests on licensee’s site in Ogle County, Illinois. percent. ASME Code Case N–514, the material similar to the Byron reactor vessel material. II. proposed alternate methodology, is consistent with guidelines developed by In determining the setpoint for LTOP In its letter dated March 14, 1996, the the ASME Working Group on Operating events, the licensee proposed to use licensee requested an exemption from Plant Criteria to define pressure limits safety margins based on an alternate the Commission’s regulations. Title 10 during LTOP events that avoid certain methodology consistent with the ASME of the Code of Federal Regulations, Part unnecessary operational restrictions, Code Case N–514 guidelines. The ASME 50, Section 60 (10 CFR 50.60), provide adequate margins against failure Code Case N–514 allows determination ‘‘Acceptance Criteria for Fracture of the reactor pressure vessel, and of the setpoint for LTOP events such Prevention Measures for Lightwater reduce the potential for unnecessary that the maximum pressure in the vessel Nuclear Power Reactors for Normal activation of pressure-relieving devices would not exceed 110 percent of the P/ Operation,’’ states that all lightwater used for LTOP. ASME Code Case N–514 T limits of the existing ASME Code, nuclear power reactors must meet the has been approved by the ASME Code Section XI, Appendix G. This approach fracture toughness and material Committee. The content of this code results in a safety factor of 1.8 on the surveillance program requirements for case has been incorporated into principal membrane stresses. All other the reactor coolant pressure boundary as Appendix G of Section XI of the ASME factors, including assumed flaw size and set forth in Appendices G and H to 10 Code and published in the 1993 fracture toughness, remain the same. CFR Part 50. Appendix G to 10 CFR Part Addenda to Section XI. Although this methodology would 50 defines pressure/temperature (P/T) reduce the safety factor on the principal limits during any condition of normal III. membrane stresses, the proposed operation, including anticipated Pursuant to 10 CFR 50.12, the criteria will provide adequate margins operational occurrences and system Commission may, upon application by of safety to the reactor vessel during hydrostatic tests to which the pressure any interested person or upon its own LTOP transients and, thus, will satisfy boundary may be subjected over its initiative, grant exemptions from the the underlying purpose of 10 CFR 50.60 service lifetime. It is specified in 10 CFR requirements of 10 CFR Part 50 when (1) for fracture toughness requirements. 50.60(b) that alternatives to the the exemptions are authorized by law, Further, by relieving the operational described requirements in Appendices will not present an undue risk to public restrictions, the potential for G and H to 10 CFR Part 50 may be used health or safety, and are consistent with undesirable lifting of the PORV would Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65085 be reduced, thereby improving plant II. Where good cause is shown, safety. An inspection of the Licensee’s consideration will be given to extending the time to request a hearing. A request IV. activities was conducted between February 17 and March 11, 1996. The for extension of time must be made in For the foregoing reasons, the NRC results of this inspection indicated that writing to the Director, Office of staff has concluded that the licensee’s the Licensee had not conducted its Enforcement, U.S. Nuclear Regulatory proposed use of the alternate activities in full compliance with NRC Commission, Washington, D.C. 20555, methodology in determining the requirements. A written Notice of and include a statement of good cause acceptable setpoint for LTOP events will Violation and Proposed Imposition of for the extension. A request for a not present an undue risk to public Civil Penalty (Notice) was served upon hearing should be clearly marked as a health and safety and is consistent with the Licensee by letter dated June 18, ‘‘Request for an Enforcement Hearing’’ the common defense and security. The 1996. The Notice states the nature of the and shall be addressed to the Director, NRC staff has determined that there are violations, the provisions of the NRC’s Office of Enforcement, U.S. Nuclear special circumstances present, as requirements that the Licensee had Regulatory Commission Washington, specified in 10 CFR 50.12(a)(2), in that violated, and the amount of the civil D.C. 20555, with a copy to the application of 10 CFR 50.60 is not penalty proposed for the violations. Commission’s Document Control Desk, necessary in order to achieve the The Licensee responded to the Notice Washington, D.C. 20555. Copies also underlying purpose of this regulation. in a letter dated July 16, 1996. In its shall be sent to the Assistant General Accordingly, the Commission has response, the Licensee admitted the two Counsel for Hearings and Enforcement determined that, pursuant to 10 CFR violations assessed a civil penalty in at the same address and to the Regional 50.12(a), an exemption is authorized by Section I of the Notice, but requested Administrator, NRC Region I, 475 law, will not endanger life or property that the penalty be mitigated. In Allendale Road, King of Prussia, or common defense and security, and is addition, the Licensee denied the two Pennsylvania 19406. otherwise in the public interest. violations in Section II of the Notice that If a hearing is requested, the Therefore, the Commission hereby were classified individually at Severity Commission will issue an Order grants an exemption from the Level IV and not assessed a civil designating the time and place of the requirements of 10 CFR 50.60 such that penalty. The Licensee provided a hearing. If the Licensee fails to request in determining the setpoint for LTOP supplemental response, dated August a hearing within 30 days of the date of events, the Appendix G curves for P/T 15, 1996, in which the Licensee this Order, or if written approval of an limits are not exceeded by more than 10 subsequently admitted one of the extension of time in which to request a percent in order to be in compliance Severity Level IV violations that it had hearing has not been granted, the with these regulations. This exemption denied in the July 16, 1996 response. provisions of this Order shall be is applicable only to LTOP conditions effective without further proceedings. If III. during normal operation. payment has not been made by that Pursuant to 10 CFR 51.32, the After consideration of the Licensee’s time, the matter may be referred to the Commission has determined that the response and the statements of fact, Attorney General for collection. granting of this exemption will not have explanation, and argument for In the event the Licensee requests a a significant effect on the quality of the mitigation contained therein, the NRC hearing as provided above, the issues to human environment (61 FR 37294). staff has determined, as set forth in the be considered at such hearing shall be: This exemption is effective upon Appendix to this Order, that the whether, on the basis of the violations issuance. violations for which the civil penalty set forth in Section I of the Notice that was proposed occurred as stated in the Dated at Rockville, Maryland, this 29th day the Licensee admitted, this Order of Nov. 1996. Notice, and that an adequate basis was should be sustained. not provided for mitigation of the civil For the Nuclear Regulatory Commission. Dated at Rockville, Maryland this 3rd day penalty. Therefore, the penalty Frank J. Miraglia, of December 1996. proposed for the violations designated For the Nuclear Regulatory Commission. Acting Director, Office of Nuclear Reactor in Section I of the Notice should be James L. Milhoan, Regulation. imposed. [FR Doc. 96–31324 Filed 12–9–96; 8:45 am] Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations and BILLING CODE 7590±01±P IV. In view of the foregoing and pursuant Research. to Section 234 of the Atomic Energy Act Appendix Niagara Mohawk Power Corporation of 1954, as amended (Act), 42 U.S.C. Evaluation and Conclusion Nine Mile Point, Unit 1; Order Imposing 2282, and 10 CFR 2.205, It Is Hereby a Civil Monetary Penalty Ordered That: On June 18, 1996, a Notice of The Licensee pay a civil penalty in Violation and Proposed Imposition of [Docket No. 50±220, License No. DPR±63, the amount of $50,000 within 30 days Civil Penalty (Notice) in the amount of EA 96±079] of the date of this Order, by check, draft, $50,000 was issued to the Niagara Mohawk Power Corporation (licensee) I. money order, or electronic transfer, payable to the Treasurer of the United for violations of NRC requirements. Two Niagara Mohawk Power Corporation States and mailed to the Director, Office of the violations were classified in the (Licensee) is the holder of Operating of Enforcement, U.S. Nuclear Regulatory aggregate at Severity Level III, and a License No. DPR–63 (License), issued by Commission, One White Plant North, $50,000 civil penalty was proposed. the Nuclear Regulatory Commission 11555 Rockville Pike, Rockville, MD Two other violations were classified (NRC or Commission). The License 20852–2738. individually at Severity Level IV. The authorizes the Licensee to operate the licensee responded to the Notice on July Nine Mile Point Unit 1 nuclear facility V. 16, 1996, and admitted the two in accordance with the conditions The Licensee may request a hearing violations for which a penalty was specified therein. within 30 days of the date of this Order. proposed, but requested that the penalty 65086 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices be mitigated. The licensee also denied Contrary to the above, from December resolve a minor discrepancy in the the two violations that were not 1969 to March 1995, the actual design UFSAR. assessed a penalty. In a supplemental configuration of the reactor and turbine The licensee further noted in support response, dated August 15, 1996, the building pressure relief panels was of its mitigation request that it had not licensee admitted one of the Severity different from that described in the been assessed a penalty since 1992; that Level IV violations that it had denied in UFSAR, and Niagara Mohawk Power it has demonstrated a proactive the July 16, 1996 response. The NRC’s Corporation (NMPC) did not perform approach to safety; and, contrary to a evaluation and conclusion regarding the the required written safety evaluation to statement in the NOV transmittal letter, licensee’s requests are as follows: provide the bases for a determination that it took immediate actions to restore the pressure relief panels to a condition 1. Restatement of Violations that the deviation from the UFSAR description did not involve an consistent with the UFSAR once the A. Title 10 of the Code of Federal unreviewed safety question. calculational error was discovered, and Regulations, Part 50, (10 CFR 50), Specifically, in October 1993, NMPC the NRC did not appear to give any Appendix B, Criterion III, ‘‘Design identified that the wrong size bolts had credit for this. Control,’’ requires that measures be been installed in the relief panels during 3. NRC Evaluation of Licensee Response established to verify the adequacy of initial construction. Calculations design, such as by design reviews, revealed that the reactor and turbine The NRC has carefully considered the alternate or simplified calculational building pressure relief panels would licensee’s response and concludes that methods, or suitable testing. not relieve until 53 and 60 psf, the licensee has not provided an Nine Mile Point Unit 1 Updated Final respectively. Subsequent calculations adequate basis for mitigation of the civil Safety Analysis Report (UFSAR), revealed that the panels would not penalty. Although the licensee did not Sections VI.C.1.2 and III.A.1.2, state that relieve until the pressure was in excess the reactor and turbine building specifically contest the Severity Level of the superstructure design blowout pressure relief panels will blow out at classification of the two violations in pressure of 80 psf stated in the UFSAR, 45 pounds per square foot (psf) to Section I of the Notice, the licensee and the licensee neither performed the prevent failure of the building appears to take issue with that evaluation required by 10 CFR 50.59, superstructures at an internal pressure classification by indicating that the nor did it undertake adequate corrective in excess of 80 psf. deficiencies in the pressure relief panel Contrary to the above, between action to restore the facility to the construction do not represent a October 1993 and March 1995, measures licensing basis configuration as significant safety issue. The NRC established failed to verify the adequacy specified in the UFSAR. (01023) concedes that the pressure relief panels of design for Unit 1 reactor and turbine This is a Severity Level III problem likely would have functioned as building pressure relief panels to blow (Supplement I). Civil Penalty—$50,000 designed to prevent failure of the out at the specified pressures. 2. Summary of Licensee Response building superstructures,1 and the Specifically, in October 1993, NMPC Requesting Mitigation of the Penalty panels function only in the event of a made an error in the assumptions for high energy line break outside calculations regarding the installed, In its July 16, 1996 response, the containment, which is not considered a oversized bolts in the reactor and licensee admitted the two violations for design basis event for NMP–1. However, turbine building pressure relief panels. which the civil penalty was proposed the NRC notes that the full resolution of The error was not identified, during the and stated its belief that a civil penalty this issue is still under the licensee’s review process, by either the is not warranted. In support of this evaluation. Notwithstanding the result independent engineering reviewer or belief, the licensee noted that the of that resolution, the NRC maintains approver. It was not recognized until deficiencies in the blowout panel that the two violations represent a March 1995 that the relief pressures construction do not represent a significant regulatory concern and, were in excess of the designed blowout significant safety issue; the blowout therefore, were classified appropriately pressure of the superstructures. (01013) panels would have functioned as in the aggregate at Severity Level III. B. 10 CFR 50.59(a)(1), allows, in part, designed to prevent failure of the In making this determination, the the holder of a license to make changes building superstructures; and the panels NRC considered the fact that this to the facility as described in the safety would only function in the event of a condition (the actual design analysis report unless the proposed high energy line break outside configuration of the pressure relief change involves an unreviewed safety containment, a scenario that the panels was different from that described question. licensee indicated is not considered a in the UFSAR) existed for 10 CFR 50.59(b)(1) requires, in part, design basis event for NMP–1. approximately 26 years, without any the licensee to maintain records of The licensee also expressed concern written safety evaluation to provide the changes in the facility, to the extent that that the violations and civil penalty may basis for a determination that the these changes constitute changes in the be the result of applying a relatively deviation from the UFSAR description facility as described in the safety recent regulatory position and did not involve an unreviewed safety analysis report. The records must philosophy to actions that occurred over question. A number of facts are most include a written safety evaluation three years ago. The licensee noted that noteworthy: (1) the licensee identified, which provides the bases for the it appears that the NRC is considering in October 1993, that the wrong size determination that the change does not all statements and commitments in the bolts (1⁄4-inch diameter, as opposed to involve an unreviewed safety question. UFSAR as ‘‘stand-alone’’ regulatory the correct sized 3⁄16-inch diameter Nine Mile Point Unit 1 UFSAR requirements, and has applied a new bolts) had been installed in the relief Sections VI.C.1.2 and III.A.1.2 state that and restrictive interpretation to the the reactor and turbine building definition of ‘‘margin of safety’’ 1 This NRC position is based on more recent pressure relief panels will blow out at terminology in 10 CFR 50.59. The licensee reviews performed after the enforcement conference, which determined that both the reactor 45 psf to prevent failure of the building licensee further notes that the plant and turbine buildings would be capable of superstructure at an internal pressure in condition was identified by its staff as withstanding internal pressures in excess of 100 psf excess of 80 psf. a result of a proactive evaluation to without superstructure failure. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65087 panels during initial construction, (2) were the licensee’s corrective actions. In operating, NMPC determined that the the licensee’s October 1993 evaluation addition, although the NRC actual blowout pressures of the reactor of the wrong bolts utilized assumptions acknowledges that the licensee took and turbine building pressure relief inconsistent with the assumptions immediate actions to restore the panels were in excess of the buildings’ described in the UFSAR 2 and (3) a pressure relief panels to a condition design basis pressures identified in the subsequent review, in March 1995, of consistent with the UFSAR once the Unit 1 UFSAR, and NMPC failed to the evaluation performed in October calculational error was discovered, the make and submit the required reports in 1993, revealed that the assumptions NRC maintains that no credit was the required time periods. (02024) were incorrect and that the panels warranted for these corrective actions. This is a Severity Level IV Violation would not relieve until the pressure was In October 1993, the licensee identified (Supplement I). in excess of the superstructure design that the wrong bolts had been installed 5. Licensee Response Denying Violation blowout pressure stated in the UFSAR in 1969, and calculated the relief II.B (80 psf). Nonetheless, the licensee pressures to be 53 psf for the reactor neither performed the required building and 60 psf for the turbine The licensee, in disagreeing with this evaluation, nor undertook adequate building. This calculation was in error, violation, noted that in October of 1993, corrective action to restore the facility to and the relief pressures were actually in the calculations associated with the the licensing basis configuration as excess of 80 psf as the licensee oversized bolts in the blowout panels specified in the UFSAR. Given the identified in March 1995, at which time indicated that the reactor and turbine length of time this condition existed, the the licensee removed every other bolt to building panels would relieve at inappropriate and inconsistent use of place themselves in a condition that the internal pressures of 53 and 60 psf, assumptions not described in the licensee believed was in compliance respectively, and the UFSAR indicated that the buildings’ design basis pressure UFSAR, and the failure to promptly with the UFSAR. It was not until after was in excess of 80 psf. The licensee, resolve and take appropriate action to being questioned by the NRC prior to therefore, concluded that this situation address the issue of building the conference, that the licensee was not reportable even though the overpressure when indications of a identified that the March 1995 calculated blowout pressures did exceed problem surfaced in 1993, the NRC calculations were also wrong. In the 45 psf nominal value for bolt failure contends that the violations represent a addition, the calculations used to support the removal of every other bolt as indicated in the UFSAR. significant regulatory concern and were The licensee stated that in reaching classified appropriately at Severity were flawed, yet the licensee, at the time of the enforcement conference, had this conclusion, it considered the Level III. guidance in NUREG–1022, ‘‘Event With regard to the licensee’s concern not completed the evaluation required pursuant to 10 CFR 50.59 to change the Reporting Guidelines 10 CFR 50.72 and that the violations and imposition of a 50.73,’’ and various statements in the civil penalty may be the result of UFSAR. Therefore, the NRC maintains that credit is not warranted for the Federal Register (FR) related to the applying a relatively recent regulatory reportability rule. The licensee notes position and philosophy to actions that licensee’s corrective actions, which according to the Enforcement Policy, that NUREG–1022 provides an example occurred over three year ago, Violations where high energy line break restraints I.A and B involve the licensee’s original results in a civil penalty of $50,000 being assessed. The NRC concludes that are not installed, but indicates that this construction installation of incorrect- would not be considered reportable if sized bolts on the pressure relief panels, the penalty for this Severity Level III problem should not be mitigated. analysis shows that the particular resulting in a change to the facility from missing restraints are not needed for that described in the plant’s UFSAR, 4. Restatement of Violation II.B compliance with the design basis. The without preparing a written safety 10 CFR 50.72(b)(1)(ii)(B), requires, in licensee further indicates that the evaluation as required by 10 CFR 50.59. part, that the licensee shall notify the preamble to the final rule in the August The NRC has always regarded such a NRC as soon as practical and in all cases 29, 1983, FR notes, in regard to this change as requiring a written safety within one hour of the occurrence of section of the rule, that ‘‘[i]t is not evaluation in accordance with 10 CFR any event or condition, during intended that this paragraph apply to 50.59. Thus, there has been no change operation, that results in the nuclear minor variations in individual in the NRC’s interpretation of this power plant, including its principal parameters or to problems concerning requirement as it applies to the changes safety barriers, being seriously degraded single pieces of equipment.’’ The addressed in Violations I.A and B. or in a condition that is outside the licensee also noted that an April 8, 1993 The NRC also acknowledges that this design basis of the plant. FR states: ‘‘Furthermore, the wording of plant condition was identified by the 10 CFR 50.73(a)(2)(ii)(B) requires that the criteria and the guidance in the licensee staff as a result of a proactive the licensee shall submit a Licensee preamble to the final rule imply that evaluation to resolve a discrepancy in Event Report (LER) within 30 days of this impact on plant safety should be at the UFSAR, and the licensee has not the discovery of any event or condition a fairly high level,’’ and ‘‘Therefore, been assessed a penalty since 1992. that results in the condition of the failure, specification problems, and loss These factors were considered by the nuclear power plant, including its of safety margins that apply to NRC as part of the civil penalty principal safety barriers being seriously individual components are not assessment process set forth in the NRC degraded or in a condition that is reportable unless they effect the ability Enforcement Policy (NUREG–1600), as outside the design basis of the plant. to satisfy plant safety functions 3.’’ Contrary to the above, in October The licensee indicated that, based on 2 The UFSAR description of the failure mode was the panel bolts shearing (one-way process analysis 1993, NMPC did not notify the NRC the above guidance, it concluded in resulting in calculated failures of 94 psf and 92 psf within one hour of the discovery of a October of 1993 that the calculated for the reactor and turbine building, respectively). condition outside the design basis of the blowout pressures of 53 and 60 psf for However, the licensee chose to analyze the panel plant, nor did NMPC submit a LER the reactor and turbine buildings, relieving process by using a metal tearing failure mode (two-way process analysis resulting in within 30 days of discovery of a respectively, would still have the ability calculated failures of 53 psf and 60 psf for the condition outside the design basis of the reactor and turbine building, respectively). plant. Specifically, with the plant 3 58 FR 18167, 18174, April 8, 1993 65088 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices to satisfy the plant design basis. condition. Nonetheless, the licensee was non-cited violation, and consideration Specifically, the blowout panels would aware that the panels’ pressure relief of risk in developing sanctions. still protect the buildings’ values calculated in 1993 were above DATES: This revision is effective on superstructure from failure, which was the stated value of 45 psf stated in the December 10, 1996. Comments are due considered the plant design basis. The UFSAR at which the panels were on or before January 9, 1997. The licensee contended that the 45 psf value supposed to provide relief. The NRC change to Part V of the Enforcement is not considered the plant design basis maintains that the licensee was outside Policy concerning open predecisional for reportability considerations and of its design basis and decreased the enforcement conferences does not apply none of the principle safety barriers was margin to the pressure that would cause to conferences that were announced seriously degraded. Therefore, the building failure and, therefore, the prior to the effective date of this licensee does not consider that this deviation from the UFSAR should have revision. condition was reportable given the been reported to the NRC. ADDRESSES: Send written comments to: information available in October 1993, The NRC maintains this position, The Secretary of the Commission, U.S. and therefore disagrees with this notwithstanding the licensee’s Nuclear Regulatory Commission, violation. contention that the guidance in Washington, DC 20555, ATTN: The licensee also notes that the NUREG–1022 would suggest that the Docketing and Service Branch. Deliver description of the violation in the condition was not reportable. The NRC comments to: 11555 Rockville Pike, Notice of Violation, and particularly, the believes that the licensee misinterpreted Rockville, Maryland 20852, between discussion of the violation in the the NUREG–1022 guidance and in so 7:45 am and 4:15 pm, on Federal transmittal letter, suggests that the NRC doing, failed to report the subject workdays. Copies of comments may be is applying a relatively recent regulatory condition to the NRC. Simply stated, the examined at the NRC Public Document position regarding the status of licensee’s analogy of a missing high Room, 2120 L Street, NW. (Lower- numerical values within the UFSAR. energy line break restraint, which Level), Washington, DC. Specifically, the licensee states that it subsequently is analyzed as not being appears that the NRC is considering all FOR FURTHER INFORMATION CONTACT: required for compliance with the design James Lieberman, Director, Office of statements and commitments in the basis, is not applicable to the pressure UFSAR as ‘‘stand-alone’’ requirements. Enforcement, U.S. Nuclear Regulatory relief panels, a single component which Commission, Washington, DC 20555 The licensee further notes that while provides a significant function in stated in the second paragraph on page (301) 415–2741. protecting the building superstructure SUPPLEMENTARY INFORMATION: The two of the NOV transmittal letter, but in the event of an overpressure transient not cited as such in any of the ‘‘General Statement of Policy and of the reactor or turbine buildings. violations, it appears that the NRC Procedure for NRC Enforcement considers that the failure of the blowout 7. NRC Conclusion Actions’’ (Enforcement Policy or Policy) panels to function at the UFSAR stated was first issued on September 4, 1980. The NRC concludes that the licensee pressure of 45 psf is, in itself, a violation Since that time, the Enforcement Policy has not provided an adequate basis for of regulatory requirements and a has been revised on a number of mitigating the civil penalty. reportable situation. The licensee occasions. On June 30, 1995 (60 FR Accordingly, the NRC has determined disagrees with this interpretation of the 34381), the Enforcement Policy was that a monetary civil penalty in the legal significance of the UFSAR, and is revised in its entirety and was also amount of $50,000 should be imposed participating with the Nuclear Energy published as NUREG–1600. The Policy for the violations in Section I of the June Institute (NEI) to initiate a dialogue with primarily addresses violations by the NRC regarding the resolution of this 18, 1996 Notice. In addition, the licensees and certain non-licensed generic issue. The licensee further states licensee has not provided an adequate persons, as discussed further in footnote that notwithstanding its efforts to reach basis for the withdrawal of Violation 3 to Section I, Introduction and Purpose, agreement on what the interpretation of II.B in the Notice. and in Section X: Enforcement Action information in the UFSAR should be, [FR Doc. 96–31323 Filed 12–9–96; 8:45 am] Against Non-licensees. As described the licensee believes that it is clear that BILLING CODE 7590±01±P below, the Commission is amending the the NRC’s regulatory interpretation is Enforcement Policy to address issues inconsistent with the previously issued regarding consultation with the guidance on reportability as referenced Policy and Procedure for Enforcement Commission, open predecisional in the licensee’s response. Actions; Policy Statement enforcement conferences, non-cited violations, and risk-significant 6. NRC Evaluation of Licensee Response AGENCY: Nuclear Regulatory violations. The NRC agrees that the licensee, Commission. Commission Consultation based on its erroneous calculations in ACTION: Policy statement: Revision. October 1993, concluded that the Most enforcement decisions are made pressure relief panels would provide SUMMARY: The Nuclear Regulatory at the NRC staff level. However, based relief at values below the reactor and Commission (NRC or Commission) is on guidance in Section III of the turbine building superstructure failure amending its General Statement of Enforcement Policy ‘‘Responsibilities,’’ pressure of 80 psf. While the licensee Policy and Procedure for Enforcement certain cases require formal Commission clearly should have been aware that the Actions (Enforcement Policy) to revise consultation. The practice of pressure relief panels would provide the list of enforcement matters on which Commission consultation has existed relief at values above the 80 psf the NRC staff must consult with the since the Enforcement Policy was first superstructure pressures if the Commission, to modify the Policy to published as an interim Policy in 1980. calculation had been adequately provide that most predecisional After 1980, the number of cases performed, it is also clear that the enforcement conferences will be open to requiring this type of consultation has licensee could not report a condition public observation, to clarify the more than doubled. Most of the criteria that it was not aware of, even though it circumstances in which a licensee- for consultation were adopted many should have been aware of the identified violation will be treated as a years ago, to address particular Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65089

Commissioner concerns or areas where from more than two times the amount candid discussions between the NRC the NRC staff had little experience. The of the base civil penalty. However, item and licensees, limit the free exchange of NRC staff has had substantial (2) of Section III of the Policy is being information, reduce conference experience in implementing the clarified to require consultation when effectiveness, and negatively impact the objectives of the Enforcement Policy. It the NRC staff proposes a civil penalty enforcement program. Although is relatively rare that the Commission greater than 3 times the Severity Level industry reiterated this concern during deviates from the recommended NRC I values shown in Table 1A for a single the trial program, the Commission has staff approach. Thus, there is less need violation or problem. The NRC staff will not found that open enforcement for mandatory Commission involvement continue to provide notification to the conferences conducted during the trial in many enforcement matters. Commission for all civil penalties and program were substantially less frank Based on these factors and orders. and open, nor was the NRC prevented considering the significant effort from obtaining the information required currently expended in providing Predecisional Enforcement Conferences to implement its enforcement program. Commission consultation on Historically, the Enforcement Policy In some cases, the NRC staff needed to enforcement matters, the Commission has provided that enforcement ask licensees additional questions, but has given the NRC staff more flexibility conferences are closed meetings the information ultimately provided was to decide what enforcement issues between the NRC and licensees to always sufficient to meet predecisional should be brought to the Commission’s exchange information on potential enforcement conference goals. attention because of policy significance, safety issues. Section V of the current Opening predecisional enforcement controversy, or known Commission Enforcement Policy states that conferences is consistent with the interest. conferences, ‘‘are not normally open to agency’s principles of good regulation Section III of the Enforcement Policy the public observation.’’ However, on and normal agency policy (‘‘Staff is being modified to delete the specific July 10, 1992, the Commission Meetings Open to the Public; Final requirements for consultation with the established a 2-year trial program to Policy Statement,’’ 59 FR 48340; Commission before the NRC staff issues determine if the Policy should be September 20, 1994). The intent of open enforcement actions involving material changed to make most enforcement conferences is not to maximize public false statements, orders or civil conferences open to the public. On July attendance, but to provide the public penalties to unlicensed individuals, or 19, 1994, the NRC announced that the with an opportunity to observe the civil penalties to licensed reactor trial program would be continued until regulatory process. Although making operators. Because of the egregious the Commission had acted on the highly technical meetings open to the nature of material false statement cases, enforcement review team’s public exposes participants to the risk it is logical that they would be recommendations. that information may be misunderstood considered very significant regulatory The announcement of the trial or misconstrued, the Commission does concerns and be categorized at Severity program explained that the not find that the risk outweighs the Level I and require Commission Commission’s decision on whether to public confidence gained by allowing consultation on that basis (Section III(3) establish a permanent policy for making open observation of NRC predecisional of the Enforcement Policy). The enforcement conferences open would be enforcement conferences. Commission believes that consultation based on an assessment of the following After considering the impact on the regarding individual actions should be criteria: NRC’s ability to exercise its regulatory based on the merits of the particular (1) Whether the fact that the and safety responsibilities, the impact case. Further, under the current Policy, conference was open impacted the on the candor and openness of civil penalties are not normally issued NRC’s ability to conduct a meaningful communications during enforcement to unlicensed individuals or operators. conference and/or implement the NRC’s conferences, the impact on NRC These cases would receive Commission enforcement program; resources, and the benefit to the public, consultation at the request of the (2) Whether the open conference the Commission has decided to modify Executive Director for Operations impacted the licensee’s participation in the Enforcement Policy to provide that (EDO). The Commission receives the conference; most conferences will be open to public advance notification of all orders, (3) Whether the NRC expended a observation. However, as for any public including those issued to unlicensed significant amount of resources in meeting, the NRC retains the discretion individuals. making the conference public; and to close the conference for a specific In addition, consultation will no (4) The extent of public interest in case. The criteria for closing conferences longer be required when the NRC staff opening the enforcement conference. are currently addressed in Section V of exercises discretion under Section Under the trial program, the Enforcement Policy. With two VII.B.2 1 and refrains from taking approximately 25 percent of all eligible additions, these criteria will continue to enforcement action for certain violations enforcement conferences were open to be used. The changes involve opening a identified during extended shutdowns. public observation. Open enforcement conference if it is based on an NRC The Commission will receive advance conferences were conducted in each Office of Investigations (OI) report that notification through Enforcement regional office and with various types of has been publicly disclosed and Notifications (ENs) for the first exercise licensees. Members of the public providing flexibility to open or close a of discretion for a plant meeting the attended 40 of the 113 open conferences conference with the approval of the criteria of Section VII.B.2. Notification, conducted. In most cases, three or fewer Executive Director for Operations. The not consultation, will be required when members of the public attended. The Enforcement Policy will continue to the NRC staff exercises discretion under Commission received and evaluated emphasize that predecisional Section VII.A.1 in matters in which the comments from licensees and members enforcement conferences are open for civil penalty to be proposed deviates of the public. public observation and not participation The most significant concern in consistent with the NRC’s policy on 1 After the issuance of NUREG–1525, Section allowing public observation at open meetings. The change to the VII.B.3 of the Enforcement Policy was renumbered enforcement conferences was that open Enforcement Policy that opens as Section VII.B.2. conferences could inhibit open and predecisional enforcement conferences 65090 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices will be applied to conferences for which and sanction should be. However, the requirements contained in this policy the date is announced after the effective converse is not necessarily true; low risk statement appear in Section VII.C. date of this revision. should not necessarily result in no Public Protection Notification sanction or a minor violation being Non-Cited Violations cited. This is because many violations, The NRC may not conduct or sponsor, The Enforcement Policy provides although having low risk significance, and a person is not required to respond examples of when discretion generally may indicate a broader problem, often to, a collection of information unless it should be considered for departing from indicative of a programmatic licensee displays a currently valid OMB control the normal approach under the Policy. failure to comply with NRC number. Section VII.B.1. addresses non-cited requirements and, therefore, have a high Small Business Regulatory Enforcement violations (NCVs) which are used to regulatory significance. Fairness Act recognize the existence of a legal The Enforcement Policy currently violation but are not formal violations. does not address risk explicitly, except In accordance with the Small NCVs are used to provide an incentive in Section VII.A.1.e, which addresses Business Regulatory Enforcement to licensees to identify and correct the escalation of enforcement sanctions Fairness Act of 1996, the NRC has violations. Criterion 1.(a). in Section in situations when the excessive determined that this action is not a VII.B.1. is a Severity Level IV violation duration of a problem has resulted in a major rule and has verified this that was ‘‘identified by the licensee, substantial increase in risk. Although determination with the Office of including identification through an there is inherent discretion in the Information and Regulatory Affairs of event.’’ Enforcement Policy to increase Severity OMB. This discretion is normally used Levels and sanctions based on risk, the Accordingly, the NRC Enforcement when the licensee identifies and Commission believes it is appropriate to Policy is amended by revising Section corrects a non-recurring violation. modify the Policy to state the III, the first paragraph in Section IV, However, this provision is not normally consideration of risk aspects more Section V, and Sections VII.A.1.(e) and used for violations that meet the criteria clearly. VII.B.1(a) to read as follows: for Severity Level III violations, and In analyzing risk, the NRC recognizes GENERAL STATEMENT OF POLICY where the circumstances justify the uncertainties associated with risk AND PROCEDURE FOR NRC characterization at Severity Level IV. assessment. Generally, qualitative rather ENFORCEMENT ACTIONS Such cases normally are the more than quantitative risk assessments are significant Severity Level IV violations. made given the number of variables * * * * * In addition, the NRC has considered associated with risk assessment. Risk III. Responsibilities whether this exercise of discretion should be a consideration in proposing should normally be used in cases enforcement actions, but not necessarily The Executive Director for Operations involving violations identified through determinatative. In developing higher (EDO) and the principal enforcement an event. If the root cause of the event civil penalties, the Commission intends officers of the NRC, the Deputy is obvious or the licensee had prior to consider, where appropriate, Executive Director for Nuclear Material opportunity to identify the problem but assessing separate civil penalties for Safety, Safeguards and Operations failed to take action that would have each violation that is aggregated into a Support (DEDS), and the Deputy prevented the event, the licensee should Severity Level II problem. Executive Director for Nuclear Reactor not be rewarded by the NRC’s exercising Therefore, to provide sufficient Regulation, Regional Operations, and discretion not to cite the violation. On discretion to be able to appropriately Research (DEDR), have been delegated the other hand, there may be cases consider risk in enforcement decisions, the authority to approve or issue all 4 when, notwithstanding a self-disclosing Section IV of the Policy is being escalated enforcement actions. The violation, the licensee demonstrated modified to state that in considering the DEDS is responsible to the EDO for the initiative in identifying the violation’s significance of a violation, the NRC NRC enforcement programs. The Office root cause. In such a case, an NCV may considers the technical significance, i.e., of Enforcement (OE) exercises oversight be appropriate. actual and potential consequences, and of and implements the NRC In general, when the licensee’s the regulatory significance; and that in enforcement programs. The Director, identification is through an event, evaluating the technical significance, OE, acts for the Deputy Executive discretion should only be exercised risk is an appropriate consideration. Directors in enforcement matters in when the licensee has demonstrated Further, Section VII.A.1.(e) is being their absence or as delegated. initiative. Further, the violation should modified to state that exercise of Subject to the oversight and direction be cited if it caused the event, the cause discretion should be considered in of OE, and with the approval of the is obvious, or a clear opportunity situations where the violation has appropriate Deputy Executive Director, existed to identify the violation and take resulted in a substantial increase in risk, where necessary, the regional offices action to prevent the event. The including cases in which the duration of normally issue Notices of Violation and Commission believes that the the violation has contributed to the proposed civil penalties. However, Enforcement Policy should be clarified substantial increase. subject to the same oversight as the by deleting the reference to regional offices, the Office of Nuclear Paperwork Reduction Act Statement identification through an event in the Reactor Regulation (NRR) and the Office criterion in Section VII.B.1.(a) to make This policy statement does not of Nuclear Material Safety and it clear that use of discretion is not contain a new or amended information Safeguards (NMSS) may also issue automatic if the violation is identified collection requirement subject to the Notices of Violation and proposed civil through a self-disclosing event. Paperwork Reduction Act of 1995 (44 penalties for certain activities. U.S.C. 3501 et seq.). Existing Risk-significant Violations requirements were approved by the 4 The term ‘‘escalated enforcement action’’ as used in this policy means a Notice of Violation or In evaluating violations for Office of Management and Budget, civil penalty for any Severity Level I, II, or III enforcement, the higher the risk from a approval number 3150–0011. The violation (or problem) or any order based upon a violation, the greater the severity level approved information collection violation. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65091

Enforcement orders are normally issued same conclusions as those in the OI issued, as to the licensee’s views on the by a Deputy Executive Director or the report concerning issues of intent if the apparent violations and their root Director, OE. However, orders may also Director of OI concludes that causes and a description of planned or be issued by the EDO, especially those Commission consultation is warranted; implemented corrective action. involving the more significant matters. and During the predecisional enforcement The Directors of NRR and NMSS have (6) Any proposed enforcement action conference, the licensee, vendor, or also been delegated authority to issue on which the Commission asks to be other persons will be given an orders, but it is expected that normal consulted. opportunity to provide information use of this authority by NRR and NMSS consistent with the purpose of the IV. Severity of Violations will be confined to actions not conference, including an explanation to associated with compliance issues. The Regulatory requirements 5 have the NRC of the immediate corrective Director, Office of the Controller, has varying degrees of safety, safeguards, or actions (if any) that were taken been delegated the authority to issue environmental significance. Therefore, following identification of the potential orders where licensees violate the relative importance of each violation or nonconformance and the Commission regulations by nonpayment violation, including both the technical long-term comprehensive actions that of license and inspection fees. significance and the regulatory were taken or will be taken to prevent In recognition that the regulation of significance, is evaluated as the first recurrence. Licensees, vendors, or other nuclear activities in many cases does step in the enforcement process. In persons will be told when a meeting is not lend itself to a mechanistic considering the significance of a a predecisional enforcement conference. treatment, judgment and discretion violation, the staff considers the A predecisional enforcement must be exercised in determining the technical significance, i.e., actual and conference is a meeting between the severity levels of the violations and the potential consequences, and the NRC and the licensee. Conferences are appropriate enforcement sanctions, regulatory significance. In evaluating normally held in the regional offices including the decision to issue a Notice the technical significance, risk is an and are normally open to public of Violation, or to propose or impose a appropriate consideration. observation. Conferences will not civil penalty and the amount of this * * * * * normally be open to the public if the penalty, after considering the general enforcement action being contemplated: principles of this statement of policy V. Predecisional Enforcement (1) Would be taken against an and the technical significance of the Conferences individual, or if the action, though not violations and the surrounding Whenever the NRC has learned of the taken against an individual, turns on circumstances. existence of a potential violation for whether an individual has committed Unless Commission consultation or which escalated enforcement action wrongdoing; notification is required by this policy, appears to be warranted, or recurring (2) Involves significant personnel the NRC staff may depart, where nonconformance on the part of a failures where the NRC has requested warranted in the public’s interest, from vendor, the NRC may provide an that the individual(s) involved be this policy as provided in Section VII, opportunity for a predecisional present at the conference; ‘‘Exercise of Enforcement Discretion.’’ enforcement conference with the (3) Is based on the findings of an NRC The Commission will be provided licensee, vendor, or other person before Office of Investigations report that has written notification of all enforcement taking enforcement action. The purpose not been publicly disclosed; or actions involving civil penalties or of the conference is to obtain (4) Involves safeguards information, orders. The Commission will also be information that will assist the NRC in Privacy Act information, or information provided notice the first time that determining the appropriate which could be considered proprietary; discretion is exercised for a plant enforcement action, such as: (1) a In addition, conferences will not meeting the criteria of Section VII.B.2. common understanding of facts, root normally be open to the public if: (5) The conference involves medical In addition, the Commission will be causes and missed opportunities misadministrations or overexposures consulted prior to taking action in the associated with the apparent violations, and the conference cannot be conducted following situations (unless the urgency (2) a common understanding of without disclosing the exposed of the situation dictates immediate corrective action taken or planned, and action): individual’s name; or (3) a common understanding of the (6) The conference will be conducted (1) An action affecting a licensee’s significance of issues and the need for operation that requires balancing the by telephone or the conference will be lasting comprehensive corrective action. conducted at a relatively small public health and safety or common If the NRC concludes that it has defense and security implications of not licensee’s facility. sufficient information to make an Notwithstanding meeting any of these operating with the potential radiological informed enforcement decision, a or other hazards associated with criteria, a conference may still be open conference will not normally be held if the conference involves issues related continued operation; unless the licensee requests it. However, (2) Proposals to impose a civil penalty to an ongoing adjudicatory proceeding an opportunity for a conference will with one or more intervenors or where greater than 3 times the Severity Level normally be provided before issuing an I values shown in Table 1A for a single the evidentiary basis for the conference order based on a violation of the rule on is a matter of public record, such as an violation or problem; Deliberate Misconduct or a civil penalty (3) Any proposed enforcement action adjudicatory decision by the to an unlicensed person. If a conference that involves a Severity Level I Department of Labor. In addition, is not held, the licensee will normally violation; notwithstanding the above normal (4) Any action the EDO believes be requested to provide a written criteria for opening or closing warrants Commission involvement; response to an inspection report, if conferences, with the approval of the (5) Any proposed enforcement case Executive Director for Operations, 5 The term ‘‘requirement’’ as used in this policy involving an Office of Investigations means a legally binding requirement such as a conferences may either be open or (OI) report where the NRC staff (other statute, regulation, license condition, technical closed to the public after balancing the than the OI staff) does not arrive at the specification, or order. benefit of the public observation against 65092 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices the potential impact on the agency’s When needed to protect the public Street, NW., Washington, DC 20268– decision-making process in a particular health and safety or common defense 0001, Telephone (202) 789–6840. case. and security, escalated enforcement Margaret P. Crenshaw, The NRC will notify the licensee that action, such as the issuance of an Secretary. the conference will be open to public immediately effective order, will be [FR Doc. 96–31406 Filed 12–6–96; 10:50 am] taken before the conference. In these observation. Consistent with the BILLING CODE 7710±FW±P agency’s policy on open meetings, ‘‘Staff cases, a conference may be held after the Meetings Open to Public,’’ published escalated enforcement action is taken. September 20, 1994 (59 FR 48340), the VII. Exercise of Discretion POSTAL SERVICE NRC intends to announce open conferences normally at least 10 * * * * * Sunshine Act Meeting; Board of working days in advance of conferences A. Escalation of Enforcement Sanctions Governors through (1) notices posted in the Public Document Room, (2) a toll-free * * * * * Notice of Vote to Close Meeting telephone recording at 800–952–9674, 1. * * * At its meeting on December 2, 1996, (3) a toll-free electronic bulletin board at (e) Situations when the violation the Board of Governors of the United 800–952–9676, and on the World Wide results in a substantial increase in risk, States Postal Service voted unanimously Web at the NRC Office of Enforcement including cases in which the duration of to close to public observation its homepage (www.nrc.gov/OE). In the violation has contributed to the meeting scheduled for January 6, 1997, addition, the NRC normally will also substantial increase; in Washington, D.C. The members will issue a press release and notify * * * * * be briefed on: (1) Classroom Publication appropriate State liaison officers that a Prices; (2) a proposed filing with the B. Mitigation of Enforcement Sanctions predecisional enforcement conference Postal Rate Commission for Parcels; and has been scheduled and that it is open * * * * * (3) will consider funding approval for to public observation. 1. Licensee-Identified Severity Level International Service Centers. The public attending open IV Violations. The NRC, with the The meeting is expected to be conferences may observe but not approval of the Regional Administrator attended by the following persons: participate in the conference. It is noted or his or her designee, may refrain from Governors Alvarado, Daniels, del Junco, that the purpose of conducting open issuing a Notice of Violation for a Dyhrkopp, Fineman, Mackie, conferences is not to maximize public Severity Level IV violation that is McWherter, Rider and Winters; attendance, but rather to provide the documented in an inspection report (or Postmaster General Runyon, Deputy public with opportunities to be official field notes for some material Postmaster General Coughlin, Secretary informed of NRC activities consistent cases) and described therein as a Non- to the Board Koerber, and General with the NRC’s ability to exercise its Cited Violation (NCV) provided that the Counsel Elcano. regulatory and safety responsibilities. inspection report includes a brief As to the first and second item, the Therefore, members of the public will description of the corrective action and Board determined that pursuant to be allowed access to the NRC regional that the violation meets all of the section 552b(c)(3) of title 5, United offices to attend open enforcement following criteria: States Code, and section 7.3(c) of title conferences in accordance with the (a) It was identified by the licensee; 39, Code of Federal Regulations, this ‘‘Standard Operating Procedures for portion of the meeting is exempt from Providing Security Support for NRC * * * * * Dated at Rockville, MD, this 4th day of the open meeting requirement of the Hearings and Meetings,’’ published December, 1996. Government in the Sunshine Act [5 November 1, 1991 (56 FR 56251). These For the Nuclear Regulatory Commission. U.S.C. 552b(b)] because it is likely to procedures provide that visitors may be disclose information in connection with John C. Hoyle, subject to personnel screening, that proceedings under Chapter 36 of title signs, banners, posters, etc., not larger Secretary of the Commission. 39, United States Code (having to do than 18′′ be permitted, and that [FR Doc. 96–31319 Filed 12–9–96; 8:45 am] with postal ratemaking, mail disruptive persons may be removed. BILLING CODE 7590±01±P classification and changes in postal The open conference will be terminated services), which is specifically if disruption interferes with a successful exempted from disclosure by section conference. NRC’s Predecisional 410(c) of title 39, United States Code. Enforcement Conferences (whether open POSTAL RATE COMMISSION The Board has determined further that or closed) normally will be held at the pursuant to section 552b(c)(10) of title 5, Sunshine Act Meeting NRC’s regional offices or in NRC United States Code, and section 7.3(j) of Headquarters Offices and not in the NAME OF AGENCY: Postal Rate title 39, Code of Federal Regulations, the vicinity of the licensee’s facility. Commission. discussion is exempt because it is likely Members of the public attending open to specifically concern participation of conferences will be reminded that (1) TIME AND DATE: 2:30 p.m. on December the Postal Service in a civil action or the apparent violations discussed at 9, 1996. proceeding involving a determination predecisional enforcement conferences PLACE: Conference Room, 1333 H Street, on the record after opportunity for a are subject to further review and may be NW., Suite 300, Washington, DC 20268. hearing. subject to change prior to any resulting STATUS: Closed. As to the third term, the Board enforcement action and (2) the determined that pursuant to section statements of views or expressions of MATTERS TO BE CONSIDERED: Issues in 552b(c) (3) and (10) of title 5, United opinion made by NRC employees at Docket No. C96–1. States Code; and section 410(c) (2) and predecisional enforcement conferences, CONTACT PERSON FOR MORE INFORMATION: (3) of title 39, United States Code; and or the lack thereof, are not intended to Margaret P. Crenshaw, Secretary, Postal section7.3 (c) and (i) of title 39, Code of represent final determinations or beliefs. Rate Commission, Suite 300, 1333 H Federal Regulations, the meeting is Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65093 exempt from the open meeting was properly closed to public Hearing requests should state the nature requirement of the Government in the observation, pursuant to section 552b(c) of the writer’s interest, the reason for the Sunshine Act [5 U.S.C. 552b(b)]. (2), (6) and (7) of Title 5, United States request, and the issues contested. The Board further determined that the Code; and section 7.3 (b), (f) and (g) of Persons may request notification of a public interest does not require that the Title 39, Code of Federal Regulations. hearing by writing to the Secretary of Board’s discussion of these matters be Thomas J. Koerber, the Commission. open to the public. Secretary. ADDRESSES: Secretary, Securities and In accordance with section 552b(f)(1) [FR Doc. 96–31444 Filed 12–6–96; 12:44 pm] Exchange Commission, 450 5th Street, of title 5, United States Code, and BILLING CODE 7710±12±M N.W., Washington, D.C. 20549. section 7.6(a) of title 39, Code of Federal Applicants, c/o Jack L. Briggs, Esq., Regulations, the General Counsel of the Midland National Life Insurance United States Postal Service has SECURITIES AND EXCHANGE Company, One Midland Plaza, Sioux certified that in her opinion the meeting COMMISSION Falls, South Dakota 57193. may properly be closed to public FOR FURTHER INFORMATION CONTACT: observation pursuant to section 552b(c) [Rel. No. IC±22369; No. 812±10254] Michael Koffler, Law Clerk or Kevin M. (3), (9) and (10) of title 5, United States Kirchoff, Branch Chief, Office of Code; section 410(c), (2) and (3) of title Midland National Life Insurance Company, et al. Insurance Products (Division of 39, United States Code; and section Investment Management), at (202) 942– 7.3(c), (i) and (j) of title 39, Code of December 4, 1996. 0670. Federal Regulations. AGENCY: Securities and Exchange SUPPLEMENTARY INFORMATION: Requests for information about the The Commission (‘‘Commission’’). meeting should be addressed to the following is a summary of the Secretary of the Board, Thomas J. ACTION: Notice of Application for an application; the complete application is Koerber, at (202) 268–4800. Exemption pursuant to the Investment available for a fee from the Public Reference Branch of the Commission. Thomas J. Koerber, Company Act of 1940 (the ‘‘1940 Act’’). Applicants’ Representations Secretary. APPLICANTS: Midland National Life [FR Doc. 96–31443 Filed 12–6–96; 12:44 pm] Insurance Company (‘‘Midland’’), 1. Midland, a South Dakota stock life BILLING CODE 7710±12±M Midland National Life Separate Account insurance company, is a wholly-owned A (‘‘Separate Account A’’), Midland subsidiary of Sammons Enterprises, Inc. National Life Separate Account C 2. Midland established the Midland Sunshine Act Meeting; Board of (‘‘Separate Account C,’’ together with Separate Accounts as separate accounts Governors Separate Account A, the ‘‘Midland pursuant to South Dakota law. Each of Separate Accounts’’), Investors Life the Midland Separate Accounts is a Amendment to Closed Meeting Insurance Company of Nebraska ‘‘separate account,’’ as defined by Agenda (‘‘Investors’’), Investors Life Separate Section 2(a)(37) of the 1940 Act, and is Federal Register Citation of Previous Account B (‘‘Separate Account B’’), and registered with the Commission Announcement: 61 FR 58431, November Investors Life Separate Account D pursuant to the 1940 Act as a unit 14, 1996, and 61 FR 59473, November (‘‘Separate Account D,’’ together with investment trust. 22, 1996. Separate Account B, the ‘‘Investors 3. Certain variable life insurance PREVIOUSLY ANNOUNCED DATE OF Separate Accounts’’). contracts sponsored by Midland and issued through Separate Account A are MEETING: December 2, 1996. RELEVANT 1940 ACT SECTIONS: Order requested pursuant to Section 17(b) registered with the Commission CHANGE: Addition of the following items pursuant to the Securities Act of 1933 to the closed meeting agenda: granting an exemption from the provisions of Section 17(a). (the ‘‘Securities Act’’). Certain variable 1. Consideration of Compensation annuity contracts sponsored by Midland SUMMARY OF APPLICATION: Applicants Issues. and issued through Separate Account C seek an order of exemption to the extent 2. Consideration of Purchasing are registered with the Commission necessary to permit a transfer of assets Procedures. pursuant to the Securities Act. and assumption of liabilities of Separate CONTACT PERSON FOR MORE INFORMATION: 4. Each of the Midland Separate Account B by Separate Account A and Thomas J. Koerber, (202) 268–4800. Accounts is divided into ten investment of Separate Account D by Separate At its meeting on December 2, 1996, divisions, each of which invests Account C. the Board of Governors of the United exclusively in shares of a corresponding States Postal Service voted unanimously FILING DATE: The application was filed portfolio of Variable Insurance Products to add to the agenda consideration of (1) on July 15, 1996, and amended on Fund or Variable Insurance Products compensation issues, and (2) purchasing December 2, 1996. Fund II (together, the ‘‘funds’’), open- procedures, and that discussion on the HEARING OR NOTIFICATION OF HEARING: An end management investment companies items was closed to the public pursuant order granting the application will be registered with the Commission to section 552b(c) (2), (6) and (7) of title issued unless the Commission orders a pursuant to the 1940 Act. 5, United States Code; and section 7.3 hearing. Interested persons may request 5. Investors, a South Dakota stock life (b), (f) and (g) of title 39, Code of Federal a hearing by writing to the Secretary of insurance company, is a subsidiary of Regulations, and that no earlier the Commission and serving Applicants Midland. announcement was possible. with a copy of the request, personally or 6. Investors established the Investors In accordance with section 552b(f)(1) by mail. Hearing requests must be Separate Accounts as separate accounts of title 5, United States Code, and received by the Commission by 5:30 pursuant to South Dakota law. Each of section 7.6(a) of title 39, Code of Federal p.m. on December 30, 1996, and must be the Investors Separate Accounts is a Regulations, the General Counsel of the accompanied by proof of service on ‘‘separate account,’’ as defined by United States Postal Service has Applicants in the form of an affidavit or, Section 2(a)(37) of the 1940 Act, and is certified that in her opinion the meeting for lawyers, a certificate of service. registered with the Commission 65094 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices pursuant to the 1940 Act as a unit a number of Separate Account A units, to Section 8(f) of the 1940 Act to investment trust. (both full and fractional) that when deregister as an investment company. 7. Certain variable life insurance multiplied by the unit value of Separate Applicants’ Legal Analysis contracts sponsored by Investors and Account A units, would result in an issued through Separate Account B are aggregate unit value equal to the 1. Section 17(a) of the 1940 Act registered with the Commission aggregate unit value of the units the provides generally that it is unlawful for pursuant to the Securities Act. Certain contract owner had in Separate Account any affiliated person of a registered variable annuity contracts sponsored by B immediately before the consummation investment company, or any affiliated Investors and issued through Separate of the Reorganization. A similar method person of such a person, acting as Account D are registered with the of crediting units will apply to Separate principal to knowingly purchase or sell Commission pursuant to the Securities Account C units credited to Separate any security or other property from or Act. Account D contract owners. to such registered company. 8. Each of the Investors Separate 13. Upon the effective date of the 2. Section 17(b) of the 1940 Act Accounts is divided into ten investment Reorganization, Midland will succeed to provides generally that the Commission divisions, each of which invests all of the business and operations of may grant an order exempting a exclusively in shares of a corresponding Investors, including the obligations transaction otherwise prohibited by portfolio of the Funds. pursuant to the variable life and variable Section 17(a) of the 1940 Act if evidence 9. Midland and Investors have annuity contracts issued by Investors. establishes that: (a) the terms of the determined to engage in transactions Midland will distribute to each Separate proposed transaction, including the whereby Investors will be reorganized Account B and Separate Account D consideration to be paid or received, are with and merged into Midland, with contract owner: (a) a contract rider reasonable and fair and do not involve Midland as the surviving corporation indicating that such contracts are overreaching on the part of any person (such transactions, collectively, the thereafter funded by Separate Account concerned; (b) the proposed transaction ‘‘Reorganization’’). Prior to the effective A or Separate Account C, as is consistent with the policy of each date of the Reorganization, an appropriate; (b) a prospectus registered investment company Agreement and Plan of Reorganization supplement in the form of a letter concerned; and (c) the proposed (the ‘‘Agreement’’) will have been informing such contract owners of the transaction is consistent with the approved and adopted by the respective Reorganization; and (c) a copy of the general purposes of the 1940 Act. Boards of Directors of Midland and current prospectus for Separate Account 3. The Reorganization may be subject Investors, the South Dakota Division of A or Separate Account C, as to the provisions of Section 17(a) of the Insurance and any other applicable appropriate. 1940 Act since an investment company regulatory authority. 14. Except for the change in the (Separate Account B or Separate 10. On the effective date of the depositor and the separate account Account D) is selling its assets to Reorganization: (a) Midland will assume funding the variable life or variable another investment company (Separate ownership of all the assets of Investors, annuity contracts, all the rights and Account A or Separate Account C) that including all the assets held in the benefits of Separate Account B and is affiliated by reason of having Investors Separate Accounts; (b) Separate Account D contract owners sponsoring insurance companies that Midland will conduct the business will remain unchanged after the are under common control, or by reason presently conducted by Investors, and Reorganization. In particular, the assets of having common directors. will be responsible for satisfaction of all supporting the former Separate Account 4. Applicants request an order of the of the liabilities and obligations of B and the former Separate Account D Commission pursuant to Section 17(b) Investors; and (c) Investors will cease to will continue to be invested exclusively of the 1940 Act to the extent necessary exist as a separate corporate entity. in shares of the Funds. The fees to exempt the Reorganization from the Midland will then control two separate deducted from the assets supporting the provisions of Section 17(a) of the 1940 accounts supporting identical variable former Separate Account B and Separate Act. universal life insurance contracts, and Account D after the Reorganization will 5. Applicants assert that the terms of two separate accounts supporting not differ in type or amount from those the Reorganization are fair and identical variable annuity contracts. currently being deducted from Separate reasonable and that the investment 11. After considering the nature and Account A and Separate Account C, objectives, policies, restrictions and purpose of each separate account, the respectively. portfolios of the participating respective Board of Directors of Midland 15. Midland and Investors assert that investment companies are compatible. and Investors have determined that the the substitution of Separate Account A All of the separate accounts concerned efficiency of the operations of the for Separate Account B as the invest exclusively in shares of the separate accounts after the investment vehicle for the variable life Funds and, after the consummation of Reorganization could be improved, and contracts and of Separate Account C for the Reorganization, Separate Account A the overall administration enhanced, by Separate Account D as the investment and Separate Account C will continue to merging Separate Account B into vehicle for the variable annuity invest in shares of the Funds, providing Separate Account A, and by merging contracts will have no tax consequences holders of variable contracts issued by Separate Account D into Separate for contract owners. Midland and Investors with the same investment Account C. The Reorganization will be Investors will pay all of the costs in options. Accordingly, the structured so there will be no change in connection with the proposed Reorganization will not result in any the rights and benefits of persons having Reorganization and no charges will be change in the investment objectives, an interest in any of the variable life imposed on or other deductions made policies, restrictions, or portfolios of the insurance contracts or variable annuity from the separate accounts in separate accounts funding the variable contracts issued by the separate connection with the Reorganization. contracts issued by Investors. accounts. 16. After the effective date of the 6. The Reorganization will not result 12. Following the transactions set Reorganization, Separate Account B and in any change in charges, costs, fees or forth in the Agreement, each Separate Separate Account D will each submit an expenses borne by any contract owner. Account B contract owner will possess application to the Commission pursuant No direct or indirect costs will be Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65095 incurred by any separate account For the Commission, by the Division of of the writer’s interest, the reason for the concerned as a result of the Investment Management, pursuant to request, and the issues contested. Reorganization. delegated authority. Persons may request notification of a Margaret H. McFarland, 7. Applicants assert that the hearing by writing to the SEC’s Deputy Secretary. Secretary. Reorganization does not involve [FR Doc. 96–31332 Filed 12–9–96; 8:45 am] overreaching on the part of any party ADDRESSES: Secretary, SEC, 450 5th BILLING CODE 8010±01±M Street NW., Washington, DC 20549. involved and is consistent with the Applicants: The Victory Portfolios and general purposes of the 1940 Act. The Key Mutual Funds, 3435 Stelzer Road, purpose of each of the mergers involved [Investment Company Act Release No. 22366; 812±10166] Columbus, OH 43219–3035; Key in the Reorganization is to consolidate Advisers, 126 Public Square, Cleveland, two identical separate accounts, both of The Victory Portfolios, et al.; Notice of OH 44114–1306. which issue identical contracts and Application FOR FURTHER INFORMATION CONTACT: invest in the same underlying Funds, David W. Grim, Staff Attorney, at (202) into a single separate account. These December 3, 1996. 942–0571, or Mercer E. Bullard, Branch mergers will allow for administrative AGENCY: Securities and Exchange Chief, at (202) 942–0564 (Division of efficiencies and cost savings by Midland Commission (‘‘SEC’’). Investment Management, Office of because it can consolidate its separate ACTION: Notice of Application for Investment Company Regulation). account operations. It will also allow Exemption Under the Investment SUPPLEMENTARY INFORMATION: The owners of contracts of Investors to Company Act of 1940 (the ‘‘Act’’). following is a summary of the participate in separate accounts that application. The complete application APPLICANTS: have sizeable net assets. The Victory Portfolios, may be obtained for a fee from the SEC’s SBSF Funds, Inc. dba the Key Mutual Public Reference Branch. 8. Applicants represent that the Funds (the ‘‘Key Mutual Funds’’) Reorganization is consistent with the (collectively, the ‘‘Funds’’), and Applicants’ Representations policy of each separate account as set KeyCorp Mutual Fund Advisers, Inc. 1. The Victory Portfolios, a Delaware forth in its registration statement. (‘‘Key Advisers’’). business trust, and Key Mutual Funds, Because the assets of the Investors RELEVANT ACT SECTIONS: Order requested a Maryland corporation, are open-end Separate Accounts will continue to be under section 6(c) of the Act granting an management investment companies invested in shares of one or more exemption from the provisions of registered with the SEC under the Act. portfolios of the Funds after the section 15(a) of the Act and rule 18f–2 Each Fund currently has one or more Reorganization, the assets underlying all thereunder, and from certain disclosure investment series (‘‘Series’’) with of the various contracts will continue to requirements set forth in item 22 of different investment objectives and be invested in accordance with the Schedule 14A under the Securities policies.1 investment policies recited in their Exchange Act of 1934 (the ‘‘1934 Act’’), 2. The Funds plan to establish new respective registration statements. items 2, 5(b)(iii), and 16(a)(iii) of Form Series, each structured as a ‘‘fund of funds’’ that will invest in shares of one 9. Applicants represent that the N–1A, item 3 of Form N–14, item 48 of or more other mutual funds beyond the Midland Separate Accounts will invest Form N–SAR, and sections 6–07.2(a), (b), and (c) of Regulation S–X. limits in section 12(d)(1) of the Act. On only in management investment SUMMARY OF APPLICATION: Applicants May 20, 1996, applicants filed an companies that undertake, in the event application for exemptive relief from the company adopts a plan to finance seek an order permitting Key Advisers, as investment adviser to the Funds, to sections 12(d)(1) and 17 of the Act to distribution expenses pursuant to Rule enter into subadvisory contracts with implement and operate these funds. A 12b–1 of the 1940 Act, to have a board sub-advisers without receiving prior ‘‘fund of funds’’ may invest in an of directors (or trustees), a majority of shareholder approval, and the Funds to underlying fund that is relying on the whom are not interested persons of the disclose only aggregate sub-advisory order requested in the immediate company, formulate and approve any fees for each series in their prospectuses application. such plan pursuant to Rule 12b–1. and other reports. 3. Key Advisers, an Ohio corporation, is registered with the SEC as an Conclusion FILING DATE: The application was filed on May 23, 1996, and amended on investment adviser under the For the reasons summarized above, September 16, 1996. Applicants have Investment Advisers Act of 1940 (the Applicants assert that the terms of the agreed to file an amendment, the ‘‘Advisers Act’’). It is a wholly-owned Reorganization, including the substance of which is incorporated subsidiary of KeyCorp Asset consideration to be paid or received, are herein, during the notice period. Management Holdings, Inc., which is a wholly-owned subsidiary of KeyBank reasonable and fair and do not involve HEARING OR NOTIFICATION OF HEARING: An National Association, which is a overreaching on the part of any person order granting the application will be wholly-owned subsidiary of KeyCorp. concerned, are consistent with the issued unless the SEC orders a hearing. Under its current investment advisory investment policies of the Midland Interested persons may request a agreement with The Victory Portfolios Separate Accounts and the Investors hearing by writing to the SEC’s (the ‘‘Current Agreement’’), Key Separate Accounts as recited in their Secretary and serving applicants with a Advisers is responsible for conducting registration statements, are consistent copy of the request, personally or by investment research and supervision with the general purposes of the 1940 mail. Hearing requests should be and for the purchase and sale of Act, and therefore meet the conditions received by the SEC by 5:30 p.m. on investments. Under the Current for exemptive relief established by December 30, 1996 and should be Agreement, Key Advisers may delegate Section 17(b). accompanied by proof of service on the applicants, in the form of an affidavit or, 1 Applicants also request relief with respect to for lawyers, a certificate of service. any future open-end management investment Hearing requests should state the nature company advised by Key Advisers. 65096 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices a portion of its responsibilities to a sub- which Participating Series would invest; disclose compensation paid to the adviser. (b) evaluate and select Money Managers; investment company’s investment 4. Key Advisers has entered into an (c) perform internal due diligence on adviser and the method of computing investment sub-advisory agreement with prospective Money Managers and the fee. its affiliate, Society Asset Management, thereafter monitor Money Managers’ 12. Item 3 of Form N–14, the Inc., on behalf of each Series of The performance through quantitative and registration form for business Victory Portfolios except the Fund for qualitative analysis as well as in person, combinations involving mutual funds, Income Series and the Special Growth telephonic, and written consultations; requires the inclusion of a ‘‘table Fund Series. With respect to the day-to- (d) determine the percentage of assets to showing the current fees for the day management of each of the Series, be managed by a particular Money registrant and the company being Society, under the sub-advisory Manager; (e) supervise compliance with acquired and pro forma fees, if different, agreement, makes decisions concerning, the investment objectives and policies for the registrant after giving effect to and places all orders for, purchases and of each Participating Series; (f) authorize the transaction using the format sales of securities. The sub-advisory a Money Manager to engage in certain prescribed’’ in item 2 of Form N–1A. agreement does not result in the investment techniques for a 13. Rule 20a–1 under the Act requires payment of additional fees by The Participating Series; (g) recommend to proxies solicited with respect to an Victory Portfolios. the boards of directors of the Funds (the investment company to comply with 5. Key Advisers currently serves as ‘‘boards’’) whether Portfolio Schedule 14A under the 1934 Act. Item the investment adviser to two funds of Management Agreements should be 22 of Schedule 14A sets forth the the Key Mutual Funds that have renewed, modified, or terminated; (h) requirements concerning the recently commenced operations. Spears, recommend to the Boards the addition information that must be included in a Benzak, Salomon & Farrell, Inc. of new Money Managers as it deems proxy statement. Item 22(a)(3)(iv) (‘‘SBSF’’), a New York corporation that appropriate; and (i) provide overall requires a proxy statement for a is registered with the SEC as an management and supervision of the shareholder meeting at which a new fee investment adviser under the Advisers Funds’ operations. will be established or an existing fee Act, currently serves as the investment 8. In return for providing the services increased to include a tale of the current adviser to the other four funds of the described in paragraph 7 above, Key and pro forma fees using the format Key Mutual Funds. It is anticipated that Advisers would receive a fee from each prescribed in item 2 of Form N–1A. the directors and shareholders of the Participating Series, computed as a Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8), Key Mutual Funds will be asked to percentage of net assets. Under the and 22(c)(9), taken together, require that approve Key Advisers as investment ‘‘manager of managers’’ approach, Key a proxy statement for a shareholder adviser to the Key Mutual Funds. The Advisers would pay the Money meeting at which an advisory contract is Key Mutual Funds will not rely on the Managers out of this fee. The prospectus to be voted upon shall include the ‘‘rate requested relief until it receives the of each Participating Series will disclose of compensation of the investment necessary shareholder approval and key the aggregate amount of the investment adviser,’’ the ‘‘aggregate amount of the Advisers becomes the investment advisory fee paid to Key advisers, rather investment adviser’s fees,’’ the ‘‘terms of adviser. than the sub-advisory fees paid to the contract to be acted upon,’’ and, if 6. Key Advisers intends to adopt a individual Money Managers. a change in fees is proposed, the ‘‘manager of managers’’ approach with 9. Except as discussed in the next existing and proposed rate schedule for respect to one or more existing or future sentence, applicants request an order advisory fees paid to the advisers. Series of the Funds (‘‘Participating permitting Key Advisers to enter into 14. Form N–SAR is the semi-annual Series’’). Under this approach, Key and materially amend Portfolio report filed with the SEC by registered Advisers would employ one or more Management Agreements with Money investment companies. Item 48 of Form investment advisers (‘‘Money Managers without obtaining shareholder N–SAR requires investment companies Managers’’) to exercise investment approval. Key Advisers will not enter to disclose the rate schedule for fees discretion over the various asset classes into a Portfolio Management Agreement paid to investment advisers. in which the participating Series invest. with a Money Manager that is an 15. Regulation S–X sets forth the Key Advisers would enter into a affiliated person, as defined in section requirements for financial statements portfolio management agreement with 2(a)(3) of the Act, of the participating required to be included as part of the each Money Manager (a ‘‘Portfolio Series or Key Advisers other than by registration statements and shareholder Management Agreement’’). Each reason of serving as Money Manager of reports filed with the SEC under the Act Portfolio Management Agreement would the Series (an ‘‘Affiliated Money and the 1933 Act. Sections 6–07.2(a), provide, among other things, that the Manager’’), without such agreement (b), and (c) of Regulation S–X may be Money Manager would be responsible being approved by the shareholders of deemed to require that the Funds’ for continuously reviewing, supervising, the applicable Participating Series. financial statements contain information and administering the relevant 10. Applicants also request an concerning fees paid to the Money Participating Series’ investment exemption from the disclosure Managers. program with respect to the portion of provisions described below that may be 16. Applicants request an exemption the Participating Series’ assets assigned deemed to require disclosure of fees to permit each Participating Series of to it. paid to each Money Manager. the Funds to disclose (both as a dollar 7. Subject to shareholder approval, 11. Form N–1A is the registration amount and as a percentage of a each Participating Series would enter statement used by open-end Participating Series’ average daily net into an investment advisory agreement management investment companies to assets) only: the total advisory fee that with Key Advisers (‘‘Investment register under the Act and to register Key Advisers is paid by each Advisory Agreement’’) that would their securities under the Securities Act Participating Series, the aggregate fees authorize the ‘‘manager of managers’’ of 1933 (the ‘‘1933 Act’’). Items 2, that Key Advisers pays to all Money approach. Under the Investment 5(b)(iii), and 16(a)(iii) of Form N–1A, Managers managing the assets of each Advisory Agreement, Key Advisers taken together, may be deemed to Series, and the net advisory fee retained would: (a) determine the asset classes in require the Participating Series to by Key Advisers for its services Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65097 provided to each Participating Series Participating Series and their responsibility for the investment after Key Advisers pays the Money arrangements with Key Advisers and the performance of the Participating Series Managers (collectively, ‘‘Aggregate Money Managers. due to its responsibility to oversee Fees’’). If a Participating Series employs 4. Applicants argue that, under the Money Managers and recommend their an Affiliated Money Manager, the manager of managers approach, hiring, termination, and replacement. Participating Series will provide disclosure of fees paid to Money 3. Within 60 days of the hiring of any separate disclosure of any fees paid to Managers would not serve any new Money Manager or the such Affiliated Money Manager. meaningful purpose since investors will implementation of any proposed pay Key Advisers to retain and material change in a Portfolio Applicants’ Legal Analysis compensate the Money Managers. Management Agreement, Key Advisers 1. Section 15(a) of the Act makes it Applicants also contend that many will furnish shareholders all unlawful for any person to act as an Money Managers charge their customers information about the new Money investment adviser to a registered for advisory services according to a Manager or Portfolio Management investment company except pursuant to ‘‘posted’’ fee schedule. Applicants note Agreement that would be included in a a written contract which has been that, while Money Managers may be proxy statement, except as modified by approved by the vote of a majority of the willing to negotiate fees lower than the order with respect to the disclosure investment company’s outstanding those posted in the schedule, of fees paid to the Money Managers. voting securities. Rule 18f–2 provides particularly with large institutional Such information will include that each series or class of stock in a clients, they are reluctant to do so where disclosure of the Aggregate Fees and any series company affected by a matter the fees are disclosed to other change in such disclosure caused by the must approve such matter if the Act prospective and existing customers. addition of a new Money Manager or requires shareholder approval. Thus, applicants contend that the any proposed material change in a 2. Applicants assert that relief from requested disclosure relief may Participating Series’ Portfolio section 15(a) and rule 18f–2 should be encourage Money Managers to negotiate Management Agreement. To meet this granted because the Participating Series lower advisory fees with Key Advisers, obligation, within 60 days of the hiring will be operated in a manner so the benefits of which ultimately may be of a new Money Manager or the different from that of conventional passed on to shareholders. implementation of any material change investment companies that shareholder 5. Section 6(c) authorizes the to the terms of a Portfolio Management approval of advisory contracts would Commission to exempt persons or Agreement, Key Advisers will provide not serve any meaningful purpose. transactions from the provisions of the shareholders with an information Applicants contend that, by investing in Act to the extent that such exemptions statement meeting the requirements of a Participating Series, shareholders, in are appropriate in the public interest Regulation 14C and Schedule 14C under effect, will hire key Advisers to manage and consistent with the protection of the 1934 Act. The information statement the Participating Series’ assets by using investors and the purposes fairly also will meet the requirements of Item its proprietary investment adviser intended by the policies and provisions 22 of Schedule 14A under the 1934 Act, selection and monitoring process rather of the Act. Applicants assert that their except as modified by the order with than by hiring its own employees to request satisfies these standards. respect to the disclosure of fees paid to manage assets directly. Applicants argue the Money Managers. that shareholders will expect that Key Applicants’ Conditions 4. Key Advisers will not enter into a Advisers, under the overall authority of Applicants agree that the order Portfolio Management Agreement with the board, will take responsibility for granting the requested relief shall be any Affiliated Money Manager without overseeing Money Managers and subject to the following conditions: such agreement, including the recommending their hiring, termination, 1. Before a Participating Series may compensation to be paid thereunder, and replacement. rely on the order requested herein, the being approved by the shareholders of 3. Applicants contend that the operation of the Participating Series in the applicable Participating Series. requested relief also will benefit the manner described in the application 5. At all times, a majority of each shareholders by enabling the will be approved by a majority of each Fund’s Board will not be ‘‘interested Participating Series to operate in a less Participating Series’ outstanding voting persons’’ of the Funds within the costly and more efficient manner. securities, as defined in the Act, or, in meaning of the Act (‘‘Non-interested Applicants argue that the requested the case of a newly-created Participating Trustees’’), and the nomination of new relief will reduce expenses because a Series whose public shareholders or additional Non-interested Trustees Participating Series will not have to purchased shares on the basis of a will be placed within the discretion of prepare and solicit proxies each and prospectus containing the disclosure the then existing Non-interested every time a Portfolio Management contemplated by condition 2 below, by Trustees. Agreement is entered into or materially the sole shareholder before offering 6. When a Money Manager change is modified. Applicants believe that the shares of the Participating Series to the proposed for a Participating Series with requested relief also will enable a public. an Affiliated Money Manager, the Participating Series to hire, terminate, 2. The prospectus for each Funds’ trustees, including a majority of and replace Money Managers more Participating Series will disclose the Non-interested Trustees, will make a efficiently. Applicants also contend that existence, substance, and effect of the separate finding, reflected in that Fund’s the requested relief will relieve order. In addition, each Participating board minutes, that such change is in shareholders of the very responsibility Series will hold itself out to the public the best interest of the Participating that they are paying Key Advisers to as employing the ‘‘manager of Series and its shareholders and does not assume: the selection, termination, and managers’’ approach described in the involve a conflict of interest from which compensation of Money Managers. application. The prospectus and any Key Advisers or the Affiliated Money Finally, applicants assert that several of sales materials or other shareholder Manager derives an inappropriate the conditions in the application are communications relating to the advantage. designed to protect shareholder interests Participating Series will prominently 7. Separate counsel knowledgeable through careful Board oversight of the disclose that Key Advisers has ultimate about the Act and the duties of Non- 65098 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices interested Trustees will be retained to [Release No. 34±38012; File No. SR±CBOE± The Exchange believes that these rules represent each Fund’s Non-interested 96±63] are now no longer necessary to achieve Trustees. The selection of such counsel their original purpose, i.e., to ensure Self-Regulatory Organizations; Notice that customer orders are handled with will be placed within the discretion of of Filing of Proposed Rule Change by the Non-interested Trustees. due diligence, in light of the adoption the Chicago Board Options Exchange, of rules which specifically govern floor 8. Key Advisers will provide each Incorporated Relating to the Collection broker behavior and in light of changes Fund’s Board no less frequently than of Commission Income by an Non- in the industry over the last twenty quarterly with information about Key Executing Floor Broker and Pooling of years since these rules were adopted. Advisers’ profitability for each Floor Brokerage Participating Series relying on the relief Rule 6.25 December 3, 1996. requested in the application. Whenever Rule 6.25, Pooling of Floor Brokerage, Pursuant to Section 19(b)(1) of the a Money Manager to a particular prohibits a member organization that Securities Exchange Act of 1934 Participating Series is hired or has one or more floor brokers who are (‘‘Act’’), 1 and Rule 19b–4 thereunder, 2 terminated, Key Advisers will provide nominees of or whose memberships are notice is hereby given that on October registered for the member organization the Fund’s Board with information 21, 1996, the Chicago Board Options showing the expected impact on Key to enter into any agreement, Exchange, Inc. (‘‘CBOE’’ or ‘‘Exchange’’) arrangement, or understanding with Advisers’ profitability, and quarterly filed with the Securities and Exchange reports will reflect the impact on another such organization whereby such Commission (‘‘Commission’’) the organizations are to handle floor profitability of the hiring or termination proposed rule change as described in of Money Managers during the quarter. brokerage for each other. The rule 6.25 Item I, II, and III below, which Items prohibition does not apply to the 9. Key Advisers will provide general have been prepared by the self- handling of floor brokerage by one such management and administrative regulatory organization. The firm for another on an occasional basis services to the Participating Series and, Commission is publishing this notice to or to an arrangement permitted by the subject to board review and approval, solicit comments on the proposed rule Equity Floor Procedure Committee in will: (a) set the Participating Series’ change from interested persons. writing. Buy its terms, the Rule also overall investment strategies, (b) I. Self-Regulatory Organization’s does not prohibit an independent floor recommend Money Managers, (c) Statement of the Terms of Substance of broker from handing floor brokerage for allocate and, when appropriate, the Proposed Rule Change a member organization. reallocate the Participating Series’ assets Both Rule 6.25 and Rule 14.6 were The Chicago Board Options Exchange, adopted at the infancy of the Exchange among Money Managers, (d) monitor Incorporated proposed to delete Rule and evaluate Money Manager in a very different environment than 6.25, Pooling of Floor Brokerage, and exists now. The adoption of these rules performance, and (e) oversee Money Rule 14.6, Collection of Floor Brokerage. Manager compliance with the was a simple method to ensure that The text of the proposed rule change is floor brokers provided good service to Participating Series’ investment available at the Office of the Secretary, their customers. Rule 6.25 was intended objective, policies, and restrictions. CBOE and at the Commission. to prevent the larger member firm 10. No director, trustee, or officer of II. Self-Regulatory Organization’s organizations from dominating the floor the Funds or Key Advisers will own Statement of the Purpose of, and brokerage business, thus limiting directly or indirectly (other than Statutory Basis for, the Proposed Rule competition. A rule that prohibits a through a pooled investment vehicle Change floor broker from employing the services over which such person does not have of a member organization employing In its filing with the Commission, the control) any interest in a Money more than one floor broker, however, self-regulatory organization included Manager except for: (a) ownership of could severely limit that brokers ability statements concerning the purpose of interests in Key Advisers or any entity to handle his order flow in an efficient and basis for the proposed rule change and timely manner, particularly at those that controls, is controlled by, or is and discussed any comments it received under common control with Key posts without an independent floor on the proposed rule change. The text broker. The Exchange believes, Advisers; or (b) ownership of less than of these statements may be examined at 1% of the outstanding securities of any therefore, that this rule might actually the places specified in Item IV below. hinder the efficient representation of class of equity or debt of a publicly The self-regulatory organization has traded company that is either a Money customer orders on the floor and that prepared summaries, set forth in floor broker organizations should be Manager or an entity that controls, is Sections A, B, and C below, of the most controlled by, or is under common given the opportunity to develop such significant aspects of such statements. relationships as they feel can best control with a Money Manager. A. Self-Regulatory Organization’s enable them to service their customers. For the SEC, by the Division of Investment Statement of the Purpose of, and According to the CBOE, deletion of Management, pursuant to delegated Statutory Basis for, the Proposed Rule Rules 6.25 and 14.6 would remove the authority. Change Exchange from the business of making Margaret H. McFarland, business determinations for the floor 1. Purpose Deputy Secretary. brokers about what type of relations can [FR Doc. 96–31335 Filed 12–9–96; 8:45 am] The purpose of the proposed rule best meet their needs and allow them to change is to delete two rules, Rule 6.25 best service their customers. BILLING CODE 8010±01±M and Rule 14.6, which place limitations Rule 14.6 on the conduct of a floor brokerage business on the floor of the Exchange. Rule 14.6, Collection of Floor Brokerage, requires a member who acts 1 15 U.S.C. 78s(b)(1). as a floor broker for another member to 2 17 CFR 240.19b–4. collect and retain the entire brokerage Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65099 and prohibits the collecting broker from Exchange rules. The Exchange believes (B) institute proceedings to determine dividing the brokerage with any other that because the executing floor broker whether the proposed rule change person. Rule 14.6, however, does permit will be held responsible under should be disapproved. the brokerage earned by a nominee of, Exchange rules for handling the order, IV. Solicitation of Comments or a broker whose membership is the order will be treated with proper registered for, a member organization to care by the executing floor broker Interested persons are invited to be paid to the member organization. In regardless of who is paid for the trade. submit written data, views, and this event, the member’s compensation In addition, the Exchange believes that arguments concerning the foregoing. from the member organization must be floor brokers will have a financial Persons making written submissions commensurate with the brokerage so incentive to execute the orders either should file six copies thereof with the contributed and other services rendered. because of a reciprocal relationship of Secretary, Securities and Exchange The deletion of Rule 14.6 would passing along orders or through a Commission, 450 Fifth Street, N.W., permit a floor broker who is absent from sharing of the brokerage commission. Washington, D.C. 20549. Copies of the the trading crowd when the related By eliminating outdated restrictions submission, all subsequent trade occurs (‘‘absent floor broker’’) to on the conduct of floor brokerage on the amendments, all written statements collect and retain the brokerage floor, the proposed rule change should with respect to the proposed rule commission for an order executed by help to provide floor brokers with the change that are filed with the another floor broker (‘‘executing floor flexibility to develop relationships Commission, and all written broker’’) on behalf of the absent floor which should provide for the most communications relating to the broker. Currently, the limitations of efficient conduct of customer business proposed rule change between the Rule 14.6 create a practical problem on the floor and at the same time should Commission and any person, other than when a floor broker must leave a trading avoid customer confusion by those that may be withheld from the crowd to attend to other business or eliminating additional bills for public in accordance with the personal matters. In these situations, the brokerage services. The proposed rule provisions of 5 U.S.C. 552, will be floor broker often will give his orders to change, therefore, is consistent with and another floor broker to execute on his available for inspection and copying at furthers the objectives of Section 6(b)(5) the Commission’s Public Reference behalf in order to ensure the customer of the Act, in that it is designed to does not miss out on a market Section, 450 Fifth Street, N.W., perfect the mechanisms of a free and Washington, D.C. 20549. opportunity in his absence. However, open market and to protect investors the customer of the absent floor broker Copies of such filing will also be and the public interest. ordinarily will not have a relationship available for inspection and copying at with the executing broker and will not 2. Statutory Basis the principal office of the Exchange. All expect to receive a bill from the submissions should refer to File No. The Exchange believes that the executing broker. Under the proposed SR–CBOE–96–63 and should be proposed rule change is consistent with rule change, the absent floor broker submitted by December 31, 1996. Section 6(b)(5) of the Act in that it is would be entitled to bill the customer designed to prevent fraudulent and For the Commission, by the Division of for the trade executed by the executing manipulative acts and practices and to Market Regulation, pursuant to delegated floor broker with the bill for all the perfect the mechanism of a free and authority. other trades executed by the absent floor Margaret H. McFarland, broker on behalf of that customer. The open market. Deputy Secretary. proposal, therefore, would reduce the B. Self-Regulatory Organization’s [FR Doc. 96–31333 Filed 12–9–96; 8:45 am] chance of customer confusion and Statement on Burden on Competition would also reduce administrative BILLING CODE 8010±01±M burdens for the floor brokers. The Exchange does not believe that The Exchange believes it is proper for the proposed rule change will impose the floor brokers to make any business any inappropriate burden on [Release No. 34±38015; File No. SR±NYSE± arrangements among themselves which competition. 96±32] they believe to be appropriate and C. Self-Regulatory Organization’s which would lead to the efficient Statement on Comments on the Self-Regulatory Organizations; New conduct of business. In light of the Proposed Rule Change Received from York Stock Exchange, Incorporated; potential customer confusion and the Members, Participants, or Others Notice of Filing of Proposed Rule administrative burdens, the Exchange Change Relating to the Exchange's does not believe the restriction against No written comments were either Policy on Tape Indications collecting brokerage for a trade executed solicited or received. December 3, 1996. on one’s behalf serves a useful III. Date of Effectiveness of the regulatory purpose in situations where a Proposed Rule Change and Timing for Pursuant to Section 19(b)(1) of the floor broker must leave a trading crowd Commission Action Securities Exchange Act of 1934 for personal reasons or to attend to other (‘‘Act’’),1 notice is hereby given that on business. Within 35 days of the publication of November 26, 1996, the New York Stock Regardless of who is being paid the this notice in the Federal Register or Exchange, Inc. (‘‘NYSE’’ or ‘‘Exchange’’) brokerage commission for the trade, within such longer period (i) as the filed with the Securities and Exchange however, the floor broker who actually Commission may designate up to 90 Commission (‘‘SEC’’ or ‘‘Commission’’) executes the trade would have to have days of such date if it finds such longer the proposed rule change as described his or her acronym placed on the trade period to be appropriate and publishes in Items I, II, and III below, which Items ticket and would be responsible for its reasons for so finding or (ii) as to have been prepared by the self- using due diligence in the handling of which the self-regulatory organization regulatory organization. The the order and in fulfilling all the other consents, the Commission will: Commission is publishing this notice to responsibilities of a floor broker in the (A) by order approve the proposed representation of the order pursuant to rule change, or 1 15 U.S.C. 78s(b)(1). 65100 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices solicit comments on the proposed rule period of 10 minutes for dissemination which the self-regulatory organization change from interested persons. has proven sufficient in other contexts, consents, the Commission will: such as the publication of imbalances of (A) by order approve the proposed I. Self-Regulatory Organization’s 50,000 shares or more of market-on- rule change, or Statement of the Terms of Substance of close orders on trading days other than (B) institute proceedings to determine the Proposed Rule Change expiration days. whether the proposed rule change The NYSE, pursuant to Rule 19b–4 of Over the years, in developing should be disapproved. the Act,2 proposes to amend the procedures for openings, the Exchange IV. Solicitation of Comments Exchange Policy on Indications, has focused on providing a balance Openings and Reopenings, which will between timeliness and appropriateness Interested persons are invited to be issued as an Information of price, i.e., achieving a price that submit written data, views, and Memorandum. reflects an appropriate equilibrium of arguments concerning the foregoing. II. Self-Regulatory Organization’s buying and selling interest at the time. Persons making written submissions Statement of the Purpose of, and Since current procedures were should file six copies thereof with the Statutory Basis for, the Proposed Rule formulated, the speed of Secretary, Securities and Exchange Change communications has increased, meaning Commission, 450 Fifth Street, N.W., that relevant market information can be Washington, D.C. 20549. Copies of the In its filing with the Commission, the submission, all subsequent self-regulatory organization included disseminated and responded to very quickly. The proposed rule change amendments, all written statements statements concerning the purpose of with respect to the proposed rule and basis for the proposed rule change would shorten the time period for indications, thereby allowing the change that are filed with the and discussed any comments it received Commission, and all written on the proposed rule change. The text opening or reopening of a stock in a more expeditious fashion, while still communications relating to the of these statements may be examined at proposed rule change between the the places specified in Item IV below. providing sufficient time for appropriate pricing of orders. Commission and any person, other than The self-regulatory organization has those that may be withheld from the prepared summaries, set forth in The revised procedures for tape public in accordance with the Sections A, B, and C below, of the most indications strike an appropriate provisions of 5 U.S.C. 552, will be significant aspects of such statements. balance between preserving the price discovery process while providing available for inspection and copying at A. Self-Regulatory Organization’s timely opportunities for investors to the Commission’s Public Reference Statement of the Purpose of, and participate in the market. Section, 450 Fifth Street, N.W., Statutory Basis for, the Proposed Rule Washington D.C. 20549. Change 2. Statutory Basis Copies of such filing will also be available for inspection and copying at 1. Purpose The proposed rule change is consistent with Section 6(b)(5) of the the principal office of the Exchange. All Indications are price ranges published submissions should refer to File No. on the tape before the opening or during Act in that it is designed to promote just and equitable principles of trade, to SR–NYSE–96–32 and should be a trading halt to display the probable submitted by December 31, 1996. price range in which a stock will open remove impediments to, and perfect the or reopen. mechanism of a free and open market, For the Commission, by the Division of The Exchange’s policy on and, in general, to protect investors and market Regulation, Pursuant to delegated authority. dissemination of tape indications the public interest. Margaret H. McFarland, currently requires a minimum of 5 B. Self-Regulatory Organization’s Deputy Secretary. minutes to elapse between the first Statement on Burden on Competition indication and the opening or reopening [FR Doc. 96–31334 Filed 12–9–96; 8:45 am] of a stock. In addition, when multiple The Exchange does not believe that BILLING CODE 8010±01±M indications are used, a minimum of 10 the proposed rule change will impose minutes must elapse after the last any burden on competition that is not indication when it does not overlap the necessary or appropriate in furtherance DEPARTMENT OF TRANSPORTATION prior indication; a minimum of 5 of the purposes of the Act. Federal Aviation Administration minutes must elapse after the last C. Self-Regulatory Organization’s indication when it overlaps the prior Statement on Comments on the indication. In all cases, a minimum of Aviation Security, Advisory Committee Proposed Rule Change Received from Meeting 15 minutes must elapse between the Members, Participants, or Others first indication and the opening or AGENCY: Federal Aviation reopening of a stock. The Exchange has neither solicited Administration, DOT. The Exchange is proposing that these nor received written comments on the SUMMARY: minimum time periods before opening proposed rule change. Notice is hereby given of a meeting of the Aviation Security or reopening a stock be compressed III. Date of Effectiveness of the from 15 to 10 minutes after the first Advisory Committee. Proposed Rule Change and Timing for DATES: The meeting will be held indication; and to 5 minutes after the Commission Action last indication, regardless of whether it December 12, 1996 from 9 a.m. to 12 overlaps the prior indication, provided Within 35 days of the publication of p.m. that a minimum of 10 minutes elapse this notice in the Federal Register or ADDRESSES: The meeting will be held in between the first indication and the within such longer period (i) as the the MacCracken Room, tenth floor, opening or reopening of a stock. The Commission may designate up to 90 Federal Aviation Administration, 800 Exchange believes that a minimum time days of such date if it finds such longer Independence Avenue, SW, period to be appropriate and publishes Washington, D.C. 20591, telephone 202– 2 17 CFR 240.19b–4. its reasons for so finding or (ii) as to 267–7451. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65101

SUPPLEMENTARY INFORMATION: Pursuant Federal ITS Initiatives; (7) Report on ACTION: Notice of public meeting. to section 10(a)(2) of the Federal President’s Commission on Critical Advisory Committee Act (Pub. L. 92– Infrastructure Protection; (8) Report of SUMMARY: The Intelligent Transportation 463; 5 U.S.C. App. II), notice is hereby Reauthorization Task Force; (9) Report Society of America (ITS AMERICA) will given of a meeting of the Aviation of Board Special Task Force on Private hold a meeting of its Coordinating Security Advisory Committee to be held Sector ITS Infrastructure Priorities; (10) Council on Tuesday, January 14, 1997. December 12, 1996, in the MacCracken President’s Report: ITS Identity The agenda is as follows: (1) Call to Room, tenth floor, Federal Aviation Campaign; (11) Report of the World Order and Instructions; (2) Statement of Administration, 800 Independence Congresses—Orlando Overview and Anti-Trust Compliance; (3) Approval of Avenue, SW., Washington, D.C. The Berlin World Congress Update: (12) October 13, 1996, Meeting Minutes; (4) agenda for the meeting will include the Standards Need Timeline; (13) Federal Reports—Modal Baseline Working Group/ Comparative Analysis Update; (14) Administrations; (5) ITS AMERICA recommendations, Universal Access Japanese AHS Update; (15) Other President’s Report; (6) Sunset-Sunrise System Project Update, White House Business; (16) Adjournment until next Task Force Report; (7) Dedicated Short- Commission recommendations and new Board Meeting, June 4, 1997, at the Range Communications (DSRC) Report; legislative requirements. Attendance at Sheraton Washington Hotel in (8) Joint Meteorological Task Force the December 12, 1996, meeting is open conjunction with the Seventh ITS to the public but is limited to space America Annual Meeting. Update; (9) Standards Needs Timeline; available. Members of the public may ITS AMERICA provides a forum for (10) Comparative Analysis Update; (11) address the committee only with the national discussion and Japanese AHS Update; (12) ITS Travel written permission of the chair, which recommendations on ITS activities Demand Management Workshop should be arranged in advance. The including programs, research needs, Update; (13) Proposal for Task Force on chair may entertain public comment if, strategic planning, standards, Financial Issues; (14) Integrating GIS- in its judgment, doing so will not international liaison, and priorities. The Transportation and ITS Data Workshop disrupt the orderly progress of the charter for the utilization of ITS Update; (15) World Congress and meeting and will not be unfair to any AMERICA establishes this organization Annual Meeting Update; (16) Other other person. Members of the public are as an advisory committee under the Business; (17) Adjourn. welcome to present written material to Federal Advisory Committee Act ITS AMERICA provides a forum for the committee at any time. Persons (FACA) 5 U.S.C. app. 2, when it national discussion and wishing to present statements or obtain provides advice or recommendations to recommendations on ITS activities information should contact the Office of DOT officials on ITS policies and including programs, research needs, the Associate Administrator for Civil programs. (56 FR 9400, March 6, 1991). strategic planning, standards, Aviation Security, 800 Independence DATES: The Boards of Directors of ITS international liaison, and priorities. The Avenue, SW., Washington, D.C. 20591, AMERICA will meet on Thursday, charter for the utilization of ITS telephone 202–267–7451. January 6, 1996, from 1 p.m.–5 p.m. AMERICA establishes this organization Issued in Washington, D.C. on December 5, ADDRESSES: Sheraton Washington Hotel, as an advisory committee under the 1996. 2660 Woodley Road, N.W., Washington, Federal Advisory Committee Act Anthony Fainberg, D.C. 20008; (202) 328–2000; Fax: (202) (FACA), 5 USC app. 2, when it provides Director of Civil Aviation Security, Policy and 234–0015. advice or recommendations to DOT Planning. FOR FURTHER INFORMATION CONTACT: officials on ITS policies and programs. [FR Doc. 96–31445 Filed 12–6–96; 1:09 pm] Materials associated with this meeting (56 FR 9400, March 6, 1991). BILLING CODE 4910±1B±M may be examined at the offices of ITS AMERICA, 400 Virginia Avenue SW., DATES: The Coordinating Council of ITS Suite 800, Washington, D.C. 20024. AMERICA will meet on Tuesday, Federal Highway Administration Persons needing further information or January 14, 1997, from 8 a.m.–12 p.m. who request to speak at this meeting (Eastern Standard time). Intelligent Transportation Society of should contact Kenneth Faunteroy at ADDRESSES: Omni Shoreham Hotel, America; Public Meeting ITS AMERICA by telephone at (202 2500 Calvert Street, N.W., Washington, 484–4130 or by FAX at (202) 484–3483. AGENCY: Federal Highway D.C. 20008; (202) 234–0700 or Fax: (202) The DOT contact is Mary C. Pigott, Administration (FHWA), DOT. 232–4140 or (202) 232–4158. ACTION: Notice of public meeting. FHWA, HVH–1, Washington, D.C. 20590, (202) 366–9230. Office hours are FOR FURTHER INFORMATION CONTACT: SUMMARY: The Intelligent Transportation from 8:30 a.m. to 5 p.m., e.t., Monday Materials associated with this meeting Society of America (ITS AMERICA) will through Friday, except for legal may be examined at the offices of ITS hold a meeting of its Board of Directors holidays. AMERICA, 400 Virginia Avenue, SW., on Thursday, January 16, 1997. The (23 U.S.C. 315; 49 CFR 1.48) Suite 800, Washington, D.C. 20024. session begins with a Business session Issued on: December 5, 1996. Persons needing further information or (non-Federal Board members only) from Jeffrey Lindley, to request to speak at this meeting 1 p.m.–2 p.m. At 2 p.m., the General Deputy Director, ITS Joint Program Office. should contact Kenneth Faunteroy at Program Session (open to all members ITS AMERICA by telephone at (202) and observers) is as follows: (1) Review [FR Doc. 96–31340 Filed 12–9–96; 8:45 am] 484–4130, or by fax at (202) 484–3483. of ITS America Antitrust Policy and BILLING CODE 4910±22±M The DOT contact is Mary Pigott, FHWA, Conflict of Interest Policy Statements; (2) Review and Approval of Previous HVH–1, Washington, D.C. 20590, (202) Intelligent Transportation Society of 366–9230. Office hours are from 8:30 Meeting’s Minutes; (3) Report of the America; Public Meeting Executive Committee; (4) Coordinating a.m. to 5:00 p.m., e.t., Monday through Council Report; (5) State Chapters AGENCY: Federal Highway Friday, except for legal holidays. Council Report; (6) Report of the U.S. Administration (FHWA), DOT. (23 U.S.C. 315; 49 CFR 1.48) 65102 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Issued on: December 5, 1996. Criteria for Funding capability to submit proposals as text Jeffrey Lindley, Eligible participants are encouraged to document attachments to the electronic Deputy Director, ITS Joint Program Office. submit a request for funding which application. [FR Doc. 96–31341 Filed 12–9–96; 8:45 am] addresses the following criteria: Future enhancements will provide for electronic submission of grant reports BILLING CODE 4910±22±M 1. The level of interest in the chosen corridor demonstrated by State, and payment requests. regional, and local governments and To participate or for more Federal Railroad Administration elected officials or other interested information, please contact Brad Smith, groups. Interest can be shown by the Federal Railroad Administration, via e- Notification of Funds Availability for past and proposed financial mail at: [email protected] or Next Generation High-Speed Rail commitments and in-kind resources of tel.: (202) 632–3276. Corridor Studies State and local governments and the Deadline For Requests for Grant private sector. Applications: Eligible participants AGENCY: Federal Railroad 2. The extent to which the proposed desiring to apply for this funding should Administration; Department of planning focuses on systems which will notify FRA by letter, and FRA will Transportation. achieve sustained speeds of 125 mph or respond initially be providing a greater. standard grant application package. For SUMMARY: Pursuant to the Department of 3. The degree of integration of the priority consideration, FRA requests Transportation and Related Agencies corridor into metropolitan area and that the completed grant application Appropriations Act for Fiscal Year 1997 statewide transportation planning. packages be returned to the below (Public Law 104–205 (September 30, 4. The potential interconnection of address by March 3, 1997. 1996)), the Federal Railroad the corridor with other parts of the ADDRESSES: Applications should be Administration (FRA) has $900,000 in Nation’s transportation system, submitted to: Honorable Jolene M. next generation high speed rail funds including the interconnection with Molitoris, Administrator, Federal available for grants to eligible other countries. Railroad Administration, ATTN; RDV– participants for high speed rail corridor 5. The anticipated effect of the 11, 400 Seventh Street, S.W., planning assistance, including corridor on the congestion of other Washington, D.C. 20590. preliminary engineering and operational modes of transportation. FOR FURTHER INFORMATION CONTACT: John analysis, and other planning activities. 6. Whether the work to be funded will F. Cikota at (202) 632–3264. This notice sets forth the criteria by aid the efforts of state and local Issued in Washington, D.C. on December 2, which FRA will make its selection of governments to enhance compliance grant recipients. The FRA strongly 1996. with Federal environmental laws and Jolene M. Molitoris, supports the advancement of high-speed regulations. Federal Railroad Administrator. rail in congested corridors where it can 7. The estimated level of ridership be an important component of a and the estimated capital cost of [FR Doc. 96–31351 Filed 12–9–96; 8:45 am] balanced transportation system. Further, corridor improvements, including the BILLING CODE 4910±06±M FRA believes the development or cost of closing, improving, or separating continuation of high-speed rail in highway-rail grade crossings. Surface Transportation Board specific corridors should be undertaken 8. Whether a specific route has been as a partnership of states, localities, and selected, specific improvements [STB Finance Docket No. 33294] the private sector, with support from the identified, and capacity studies Federal government. Pursuant to the completed, and whether the corridor Grand Trunk Western Railroad Swift Rail Development Act of 1994 has been designated as a high-speed rail IncorporatedÐTrackage Rights (Public Law 103–440 (November 2, corridor under Section 1010 of the ExemptionÐConsolidated Rail 1994)), the Secretary may provide Intermodal Surface Transportation Corporation financial assistance to a public agency Efficiency Act of 1991, Public Law 102– or group of public agencies for corridor 240 (December 18, 1991). Consolidated Rail Corporation planning for up to 50 percent of the Eligible Participants: Any state (Conrail) has agreed to grant limited publicly financed costs associated with government, local government, overhead trackage rights to Grand Trunk eligible activities. Not less than 20 organization of state and/or local Western Railroad Incorporated (GTW) percent of the publicly financed costs government, or any combination of such between the Conrail/GTW connection associated with eligible activities shall entities is eligible to apply for funding. on Conrail’s North Yard Branch at CP- come from State and local sources, Vinewood (MP 3.1+), Detroit, MI, and which State and local sources may not DOT Electronic Grants Pilot Project the connection with GTW’s existing include funds from any Federal All applicants are eligible and rights over Conrail (pursuant to an programs. (In determining Federal, state encouraged to participate in the ‘‘DOT agreement between the parties dated and local shares under this provision, Electronic Grants Pilot Project.’’ September 27, 1984), at the connection private financial assistance is to be first Through this pilot project, grant between Conrail and the Ann Arbor deducted. Then a Federal ceiling of 50 applicants will be provided with access Railroad on Conrail’s Detroit Line, at percent and a state and local floor of 20 to specially designed Hypertext Markup Alexis, OH (MP 50.3+). percent is applied. The state and local Language (HTML) data screens on The transaction was scheduled to be funds must exclude funds made DOT’s World Wide Web (WWW) consummated on or after the November available from any Federal program. The homepage. The screens and related 28, 1996 effective date of the exemption. remaining 30 percent of the non- system components will enable The purpose of the trackage rights is privately financed portion of the project customers to submit grant applications to attract to rail service certain may be paid for using funds made electronically including the Application automotive parts traffic moving between available to the applicant from other for Federal Assistance, SF–424. Detroit and Toledo by improving service Federal programs). Applicants will also be provided the and transit time. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65103

As a condition to this exemption, any Pennsylvania Avenue, N.W., COPIES: Copies of the Request for employees affected by the trackage Washington, DC 20006. Clearance (OMB 83–I), supporting rights will be protected by the FOR FURTHER INFORMATION CONTACT: statement, and other documents that conditions imposed in Norfolk and Beryl Gordon, (202) 927–5660. [TDD for have been submitted to OMB for Western Ry. Co.—Trackage Rights—BN, the hearing impaired: (202) 927–5721.] approval may be obtained from the 354 I.C.C. 605 (1978), as modified in SUPPLEMENTARY INFORMATION: USIA Clearance Officer. Comments Mendocino Coast Ry., Inc.—Lease and Additional information is contained in should be submitted to the Office of Operate, 360 I.C.C. 653 (1980). the Board’s decision. To purchase a Information and Regulatory Affairs of This notice is filed under 49 CFR copy of the full decision, write to, call, OMB, Attention: Desk Officer for USIA, 1180.2(d)(7). If it contains false or or pick up in person from: DC Data & and also to the USIA Clearance Officer. misleading information, the exemption News, Inc., Room 2229, 1201 FOR FURTHER INFORMATION CONTACT: is void ab initio. Petitions to revoke the Constitution Avenue, N.W., Agency Clearance Officer, Ms. Jeannette exemption under 49 U.S.C. 10502(d) Washington, DC 20423. Telephone: Giovetti, United States Information may be filed at any time. The filing of (202) 289–4357/4359. [Assistance for Agency, M/ADD, 301 Fourth Street, a petition to revoke will not the hearing impaired is available S.W., Washington, D.C. 20547, automatically stay the transaction. through TDD services (202) 927–5721.] telephone (202) 619–4408, internet An original and 10 copies of all address [email protected]; and OMB pleadings, referring to STB Finance Decided: December 2, 1996. review: Ms. Victoria Wassmer, Office of Docket No. 33294, must be filed with By the Board, Chairman Morgan, Vice Information And Regulatory Affairs, the Surface Transportation Board, Office Chairman Simmons, Commissioner Owen. Office of management and Budget, New of the Secretary, Case Control Branch, Vernon A. Williams, Executive Office Building, Docket 1201 Constitution Avenue, N.W., Secretary. Library, Room 1002, NEOB, Washington, DC 20423. In addition, a [FR Doc. 96–31331 Filed 12–09–96; 8:45 am] Washington, D.C. 20503, Telephone copy of each pleading must be served on BILLING CODE 4915±00±P (202) 395–5871. Robert P. vom Eigen, Esq., Hopkins & SUPPLEMENTARY INFORMATION: An Sutter, 888 16th Street, N.W., Agency may not conduct or sponsor, Washington, DC 20006. UNITED STATES INFORMATION and a person is not required to respond Decided: December 2, 1996. AGENCY to a collection of information unless it By the Board, David M. Konschnik, displays a currently valid OMB control Director, Office of Proceedings. Submission for OMB Review; number. The Federal Register Notice Vernon A. Williams, Comment Request with a 60-day comment period soliciting Secretary. comments on this collection of AGENCY: United States Information information was published on October [FR Doc. 96–31330 Filed 12–9–96; 8:45 am] Agency. BILLING CODE 4915±00±P 10, 1996 (vol. 61, no. 198). Public ACTION: Submission for OMB review; reporting burden for this collection of comment request. information (Paper Work Reduction [STB Finance Docket No. 32984] Project: OMB No. 3116–0008) is SUMMARY: Under the provisions of the estimated to average 15 minutes per Hastings Industrial Link RailroadÐ Paperwork Reduction Act of 1995 (44 response. Respondents are required to Construction and Operation U.S.C. Chapter 35), this notice respond only one time, including the ExemptionÐHastings, NE announces that the following time for reviewing instructions, information collection activity has been searching existing data sources, AGENCY: Surface Transportation Board. forwarded to the Office of Management gathering and maintaining the data ACTION: Notice of exemption. and Budget (OMB) for review and needed, and completing and reviewing comment. USIA is requesting approval the collection of information. Send SUMMARY: Under 49 U.S.C. 10502, the for revisions and a three-year extension comments regarding this burden Board conditionally exempts from the of an information collection entitled estimate or any other aspect of this prior approval requirements of 49 U.S.C. ‘‘Certificate of eligibility for Exchange collection of information, including 10901 the construction and operation by Visitor Status (J–1 Visa)’’, under OMB suggestions for reducing the burden, to Hastings Industrial Link Railroad of a 1- control number 3116–0008 which the United States Information Agency, mile line of railroad, in Adams County, expires January 31, 1996. This request M/ADD, 301 Fourth Street, S.W., NE. for comment is being made pursuant to Washington, D.C. 20547; and to the DATES: The exemption will not become the Paperwork Reduction Act of 1995 Office of Information and Regulatory effective until the environmental [Public La2 104–13; 44 U.S.C. 3506(c) Affairs, Office of management and process is completed. Then, the Board (2) (A)]. Budget, New Executive Office Building, will issue a further decision addressing The information collection activity Docket Library, Room 10202, NEOB, the environmental matters and involved with the program is conducted Washington, D.C. 20503. establishing an exemption effective date pursuant to the mandate given to the Current Actions: This information at that time, if appropriate. Petitions to United States Information Agency under collection has been submitted to OMB reopen must be filed by Decmeber 30, the terms and conditions of the Mutual for the purpose of requesting a three- 1996. and Educational and Cultural Exchange year extension and approval of revisions ADDRESSES: Send pleadings, referring to Act of 1961, Title 22 Code of Federal to the form. STB Finance Docket No. 32984, to: (1) Regulations (CFR), Section 514, Title: ‘‘Certificate of Eligibility for Surface Transportation Board, Office of Exchange Visitor Program, Final Rule; Exchange Visitor Status (J–1 Visa)’’. the Secretary, Case Control Branch, and Title 8, Section 101(a)(15) of the Form Number: IAP–66. 1201 Constitution Avenue, N.W., Immigration and Nationality Act. Abstract: This information collection Washington, DC 20423; and (2) Andrew DATE: Comments are due on or before is used by Exchange Visitor sponsors to P. Goldstein, Suite 1105, 1750 January 9, 1997. appropriately identify an individual 65104 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices seeking to enter the U.S. as an exchange Wednesday, January 15, 1997, at 2:00 the Department of Veterans Affairs and visitor. The completed form is sent to p.m. because the wage survey data the prospective exchange visitor abroad, Wednesday, January 29, 1997, at 2:00 considered by the Committee have been who takes it to the U.S. Consulate p.m. obtained from officials of private (Embassy) to secure an exchange visitor Wednesday, February 19, 1997, at 2:00 business establishments with a (J–1) visa. p.m. guarantee that the data will be held in Proposed Frequency of Responses: Wednesday, March 26, 1997, at 2:00 confidence. Closure of the meetings is in No. of Respondents—200,000; p.m. accordance with subsection 10(d) of Recordkeeping Hours—.15; Total The meetings will be held in Room Pub. L. 92–463, as amended by Pub. L. Annual Burden—50,000. 246, Department of Veterans Affairs 94–409, and 5 U.S.C. 552b(c) (2) and (4). Dated: December 4, 1996. Central Office, 810 Vermont Avenue, However, members of the public are Rose Royal, NW, Washington, DC 20420. invited to submit material in writing to Federal Register Liaison. The Committee’s purpose is to advise the Chairperson for the Committee’s the Under Secretary for Health on the [FR Doc. 96–31306 Filed 12–9–96; 8:45 am] attention. development and authorization of wage BILLING CODE 8230±01±M Additional information concerning schedules for Federal Wage System these meetings may be obtained from (blue-collar) employees. the Chairperson, VA Wage Committee At these meetings the Committee will DEPARTMENT OF VETERANS (05), 810 Vermont Avenue, NW, consider wage survey specifications, Washington, DC 20420. AFFAIRS wage survey data, local committee Dated: December 4, 1996. Wage Committee, Notice of Meetings reports and recommendations, statistical analyses, and proposed wage schedules. By Direction of the Secretary. The Department of Veterans Affairs All portions of the meetings will be Heyward Bannister, (VA), in accordance with Pub. L. 92– closed to the public because the matters Committee Management Officer. 463, gives notice that meetings of the considered are related solely to the [FR Doc. 96–31402 Filed 12–9–96; 8:45 am] VA Wage Committee will be held on: internal personnel rules and practices of BILLING CODE 8320±01±M federal register December 10,1996 Tuesday Fiscal Year1997;SolicitationNotice Environmental EducationGrantsProgram, Protection Agency Environmental Part II 65105 65106 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

ENVIRONMENTAL PROTECTION Friday, February 21, 1997. Proposals funded. In summary, you will AGENCY which are postmarked after February 21, significantly increase your chance of 1997 will not be considered for funding. being funded if you request $5,000 or [FRL±5662±4] EPA expects to announce the 1997 grant less from a Regional Office or $75,000 Solicitation Notice; Environmental awards in the Summer of 1997. or less from headquarters. Education Grants Program, Fiscal Year E. Do I Mail My Proposal to EPA Section II. Eligible Applicants and 1997 Headquarters or an EPA Regional Activities Office? Is There a Difference Between Section I. Overview and Deadlines H. Who Is Eligible To Submit Proposals? the Type of Projects Funded by Due Date for Proposals: February 21, Headquarters and Regional Offices? Any local or tribal government 1997 education agency, state government Proposals requesting between $25,001 education or environmental agency, A. What Is the Purpose of This and $250,000 in federal environmental college or university, not-for-profit Solicitation Notice? education grant funds must be mailed to organization, or noncommercial EPA headquarters in Washington, DC; This notice solicits grant proposals educational broadcasting entity may proposals requesting $25,000 or less from education institutions, public submit a proposal. These terms are must be mailed to the EPA regional agencies, and non-profit organizations defined in Section 3 of the Act and 40 office where the project takes place to support environmental education CFR Part 47.105. ‘‘Tribal education (rather than to the regional office where projects as defined in this notice. agency’’ means a school or community the applicant is located, if these college which is controlled by an Indian B. What Is the Environmental Education locations are different). A list of tribe, band, or nation, including any Grants Program? How Much Money Is addresses by state is included at the end Alaska Native Village, which is Available for This Program? of this notice. The EPA headquarters recognized as eligible for special and regional grants will be evaluated The Environmental Education Grants programs and services provided by the using the same criteria as defined in this Program provides financial support for United States to Indians because of their solicitation. projects which design, demonstrate, or status as Indians and which is not disseminate environmental education F. Where Do I Get the Information and administered by the Bureau of Indian practices, methods, or techniques. This Forms Needed To Prepare My Proposal? Affairs. program is authorized under Section 6 of the National Environmental Please read this solicitation notice I. May an Organization Submit More Education Act of 1990 (the Act) (P.L. carefully; it contains all the information Than One Proposal in FY 1997? 101–619). Congress has appropriated and forms necessary to prepare a Yes, an organization may submit more approximately $13 million for this proposal. If your project is selected as a than one proposal, but only if the grants program over the past five years finalist after the evaluation process is proposals are for different projects. No (between $2.1 and $2.9 million per year concluded, EPA will provide you with organization will be awarded more than from FY 1992 through FY 1996). During additional forms needed to process your one grant for the same project during the this time, EPA headquarters has proposal. same fiscal year. awarded between $628,000 and $1.5 G. How Much Money Can I Request for J. May I Submit a Proposal for This million in grant funds per year and each My Grant Project? How Does the Dollar of EPA’s ten regional offices award Fiscal Year Even if I Have Been Amount Requested Affect My Chance of Awarded Funding Under This Program between $150,000 to $180,000 per year. Being Funded? EPA anticipates funding of in Past Years? approximately $3 million in FY 1997 The statute sets a maximum limit of Yes, applicants who were awarded and will award grants subject to the $250,000 in environmental education funding in the past may submit new availability of funding. grant funds for any one project. proposals to expand a previously However, because of limited funds, EPA funded project or to fund an entirely C. What Is Environmental Education? prefers to issue smaller grants to more different one. However, each new The goal of environmental education recipients with the available funds. proposal will be evaluated based upon is to increase public awareness and Applicants should be aware that EPA the specific criteria set forth in this knowledge about environmental issues, receives many more proposals each year solicitation and in relation to the other and to provide the public with the skills than can possibly be funded. In Fiscal proposals received in this fiscal year. In needed to make informed decisions and Year 1996, over 350 proposals were addition, due to limited resources, EPA to take responsible actions. received at EPA Headquarters, while does not generally sustain projects Environmental education enhances only nine were funded, the largest for beyond the initial grant, unless there are critical-thinking, problem-solving, and $145,000. Smaller proposals submitted compelling reasons to do so. The effective decision-making skills. It also to the EPA Regions have a better chance program is geared toward providing teaches individuals to weigh various of being funded, in part because EPA seed money to initiate new projects or sides of an environmental issue to make has a legislative requirement, under advancing existing projects that are new informed and responsible decisions. Section 6(i) of the Act, to award 25% of in some way (e.g. in new locations or Environmental education does not the total amount of our grant funds for with new audiences). advocate a particular viewpoint or projects which request $5,000 or less. K. May a Teacher, Educator, or Faculty course of action. For each EPA region, this means that the largest number of the regional grants Member Apply? D. When Is My Proposal Due to EPA and each year are for $5,000 or less. In 1996, A teacher’s school district, an When Will EPA Announce the Grant 2.5% of the proposals for more than educator’s nonprofit organization, or a Awards? $25,000 were funded, 6.1% of the faculty member’s college or university Proposals, signed by an authorized proposals between $5,000 and $25,000 may apply, but an individual teacher, representative plus two copies, must be were funded, and 18.6% of the educator, or faculty member cannot. mailed to EPA postmarked no later than proposals for $5,000 or less were Only agencies, organizations, and Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65107 institutions—not individuals—are education project, and the cost is a (6) Educating low income and eligible to apply for grants. relatively small percentage of the total culturally diverse audiences about amount of federal funds requested. environmental issues, thereby L. What General Activities Are Eligible Regarding Item (4) above, EPA will advancing environmental justice; and/or for Funding Under This Program? fund only environmental education (7) Educating the public about As specified under the Act, the projects, not projects that are solely environmental issues in their environmental education activities that designed to develop or disseminate communities through community-based are eligible for funding under this environmental information. As organizations or through print, film, program must include, but are not discussed under Section I(C), broadcast, or other media. limited to, at least one of the following: environmental education teaches Note: Headquarters will give preference to 1. Designing, demonstrating, or critical-thinking, problem-solving skills, the highest ranking proposals which address disseminating environmental curricula and decision-making skills. By contrast, (1) capacity building, (2) education reform, (see next paragraph); environmental information provides and/or (3) human health, as described below 2. Designing and demonstrating field facts or opinions about environmental under Definitions. methods, practices, and techniques, issues or problems, but does not 2. Criteria for Final Selections: EPA including assessing environmental and enhance critical-thinking, problem- will make the final grant selections as ecological conditions or specific solving, or effective decision-making follows: environmental issues or problems; skills. Although information is an After individual projects are 3. Training or educating teachers, essential element of any educational evaluated and scored by reviewers, as faculty, or related personnel; or effort, environmental information is not, described under Section V(W), EPA 4. Fostering international cooperation by itself, environmental education. in addressing environmental issues and officials in the regions and at problems in the United States, Canada, N. What Specific Type of Projects Will headquarters will select a diverse range and/or Mexico. EPA Fund? of finalists from the highest ranking Regarding Item (1) above, EPA proposals. In making the final EPA will fund only those proposals selections, EPA will take into account strongly encourages applicants to which meet the criteria specified below demonstrate or disseminate existing the following: and which meet the definition of a. The effectiveness of collaborative environmental curricula rather than environmental education under I(C). designing new curricula because experts activities and partnerships, as needed to Proposals will not be funded if they do effectively develop or implement the indicate that a significant amount of not meet both. Apply to EPA quality curricula have already been project; Headquarters if you are requesting over b. The environmental and educational developed and are under-utilized. EPA $25,000 of Federal funds and to your will consider funding new curricula importance of the activity or product; EPA Regional Office if you are c. The effectiveness of the delivery only where the applicant demonstrates requesting $25,000 or less in Federal mechanism (i.e., workshop, conference, that there is a need (e.g., that the new funds. The terms used in this Section etc.); curriculum has not been designed for a are defined in Paragraph (3) at the end d. The cost effectiveness of the certain audience, existing curricula of the Section. proposal; and cannot be adapted well to a particular 1. Basic Criteria: All proposals must e. The geographic distribution of local environmental concern, or existing explain how the proposed project: projects. curricula are not otherwise accessible). a. Is new or significantly improved; 3. Definitions: The above terms are The applicant must specify what steps b. Has the potential for wide defined as follows: they have taken to determine this need application; Building, state, local, or tribal (e.g., you may cite a conference where c. Addresses a high priority capacity refers to efforts to improve the this need was discussed, the results of environmental issue; and coordinated delivery of environmental inquiries made within your community d. Reaches key audiences and education at the state, local, or tribal or with various educational institutions, advances the environmental education level. This should involve a coordinated or a research or other published field by addressing one or more of the effort by the major education and document). following: (1) Building state, local, or tribal environmental education providers from M. What Activities Are Not Eligible for capacity to develop and deliver quality the respective state, locality, or tribe in Funding Under This Program? environmental education programs; the planning and implementation of the Funds cannot be used for: (2) Utilizing environmental education project (e.g., state education and natural 1. Construction projects; as a catalyst to advance state, local, or resource departments, local school 2. Technical training of tribal education reform and districts and boards, professional environmental management improvement goals; education and environmental education professionals; (3) Educating teachers, students, associations or coordinating councils, as 3. Non-educational research and parents, community leaders, and the well as nonprofit education and development; and/or public about human health threats from environmental education organizations) 4. Environmental information projects environmental pollution, especially as it and may also include other types of that have no educational component. affects children; organizations and private businesses. Regarding Item (1) above, EPA will (4) Educating teachers, faculty, or Examples of how to build state, local, or not fund construction activities such as nonformal educators about tribal capacity include, but are not the acquisition of real property (e.g., environmental issues to improve their limited to, the following: buildings) or the construction or environmental education teaching skills —Identifying and assessing needs and modification of any building. EPA may, (e.g., through workshops); setting priorities; however, fund activities such as (5) Educating students in formal or —Evaluating current programs and links creating a nature trail or building a bird nonformal settings about environmental among programs; watching station as long as these items issues to encourage environmental —Developing and implementing are an integral part of the environmental careers; coordinated strategic plans; 65108 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

—Identifying funding sources and environmental hazards their children Wide application pertains to a project creating grant programs; face in their own communities, and then that targets a large and diverse audience —Identifying existing resources, use that knowledge to make more in terms of numbers or demographics; or developing databases of such informed decisions that prevent that can serve as a model program resources, and disseminating these environmental health problems and elsewhere. resources and information; protect children. Therefore, through this Section IV. Requirements for Proposals —Establishing or enhancing on-line solicitation, EPA encourages and Matching Funds communications to facilitate environmental education projects to networking among organizations; educate the public about environmental O. What is a Proposal? —Ensuring sustained professional hazards and how to minimize human The proposal contains three parts development activities; and/or exposure to preserve good health. which are explained in Section (S) —Holding leadership seminars and Environmental Justice refers to EPA’s below: other types of training. goal to encourage applicants to submit 1. The ‘‘Application for Federal Education reform and improvement proposals that include efforts to target Assistance’’—Standard Form (SF)–424 refers to efforts to improve student low income and culturally diverse (attached); academic achievement and to equip populations, thereby promoting 2. The ‘‘Budget Information: Non- students with the necessary knowledge environmental justice. The term Construction Programs’’—Standard and skills to be lifelong learners. Your environmental justice refers to the fair Form (SF)–424A (attached); and proposal should clearly describe what treatment of people of all races, 3. A work plan with appendices. your state, local, or tribal educational cultures, and income with respect to the To ensure your proposal is completed reform and improvement needs and development, implementation and properly, carefully follow the goals are as well as how they relate to enforcement of environmental laws, instructions on the SF–424, SF–424A, your environmental education project. regulations, and policies. Fair treatment and those provided below. The SF–424, Examples of possible reform and means that no racial, ethnic, or SF–424A, and completed work plan improvement strategies to which the socioeconomic group should bear a contain all the information EPA will use proposed environmental education disproportionate share of the negative to evaluate the merits of your proposal. program might be linked include environmental consequences that might Only finalists will be asked to submit curricular and instructional innovations result from the operation of industrial, additional forms needed to process their such as more emphasis on inquiry and municipal, and commercial enterprises proposal. problem-solving, learning experiences and from the execution of federal, state, that have practical application in the local, and tribal programs and policies. P. Are Matching Funds Required? real world, project-based learning, team An example would be a project directed Yes, non-federal matching funds of at building and group decision-making, at an environmental problem that has a least 25% of the total cost of the project and interdisciplinary study. Other disproportionately high and adverse are required, although EPA encourages examples include the development of human health or environmental impact matching funds of greater than 25%. new high content and performance in a low-income or culturally-diverse Federal funds to support the project standards, the design of corresponding community. must not exceed 75% of the total cost assessment systems, the realignment of A high priority environmental issue is of the project. The 25% match may be curriculum and instructional practice to one that is important to the community, provided by the applicant or any other the high standards and assessment state, or region being targeted by the organization or institution, except that system, the use of technology in project; e.g., one community may have no portion of the 25% match can promoting learning, the implementation significant air pollution problems which include federal funds (unless of sustained and intensive professional makes teaching about human health specifically authorized by statute). The development activities, and the creation effects from it and solutions to air 25% match may be provided in cash or of family and community partnerships. pollution important, while rapid by in-kind contributions and other non- Human health threats from development in another community cash support. In-kind contributions environmental pollution, as used here is may threaten a nearby wildlife habitat, often include salaries or other verifiable intended to address recommended thus making habitat or ecosystem costs. In the case of salaries, applicants actions recently stated in EPA’s protection a high priority issue. may use either minimum wage or fair ‘‘National Agenda to Protect Children’s New or significantly improved market value. The proposed match, Health from Environmental Threats.’’ pertains to a project that reaches a including the value of in-kind The action reads as follows ‘‘We call on specific community for the first time, contributions, is subject to negotiation American parents, teachers and develops a new or improved teaching with EPA. The value of in-kind community leaders to take personal strategy, or uses a new or improved contributions must be carefully responsibility for learning about the method of applying existing materials. documented. All grants are subject to hazards that environmental problems Partnerships refers to EPA promotion audit. pose to our children—and provide them of effective use of partnerships between The matching non-federal share is a with the information they need to help organizations or within an organization. percentage of the entire cost of the protect children from those risks at The term partnership is the forming of project. For example, if the 75% federal home, at school and at play.’’ An a collaborative working relationship portion is $5,000, then the entire project informed, involved local community between two or more organizations such should, at a minimum, have a budget of does a better job of making as governmental agencies, non-profit $6,667, with the recipient providing a environmental decisions than a distant organizations, educational institutions, contribution of $1,667. To assure that bureaucracy—and never more so than and/or the private sector. It may also your match is sufficient, simply divide when it comes to our children. Parents, refer to intra-organizational unions such the Federally requested amount by teachers and community leaders can as the science and art departments of three. If your match is larger than one- and should play a vital, day-to-day role within a university collaborating on a third of the requested amount, it is in learning about the particular project. sufficient. The amount of non-federal Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65109 funds, including in-kind contributions, Paragraph (R) above for information on (b) identifies its target audience and must be itemized in Block 15 of the SF– what types of budget categories can and demonstrates an understanding of the 424. cannot be funded under this program. needs of that audience; (c) uses an 2. Work Plan: A work plan describes effective means or delivery system for Q. Can I Use Federal Funds in Addition your proposed project. The total number reaching the target audience/ to Those Provided by This Program to of points possible for each proposal is implementing the project; and (d) Support the Same Project? 100. These points will be distributed as demonstrates that it uses or produces Yes, you may use federal funds in follows. First, each of the following four quality educational products or methods addition to those provided by this sections of the work plan are assigned which teach critical-thinking, problem- program, but only for different points which add up to 90. (Certain solving, and decision-making skills. activities. However, you may not use sections are given more points than Subsection maximum score: 40 points any federal funds to meet all or any part others reflecting the relative importance (10 points for each of the four elements of the required 25% match as stated in of each section). Second, reviewers will identified in this paragraph). paragraph (P) above. If you have already be given the flexibility to provide up to (2) Explain how the proposed project: been awarded federal funds for a project 10 additional points for exceptional (a) is new or significantly improved; (b) in which you are seeking additional projects based upon the overall quality has wide application; and (c) addresses support from this program, you must of the proposal and evidence that EPA’s a priority issue as described under indicate in the budget section of the priorities, as stated in Section III(N), Section III(N). work plan that you have been awarded will be effectively advanced by the This subsection will be scored on how other federal support for this project. proposed project. All criteria used to well you explain how your proposal You must also identify the project provide these 10 additional points will meets the three elements identified officer, agency, office, address, phone be consistent with the criteria above. Subsection maximum score: 15 number, and the amount of the award. established in the solicitation. points (5 points for each of the three R. Can I Request Funding for Any All work plans must include and be elements identified above). formatted according to all four sections Budget Category on the SF–424A (i.e., Project Description Maximum Score: 55 Personnel/Salaries, Fringe Benefits, (a–d) below: a. Project Summary: Provide EPA Points Travel, Equipment, Supplies, with an overview of your entire project. Contractual, and Indirect Charges)? c. Project Evaluation: Provide EPA The summary must be no more than one with an explanation of how you will Yes, you may request funding for any page and must briefly include all seven determine or measure whether you are or all of the budget categories identified of the following: meeting the goals and objectives of your above with the following exceptions. (1) Describe your organization (and project. Evaluation plans may be 1. As indicated under Section your key partners); quantitative and/or qualitative and may II(M)(1), EPA will not fund the (2) State the goals and specific include, for example, surveys, acquisition of real property (including objectives of your project; observation, or outside consultation. buildings) or the construction or (3) Identify what type of project you modification of any building. The project evaluation will be scored will focus on as described under Section on the extent to which: (a) your 2. You may request funds to pay for III(N), e.g., teacher training or salaries and fringe benefits, but only for evaluation plan will measure the community-based education; project’s effectiveness; and (b) your plan those personnel who are directly (4) Describe the demographics of your to apply data gathered from your involved in implementing the proposed target audience (including the total evaluation to strengthen your project. project and whose salaries and fringe number of direct participants, ethnic benefits are directly related to specific composition, and type of individuals Project Evaluation Maximum Score: 10 products or outcomes of the proposed reached such as teachers, students, or Points (5 Points for Each of the Two project. EPA strongly encourages the general public). Elements Identified Above) applicants to request reasonable (5) Indicate how you will reach your d. Appendices: Provide EPA with a amounts of funding for salaries and target audience; detailed budget, resumes of key fringe benefits. (6) Describe the expected results of personnel, and letters of commitment. 3. You may include a request for your project and how you will evaluate No other appendices or attachments indirect costs only if your organization it; and has already negotiated and received an (7) Indicate for which types of such as video tapes or sample curricula ‘‘indirect cost rate’’ from the federal activities the EPA funds will be used. may be submitted. government. The project summary will be scored (1) Budget: Describe how you will use on how well you provide an overview the funds for personnel/salaries, fringe S. What Must be Included in the of your entire project based upon the benefits, travel, equipment, supplies, Proposal? seven subsections identified above. contract costs, and indirect costs. You The proposal must contain an SF– must also include a table which lists 424, SF–424A, and work plan as Project Summary Maximum Score: 5 each major proposed activity as well as described below: Points the month and year it will be completed 1. Application for Federal Assistance b. Project Description: Provide EPA and the amount of EPA funds that will (SF–424) and Budget Information SF– with an explanation of how your be spent on each activity. For smaller 424A): The SF–424 and SF–424A are proposed project meets #1 and #2 below. grants, your table may list only one or required for all federal grants. A (1) Explain how the proposed project two activities. completed SF–424 and SF–424A must addresses one or more of EPA’s This subsection will be scored on: (a) be submitted as part of your proposal. priorities and goals as set out under how well the budget information clearly These forms, along with instructions Section III(N). and accurately shows how funds will be and samples, are included at the end of This subsection will be scored on how used; and (b) whether the funding this notice. Please carefully review the clearly and effectively your project: (a) request is reasonable given the activities instructions and the sample. Refer to establishes realistic goals and objectives; proposed. Subsection maximum score: 65110 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

10 points (5 points for each of the two V. What Regulations Must I Comply Y. How and When Will I be Notified elements identified in this paragraph) With in Submitting My Proposal? About the Status of My Proposal? (2) Key Personnel and Letters of Applicants will receive a Commitment: Attach one or two page The Environmental Education Grant Program Regulations, published in the confirmation that EPA has received resumes for up to three key personnel their proposal once EPA has received all Federal Register on March 9, 1992, implementing the project. Also, include proposals and entered them into a provides some additional information one page letters of commitment from computerized data base, usually within on EPA’s administration of this program partners (if there are partners) with a two months of receipt. EPA will notify significant role in the proposed project. (57 Federal Register 8390; Title 40 CFR, applicants again after awards have been Do not include letters of support; they Part 47 or 40 CFR Part 47). Also, EPA’s announced. To the extent possible, this will not be considered in evaluating general assistance regulations at 40 CFR notification will include feedback on proposals. Part 31 applies to state, local, and both the proposals that were screened This subsection will be scored based Indian tribal governments and 40 CFR out of the process early and on the upon whether resumes of key personnel Part 30 applies to all other applicants proposals that were fully evaluated and are included and whether the key such as nonprofit organizations. ranked by reviewers. The degree to personnel are qualified to implement Section V. Review and Selection which EPA can provide such feedback the proposed project. In addition, the Process will vary among EPA offices depending score will reflect whether letters of upon the availability of resources to commitment are included (if partners W. How Will Proposals be Reviewed and conduct these activities. are used) and the extent to which a firm Who Will Conduct the Reviews? commitment is made. Section VI. Grantees Responsibilities Proposals will be reviewed in two AA. When Can I Begin Incurring Costs? Subsection Maximum Score: 10 Points phases—the screening phase and the Appendices Maximum Score: 20 Points evaluation phase. During the screening Grant recipients may begin incurring phase, proposals will be reviewed to costs on the start date identified in your T. What Are the Page Limits for the EPA grant agreement. Work Plan? determine whether they meet the basic requirements of this notice, especially BB. May an Applicant Request Funds Your work plan may include the as described under Sections II and III. for a Project That Extends Beyond a following number of pages for requests Only those proposals which meet all of One-year Budget Period? in federal funds of: the basic requirements will enter the Proposals submitted to EPA regional 1. $25,000 or less: EPA prefers a work evaluation phase of the review process. offices for up to $5,000 may request plan of 3 pages, but will accept up to 5 During the evaluation phase, proposals funds for only a one-year budget period. pages. will be evaluated based upon the quality Proposals submitted to EPA regional 2. Above $25,000: a work plan of up of their work plans, especially the offices or headquarters requesting funds to 10 pages. degree to which the work plan meets the of more than $5,000 may request funds These page limits apply only to the requirements set forth in Section for up to a two-year budget period, work plan (i.e., the ‘‘summary,’’ ‘‘project III(N)(1–3). Reviewers conducting the although EPA strongly encourages description,’’ and ‘‘project evaluation’’), screening and evaluation phases of the applicants to request funds for only a not the appendices. ‘‘One page’’ refers to review process will include EPA one-year budget period. one side of a single-spaced typed page. officials and external environmental 1 × CC. Who Will Perform Projects and The pages must be letter sized (8 ⁄2 11 educators approved by EPA. At the inches), with normal type size (10 or 12 conclusion of the evaluation phase, the Activities? cpi) and at least 1 inch margins. To reviewers will score each applicant’s The Act requires that projects be conserve paper, please provide double- work plan based upon the scoring performed by the applicant or by a sided copies of the proposal. system identified in Section IV(S)(2). person satisfactory to the applicant and EPA. All proposals must identify any U. How Must the Proposal Be X. Who Will Make the Final Selections? Submitted? person other than the applicant that will assist in carrying out the project. The applicant must submit one EPA Regional Administrators will original and two copies of the proposal select grant recipients for projects with DD. What Reports and Work Products (a signed SF–424, an SF–424A, and a federal environmental education grant Must Grant Recipients Submit to EPA work plan). Please submit only the SF– funding of $25,000 or less, taking into and When Are They Due? 424, the SF–424A, and the work plan. account the recommendations of the All grant recipients must submit two Do not include other attachments such regional environmental education copies of their final report and two as cover letters, tables of contents, or coordinators who will base their copies of all work products to the EPA appendices other than those required recommendations on the factors project officer within 30 days after the (budget, resumes, letters of discussed above. The Associate expiration of the budget period. This commitment). The SF–424 should be Administrator for Communications, report will be accepted as the final the first page of your proposal and must Education, and Public Affairs at EPA report unless the EPA project officer be signed by a person authorized to headquarters will select the grant notifies you that changes must be made. receive funds. Blue ink for signatures is recipients for projects with federal Grant recipients with projects that have preferred to make identification of the environmental education grant funding a two-year budget period must also original possible. Proposals must be of more than $25,000, taking into submit a progress report at the end of reproducible; they should not be bound. account the recommendations of the the first year. Grant recipients with a They should be stapled or clipped once Environmental Education Division federal environmental education grant in the upper left hand corner, on white Director who will base the share greater than $5,000 may also be paper, and with page numbers in the recommendations on the factors required to submit a semi-annual upper right hand corner. discussed above. progress report. Specific report Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65111 requirements will be identified in the be purchased for a $5.00 fee by writing U.S. EPA, Region II, Env Ed Grants, EPA award agreement. to NAAEE, Publications and Member Grants and Contracts Management Services, P.O. Box 400, Troy, Ohio, Branch, 290 Broadway, 27th Floor, EE. What Does EPA Plan to Do With the 45373. New York, NY 10007–1866 Grant Recipients’ Final Reports and Information: Final Work Products? GG. How Can I Get Information on the Fiscal Year 1998 EPA Environmental Teresa Ippolito, EE Coordinator, 212– EPA will assemble a central library of 637–3671 all final reports and work products at Education Grants Program? headquarters in Washington, D.C. EPA EPA develops an entirely new mailing EPA Region III—DC, DE, MD, PA, VA, plans to evaluate these final reports and list for the grants program each year. WV work products and may disseminate The Fiscal Year 1998 mailing list will Mail proposals to: them to others to serve as model include all applicants who submitted U.S. EPA, Region III, Env Ed Grants, programs. proposals for Fiscal Year 1997 as well Grants Management Section as anyone else who specifically requests Section VII. Other Information and (3PM70), 841 Chestnut Street, to be placed on the mailing list. If you Mailing List Philadelphia, PA 19107 do not submit a proposal for Fiscal Year Information: FF. Where Can I Get Additional 1997 and you wish to be added to our Bonnie Smith, EE Coordinator, 215– Information on Preparing My Proposal mailing list to receive information on 566–5543 and on Other Sources of Funding? the Fiscal Year 1998 Environmental EPA Region IV—AL, FL, GA, KY, MS, EPA strongly encourages applicants to Education Grants Program, you must NC, SC, TN carefully read the solicitation notice. mail your request—please do not Many questions, such as when is the telephone—along with your name, Mail proposals to: deadline for submitting proposals and organization, address, and phone U.S. EPA, Region IV, Env Ed Grants, what activities can be funded under this number to: U.S. Environmental Office of Public Affairs (E2), 100 program, are answered in this Protection Agency, Environmental Alabama Street, SW., Atlanta, GA solicitation. Applicants who need more Education Division (1707), 30303 information about this grant program or Environmental Education Grants Information: clarification about specific requirements Program (FY 1998), 401 M Street, S.W., Fred Thornburg, Environmental in this solicitation notice, may contact Washington, D.C. 20460. Education Office, 404–562–8317 the EPA Environmental Education Dated: December 9, 1996. EPA Region V—IL, IN, MI, MN, OH, WI Division in Washington, D.C. for grant Denise Graveline, requests of more than $25,000 or your Acting Associate Administrator, Office of Mail proposals to: EPA regional office for grant requests of Communications, Education, and Public U.S. EPA, Region V, Env Ed Grants, $25,000 or less. A list of the names and Affairs. Grants Management Section (MC– telephone numbers of EPA 10J), 77 West Jackson Boulevard, U.S. EPA Representatives and Mailing representatives are listed at the end of Chicago, IL 60604 Addresses this notice. If you receive this Information: solicitation electronically and you wish U.S. EPA Headquarters—For Proposals Suzanne Saric, EE Coordinator, 312– to apply for funding, you may call your Requesting More Than $25,000 353–3209 regional office as listed for the Mail proposals to: Region VI—AR, LA, NM, OK, TX application forms that are mentioned in U.S. EPA, Env Ed Grants, the solicitation. Environmental Education Division Mail proposals to: Information about the grants program (1707), Office of Communications, U.S. EPA, Region VI, Env Ed Grants, is also available on the Internet. You can Education, and Public Affairs, 401 Environmental Education view and download this solicitation M Street, SW., Washington, DC Coordinator (6XA), 1445 Ross notice, a list of EPA environmental 20460 Avenue, Dallas, TX 75202 education contacts, and descriptions of Information: Information: past projects funded under this program George Walker, Environmental Jo Taylor, EE Coordinator, 214–665– and information on other education Education Specialist, 202–260–8619 2204 resource materials from: Region VII—IA, KS, MO, NE World Wide Web: ‘‘http:// U.S. EPA Regional Offices—For eelink.umich.edu’’ Proposals Requesting $25,000 or Less Mail proposal to: World Wide Web: ‘‘http:// EPA Region I—CT, ME, MA, NH, RI, VT U.S. EPA, Region VII, Env Ed Grants, www.nceet.snre.umich.edu/ Grants Administration Division, Mail proposals to: grant.html’’ 726 Minnesota Avenue, Kansas U.S. EPA, Region I, Env Ed Grants, City, KS 66101 The large number of proposals EPA Grants Management Office, JFK received in past years demonstrates the Federal Building (MGM), Boston, Information: strong demand for funding MA 02203 Rowena Michaels, EE Coordinator, environmental education projects. Hand-deliver to: 913–551–7003 Unfortunately, EPA alone cannot meet One Congress Street, 11th Floor Mail Region VIII—CO, MT, ND, SD, UT, WY this demand. In cooperation with EPA, Room, Boston, MA (M–F 8 am–4 the North American Association for pm) Mail proposals to: Environmental Education (NAAEE) has Information: U.S. EPA, Region VIII, Env Ed Grants, developed a publication called ‘‘Grant Maria Pirie, EE Coordinator, 617–565– 999 18th Street (80EA), Denver, CO Funding For Your Environmental 9447 80202–2466 Education Program’’ which provides Information: strategies for identifying potential EPA Region II—NJ, NY, PR, VI Cece Forget, EE Coordinator, 303– sources of funding. This publication can Mail proposals to: 312–6605 65112 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

Region IX—AZ, CA, HI, NV, American Samoa, Guam, Northern Marianas Mail proposals to: U.S. EPA, Region IX, Env Ed Grants, Office of Communications and Government Relations (CGR–3), 75 Hawthorne Street, San Francisco, CA 94105 Information: Matt Gaffney, Office of Communications and Government Relations (OCGR), 415–744–1582 Region X—AK, ID, OR, WA Mail proposals to: U.S. EPA, Region X, Env Ed Grants, Public Information Center, 1200 Sixth Avenue (EXA–142A), Seattle, WA 98101 Information: Sally Hanft, EE Coordinator, 1–800– 424–4EPA, 206–553–1207

BILLING CODE 6560±50±P Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65113 65114 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65115 65116 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65117

[FR Doc. 96–31358 Filed 12–9–96; 8:45 am] BILLING CODE 6560±50±C federal register December 10,1996 Tuesday Policy andProcedure;Notice Protection ProgramsEnforcementActions Resolution; FinalRuleandRadiation Airborne EffluentsDualRegulation Clean AirAct:RadioactiveMaterials 10 CFRPart20 Commission Nuclear Regulatory Part III 65119 65120 Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations

NUCLEAR REGULATORY have been disposed of in accordance initial determination that the NRC program COMMISSION with 40 CFR Part 192. Radon-222 under the Atomic Energy Act provides an emissions from tailings were covered by ample margin of safety to protect public health (57 FR 56880; December 1, 1992). 10 CFR Part 20 40 CFR Part 61, Subparts T (addressing non-operational uranium mill tailings However, EPA continued to express RIN 3150±AF31 piles) and W (addressing operating mill concern regarding the adequacy of the Resolution of Dual Regulation of tailings piles). EPA rescinded Subpart T measures to assure that future emissions Airborne Effluents of Radioactive for NRC licensees after Appendix A to from NRC licensees will not exceed Materials; Clean Air Act 10 CFR Part 40 was amended by the levels that will provide an ample margin Commission to conform to changes EPA of safety. The stay on Subpart I expired AGENCY: Nuclear Regulatory issued to 40 CFR Part 192. Subpart W on November 15, 1992, and Subpart I Commission. still applies to NRC licensees. Because became effective on November 16, 1992. ACTION: Final rule. Radon-222 is adequately addressed in Subsequently, in July of 1993, the EPA 10 CFR Part 40, Appendix A, and other Administrator determined that there SUMMARY: The Nuclear Regulatory provisions of 10 CFR Part 20, it is not was insufficient basis at that time to Commission is amending its regulations covered in this final rulemaking. rescind Subpart I. Consequently, NRC to establish a constraint of 10 mrem (0.1 In 1990, Congress enacted and Agreement State licensed facilities mSv) per year total effective dose amendments to the CAA. Section were subject to dual regulation of equivalent (TEDE) for dose to members 112(d)(9) of these amendments to the airborne effluents of radionuclides of the public from air emissions of CAA (the Simpson amendment) states: under both the AEA and the CAA, radionuclides from NRC licensed including regulatory oversight by EPA facilities other than power reactors. This No standard for radionuclide emissions from any category or subcategory of facilities (or authorized State) and NRC (or action is necessary to: Provide assurance Agreement State). to the Environmental Protection Agency licensed by the Nuclear Regulatory Commission (or an Agreement State) is NRC licensees subject to EPA’s (EPA) that future emissions from NRC required to be promulgated under this Subpart I are also subject to NRC dose licensees will not exceed dose levels section if the Administrator determines, by limits for members of the public that EPA has determined will provide rule, and after consultation with the Nuclear contained in 10 CFR Part 20, Subpart D, an ample margin of safety; and to Regulatory Commission, that the regulatory entitled ‘‘Radiation Dose Limits for provide EPA a basis upon which to program established by the Nuclear Individual Members of the Public’’ rescind its Clean Air Act (CAA) Regulatory Commission pursuant to the (Subpart D). Under Subpart D, licensees regulations as defined in 40 CFR Part 61 Atomic Energy Act for such category or shall ensure that doses to members of for NRC licensed facilities (other than subcategory provides an ample margin of safety to protect public health. the public are less than 100 mrem (1.0 power reactors) and Agreement State mSv) per year from all pathways licensees, thereby relieving these Upon issuance, the effectiveness of (including airborne effluents) and all licensees from unnecessary dual Subpart I for all NRC licensees was sources associated with the licensee’s regulations. immediately stayed by EPA pending operation. In addition, under Subpart B, EFFECTIVE DATE: This rule will become further evaluation. During the stay entitled ‘‘Radiation Protection effective January 9, 1997. period, EPA conducted two studies of Programs,’’ licensees must ensure that the air emissions from NRC and FOR FURTHER INFORMATION CONTACT: doses to members of the public be kept Agreement State materials licensees. Alan K. Roecklein, Office of Nuclear as low as is reasonably achievable The first was a survey of 367 randomly Regulatory Research, U.S. Nuclear (ALARA). Based on the studies selected nuclear materials licensees. Regulatory Commission, Washington, conducted by EPA and licensee EPA determined that the highest DC 20555–0001, telephone (301) 415– reporting of doses to members of the estimated dose to a member of the 6223. public from airborne effluents to EPA, it public from air emissions from these is evident that less than 10 mrem( 0.1 SUPPLEMENTARY INFORMATION: facilities was 8 mrem (0.08 mSv) per mSv) per year to the maximally exposed Background year, based on very conservative member of the public from airborne modeling. In addition, 98 percent of the radioactive effluents to the environment The EPA promulgated National facilities surveyed were found to have Emission Standards for Hazardous Air is reasonably achievable. doses to members of the public resulting NRC power reactor licensees subject Pollutants (NESHAPs) for radionuclides from air emissions less than 1 mrem to 10 CFR 50.34a must keep doses to on October 31, 1989. Under 40 CFR Part (0.01 mSv) per year. The second study members of the public from airborne 61, Subpart I, emissions of evaluated doses from air emissions at 45 effluents consistent with the numerical radionuclides must be limited so that no additional facilities that were selected guidelines in Appendix I to 10 CFR Part member of the public would receive an because of their potential for air 50. These licensees have reported effective dose equivalent greater than 10 emissions resulting in significant public estimated doses to members of the mrem (0.1 mSv) per year.1 Subpart I of exposures. EPA found that 75 percent of public from air emissions well below 40 CFR Part 61 was promulgated to these licensees had air emissions the Subpart I value for many years. implement the CAA and limit doses to resulting in an estimated maximum Based on the combination of a members of the public from air public dose less than 1 mrem (0.01 mSv) continuing regulatory basis for reduced emissions of radionuclides (other than per year. For the licensees evaluated, air emissions and documented proof of Radon-222) from all NRC licensees other none exceeded 10 mrem (0.1 mSv) per the effectiveness of the NRC program for than licensees possessing only sealed year. these licensees, EPA rescinded Subpart sources, high-level waste repositories, In its initial proposal to rescind I for power reactors licensed by NRC (60 and uranium mill tailings piles that Subpart I for NRC licensees other than FR 37196; September 5, 1995). power reactors, EPA stated that: 1 1 Subpart I expresses dose in effective dose Amendments equivalent (EDE). NRC expresses dose in total Based on the results of the survey effective dose equivalent (TEDE). These terms are undertaken by EPA and the commitments The amendments proposed on essentially equivalent. made by NRC in the MOU, EPA has made an December 13, 1995 (60 FR 63984), and Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations 65121 finalized in this rule establish a to take to ensure that the constraint is that the constraint was preferable to constraint of 10 mrem (0.1 mSv) per not again exceeded, a timetable for dual regulation or Subpart I alone. year TEDE to members of the public implementing the corrective steps, and Those commenting that existing NRC from airborne radioactive effluents to the expected results. Records of the programs are adequate to protect the the environment from NRC-licensed results of measurements and public cited the two EPA studies on facilities, other than power reactors, as calculations needed to evaluate the doses from air emissions. Two-thirds of a part of its program to maintain doses release of radioactive effluents to the these commenters were opposed to ALARA. These amendments codify environment will still be required going forward with the constraint numerical values for NRC’s application pursuant to 10 CFR 20.2103(b)(4). because they believed it was not needed of ALARA guidelines for radioactive air Exceeding this constraint will not and that licensee and regulator costs emissions from its licensees, other than result in a Notice of Violation (NOV) as could not be justified given the power reactors. For power reactors, would be the case if a limit needed for expectation that risk to public health ALARA guidelines have already been adequate protection of public health and and safety would not be reduced. These established within 10 CFR Part 50 and safety were exceeded. In the case of the commenters encouraged NRC to existing facility licensing conditions. constraint rule, an NOV will be issued continue working with EPA to provide These final amendments ensure that air only if and when (1) a licensee fails to sufficient basis for rescission of Subpart emissions are maintained at very low report an actual or estimated dose from I without the imposition of an equally levels and, taking into consideration the airborne effluent releases from a facility unnecessary regulation. A few elimination of dual regulation, at some that has exceeded the constraint value; commenters stated that the risk was reduced cost to licensees. This action or (2) if a licensee fails to institute considerably less than estimated brings consistency between the EPA’s agreed upon corrective measures because excessively conservative dose standard and the NRC’s ALARA intended to prevent further airborne calculational methods were used by application, and is expected to be the effluents in excess of those which EPA. A few commenters compared the final step in providing EPA with the would result in doses exceeding the 10 mrem (0.1 mSv) per year constraint basis to rescind Subpart I as it applies constraint level. to variability in background or doses to NRC-licensed facilities other than The rule applies to airborne effluents from commercial air traffic as evidence power reactors. NRC has been working of radioactive materials to the that the dose and the risk is trivial. cooperatively with EPA to achieve environment, other than Radon-222 and Seven commenters cited burden rescission of EPA’s standards in 40 CFR daughters, from all NRC licensees reduction and single-agency oversight as Part 61, Subpart I, under Section except power reactors. Power reactors the reasons for agreeing that the 112(d)(9) of the CAA. EPA published a are exempt from this rule because they constraint was preferable to dual proposed rescission of 40 CFR Part 61, are already required, under 10 CFR regulation or EPA’s Subpart I alone. Subpart I, on December 1, 1992 (57 FR 50.34a, to identify design objectives and Commenters opposed to the 56877). On September 28, 1995, EPA the means to be employed for keeping constraint as a less protective standard, published a notice in the Federal doses to members of the public from air stated that the constraint was based Register reopening the comment period effluents ALARA in their license upon a voluntary program (ALARA) on rescission of Subpart I (60 FR 50161). application. Appendix I to 10 CFR Part and, as such, was not adequate to The objective of this effort is to 50 contains the numerical guidelines to protect the public. One commenter eliminate duplicative regulations that meet this requirement. stated that NRC does not perform provide no incremental benefit in terms confirmatory measurements and Response to Comments of public and environmental protection. therefore, NRC jurisdiction was not The regulatory framework that NRC is Fifty-seven individuals and adequate. providing as a basis for rescission of organizations provided written Response: NRC and EPA have been EPA’s Subpart I consists of the comments on the proposed rule and working to develop a basis upon which requirement in 10 CFR Part 20 to limit Draft Regulatory Guide DG–8016. dual regulation could be eliminated. doses to members of the public to 100 Among the 57 commenters, 24 were EPA has stated that there are two mrem (1.0 mSv) per year, and the licensees, seven were professional necessary components to any finding requirement to constrain doses to organizations, five were States, 16 were that NRC’s program is sufficient to members of the public from airborne members of the public, and five were protect the health and safety of the effluents of radioactive materials to the environmental organizations. Because public. The first is evidence that doses environment from a single licensed many letters commenting on the Draft from air emissions are below 10 mrem operation to 10 mrem (0.1 mSv) per Regulatory Guide DG–8016 also (0.1 mSv) per year to a member of the year. included comments on the rule, these public. This has been demonstrated Currently, under § 20.1501 licensees comments were also considered in through the two studies by EPA and by are required to make or cause to be developing the final rule. licensee reporting of actual air made surveys that may be necessary to emissions. The second component is a comply with the regulations in 10 CFR Issue 1—Proposed Rule Approach program to ensure that doses remain at Part 20. This data would be made Comments: A total of thirty-one this level. In the absence of rulemaking available to inspectors upon request. If individuals and organizations requiring licensees to maintain doses to the licensee estimates or measures a commented on the basis for the rule. levels of no more than 10 mrem (0.1 dose to the nearest resident from air Five commenters agreed with the mSv) per year, EPA would not rescind emissions greater than 10 mrem (0.1 approach and need for the constraint. Subpart I and dual regulation would mSv) per year, the licensee would be Four commented that the rule should continue. required to report the dose to NRC in not be finalized and that EPA’s Subpart The Federal Radiation Council (FRC) writing within 30 days, which would I should remain in effect. Twenty-two was formed in 1959, to provide include the circumstances that led to commenters stated that existing NRC recommendations to the President for the greater than 10 mrem (0.1 mSv) per programs provided an ample margin of Federal policy regarding radiation year dose, a description of the corrective safety and that the constraint was not matters that affect health. In May 1960, steps the licensee had taken or proposed needed. However, of these, seven agreed FRC set forth basic principles for 65122 Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations protection of both workers and the from individual pathways of exposure continue to protect public health in the public. The council was abolished in and individual radionuclides to ensure future. EPA undertook studies to 1970 when its functions were that the total dose does not exceed determine the level of protection transferred to the EPA Administrator. In recommended levels. Both programs provided by the existing regulatory 1981, EPA published proposed achieve similar levels of protection. program and found that doses were recommendations for new Federal NRC agrees that adoption of the sufficiently low to protect the health guidance for occupational exposure. In constraint in § 20.1101(d) is preferable and safety of the public with an ample 1987, President Reagan approved to dual regulation due to the reduction margin of safety. The implementation of recommendations by the EPA in burden on licensees as well as State this rule will ensure that doses to Administrator for new ‘‘Radiation and Federal agencies. Under the members of the public from air effluents Protection Guidance to Federal agencies provisions of 40 CFR Part 61, licensees will continue to remain below 10 mrem for Occupational Exposure.’’ EPA has with doses to members of the public (0.1 mSv) per year and provide evidence not yet issued recommendations on greater than 1 mrem (0.1 mSv) per year to EPA that the current level of limits for the public. A working group but less than 10 mrem (0.1 mSv) per protection will continue. comprised of representatives from year must submit reports. However, The purpose of this rulemaking is not affected Federal agencies and experts on under 10 CFR 20.1101(d), these to reduce doses, because it has already radiological health matters has been licensees will not have to file reports for been demonstrated that doses are developing these recommendations for doses below the constraint level because sufficiently low. The purpose is to several years and expects to provide doses can be evaluated during routine ensure that doses are maintained at the them during the next year. inspections. Under the final rule, the low level currently achieved by NRC In 1977, the International Council on burden of calculating doses should be licensees, eliminate unnecessary dual Radiological Protection (ICRP) issued its reduced for most licensees because the regulation, and reduce costs associated Report No. 26 ‘‘Recommendations of the proposed guidance for demonstrating with the current level of protection, by International Council on Radiological compliance with 10 CFR 20.1101(d) providing a basis upon which EPA can Protection’’ in 1977. These allows significantly more flexibility and find that doses will not increase as a recommendations concluded that the simpler methods for calculating doses result of rescission of Subpart I. average doses to members of the public than the model currently used to Issue 2—Promulgation of the Constraint should not exceed 100 mrem (1.0 mSv) demonstrate compliance with 40 CFR as ALARA per year with a limit of 500 mrem (5.0 Part 61. These new methods for mSv) per year to any individual. calculating doses should result in fewer Comments: There were a number of The National Council on Radiation reporting and corrective actions, as commenters who objected to the Protection and Measurements (NCRP) is under EPA’s Subpart I. ALARA basis for the proposed required by Congress to recommend Licensees are required under constraint rule. Some commenters limits for exposure to ionizing radiation. § 20.2103 to maintain records of surveys objected on the ground that ALARA is In June 1987, NCRP issued its Report required to demonstrate compliance a matter of operating philosophy, good No. 91, ‘‘Recommendations on Limits with the public dose limit. Review of radiation protection practice and for Exposure to Ionizing Radiation.’’ licensee records used to demonstrate licensee judgment, and cannot be This report contains recommendations compliance with the public dose limit is translated into an enforceable dose on exposure limits for both part of the NRC inspection program. number. Other commenters objected on occupationally exposed individuals and Confirmatory measurements would the basis that ALARA is inherently site individual members of the public. The generally not be useful since most specific and cannot be defined report recommended that doses to licensees in this category do not have generically or that the proposed dose individual members of the public be routine ongoing effluent releases. constraint cannot be ALARA but must limited to 100 mrem (1.0 mSv) per year Finally, concerning those commenters be a limit because the constraint averaged over a lifetime, not to exceed that believe NRC’s requirements are less contemplates some enforcement actions 500 mrem (5.0 mSv) in 1 year. safe than Subpart I, Congress enacted for exceedance even if the licensee has In 1991, NRC revised 10 CFR Part 20 legislation comprehensively amending followed all good radiation protection ‘‘Standards for Protection Against the Clean Air Act (CAA), which practices. Some commenters argued that Radiation.’’ This revision included new included a section addressing the issue the rule cannot be ALARA because it limits for individual members of the of regulatory duplication between EPA adds costs with no safety benefit. Other public. Though both the ICRP and the and NRC in 1990. The 1990 CAA commenters stated that the constraint is NCRP recommended limits of 500 mrem amendments permit the EPA inconsistent with a prior NRC decision (5.0 mSv) in any one year, the NRC Administrator to rescind the CAA in 10 CFR Part 20 (56 FR 23360) on the established a limit of 100 mrem (1.0 standards as they apply to use of ‘‘reference levels.’’ mSv) per year because it was radionuclides, at sites licensed by NRC, Response: The Commission has impractical to control dose in terms of and the Agreement States, if he or she retained an ALARA basis for the rule lifetime average without keeping track finds that the NRC regulatory program but recognizes that its use of the term in of individual exposures. In addition, 10 provides an ample margin of safety to this rule may have led to some CFR Part 20 requires that licensees use protect public health. confusion. The Commission procedures and engineering controls to EPA’s analysis of the NRC regulatory acknowledges that the ALARA concept maintain doses ALARA. program focused on two general issues: in 10 CFR 20.1003 is an operating Both the NRC and EPA regulatory (1) whether the implementation of the philosophy which requires good programs are designed to achieve NRC regulatory program results in radiation protection practice and the protection of the public with an ample sufficiently low doses to protect the exercise of expert licensee judgement. margin of safety. The approaches of the health and safety of the public with an The ALARA concept is site specific in two agencies differ. NRC limits TEDE, ample margin of safety; and (2) whether that some of the factors to be considered requires that doses are maintained the NRC program is sufficiently may vary from case to case, as the court ALARA, and maintains an active comprehensive and thorough, and so found in York Committee for a Safe inspection program. EPA limits dose administered in a manner that will Environment v. NRC, 527 F. 2d 812 Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations 65123

(D.C. Cir. 1975). The Commission has sense that exceedance will lead to controls. However, the rule can be said presumed, without deciding, that the corrective action, but it is not a limit in to offer a small, but positive, net health ALARA concept in § 20.1003 can be the sense that exceedance per se would and safety benefit in that it will prevent enforced in a particular case so as to constitute a violation of any regulatory a decrease in the level of protection require a specific radiation protection requirement. A violation occurs only afforded the public if Subpart I were practice, but it is clear that the existing when a licensee fails to report an rescinded in the absence of a rule like regulation does not translate readily into exceedance or fails to take appropriate the constraint. Under the ALARA a generic dose number, which, if corrective actions. A limit would be concept, it is appropriate to base a exceeded, will lead to enforcement appropriate if compliance were needed requirement on a small positive health action. to ensure adequate protection of public and safety benefit when cost savings are The NRC intended the constraint rule health and safety. In this case, the also likely. to be a somewhat broader concept found constraint is needed only to ensure that The NRC does not expect that any in the governing statute, the Atomic currently afforded levels of protection licensee subject to the rule will be Energy Act of 1954, as amended (Act). are not reduced. This will provide the unable to demonstrate that doses to The Act, as construed by both the basis for rescission of 40 CFR Part 61, members of the public from releases of Commission (e.g., 10 CFR 50.109) and Subpart I by EPA. airborne radioactive materials to the the courts (Union of Concerned Thus, to say that the constraint rule environment are less than 10 mrem (0.1 Scientists v. NRC, 824 F.2d 108 (D.C. cannot be based on ALARA because it mSv) per year. In the unlikely case that Cir. 1987)), contemplates two distinct is in effect a ‘‘limit,’’ interchanges a this dose is exceeded or is projected to approaches to radiological regulation. narrow concept of ‘‘ALARA’’ with a be exceeded, due to some temporary First, a level of ‘‘adequate protection’’ broad concept of ‘‘limit.’’ If a broad circumstances or lapse in controls, the must be defined and enforced without definition is used, the constraint rule NRC expects the licensee to take regard to economic cost. Second, risk withstands scrutiny as both ALARA and whatever corrective actions are may be reduced to a level below that a limit. In the statutory context of the necessary (if any) to protect public associated with ‘‘adequate protection’’ Atomic Energy Act and general health and safety, to report the dose, to to ‘‘minimize danger to life or property’’ principles of administrative law, the recommend further corrective actions if with economic cost and other factors as constraint rule is a limit based on necessary, and take those corrective permissible balancing considerations. generic ALARA considerations. The actions agreed upon with NRC. NRC See ‘‘Revision of Backfitting Process for constraint rule is not a limit needed for staff will review and approve corrective Power Reactors,’’ (53 FR 20603; June 6, adequate protection and the constraint actions to ensure that they are 1988). It is important to note that rule is something more than a narrow appropriate to reduce airborne Section 161b of the Act authorizes the translation of the particular ALARA emissions sufficiently to comply with Commission to adopt and enforce concept contained in 10 CFR 20.1003. the constraint in the future. In the generic requirements using either The term ‘‘constraint’’ was used for the unlikely case that a licensee is unable to approach. Many recent NRC regulations rule to avoid confusion with the narrow take adequate corrective actions, (e.g., 10 CFR 50.63) have been directed concepts of ALARA and the limit because of limits in technology or cost at incremental risk reduction under the employed in radiation protection constraints, these issues can be second approach based on a generic discussion. addressed in the future on a case-by- regulatory or backfit analysis which Three matters must be addressed: case basis. considered and balanced economic and (1) The comment that the rule cannot The application of the ALARA other costs and safety backfits. These be based on ALARA because it will principle used in this rule is not the ‘‘minimize danger’’ regulations provide result in increased cost with no safety same as the concept of reference level ‘‘limits’’ because they establish generic benefit; which was rejected by the Commission requirements directly enforceable (2) The problem of the licensee who when 10 CFR Part 20 was recently against licensees. However, in a broad cannot meet the dose constraint despite revised. Commenters on the 1991 sense they are also ALARA regulations using all good radiation protection revision to 10 CFR Part 20 objected to because cost, feasibility, and other practices; and the use of reference levels because they relevant factors identified in 10 CFR (3) The allegedly inconsistent were implemented exactly the same as 20.1003 are evaluated. Commission discussion of reference adequate protection limits. For that Viewed in its larger statutory context, levels in a recent revision to 10 CFR Part reason, the Commission did not adopt the use of ALARA in 10 CFR 20.1003 is 20. reference levels in the 1991 revision. one means to implement the second The Commission disagrees with the Implementation of the constraint is approach to radiological regulation. premise of the first comment. There was different than such a limit because However, other similar requirements no disagreement with the Commission’s exceeding the constraint is not a can also be part of this second approach. conclusion that all of the licensees violation, and only requires the licensee While the ALARA concept in 10 CFR affected by the rule are achieving a level to report the dose and take corrective 20.1003 may not be consistent with a of control such that doses are below the actions to reduce future doses. generic enforceable dose requirement, 10 mrem (0.1 mSv) per year level and other concepts of ALARA premised on so there is no factual dispute over Issue 3—Whether the Constraint Is generic considerations are appropriate. whether this level of radiation Actually a Limit This concept of ALARA as a broadly protection is readily achievable. The Comments: Nine comments were applicable dose requirement based on a final rule and EPA’s rescission of its received on whether the constraint is or generic weighing and balancing of Clean Air Act emission limits and should be a limit. Two commenters health and safety, feasibility, and other related requirements will result in a believed that the constraint was no factors is the basis for the longstanding significant net cost savings to licensees. different than a limit. One commenter limits on nuclear power reactor The NRC acknowledges that the positive agreed with the term constraint. Three emissions in 10 CFR Part 50, Appendix direct health effects are likely to be commenters expressed concern that the I, and is the basis for the constraint rule. small and possibly nonexistent in the constraint was an inappropriate The ALARA rule imposes a limit in the near future, given the current level of relaxation of requirements. 65124 Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations

Those commenting that the constraint requirements. Three commenters agreed 20.2203(b)(2) to the constraint. This was a de facto limit interpreted the that this rule should not be codified as section requires reports to contain requirements to indicate that a second a Division 2 requirement, but rather as demographic information on the exceedance of the constraint would a Division 1 matter of compatibility. exposed individual. These commenters result in enforcement action and Under Division 1, the States would be expressed concern that a member of the therefore the constraint is a limit. Three required to adopt regulations that were public would be under no obligation to commenters indicated that the rule essentially identical. These commenters provide demographic information to should be a strict limit. They expressed believed that if stricter standards were licensees and that licensees would not concern that the constraint was less permitted, reactor and non-reactor always be able to comply with the protective than EPA requirements. licensees would be under different requirement. Response: If a licensee exceeds a limit requirements and certain practices, such that is needed to protect health and as nuclear medicine, could be Response: NRC agrees that members safety, the NRC may take immediate jeopardized. One commenter noted that of the public may choose to withhold enforcement action. If a licensee because this is really a limit, it should the demographic information from exceeds a constraint, the licensee will be under 10 CFR 20.1301 and would be licensees. Such information is only be required to notify NRC, take any a Division 1 matter of compatibility. needed for occupationally exposed actions that may be necessary to protect Another commenter stated that NRC individuals to ensure that lifetime public health and safety, and implement should have provided a greater exposure records are accurate. Section any further corrective actions that NRC opportunity for State involvement in 20.2203 has been changed to only staff agrees are adequate to prevent this rulemaking, and that as a division require such information on further doses in excess of the constraint. 2 rule, Agreement States would have to occupationally exposed individuals. However, if the licensee failed to report spend scarce resources to develop a Issue 7—Effective Date a measured or calculated dose in excess compatible rule. of the constraint to NRC or failed to Response: Section 116 of the Clean Comment: One commenter requested implement appropriate corrective Air Act specifies that nothing precludes that an effective date be added to the actions as agreed upon, enforcement States from imposing air emission final rule to coincide with EPA’s action would be expected. This is requirements that are more stringent rescission of Subpart I. Response: The because, unlike an adequate protection than those developed by EPA. Section NRC and EPA will, to the extent limit, the constraint is not needed to 116(d)(9), which contains the provisions possible, publish both final rules so that related to EPA’s margin of safety provide adequate protection of public they become effective concurrently. health and safety. determination for NRC or Agreement The NRC does not agree that the State licenses, specifies that: ‘‘Nothing Issue 8—Enforcement constraint is less protective than current in this subsection shall preclude or EPA requirements. Both EPA’s Subpart deny the right of any State or political Comments: Five commenters stated I and the NRC constraint require subdivision thereof to adopt or enforce that NRC should establish a limit rather licensees to take actions to ensure that any standard or limitation respecting than a constraint. They believed that if doses to members of the public do not emissions of radionuclides which is the limit has been exceeded, a notice of exceed 10 mrem (0.1 mSv) per year from more stringent than the standard or violation and civil penalties should ambient air emissions. NRC routinely limitation in effect under Section 7411 always result. One commenter inspects licensed facilities to ensure that of this title or this section.’’ The expressed concern that ‘‘self-reporting air effluents do not result in doses to Commission believes that this provision and confession’’ is not adequate. members of the public that exceed the clarifies that EPA’s determination Another stated that because ALARA is requirements in 10 CFR Part 20. The regarding NRC and Agreement State only guidance, it is not enforceable. inspection and enforcement program licensees has no effect on the existing Response: ALARA is not guidance. As will be amended as a result of this final authority of States to impose air stated previously, the 1991 revision to emission standards that are more rule to review licensee records used to 10 CFR Part 20 codified ALARA as a stringent than those of EPA. demonstrate compliance with the required part of the licensee’s radiation constraint. With regard to the comment concerning involvement of the protection program. A limit often Issue 4—Citizen Suits Agreement States in the development of implies that doses must be controlled below that level in order to provide Comments: Three commenters this rule, NRC has routinely reported its adequate protection of health and safety opposed finalization of the constraint on progress on providing an adequate basis the basis that it forfeits citizen rights to upon which EPA could rescind Subpart of the public and workers. To meet sue a licensee who exceeds the I to both the Organization of Agreement ALARA requirements licensees are constraint. States (OAS) and the Conference of currently controlling effluents to levels Response: The Commission’s Radiation Control Program Directors below that which would be required regulations in 10 CFR 2.206 provide the (CRCPD) at each of their annual under the constraint. If a licensee public with the right to petition the NRC meetings. The Agreement States were exceeds the constraint, the rule requires to take enforcement action against a consulted extensively on this issue over that this be reported and that corrective licensee for a violation of the the last several years. There were actions be promptly taken. If a licensee Commission’s regulations. This would extensive discussions of the concept does not comply with the obligation to include the final constraint rule. with the individual States and with the report and take corrective actions, Executive Board of the OAS. enforcement action will result. In NRC’s Issue 5—Agreement State Compatibility judgment, as a matter of enforcement Comments: Four commenters Issue 6—Demographic Information policy, it is not necessary to issue a addressed the proposal that the Contained in Required Reports notice of violation or civil penalties constraint be a Division 2 matter of Comments: Seven commenters upon exceedence of the constraint level; compatibility. Under Division 2, States addressed the application of the it is sufficient that this be reported and could adopt similar or more stringent requirement contained in 10 CFR that prompt corrective action is taken. Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations 65125

Issue 9—Exemptions patients do not need to be specifically Response: Draft Regulatory Guide Comments: Five commenters stated addressed in the calculation of dose DG–8016 provides several methods for that the rule should only apply to used to demonstrate compliance with demonstrating compliance with the members of the public offsite. They the constraint. constraint, and only one of the methods Comments: Four commenters stated cited the EPA’s Subpart I requirement to described would require direct that in addition to Rn–222, all daughters calculate dose to the nearest resident or measurement at the receptor location. If produced after release should also be offsite individual likely to receive the this method is not practical due to the excluded. highest dose. Under Subpart I, licensees emission characteristics of the Response: EPA’s Subpart I exempts radionuclide releases, there are other would not calculate doses from air both Rn–222 and any daughters emissions to visitors in hospitals, options cited in Draft Regulatory Guide produced after release of Rn–222 DG–8016 that do not require a direct workers that are not radiation workers because these types of releases are within the facility, or other members of measurement to demonstrate normally not attributable to licensed compliance with the constraint. the public within the facility. activities. The proposed rule was not Response: The language in the rule intended to be more stringent than Issue 11—Scope of the Rule has been changed to reflect that it is Subpart I. The rule language has been Comments: One commenter stated intended to apply to radioactive changed to reflect this exemption. that if there must be a constraint, it airborne effluents to the environment. Comments: Two commenters should apply to all licensees, including The Draft Regulatory Guide DG–8016 recommended that in addition to Rn– power reactor licensees. will be revised to indicate that the dose 222, Rn–220 and its daughters should limit is to be calculated or measured at also be exempted. One commenter Response: Although this rule only the nearest resident or individual offsite stated that it was an EPA oversight that applies to licensees other than power likely to receive the highest dose. The led to this erroneous omission from the reactor licensees, the Commission’s final regulatory guide will be available final Subpart I. existing regulations in 10 CFR Part 50, when the rule becomes effective. Response: Rn–220 is normally Appendix I, already establish a similar Comments: Two commenters stated attributable to licensed activities. EPA regulatory framework for power that air emissions from adjacent nearby does not exempt Rn–220 or its reactors. Appendix I includes separate exempt uranium mills should not be daughters from consideration in the requirements to develop design included in the calculation of dose. One dose calculations in support of objectives and operational levels commenter stated that materials from demonstrating compliance with Subpart sufficient to demonstrate compliance unlicensed portions of the facility such I. The commenter’s suggestion that an with EPA’s Subpart I. In addition, as ore stockpiles should not be oversight led to the erroneous omission reactor licensees must annually report considered in the calculation of dose. of this exemption from Subpart I is quantities of radioactive materials Response: Subpart I does not apply to incorrect, and Rn–220 should not be released into the environment, as well disposal at facilities regulated under 40 excluded from the calculations that are as the resulting doses. CFR Part 191, Subpart B, or to any used to demonstrate compliance with uranium mill tailings pile after it has Issue 12—Location of Constraint in NRC the constraint. Regulations been disposed of under 40 CFR Part 192. Comments: Six commenters requested The constraint applies to airborne that in addition to sealed sources, sealed The Commission requested specific effluents of only licensed materials to containers should also be excluded from comment on the question of whether the the environment. Draft Regulatory the rule. 10 mrem (0.1 mSv) per year constraint Guide DG–8016 will be changed to Response: Paragraph 2(a) of Appendix should be established in 10 CFR Part 20 clarify that windblown particulates from D to 40 CFR Part 61 states: Radioactive as proposed or whether it should be other licensed facilities or unlicensed materials in sealed packages that remain established separately in each materials do not need to be considered unopened, and have not leaked during appropriate part of Title 10 instead. in the calculation of doses used to the assessment period should not be Comments: Two comments were demonstrate compliance with the included in the calculations.’’ Subpart I received in response to this issue. One constraint. exempts sealed packages, because any commenter stated that the constraint Comments: Four commenters stated package that has remained sealed should be in 10 CFR Part 20. The other that air emissions from patients should cannot contribute to airborne effluents. commenter stated that the constraint be exempted from this rule. When a total inventory of licensed should be in each appropriate part. Two Response: The regulatory impact materials possessed during the year is other commenters stated that it should analysis (NUREG–1492) for a recent used to model potential doses, it is be in § 20.1301 with the dose limits. NRC rulemaking analyzed potential unnecessary to include materials that doses from exposure to patients who could not have contributed to airborne Response: While the constraint could were released after administration of effluents. The Regulatory Guide will just as easily be included under other radiopharmaceuticals. This analysis provide further guidance on this issue. parts of the regulations, including it in concluded that internal doses from 10 CFR Part 20 provides uniformity. inhalation of radioactive materials in Issue 10—Measurability of 10 mrem (0.1 Because 10 CFR Part 20 is the the exhaled air of a released patient are mSv) Per Year designated area for radiation protection trivial. For licensees using an inventory Comments: Three commenters stated standards and related requirements, it is approach to demonstrating compliance that 10 mrem (0.1 mSv) per year was not the appropriate location for the with the rule, such as the COMPLY measurable. One commenter stated that constraint. The rule will be codified computer code, there is no need to although 10 mrem (0.1 mSv) per year under § 20.1101 to make it clear that account specifically for the materials might be easily achievable, it is not although the constraint is not the same that might be released to the air through easily measurable. Another stated that as a limit, licensees are expected to respiration or transpiration by patients. the exposure rate corresponds to 1 develop radiation programs to ensure The Regulatory Guide will make it clear microR (0.01 micro-Sv) per hour and that doses from air emissions are below that dose from air emissions from cannot be measured accurately. 10 mrem (0.1 mSv) per year. 65126 Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations

Agreement State Compatibility with the proposed rule. The final average 80 hours per response, The Commission believes that the regulatory guide will be available by the including the time for reviewing Division 2 compatibility designation for effective date of this rule. instructions, searching existing data the rule is consistent with state Conforming Amendments To NRC’s sources, gathering and maintaining the authority in this area as described in the Enforcement Policy data needed, and completing and Clean Air Act. The Division 2 reviewing the collection of information. By separate notice in the Federal designation means that Agreement Send comments on any aspect of this States must address these rules in their Register, the Commission is modifying collection of information, including regulations but may adopt requirements its ‘‘General Statement of Policy and suggestions for further reducing this more restrictive than those of NRC. Procedures for NRC Enforcement burden, to the Information and Records Actions’’ (Enforcement Policy), to Accordingly, the authority of the Management Branch (T–6 F33), U.S. address the new regulation, and to Agreement States to impose air Nuclear Regulatory Commission, provide an example Severity Level IV emissions standards under their Atomic Washington, DC 20555–0001, or by violation of the constraint. This change Energy Act authority after the effective Internet electronic mail to [email protected]; date of this rule will be consistent with will also be reflected when the Enforcement Policy is reprinted in its and to the Desk Officer, Office of their existing authority. Under Section Information and Regulatory Affairs, 274 of the Atomic Energy Act the entirety in the next revision of NUREG– 1600. NEOB–10202, (3150–0014), Office of Commission reviews Agreement State Management and Budget, Washington, programs to ensure that adequacy and Small Business Regulatory Enforcement DC 20503. compatibility of the State Program is Fairness Act maintained. The Commission has also Public Protection Notification In accordance with the Small approved procedures to suspend or Business Regulatory Enforcement terminate programs that are not The NRC may not conduct or sponsor, Fairness Act of 1996, the NRC has adequate or compatible. and a person is not required to respond determined that this action is not a to, a collection of information unless it Summary of Changes in the Final Rule ‘‘major rule’’ and has verified this displays a currently valid OMB control Based on the responses to comments, determination with the Office of number. a few changes were made in the final Information and Regulatory Affairs, rule. Otherwise, the provisions of the Office of Management and Budget. Regulatory Analysis final rule are the same as those Finding of No Significant The NRC has prepared a regulatory presented in the proposed amendments. Environmental Impact analysis for this final rule. The analysis Specific changes to the final rule are The Commission has determined examines the costs and benefits of the summarized as follows: alternatives considered by the NRC. In (1) Section 20.2203(b)(2) has been under the National Environmental the response to comments, the NRC changed to require the name, social Policy Act of 1969, as amended, and the security number, and date of birth only NRC’s regulations in Subpart A of 10 concluded that only some minor for occupationally overexposed CFR Part 51, that this rule, if adopted, changes to the draft regulatory analysis individuals and not for members of the would not be a major Federal action were necessary, corresponding to some public who have received doses in significantly affecting the quality of the minor procedural changes in the final excess of the public limits, including human environment and therefore, an rule. The regulatory analysis is available the constraint. environmental impact statement is not for inspection in the NRC Public (2) The language of the rule has been required. This action is not expected to Document Room, 2120 L Street, NW. changed to indicate that Rn–222 and all have any significant environmental (Lower level), Washington, DC 20555– daughters produced after the release of impact because the programs will 0001. Single copies of the analysis may the radon are categorically excluded provide equivalent protection. Also, be obtained from Alan K. Roecklein, from this rule. airborne effluents of radioactive Office of Nuclear Regulatory Research, (3) The language of the rule has been materials to the environment are not U.S. Nuclear Regulatory Commission, changed to indicate that the constraint expected to increase. The changes to the Washington, DC 20555–0001, telephone applies only to release of airborne final rule are to the procedural methods (301) 415–6223. radioactive effluents to the environment for demonstrating compliance as well as and, thus, dose to the nearest resident, licensing and inspection procedures. Regulatory Flexibility Certification offsite business or school, is to be The environmental assessment and In accordance with the Regulatory constrained. finding of no significant impact on Flexibility Act of 1980, (5 U.S.C. In addition, the following changes which this determination is based are 605(b)), the Commission certifies that will be made to Draft Regulatory Guide available for inspection and this rule will not have a significant DG–8016: photocopying for a fee at the NRC economic impact on a substantial (1) An inventory of radioactive Public Document Room, 2120 L Street number of small entities. This final rule materials used to model a potential dose NW. (Lower Level), Washington, DC. to a member of the public need not only impacts NRC licensees with include radioactive materials in sealed Paperwork Reduction Act Statement emissions of significant quantities of containers that have remained sealed This final rule amends information radioactive material who would be throughout the compliance period. collection requirements that are subject required to report the exceedance to the (2) Airborne emissions of radioactive to the Paperwork Reduction Act of 1995 NRC. It will relieve licensees from the materials from patients does not need to (44 U.S.C. 3501 et. seq.). These unnecessary burden of dual regulation. be considered if the materials have requirements were approved by the The level of air emissions from NRC- already been included in the site Office of Management and Budget, licensed facilities has historically been inventory. approval number 3150–0014. well below the NRC dose limit and The Regulatory Guide was issued in The public reporting burden for this except for a few unusual cases, readily draft for public comment concurrent collection of information is estimated to met the EPA standard. Federal Register / Vol. 61, No. 238 / Tuesday, December, 10, 1996 / Rules and Regulations 65127

Backfit Analysis 206, 88 stat. 1242, as amended, 1244, 1246 § 20.2203 Reports of exposures, radiation (42 U.S.C. 5841, 5842, 5846). levels, and concentrations of radioactive The NRC has determined that the material exceeding the constraints or limits. backfit rule, 10 CFR 50.109, does not 2. In § 20.1003, the definition of apply to this final rule because it does Constraint is added to read as follows: (a) * * * not apply to power reactor licensees, § 20.1003 Definitions. (2) * * * and therefore, a backfit analysis is not * * * * * (vi) The ALARA constraints for air required for this final rule because these Constraint (dose constraint) means a emissions established under amendments do not involve any value above which specified licensee § 20.1101(d); or provisions which would impose backfits actions are required. (b) * * * as defined in 10 CFR 50.109(a)(1). * * * * * (1) * * * List of Subjects In 10 CFR Part 20 3. In § 20.1101, paragraph (d) is added (iv) Corrective steps taken or planned Byproduct material, Criminal to read as follows: to ensure against a recurrence, including penalties, Licensed material, Nuclear § 20.1101 Radiation Protection Programs. the schedule for achieving conformance materials, Nuclear power plants and * * * * * with applicable limits, ALARA reactors, Occupational safety and (d) To implement the ALARA constraints, generally applicable health, Packaging and containers, requirements of § 20.1101 (b), and environmental standards, and Radiation protection, Reporting and notwithstanding the requirements in associated license conditions. recordkeeping requirements, Source § 20.1301 of this part, a constraint on air (2) Each report filed pursuant to material, Special nuclear material, emissions of radioactive material to the paragraph (a) of this section must Waste treatment and disposal. environment, excluding Radon-222 and include for each occupationally For the reasons set out in the its daughters, shall be established by overexposed 7 individual: the name, preamble and under the authority of the licensees other than those subject to Social Security account number, and Atomic Energy Act of 1954, as amended, § 50.34a, such that the individual date of birth. The report must be the Energy Reorganization Act of 1974, member of the public likely to receive prepared so that this information is as amended, and 5 U.S.C. 553, the NRC the highest dose will not be expected to stated in a separate and detachable part is adopting the following amendments receive a total effective dose equivalent of the report. to 10 CFR Part 20. in excess of 10 mrem (0.1 mSv) per year * * * * * from these emissions. If a licensee Dated at Rockville, Maryland, this 3rd day PART 20ÐSTANDARDS FOR subject to this requirement exceeds this of December, 1996. PROTECTION AGAINST RADIATION dose constraint, the licensee shall report For the Nuclear Regulatory Commission. 1. The authority citation for Part 20 the exceedance as provided in § 20.2203 John C. Hoyle, continues to read as follows: and promptly take appropriate Secretary of the Commission. Authority: Secs. 53, 63, 65, 81, 103, 104, corrective action to ensure against [FR Doc. 96–31221 Filed 12–9–96; 8:45 am] recurrence. 161, 182, 186, 68 stat. 930, 933, 935, 936, BILLING CODE 7590±01±P 937, 948, 953, 955, as amended, sec. 1701, 4. In § 20.2203 the section heading is 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, revised, a new paragraph (a)(2)(vi) is 7 With respect to the limit for the embryo-fetus 2093, 2095, 2111, 2133, 2134, 2201, 2232, added, and paragraphs (b)(1)(iv) and (§ 20.1208), the identifiers should be those of the 2236, 2297f); secs. 201, as amended, 202, (b)(2) are revised to read as follows: declared pregnant woman. 65128 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices

NUCLEAR REGULATORY degrees of safety significance. As User’s Guides’’ particularly helpful. COMMISSION reflected in the severity levels, safety Many NRC subsystems and data bases significance includes actual safety also have a ‘‘Help/Information Center’’ [NUREG±1600] consequence, potential safety option that is tailored to the particular Policy and Procedure for Enforcement consequence, and regulatory subsystem. Actions; Radiation Protection significance. The NRC subsystem on FedWorld also Programs The rulemaking to add § 20.1101(d) can be accessed by a direct-dial establishes a dose constraint for telephone number for the main AGENCY: Nuclear Regulatory radiation dose to members of the public FedWorld BBS, 703–321–3339, or by Commission. from air emissions of radionuclides using Telnet via Internet: fedworld.gov. ACTION: Policy statement: amendment. from NRC licensed facilities other than If using 703–321–3339 to contact power reactors. As noted in the FedWorld, the NRC subsystem will be SUMMARY: The Nuclear Regulatory Statements of Consideration for that accessed from the main FedWorld menu Commission (NRC) is amending its rulemaking, the dose constraint is not a by selecting the ‘‘Regulatory, ‘‘General Statement of Policy and dose limit, but is a limit in the sense Government Administration and State Procedure for NRC Enforcement that exceedance triggers requirements to Systems,’’ then selecting ‘‘Regulatory Actions’’ to add an example for make a report to NRC and promptly take Information Mall.’’ At that point, a categorizing the significance of failure to corrective action to ensure against a menu will be displayed that has an report an exceedance of the dose recurrence. Consistent with this option ‘‘U.S. Nuclear Regulatory constraint established in 10 CFR rulemaking, the Commission has Commission’’ that will take the user to 20.1101(d), or failure to take corrective determined that a failure to make the the NRC online main menu. The NRC action for such an exceedance. By a required report or promptly take online area also can be accessed directly separate action published in this issue corrective action as required should be by typing ‘‘/go nrc’’ at a FedWorld of the Federal Register, the Commission categorized at Severity Level IV. As command line. If NRC is accessed from has issued a final rule amending 10 CFR defined in the Enforcement Policy, FedWorld’s main menu, the user may Part 20 to add § 20.1101(d), which Severity Level IV violations are of less return to FedWorld by selecting the establishes the requirements for than significant regulatory concern but ‘‘Return to FedWorld’’ option from the reporting and taking corrective action. more than minor concern; i.e., if left NRC online main menu. However, if This modification to the Enforcement uncorrected, they could lead to a more NRC is accessed at FedWorld by using Policy reflects that amendment. serious concern. NRC’s toll-free number, the user will DATES: This action is effective on the Therefore, ‘‘Supplement IV—Health have full access to all NRC systems, but day that the addition of § 20.1101(d) to Physics (10 CFR Part 20)’’ of the Policy will not have access to the main 10 CFR Part 20 becomes effective. is being modified. Example D.8. is FedWorld system. Comments are due on or before January renumbered as Example D.9., and a new If FedWorld is contacted using Telnet, 9, 1997. Example D.8. is added to provide an the user will see the NRC area and example of a violation categorized at ADDRESSES: Send written comments to: menus, including the Rules Menu. The Secretary of the Commission, U.S. Severity Level IV involving failure to Although the user will be able to Nuclear Regulatory Commission, report an exceedance of the dose download documents and leave Washington, DC 20555. ATTN: constraint established in § 20.1101(d), or messages, he or she will not be able to Docketing and Service Branch. Hand failure to take corrective action for an write comments or upload files deliver comments to: 11555 Rockville exceedance. (comments). If FedWorld is contacted Pike, Rockville, Maryland, between 7:45 Electronic Access using FTP, all files can be accessed and am and 4:15 pm, Federal workdays. downloaded, but uploads are not Comments may be submitted allowed. Only a list of files will be Copies of comments received may be electronically in either ASCII text or examined at the NRC Public Document shown without descriptions (normal WordPerfect format (version 5.1 or later) Gopher look). An index file listing all Room, 2120 L Street, NW (Lower Level), by calling the NRC Electronic Bulletin Washington, DC. For information on files within a subdirectory, with Board (BBS) on FedWorld. The bulletin descriptions, is available. There is a 15- submitting comments electronically, see board may be accessed using a personal the discussion under Electronic Access minute time limit for FTP access. computer, a modem, and one of the Although FedWorld also can be in the Supplementary Information commonly available communications Section. accessed through the World Wide Web, software packages, or directly via like FTP, that mode only provides FOR FURTHER INFORMATION CONTACT: Internet. Background documents on the access for downloading files and does James Lieberman, Director, Office of related rulemaking also are available, as not display the NRC Rules Menu. Enforcement, U.S. Nuclear Regulatory practical, for downloading and viewing For more information on NRC bulletin Commission, Washington, DC 20555 on the bulletin board. boards, call Mr. Arthur Davis, Systems (301) 415–2741. If using a personal computer and Integration and Development Branch, SUPPLEMENTARY INFORMATION: The modem, the NRC rulemaking subsystem NRC, Washington, DC 20555–0001, Commission’s ‘‘General Statement of on FedWorld can be accessed directly telephone 301–415–5780; E-mail Policy and Procedure for NRC by dialing the toll free number 800– [email protected]. Enforcement Actions’’ (Enforcement 303–9672. Communication software Policy or Policy) was first issued on parameters should be set as follows: Paperwork Reduction Act Statement September 4, 1980. Since that time, the parity to none, data bits to 8, and stop This policy statement does not Enforcement Policy has been revised on bits to 1 (N,8,1). Using ANSI or VT–100 contain a new or amended information a number of occasions. On June 30, 1995 terminal emulation, the NRC collection requirement subject to the (60 FR 34381), the Enforcement Policy rulemaking subsystem can then be Paperwork Reduction Act of 1995 (44 was revised in its entirety and was also accessed by selecting the ‘‘Rules Menu’’ U.S.C. 3501 et seq.). Existing published as NUREG–1600. The Policy option from the ‘‘NRC Main Menu.’’ requirements were approved by the recognizes that violations have differing Users will find the ‘‘FedWorld Online Office of Management and Budget, Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Notices 65129 approval number 3150–0011. The determination with the Office of 8. A failure to report an exceedance of approved information collection Information and Regulatory Affairs, the dose constraint established in 10 requirements contained in this policy Office of Management and Budget. CFR 20.1101(d) or a failure to take statement appear in Section VII.C. Accordingly, the NRC Enforcement corrective action for an exceedance, as Public Protection Notification Policy is amended as follows: required by 10 CFR 20.1101(d); or The NRC may not conduct or sponsor, General Statement of Policy and 9. Any other matter that has more and a person is not required to respond Procedure for NRC Enforcement Actions than a minor safety, health, or to, a collection of information unless it environmental significance. In Supplement IV, paragraph D(8) is displays a currently valid OMB control renumbered as paragraph D(9) and a * * * * * number. new paragraph D(8) is added to read as Dated at Rockville, Maryland, this 3rd day Small Business Regulatory Enforcement follows: of December 1996. Fairness Act For the Nuclear Regulatory Commission. Supplement IV—Health Physics (10 John C. Hoyle, In accordance with the Small CFR Part 20) Business Regulatory Enforcement Secretary of the Commission. Fairness Act of 1996, the NRC has D. Severity Level IV—Violations [FR Doc. 96–31220 Filed 12–9–96; 8:45 am] determined that this action is not a involving for example: BILLING CODE 7590±01±P major rule and has verified this * * * * * federal register December 10,1996 Tuesday Formula Grants;FinalRule 28 CFRPart31 Office ofJusticePrograms Justice Department of Part IV 65131 65132 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

DEPARTMENT OF JUSTICE SUPPLEMENTARY INFORMATION: Collocated Facilities Description of Major Changes Office of Justice Programs The revised regulation removes the Contact With Incarcerated Adults requirement that a needs-based analysis 28 CFR Part 31 precede a jurisdiction’s request for State The revised regulation provides approval of a juvenile holding facility [OJP (OJJDP) No. 1106] definitions of sight and sound contact to that is collocated with an adult jail or assist in understanding the level of lockup to qualify as a separate juvenile RIN 1121±AA43 separation that is required under section detention facility. OJJDP concurrence 223(a)(13) of the JJDP Act (section with a State agency’s decision to Formula Grants 223(a)(13)). Sight contact is defined as approve a collocated facility will no clear visual contact between AGENCY: Office of Justice Programs, longer be required. On-site reviews by incarcerated adults who are in close Office of Juvenile Justice and the State to determine compliance, proximity to juveniles alleged to be or Delinquency Prevention, Department of coupled with OJJDP’s statutorily found to be delinquent, status offenders, Justice. required review of the adequacy of state and nonoffenders in a secure institution. ACTION: Final rule. monitoring systems, will be used to Sound contact is defined in the insure that each collocated juvenile regulation as direct oral communication SUMMARY: The Office of Juvenile Justice detention facility meets and continues between incarcerated adults and and Delinquency Prevention (OJJDP) of to meet the collocated juvenile juveniles in secure institutions. While the U.S. Department of Justice is detention facility criteria. separation must be provided through publishing the final revision of the architectural or procedural means, the The revised regulation permits the existing Formula Grants Regulation, revised regulation provides that sight or sharing of common use nonresidential which implements part B of Title II of sound contact that is both brief and areas of collocated adult and juvenile the Juvenile Justice and Delinquency inadvertent or accidental must be facilities on a time-phased basis that Prevention (JJDP) Act of 1974, as reported as a violation only if it occurs prevents contact between juveniles and amended by the Juvenile Justice and in secure areas of the facility that are adults. Secure juvenile detention Delinquency Prevention Amendments dedicated to use by juvenile offenders, facilities around the country are of 1992. including any residential area. A routinely overcrowded. OJJDP’s This final regulation is a further residential area is an area used to objective is to encourage the clarification and modification of the confine individuals overnight, and may development and use of separately regulations issued in March and April of include sleeping, shower and toilet, and located juvenile facilities whenever 1995. It offers greater flexibility to States day room areas. possible. Still, it is recognized that and local units of government in expecting every jurisdiction to create carrying out the Formula Grants Placement of Delinquents in Adult wholly separate juvenile facilities, Program requirements of the JJDP Act, Facilities including the duplication of costly while reinforcing the importance of State laws are increasingly providing infrastructure elements like complying with those underlying legal for the mandatory or permissible gymnasiums, cafeterias, and classrooms, requirements and the policy objectives transfer (or placement) of adjudicated may result in those jurisdictions being from which they stem. delinquents to adult facilities once the unable to provide any secure juvenile The Department of Justice remains delinquent has attained the age of full detention capacity. The revised firmly committed to the core criminal responsibility under State law. regulation makes it possible for more requirements of the JJDP Act, such as The revised regulation expressly jurisdictions to provide juvenile the obligation to maintain sight and provides that the section 223(a)(13) facilities by removing the requirement sound separation between juveniles and separation requirement is not violated that collocated facilities not share adults. With that in mind, this as a result of contact between an program space between juvenile and regulation is expected to assist adjudicated delinquent and adult adult populations. Utilization of time- jurisdictions that are working diligently criminal offenders in a secure phasing will allow both juveniles and to comply with statutory and regulatory institution once the adjudicated adults access to available educational, obligations by expressly providing such delinquent has reached the age of full vocational, and recreational areas of flexibility as State authorized transfers criminal responsibility established by collocated facilities. Time-phased use is of delinquents who have reached the State law, provided that the transfer (or explicitly limited to nonresidential age of full criminal responsibility to the placement) of the adjudicated areas of collocated facilities and criminal justice system and by delinquent is required or authorized requires the use of written procedures to recognizing certain real-world factors under State law. ensure that no contact occurs between which can make ‘‘perfect’’ compliance detained juveniles and incarcerated unrealistic. These regulatory changes Expansion of 6-Hour Hold Exception to adults. are in no way intended to evidence any Pre and Post Court Appearances lessening of the Department’s Deinstitutionalization of Status The revised regulation builds upon Offenders commitment to the core requirements. the existing authority to place an alleged EFFECTIVE DATE: This regulation is or adjudicated delinquent juvenile in an The revised regulation expressly effective December 10, 1996. adult jail or lockup for up to 6 hours by provides, formalizing existing OJJDP FOR FURTHER INFORMATION CONTACT: providing a 6 hour time period policy, that it is permissible to hold an Roberta Dorn, Director, State Relations immediately before and/or after a court accused status offender or nonoffender and Assistance Division, Office of appearance, subject to the section in a secure juvenile detention facility for Juvenile Justice and Delinquency 223(a)(13) separation requirement, up to 24 hours, exclusive of weekends Prevention, U.S. Department of Justice, during the time the delinquent juvenile and legal holidays, prior to an initial 633 Indiana Avenue, NW., Room 543, is in a secure custody status in the adult court appearance and up to 24 hours, Washington, DC 20531; (202) 307–5924. jail or lockup. exclusive of weekends and legal Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 65133 holidays, immediately following an encourage States to programmatically potential for harm to juveniles. OJJDP initial court appearance. address any features of its justice system does not believe that a juvenile who is that may account for the able to see an adult from a significant Valid Court Order disproportionate detention or distance is in danger of being harmed. The revised regulation eliminates the confinement of minority juveniles. The Simultaneous use of secure areas of regulatory language suggesting that regulation is revised to clearly state that adult facilities continues to be jurisdictions use multi-disciplinary the Disproportionate Minority prohibited and, under the revised review teams to prepare and submit a Confinement core requirement neither regulation, time-phased use of common written report to a judge who is requires nor establishes numerical use areas to achieve separation is considering an order that directs or standards or quotas in order for a State permitted in both collocated facilities authorizes the placement of a status to achieve or maintain compliance. and adult jails, lockups, or other adult offender in a secure facility for the institutions. For collocated facilities, Discussion of Comments violation of a valid court order pursuant this revision is designed to allow both to the valid court order exception to The proposed revisions to the existing juveniles and adults access to available section 223(a)(12)(A). Although a multi- Formula Grants Regulation were educational, vocational, and disciplinary team is still an appropriate published in the Federal Register on recreational areas common to the two option, and is encouraged when July 3, 1996 (61 FR 34770), for public facilities. practical, this suggestion led to some comment. Written comments were 2. Comment: A number of confusion and, therefore, the example received from thirty-six respondents on respondents opined that the ‘‘brief and was unnecessary. ten issues addressed by the proposed inadvertent’’ contact language of the regulation. The respondents represent a proposed regulation essentially changes Removal Exception diverse group including child advocacy the Section 223(a)(13) prohibition from The revised regulation eliminates the organizations, state agencies responsible ‘‘no contact’’ back to ‘‘no regular requirement for States to document and for carrying out the JJDP Act, and public contact’’ for nonresidential areas of describe, in their annual monitoring interest groups. All comments have institutions. Relaxing the no contact report to OJJDP, the specific been considered by OJJDP in the standard, it is argued, would permit circumstances surrounding each issuance of this final regulation. more violations because violations are individual use of the distance/ground The following is a summary of the already occurring under current transportation and weather exceptions comments and the responses from regulations. Several respondents believe to the section 223(a)(14) jail and lockup OJJDP: this proposed regulation would ‘‘muddy removal requirement. 1. Comment: Several respondents the waters’’ and may ‘‘expose children raised concern over the proposed to needless risks’’ by lowering the Compliance With Separation clarification of the Section 223(a)(13) standards to which states must adhere. Requirement prohibition against contact between They assert that national policy should The revised regulation modifies the incarcerated adults and juveniles who set the separation standard at the compliance standard that penalized are in close proximity but not at such highest possible level. States that have not enacted laws, rules, distances as ‘‘several hundred feet.’’ Response: The revised regulation and regulations, or policies prohibiting These respondents contended that this seeks to clarify with particularity the the incarceration of all juvenile statement in the commentary section of prohibition of systematic, procedural, or offenders under circumstances that the proposed regulation appears to condoned contact between incarcerated would be in violation of the section conflict with the later statement in the adults and juveniles. It is not the intent 223(a)(13) separation requirement. commentary section concerning the of OJJDP, through the revised regulation, These States were not eligible for a prohibition against systematic contact. to in any way encourage or tolerate finding of compliance if any instances These respondents suggested that the increased contact between incarcerated of noncompliance were sanctioned by ‘‘several hundred feet’’ standard would juveniles and adults, or to expose state law, rule or regulation, or policy. create monitoring difficulties and, juveniles to greater risk. However, Instead, the revised regulation consequently, it should be clarified that common sense and practicality establishes a single standard applicable ‘‘several hundred feet’’ was intended suggested that the regulatory definitions to all States regardless of whether a law, only as an example and that the ability of both sight and sound contact needed rule or regulation, or policy exists that for a juvenile and adult to communicate to be clarified, so that appropriate and prohibits the detention or confinement is the key. These respondents felt that reasonable parameters would guide of juveniles with incarcerated adults in it should be made clear that State and local policy and practice. circumstances that would be in ‘‘systematic, procedural, and condoned In considering the respondent violation of section 223(a)(13), contact is always prohibited.’’ comments concerning this proposed providing that compliance can be Response: The Section 223(a)(13) regulatory clarification, it is important established under circumstances in separation requirement is designed to to note that the obligation of local which: protect juveniles who are at risk from jurisdictions housing juveniles to (1) the instances of noncompliance do contact with adult offenders while maintain sight and sound separation by not indicate a pattern or practice; and under the delinquency jurisdiction of architectural means or by established either (2) adequate enforcement the juvenile justice system. OJJDP agrees policies and procedures remains firmly mechanisms exist; or (3) an acceptable with the comment that ‘‘systematic, in place. This obligation, coupled with plan has been developed to eliminate procedural, and condoned contact is the maintenance of policies, practices the noncompliant incidents. always prohibited.’’ The ‘‘several and facilities designed to maximize hundred feet’’ example was intended to separation, is designed to maintain strict Minority Detention and Confinement illustrate a common sense approach to adherence to the ‘‘no contact’’ statutory The revised regulation specifically determining if visual ‘‘contact’’ or oral prohibition between juveniles and provides that the purpose of the section ‘‘communication’’ is possible. This is adults in secure custody. 223(a)(23) Disproportionate Minority not an issue of systematic, procedural, OJJDP also believes, however, that Confinement core requirement is to or condoned contact, but one of the strict adherence to the ‘‘no contact’’ 65134 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations prohibition is not inconsistent, in view 3(a). Comment: Several respondents whether delinquents subject to of the lack of a statutory definition of asserted that an adjudicated delinquent incarceration in the criminal justice the word ‘‘contact’’, with a recognition should only be subject to transfer to an system upon reaching the age of full that brief and inadvertent or accidental adult facility, such as a prison, once he criminal responsibility should be sight or sound contact may occur, upon (or she) reaches the age of full criminal afforded the same due process rights in occasion, in nonresidential areas of a responsibility, as provided by State law, the original delinquency adjudication to secure institution, without being in circumstances where the delinquent which an adult in a criminal court considered a reportable violation of the has been afforded the full due process proceeding is entitled. separation requirement. OJJDP believes rights available to a criminal offender in 3(b). Comment: One respondent it would be unfair to penalize a criminal court proceeding (e.g. bail, opined that where an adjudicated jurisdictions working consistently and trial by jury, etc.). delinquent is subject to transfer to an genuinely to maintain sight and sound Response: The JJDP Act separation adult institution on or after reaching the separation through policies, practices, requirement expressly applies to age of full criminal responsibility and facilities architecture if brief and juveniles who are alleged to be or found pursuant to State law, assurances inadvertent or accidental contact to be delinquent. An individual who has should be required that age-appropriate between a juvenile and adult occurs in reached the age of full criminal needs, such as health, mental health, common use areas. This recognition responsibility is no longer considered a recreation, and education services will should in no way be interpreted to juvenile under the law of a State unless be made available. Response: Meeting the basic needs of indicate acceptance or tolerance of such expressly so provided and would not, transferred adjudicated delinquents impermissible contacts, but only as a therefore, fall under the protection of should be a priority for any recognition that in such environments, the JJDP Act separation requirement. even the very best intentioned facility jurisdiction’s correctional system. It is States have a compelling interest in the responsibility of the State to provide administrators may not prevent all striking a balance between the goal of short-term, accidental contact between for basic needs and services for all achieving an adjudicated delinquent’s prisoners, including juveniles and juveniles and adults in a portion of the well-being through treatment and facility used at different times by both young adults. physical security and the goals of 3(c). Comment: Several respondents juveniles and adults. punishment and protection of the public felt that the transfer of adjudicated Nonetheless, based on the concern by lengthening the period of delinquents to adult facilities once they expressed in the comment, OJJDP has confinement in appropriate reach the age of full criminal expanded the regulatory language to circumstances. The State of Texas, for responsibility defeats the purpose of a prohibit contact in any secure areas of example, has instituted a determinate delinquency adjudication. an institution that are dedicated to use sentencing system for certain violent Response: It is important to note that by juvenile offenders, including any offenders which initially places a persons eligible for such a transfer are residential area. A residential area is an juvenile adjudicated delinquent under limited to those who are no longer area used to confine individuals the jurisdiction of the Texas Youth considered juveniles under State law. overnight, and may include sleeping, Commission and requires the With States increasingly focusing on the shower and toilet, and day room areas. committing court to re-evaluate the transfer of serious and violent juvenile OJJDP recognizes that in many delinquent’s placement status when he/ offenders to criminal court for jurisdictions, especially jurisdictions in she reaches the age of 18. At that time, prosecution, this type of transfer scheme rural areas, there may be periods of time the court can transfer the individual, may result in fewer transfers of when no juveniles are detained in an who is now an adult, to an adult penal juveniles to the criminal justice system adult jail or lockup facility. During these institution if warranted. Alternatively, through judicial waiver, prosecutorial periods, jurisdictions use all areas of the the delinquent can be retained under direct-file, and statutory exclusion of facility, including those areas dedicated the custody of the Texas Youth certain offenses from the jurisdiction of to use by juveniles when juveniles are Commission to age 21, at which time the juvenile court. This will help to present, for incarcerated adults because transfer is mandatory if he/she is not assure that appropriate treatment no contact between incarcerated adults released. Our review indicates that the services are provided by the juvenile and juveniles is possible when juveniles caselaw is not definitive on the issue of justice system while the individual is a are not present in the facility. whether a failure to provide a juvenile juvenile and may serve to protect This revision, coupled with the with all the due process rights of a juvenile offenders from older requirement that facilities establish criminal defendant in a delinquency delinquents who pose a threat or whose separation by architectural means or by proceeding would prohibit such a treatment needs cannot be met by the establishing policies and procedures for transfer, on due process or other juvenile correctional system. time-phased use of common use areas grounds, to an adult jail or prison. The 3(d). Comment: Several respondents within the secure perimeter of an adult regulation continues to prohibit the pro stated that the transfer of adjudicated jail, lockup, or penal facility, or within forma administrative transfer of an delinquents to adult facilities is not a juvenile detention facility that is adjudicated delinquent who has reached sound policy because the influences of collocated with any adult jail or lockup, the age of full criminal responsibility to adult facilities are extremely negative helps to insure the safety of detained an adult jail or prison. However, we and harmful to young adults. These and confined juveniles. believe it is consistent with the JJDP Act respondents further asserted that the OJJDP hopes that this explanation will and principles of federalism to allow risk of assaults and violence in juvenile assist those concerned with the States to authorize or require the facilities increase when wards know proposed regulation to see that it is in transfer of such delinquents under State that they are going to be transferred to no way intended to evidence a change law. While the due process issue is adult correctional facilities. This ‘‘split’’ in view or policy regarding the appropriately a matter of State law and disposition has a destabilizing influence importance of maintaining the sight and practice, those jurisdictions on juvenile programs, according to one sound separation of juveniles from contemplating passage of a law to respondent. Several respondents stated adults in secure facilities at all times. authorize such transfers should consider that any advances made by juveniles in Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 65135 the juvenile justice system through (c) Would the 24 hour rural exception exception to be sufficient where available educational, vocational, and continue to be permitted? mechanisms are put in place to expedite therapeutic programs will be destroyed Response: (a) The 6 hour rule is not the handling of alleged delinquents who as a result of the transfer to an adult cumulative. A juvenile may be held up need to be detained for investigation or facility. to 6 hours before a court appearance and processing in secure custody in an adult Response: OJJDP strongly up to 6 hours after a court appearance jail or lockup. recommends that States enacting a in an adult jail or lockup. 4(d). Comment: One respondent transfer law provide the transferred (b) The time limit is not affected by organization cited the Institute for adjudicated delinquent with age the status of the jail site; Judicial Administration/American Bar appropriate programs. However, this (c) The 24-hour rural exception is not Association (IJA/ABA) Standards which Office is neither aware of any studies changed by the regulation. The 24-hour state that ‘‘The interim detention of supporting the alleged harm from such rural (MSA) exception is a statutory accused juveniles in any facility or part transfers nor believes that a juvenile exception that applies to initial law thereof also used to detain adults is who is able to remain in a juvenile enforcement custody, which may or prohibited.’’ In support of its opposition correctional setting at least until the age may not result in an initial court to the proposed regulation, this of full criminal responsibility is worse appearance. The new six-hour hold respondent noted that under conditions off than the juvenile who is transferred exception would apply in either an where juveniles are held with adults to the criminal justice system for felony MSA or nonMSA jurisdiction both prior to adjudication, ABA standards prosecution and, upon conviction, is before and/or after a court appearance. recommend a blanket prohibition incarcerated in the criminal justice 4(b). Comment: Several respondents against the detention of juveniles with system. suggested that the 6-hour rule following adult inmates prior to adjudication 3(e). Comment: One respondent a court appearance be expanded to 24 under any circumstances. suggested that OJJDP recommend that hours for rural jurisdictions because of Response: Congress considered the States provide separate facilities for the expense of identifying and traveling secure confinement of accused delinquent offenders who have reached to an appropriate facility or of delinquent juveniles for up to 6 hours the age of full criminal responsibility. constructing a separate detention in an urban jail or lockup to be a Response: OJJDP agrees that this facility in a small rural county or group reasonable outside time limit for option merits State consideration. Such of counties. processing purposes. This period of a system has been adopted in Colorado, Response: The nonMSA, or rural time was considered to reflect a ‘‘rule of where older serious and violent exception, provides a 24-hour period, reason’’, as stated in the House delinquent offenders who have reached exclusive of nonjudicial days Committee report on the 1980 JJDP Act the age of full criminal responsibility (Saturdays, Sundays and holidays), to reauthorization. OJJDP is not and juveniles transferred to criminal detain an alleged delinquent, pending establishing any new policy by this court pursuant to State transfer laws, are an initial court appearance, if State law regulation, but rather is codifying in the placed in secure treatment facilities requires such an appearance within the regulation what has been the Office’s designed and operated for youthful 24-hour period. Long distance and monitoring policy for 16 years, and offenders. weather may extend this exception. The extending it to pre- and post-court 3(f). Comment: One respondent 6-hour hold exception has historically appearance holds. suggested that the proposed regulatory applied when police are holding a 5(a). Comment: One respondent, change is of great assistance to juvenile for investigation or processing while supporting the time-phasing of individual States looking for a juvenile for purposes of notifying common use areas of collocated appropriate methods to deal with the parents, arranging release, or facilities, requested clarification on rising levels of violent juvenile crime. transporting to a juvenile facility. whether ‘‘professional treatment staff’’ Response: The intent of this Expansion of the 6-hour hold for pre- can be ‘‘shared’’ between juvenile and regulatory change is to provide States and post-court appearances is designed adult populations. with appropriate flexibility in dealing to facilitate court appearances of Response: In collocated facilities, with serious and violent delinquent juveniles that require transportation. professional care staff such as medical, offenders who require sentences that The statutory 24-hour nonMSA counseling, or education services extend into adulthood. exception for initial court appearances continue to be permitted to serve both 4(a). Comment: Three questions were is premised on the need for time to plan adult and juvenile residents, although asked by one respondent concerning the the placement/release of the juvenile. not at the same time. ‘‘6 hour rule’’ that allows an alleged Subsequent court appearances can be 5(b) Comment: One respondent delinquent to be held in a secure planned in advance, negating the need asserted that elimination of the custody status in an adult jail or lockup for an extended placement of the requirement for OJJDP’s concurrence in for up to 6 hours for purposes of juvenile in an adult jail or lockup. State-approved collocated facilities processing (while maintaining sight and 4(c). Comment: One respondent found weakens the Office’s enforcement sound separation from adult offenders). that the 6-hour exception was too capabilities. The proposed regulation would apply inflexible where no reasonable Response: States will continue to have the six hour hold exception to include alternative juvenile placement was the responsibility to approve and a six hour period before and/or after a available following arrest. The monitor these facilities. OJJDP will court appearance (both pre and post respondent suggested that a workable continue to review the monitoring adjudication). ‘‘good faith’’ rule be established. practices of States, as well as provide (a) Is the 6 hour rule cumulative (i.e. Response: The six-hour exception training and technical assistance. before and after inclusive of the 6 hours) gives law enforcement officials in Further, the criteria for the or is it a separate 6 hours for before and nonMSA jurisdictions the opportunity establishment of such facilities are after a court appearance? to make decisions about investigating, clearly set forth in § 31.303(e)(3) of the (b) Is the time limit affected by the processing, and/or transporting regulation. status of the jail site, i.e. MSA or juveniles. States and local units of 5(c). Comment: Another respondent nonMSA? government have found the 6-hour felt that the regulation should more 65136 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations clearly reflect that collocated facilities detention facilities since 1975. When meeting the requirement for an are not prohibited and that these either status offenders or nonoffenders independent review team and that court facilities are permissible if established are placed in such facilities, Section or law enforcement personnel can still in accordance with the regulatory 223(a)(12)(B) encourages States to place serve on such a team. criteria set forth to establish that a the status offender or nonoffender in Response: Multi-disciplinary teams collocated facility is a separate and facilities which are the least restrictive may still be utilized for the purpose of distinct facility from the adult jail or alternative appropriate to the needs of preparing and submitting a written lockup with which it is collocated. the child and the community. The report to a judge considering an order to Response: OJJDP’s proposal to provision does not change established place a status offender in a secure eliminate the requirement for its policy and is intended to provide facility for violation of a valid court concurrence in State approval of a adequate time to arrange for appropriate order. collocated facility, and the elimination placement prior to or following an The suggestion of multi-disciplinary of a needs-based analysis, should make initial court appearance. Because the teams in the existing regulation was it clear that the establishment of current statutory definition of ‘‘secure meant to be an example of one collocated facilities is not prohibited. detention facility’’ includes dedicated mechanism that would fulfill the States may approve collocated facilities facilities for nonoffenders, removal of statutory requirement. However, this in accordance with State law and policy the 24 hour hold exception’s apparently created the impression that as long as each such facility meets the applicability to nonoffenders would also only multi-disciplinary teams could be criteria set forth in § 31.303(e)(3) of the prohibit the secure holding of utilized. In fact, the review could be regulation. nonoffender juveniles in dedicated conducted by an individual, agency, or 5(d). Comment: Another respondent facilities. This issue needs to be team representing a noncourt or law opined that the needs-based analysis addressed statutorily before OJJDP can enforcement agency. and prohibition of time-phased use propose a change to the 24 hour hold 7(b). Comment: One comment should not be eliminated. exception’s applicability to opposed the deletion of language Response: A properly constructed and nonoffenders. requiring that secure confinement operated collocated facility that meets 6(c). Comment: One respondent represent the least restrictive alternative the criteria set forth in § 31.303(e)(3) believes that placement of status ‘‘appropriate to the needs of the juvenile does not create conditions where the offenders with children accused of and the community.’’ This respondent health and safety of juveniles would be delinquency can stigmatize them as felt that removal of this language lessens jeopardized. Time-phased use of delinquent and that the proposed the judge’s overall responsibility to nonresidential areas allows for efficient regulation dilutes OJJDP’s strong ensure the appropriateness of the use of these resources which, otherwise, regulatory support for the disposition in light of other available might not be available to the juvenile deinstitutionalization of status offender placement. population. Time-phased use, if and nonoffender juveniles. This Response: Section 103(16)(C)(iii) of properly implemented, would not result respondent supports the placement of the JJDP Act and § 31.303(f)(3)(vi) of the in any contact between juveniles and status offenders in secure residential regulation require that a disposition of adults. Further, States are encouraged to facilities for up to six hours and only secure confinement must consider all conduct their own needs-based analysis. when law enforcement is unable to alternative dispositions (including OJJDP technical assistance will remain contact a parent, custodian, or relative, treatment) to placement in a secure available, upon State request, for this unreasonable distance exists, the detention or secure correctional facility. purpose. juvenile refuses to be taken home, or Removal of the referenced language 6(a). Comment: One commentor, in law enforcement is otherwise unable to does not diminish the responsibility of response to the 24 hour detention make arrangements for the safe release the court to consider alternatives to exception for status and nonoffenders, of the juvenile. secure confinement. However, the stated that nonoffenders should not be Response: OJJDP has, since 1975, referenced nonstatutory language is placed in detention facilities. Limited authorized the secure short-term vague and does not provide meaningful exceptions should be permitted in the detention of status offenders and guidance. event of a well documented need. In nonoffenders in juvenile detention 7(c). Comment: Another comment this way, detention of nonoffenders will facilities. While blanket use of this requested clarification of why the words not become a pattern or practice. authority without regard to the facts and ‘‘of a status offender’’ were added to the Response: OJJDP agrees that the circumstances of each juvenile taken language ‘‘In entering any order that detention of nonoffenders, such as into custody would be a poor policy, directs or authorizes the placement of a dependent, neglected, or abused State and local governments should status offender in a secure facility, the children, should not become a pattern determine the specific law and policy judge presiding over an initial probable or practice. This authority should be that will govern the use of this cause hearing or violation hearing used to meet emergency needs only. authority. must. * * *’’ in Section States are encouraged to provide for the 7(a). Comment: Two respondents 31.303(f)(3)(vi). return of nonoffenders to their families commented regarding revision of Response: The change was intended or to appropriate shelter care as soon as § 31.303(f)(3)(vi), authorizing the use of to underscore that the valid court order possible. multi-disciplinary teams to make (VCO) provision applies solely to status 6(b). Comment: Another respondent recommendations on the use of secure offenders. A nonoffender may not be considers the placement of nonoffenders confinement for a valid court order placed in secure confinement for any in secure detention to be a retrenchment violator, contending that such teams are length of time for violation of a court of longstanding national policy in an important tool for the valid court order. opposition to such a placement. order process and that the language 7(d). Comment: One respondent Response: OJJDP Formula Grants should not be deleted. Another recommended the deletion of the VCO program policy and regulation have commented that language should be requirement for an independent review authorized the limited and temporary added to clarify that multi-disciplinary and determination of the reasons for the placement of nonoffenders in secure teams are only a suggested way of juvenile’s behavior. This respondent Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 65137 insisted that the first was difficult to respondent felt that all States should representation of minorities in secure monitor and the latter impossible to have a policy that mirrors the JJDP Act facilities. determine, asking ‘‘How can the court separation requirement. Response: OJJDP notes that the ascertain the reasons for the juvenile’s Response: OJJDP encourages States to addition of the word behavior?’’. Another respondent retain existing laws, regulations, and ‘‘programmatically’’ does not restrict a commented that the VCO provision court rules mirroring the separation State’s options for addressing DMC. should be a recommendation rather than requirement. OJJDP also encourages States are encouraged to examine all a requirement. States to utilize other effective aspects of DMC and address any Response: The use of the independent enforcement tools including: training features of its juvenile or criminal review standard under the valid court and technical assistance workshops; on- justice systems that may contribute to order exception is statutorily site training for law enforcement and DMC as identified by the State. established in Section 223(a)(12)(A) and adult jail and lockup personnel; and 10(b). Comment: Another respondent the term ‘‘valid court order’’ is defined development of alternatives to stated that the regulation needs to in Section 103(16) of the JJDP Act. incarceration. reflect a broader examination of Therefore, they cannot be deleted or 9(c). Comment: One commentor minority over-representation. Since modified by regulation. suggested that until such time as OJJDP 1992, States have spent considerable 8. Comment: Comments were received has unlimited resources, there is no way time and dollars reviewing their both in favor of and opposed to the that the existence of a ‘‘pattern or juvenile justice systems in their entirety. proposal to eliminate the reporting practice’’ of noncompliance can be The clarification to the DMC core requirement for each use of the ground/ monitored. requirement provides that States should distance and weather exceptions to the Response: Section 223(a)(15) requires address ‘‘programmatically’’ any feature jail and lockup removal exception. States to ‘‘provide for an adequate of its justice system that accounts for the Those opposed to the change are system of monitoring jails, detention disproportionate detention or concerned that it will encourage abuses facilities, and nonsecure facilities to confinement of minority juveniles. of the rule and lead to more youth in ensure that the requirements of However, the entire system should be adult jails and lockups, in violation of paragraph (12)(A), paragraph (13) and the statute. paragraph (14) are met, and for annual analyzed, not just juvenile detention or Response: Enforcement of this reporting of the results of such confinement. provision will continue to be a State monitoring to the Administrator; Response: The regulation provides for responsibility that is subject to on’site ** *’’. It is OJJDP’s position that State a broad examination of the DMC issue, monitoring and verification by OJJDP monitoring systems successfully including all decision points in the during compliance monitoring visits to identify the vast majority of violations juvenile justice system, and encourages States utilizing this jail and lockup and State monitoring reports can be States to address ‘‘any feature of its removal exception. The changes used to identify whether reported justice system’’ that accounts for DMC streamline the process and remove an violations establish a pattern or practice and not just those that ‘‘may account for unnecessary administrative burden. of separation violations in the State. the disproportionate detention or 9(a). Comment: Several respondents 9(d). Comment: A single separation confinement.’’ The latter language is felt that the ‘‘relaxation’’ of State standard applicable to all States for taken verbatim from the statutory reporting and monitoring requirements measuring compliance based on de language of Section 223(a)(23) of the related to the separation requirement is minimis violations that do not indicate JJDP Act. ‘‘dangerous’’ and could cause States to a pattern or practice is a fair standard, Executive Order 12866 slide into noncompliance. States might according to one respondent. Moreover, view this as an opportunity to relax it is less cumbersome than the present This final rule is not a ‘‘significant their oversight responsibility. compliance requirement. Another regulatory action’’ for purposes of Response: It is not OJJDP’s intent to respondent felt that it is clearly Executive Order 12866 because it does encourage States to weaken their appropriate to find overall compliance not result in: (1) an annual effect on the commitment to the core requirements of within the separation requirement even economy of $100 million or more or the JJDP Act. However, OJJDP believes if individual violations have occurred, adversely affect in a material way the that isolated violations of the separation as long as no pattern or practice exists. economy, a sector of the economy, requirement that do not represent a Response: It is OJJDP’s intent to treat productivity, competition, jobs, the pattern or practice should not all States in a fair and equitable manner. environment, public health or safety, or jeopardize a State’s ability to access In addressing violations of Section state, local or tribal governments or federal funds. OJJDP remains fully 223(a)(13) of the JJDP Act in terms of a communities; (2) create a serious committed to the enforcement of pattern or practice, OJJDP’s across the inconsistency or otherwise interfere Section 223(a)(13) of the JJDP Act board approach is equitable to the with action taken or planned by another requiring the separation of juvenile States, providing a substantive de agency; (3) materially alter the delinquents from adult offenders. minimis standard for the separation budgetary impact of entitlement, grants, 9(b). Comment: One respondent requirement. user fees, or loan programs or the rights commented that the existence of state 10(a). Comment: A commentor noted and obligations of recipients thereof; laws, regulations, or court rules is the that the addition of the word and (4) does not raise novel legal or only mechanism that provides any true ‘‘programmatically’’ in Section 31.303(j) policy issues arising out of legal assurance that future violations of the to clarify that ‘‘the purpose of the statute mandates, the President’s priorities or separation requirement will not occur in and regulation is to encourage States to the principles of Executive Order No. a given jurisdiction. Another felt that address programmatically.* * *’’ the 12866, and accordingly this rule has not eliminating this requirement will mean disproportionate minority confinement been reviewed by the Office of that States will abandon their efforts to (DMC) core requirement (Section Management of Budget. This regulation obtain conforming laws, regulations, 223(a)(23)) will limit the focus of the has been drafted and reviewed in and court rules in order to enforce the States and move them away from accordance with Executive Order 12866, separation core requirement. A third alternative ways to address the over- Section 1(b), Principles of Regulation. 65138 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations

Regulatory Flexibility Act (i) Separation. Describe its plan and adult facility for placement with adult This final rule, if promulgated, will procedure, covering the three-year criminals, either before or after a not have a ‘‘significant’’ economic planning cycle, for assuring that the juvenile reaches the age of full criminal impact on a substantial number of small requirements of this section are met. responsibility, is prohibited. A State is ‘‘entities’’ as defined by the Regulatory The term ‘‘contact’’ includes any also precluded from transferring adult Flexibility Act. This action is intended physical or sustained sight or sound offenders to a juvenile correctional to relieve existing requirements in the contact between juvenile offenders in a authority for placement in a juvenile Formula Grants program and to clarify secure custody status and incarcerated facility. This neither prohibits nor other provisions so as to promote adults, including inmate trustees. A restricts the waiver or transfer of a compliance with its provisions by States juvenile offender in a secure custody juvenile to criminal court for participating in the program. status is one who is physically detained prosecution, in accordance with State or confined in a locked room or other law, for a criminal felony violation, nor Paperwork Reduction Act area set aside or used for the specific the detention or confinement of a No collections of information purpose of securely detaining persons waived or transferred criminal felony requirements are contained in or who are in law enforcement custody. violator in an adult facility. affected by this regulation pursuant to Secure detention or confinement may * * * * * the Paperwork Reduction Act, codified result either from being placed in such (e) * * * at 44 U.S.C. 3504(H). a room or area and/or from being (2) Describe the barriers that a State physically secured to a cuffing rail or faces in removing all juveniles from Intergovernmental Review of Federal other stationary object. Sight contact is adult jails and lockups. This Programs defined as clear visual contact between requirement excepts only those alleged In accordance with Executive Order incarcerated adults and juveniles within or adjudicated juvenile delinquents 12372 and the Department of Justice’s close proximity to each other. Sound placed in a jail or a lockup for up to six implementing regulation 28 CFR Part contact is defined as direct oral hours from the time they enter a secure 30, States must submit Formula Grant communication between incarcerated custody status or immediately before or Program applications to the State adults and juvenile offenders. after a court appearance, those juveniles ‘‘Single Point of Contact,’’ if one exists. Separation must be accomplished formally waived or transferred to The State may take up to 60 days from architecturally or through policies and criminal court and against whom the application date to comment on the procedures in all secure areas of the criminal felony charges have been filed, application. facility which include, but are not or juveniles over whom a criminal court limited to, such areas as admissions, has original or concurrent jurisdiction Lists of Subjects in 28 CFR Part 31 sleeping, and shower and toilet areas. and such court’s jurisdiction has been Grant programs—law, Juvenile Brief and inadvertent or accidental invoked through the filing of criminal delinquency, Reporting and contact between juvenile offenders in a felony charges. recordkeeping requirements. secure custody status and incarcerated (3) Collocated facilities. (i) Determine For the reasons set forth in the adults in secure areas of a facility that whether or not a facility in which preamble 28 CFR Part 31 is amended as are not dedicated to use by juvenile juveniles are detained or confined is an follows: offenders and which are nonresidential, adult jail or lockup. The JJDP Act which may include dining, recreational, prohibits the secure custody of juveniles PART 31Ð[AMENDED] educational, vocational, health care, in adult jails and lockups, except as sally ports or other entry areas, and otherwise provided under the Act and 1. The authority citation for Part 31 implementing OJJDP regulations. continues to read as follows: passageways (hallways), would not require a facility or the State to Juvenile facilities collocated with adult facilities are considered adult jails or Authority: 42 U.S.C. 5601 et seq. document or report such contact as a lockups absent compliance with criteria 2. Section 31.303 is amended to read violation. However, any contact in a established in paragraphs (e)(3)(i)(C)(1) as follows: dedicated juvenile area, including any a. Paragraphs (d)(1)(i) and (d)(1)(v) are through (4) of this section. residential area of a secure facility, (A) A collocated facility is a juvenile revised; between juveniles in a secure custody facility located in the same building as b. Paragraphs (e)(2) and (e)(3) are status and incarcerated adults would be revised; an adult jail or lockup, or is part of a a reportable violation. related complex of buildings located on c. Paragraphs (f)(2), (f)(3)(vi), (f)(4)(vi), * * * * * (f)(5)(i)(C), (f)(5)(iii), (f)(5)(iv), (f)(6)(i), the same grounds as an adult jail or (v) Assure that adjudicated lockup. A complex of buildings is and (f)(6)(ii) are revised; delinquents are not reclassified d. Paragraph (f)(4)(iv) is amended by considered ‘‘related’’ when it shares administratively and transferred to an removing ‘‘and’’ at the end of the physical features such as walls and adult (criminal) correctional authority to paragraph and paragraph (f)(4)(v) is fences, or services beyond mechanical avoid the intent of separating juveniles amended by removing the period at the services (heating, air conditioning, from adult criminals in jails or end of the paragraph and adding ‘‘; and’’ water and sewer), or the specialized correctional facilities. A State is not in its place; and services that are allowable under prohibited from placing or transferring e. Paragraph (j) introductory text is paragraph (e)(3)(i)(C)(3) of this section. an alleged or adjudicated delinquent amended by adding two sentences (B) The State must determine whether who reaches the State’s age of full a collocated facility qualifies as a following the second sentence. The additions and revisions read as criminal responsibility to an adult separate juvenile detention facility follows: facility when required or authorized by under the four criteria set forth in State law. However, the administrative paragraphs (e)(3)(i)(C) (1) through (4) of § 31.303 Substantive requirements. transfer, without statutory direction or this section for the purpose of * * * * * authorization, of a juvenile offender to monitoring compliance with section (d) * * * an adult correctional authority, or a 223(a) (12)(A), (13) and (14) of the JJDP (1) * * * transfer within a mixed juvenile and Act. Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations 65139

(C) Each of the following four criteria plan) review and, through the exercise violation hearing, the judge must obtain must be met in order to ensure the of its oversight responsibility, to ensure and review a written report that: requisite separateness of a juvenile that the separate character of the reviews the behavior of the juvenile and detention facility that is collocated with juvenile detention facility is maintained the circumstances under which the an adult jail or lockup: by continuing to fully meet the four juvenile was brought before the court (1) Separation between juveniles and criteria set forth in paragraphs and made subject to such order; adults such that there could be no (e)(3)(i)(C) (1) through (4) of this section. determines the reasons for the juvenile’s sustained sight or sound contact (iii) Collocated juvenile detention behavior; and determines whether all between juveniles and incarcerated facilities approved by the State and dispositions other than secure adults in the facility. Separation can be concurred with by OJJDP before confinement have been exhausted or are achieved architecturally or through December 10, 1996 may be reviewed by clearly inappropriate. This report must time-phasing of common use the State against the regulatory criteria be prepared and submitted by an nonresidential areas; and and OJJDP policies in effect at the time appropriate public agency (other than a (2) Separate juvenile and adult of the initial approval and concurrence court or law enforcement agency). programs, including recreation, or against the regulatory criteria set * * * * * education, vocation, counseling, dining, forth herein, as the State determines. (4) * * * sleeping, and general living activities. Facilities approved on or after the (vi) Pursuant to section 223(a)(14) of There must be an independent and effective date of this regulation shall be the JJDP Act, the nonMSA (low comprehensive operational plan for the reviewed against the regulatory criteria population density) exception to the jail juvenile detention facility which set forth herein. All collocated facilities and lockup removal requirement as provides for a full range of separate are subject to the separate staff described in paragraphs (f)(4) (i) through program services. No program activities requirement established by the 1992 (v) of this section shall remain in effect may be shared by juveniles and Amendments to the JJDP Act, and set incarcerated adults. Time-phasing of through 1997, and shall allow for secure forth in paragraph (e)(3)(i)(C)(3) of this custody beyond the twenty-four hour common use nonresidential areas is section. permissible to conduct program period described in paragraph (f)(4)(i) of (iv) An annual on-site review of the this section when the facility is located activities. Equipment and other facility must be conducted by the resources may be used by both where conditions of distance to be compliance monitoring staff person(s) traveled or the lack of highway, road, or populations subject to security representing or employed by the State concerns; and other ground transportation do not agency administering the JJDP Act allow for court appearances within (3) Separate staff for the juvenile and Formula Grants Program. The purpose adult populations, including twenty-four hours, so that a brief (not to of the annual review is to determine if exceed an additional forty-eight hours) management, security, and direct care compliance with the criteria set forth in staff. Staff providing specialized delay is excusable; or the facility is paragraphs (e)(3)(i)(C) (1) through (4) of services (medical care, food service, located where conditions of safety exist this section is being maintained. laundry, maintenance and engineering, (such as severely adverse, life- etc.) who are not normally in contact * * * * * threatening weather conditions that do with detainees, or whose infrequent (f) * * * not allow for reasonably safe travel), in contacts occur under conditions of * * * * * which case the time for an appearance separation of juveniles and adults, can (2) For the purpose of monitoring for may be delayed until twenty-four hours serve both populations (subject to State compliance with section 223(a)(12)(A) after the time that such conditions allow standards or licensing requirements). of the Act, a secure detention or for reasonably safe travel. States may The day to day management, security correctional facility is any secure public use these additional statutory and direct care functions of the juvenile or private facility used for the lawful allowances only where the precedent detention center must be vested in a custody of accused or adjudicated requirements set forth in paragraphs totally separate staff, dedicated solely to juvenile offenders or nonoffenders, or (f)(4) (i) through (v) of this section have the juvenile population within the used for the lawful custody of accused been complied with. This may collocated facilities; and or convicted adult criminal offenders. necessitate statutory or judicial (court (4) In States that have established Accused status offenders or rule or opinion) relief within the State standards or licensing requirements for nonoffenders in lawful custody can be from the twenty-four hour initial court juvenile detention facilities, the juvenile held in a secure juvenile detention appearance standard required by facility must meet the standards (on the facility for up to twenty-four hours, paragraph (f)(4)(i) of this section. same basis as a free-standing juvenile exclusive of weekends and holidays, (5) * * * detention center) and be licensed as prior to an initial court appearance and (i) * * * appropriate. If there are no State for an additional twenty-four hours, (C) The total number of accused status standards or licensing requirements, exclusive of weekends and holidays, offenders and nonoffenders, including OJJDP encourages States to establish following an initial court appearance. out-of-State runaways and Federal administrative requirements that (3) * * * wards, held in any secure detention or authorize the State to review the (vi) In entering any order that directs correctional facility for longer than facility’s physical plant, staffing or authorizes the placement of a status twenty-four hours (not including patterns, and programs in order to offender in a secure facility, the judge weekends or holidays), excluding those approve the collocated facility based on presiding over an initial probable cause held pursuant to the valid court order prevailing national juvenile detention hearing or violation hearing must provision as set forth in paragraph (f)(3) standards. determine that all the elements of a of this section or pursuant to section (ii) The State must determine that the valid court order (paragraphs (f)(3) (i), 922(x) of Title 18, United States Code four criteria are fully met. It is (ii) and (iii) of this section) and the (which prohibits the possession of a incumbent upon the State to make the applicable due process rights (paragraph handgun by a juvenile), or a similar determination through an on-site facility (f)(3)(v) of this section) were afforded State law. A juvenile who violates this (or full construction and operations the juvenile and, in the case of a statute, or a similar state law, is 65140 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Rules and Regulations excepted from the deinstitutionalization (F) The total number of accused (i) Full compliance with section of status offenders requirement; juvenile criminal-type offenders held 223(a)(12)(A) is achieved when a State * * * * * securely in adult jails, lockups, and has removed 100 percent of status (iii) To demonstrate the extent of unapproved collocated facilities in offenders and nonoffenders from secure compliance with section 223(a)(13) of excess of six hours, including those held detention and correctional facilities or the JJDP Act, the report must include, at pursuant to the ‘‘removal exception’’ as can demonstrate full compliance with a minimum, the following information set forth in paragraph (f)(4) of this de minimis exceptions pursuant to the for the current reporting period: section; policy criteria contained in the Federal (A) Dates covered by the current (G) The total number of accused Register of January 9, 1981 (copies are reporting period; juvenile criminal-type offenders held available from the Office of General (B) The total number of facilities used securely in adult jails, lockups and Counsel, Office of Justice Programs, 633 to detain or confine both juvenile unapproved collocated facilities for less Indiana Ave., N.W., Washington, D.C. offenders and adult criminal offenders than six hours for purposes other than 20531). identification, investigations, during the past 12 months and the (ii) Compliance with section processing, release to parent(s), transfer number inspected on-site; 223(a)(13) has been achieved when a to court, or transfer to a juvenile facility (C) The total number of facilities used State can demonstrate that: for secure detention and confinement of following initial custody; both juvenile offenders and adult (H) The total number of adjudicated (A) The last submitted monitoring criminal offenders which did not juvenile criminal-type offenders held report, covering a full 12 months of provide sight and sound separation; securely in adult jails or lockups and data, demonstrates that no juveniles (D) The total number of juvenile unapproved collocated facilities in were incarcerated in circumstances that offenders and nonoffenders not excess of six hours prior to or following were in violation of section 223(a)(13); separated from adult criminal offenders a court appearance or for any length of or in facilities used for the secure time not related to a court appearance; (B)(1) The instances of detention and confinement of both (I) The total number of accused and noncompliance reported in the last juveniles and adults; adjudicated status offenders (including submitted monthly report do not (E) The total number of State valid court order violators) and indicate a pattern or practice but rather approved juvenile detention centers nonoffenders held securely in adult constitute isolated instances; and jails, lockups and unapproved located within the same building or on (2)(i) Where all instances of collocated facilities for any length of the same grounds as an adult jail or noncompliance reported were in time; lockup, including a list of such violation of or departure from State law, (J) The total number of adult jails, facilities; rule, or policy that clearly prohibits the lockups, and unapproved collocated (F) The total number of juveniles incarceration of all juvenile offenders in facilities in areas meeting the ‘‘removal detained in State approved collocated circumstances that would be in exception’’ as noted in paragraph (f)(4) facilities that were not separated from violation of Section 223(a)(13), existing of this section, including a list of such the management, security or direct care enforcement mechanisms are such that facilities and the county or jurisdiction staff of the adult jail or lockup; the instances of noncompliance are in which each is located; (G) The total number of juvenile unlikely to recur in the future; or detention centers located within the (K) The total number of juveniles same building or on the same grounds accused of a criminal-type offense who (ii) An acceptable plan has been as an adult jail or lockup that have not were held in excess of six hours but less developed to eliminate the been approved by the State, including a than 24 hours in adult jails, lockups and noncompliant incidents. list of such facilities; and unapproved collocated facilities * * * * * (H) The total number of juveniles pursuant to the ‘‘removal exception’’ as (j) * * * The purpose of the statute detained in collocated facilities not set forth in paragraph (f)(4) of this and the regulation in this part is to approved by the State that were not section; encourage States to address, sight and sound separated from adult (L) The total number of juveniles programmatically, any features of its criminal offenders. accused of a criminal-type offense who justice system, and related laws and (iv) To demonstrate the extent of were held in excess of 24 hours, but not policies, that may account for the compliance with section 223(a)(14) of more than an additional 48 hours, in disproportionate detention or the JJDP Act, the report must include, at adult jails, lockups and unapproved confinement of minority juveniles in a minimum, the following information collocated facilities pursuant to the secure detention facilities, secure for the current reporting period: ‘‘removal exception’’ as noted in correctional facilities, jails, and lockups. (A) Dates covered by the current paragraph (f)(4) of this section, due to The disproportionate minority reporting period; conditions of distance or lack of ground confinement core requirement neither (B) The total number of adult jails in transportation; and establishes nor requires numerical (M) The total number of juveniles the State AND the number inspected on- standards or quotas in order for a State accused of a criminal-type offense who site; to achieve or maintain compliance. (C) The total number of adult lockups were held in excess of 24 hours, but not *** in the State AND the number inspected more than an additional 24 hours after on-site; the time such conditions as adverse * * * * * (D) The total number of adult jails weather allow for reasonably safe travel, Dated: December 5, 1996. holding juveniles during the past twelve in adult jails, lockups and unapproved Shay Bilchik, months; collocated facilities, in areas meeting Administrator, Office of Juvenile Justice and (E) The total number of adult lockups the ‘‘removal exception’’ as noted in Delinquency Prevention. holding juveniles during the past twelve paragraph (f)(4) of this section. [FR Doc. 96–31316 Filed 12–9–96; 8:45 am] months; (6) * * * BILLING CODE 4410±18±P federal register December 10,1996 Tuesday Revisions; ProposedRule Digital FlightDataRecorderRules 14 CFRParts121and135 Federal AviationAdministration Transportation Department of Part V 65141 65142 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules

DEPARTMENT OF TRANSPORTATION Washington, DC 20591, telephone (202) Washington, DC 20591, or by calling 267–9567. (202) 267–9680. Communications must Federal Aviation Administration identify the notice number or docket SUPPLEMENTARY INFORMATION: number of this SNPRM. 14 CFR Parts 121 and 135 Comments Invited Persons interested in being placed on [Docket No. 28109; Notice No. 96±7A] Interested persons are invited to the mailing list for future Notices of Proposed Rulemaking (NPRM’s) should RIN 2120±AF76 participate in the making of the proposed rule by submitting such request from the above office a copy of Advisory Circular No. 11–2A, Notice of Revisions to Digital Flight Data written data, views, or arguments as Proposed Rulemaking Distribution Recorder Rules they may desire. Comments relating to System, that describes the application the environmental, energy, federalism, procedure. AGENCY: Federal Aviation or economic impact that might result Administration, DOT. from adopting the proposal in this Background and Discussion of Proposal ACTION: Supplemental notice of notice are also invited. Substantive On July 16, 1996, the FAA published proposed rulemaking (SNPRM). comments should be accompanied by an NPRM (Notice No. 96–7, 61 FR cost estimates. Comments should SUMMARY: This document proposes to 37144) entitled ‘‘Revisions to Digital identify the regulatory docket or notice revise the Federal Aviation Flight Data Recorder Rules.’’ That number and should be submitted in Administration’s (FAA’s) recent Notice document proposed that operators be triplicate to the Rules Docket address of Proposed Rulemaking entitled required to record additional parameters specified above. All comments received ‘‘Revisions to Digital Flight Data of flight data on certain airplanes, and on or before the closing date for Recorder Rules,’’ that was published requested public comment. The comments specified will be considered July 16, 1996. In this document, the comment period closed on August 15; by the Administrator before taking FAA proposes to modify the previously the FAA received 21 comments to the action on this proposed rulemaking. The proposed flight data recorder proposed rule. Since the closing of the proposal contained in this notice may requirements to make them applicable comment period, some additional issues be changed in light of comments to those airplanes placed on the have come to the FAA’s attention that received. All comments received will be operations specifications of a U.S. are related to the issues addressed in the available, both before and after the operator after a certain date. This NPRM but are outside the scope of that closing date for comments, in the Rules document also proposes a two-year document. Accordingly, the FAA is Docket for examination by interested compliance date for certain aircraft that issuing this Supplemental Notice of persons. A report summarizing each must be retrofitted with flight data Proposed Rulemaking to present the substantive public contact with FAA recorder equipment as a result of a new proposals and allow time for public personnel concerned with this change in policy announced in the comment. rulemaking will be filed in the docket. NPRM. The first revision is being Commenters wishing the FAA to Aircraft Registered Outside the United proposed to close an unintended acknowledge receipt of their comments States loophole in the current regulation that submitted in response to this notice Current § 135.152(a) requires that was repeated in the NPRM. The second must include a pre-addressed, stamped airplanes operated under Part 135 that change is needed to allow operators postcard on which the following were brought onto the U.S. register after time to comply with the rule following statement is made: ‘‘Comments to October 11, 1991, be equipped with the change in policy. The FAA is also Docket No. 28109.’’ The postcard will be digital flight data recorders. The soliciting additional comment date-stamped and mailed to the particular language ‘‘brought onto the concerning aircraft that should be commenter. U.S. register’’ was used when the rule exempted from the proposed DFDR was adopted in 1988 as a means to upgrade. Availability of SNPRM’s identify those airplanes that would be DATES: Comments on this proposed An electronic copy of this document required to have DFDR’s installed. At revision must be received by December may be downloaded from the FAA the time, the FAA had considered 30, 1996. regulations section of the Fedworld whether to require the retrofit of all ADDRESSES: Comments on this notice electronic bulletin board service existing airplanes operating under part should be mailed in triplicate to: (telephone: 703–321–3339), the Federal 135 with DFDR’s or require a retrofit Federal Aviation Administration, Office Register’s electronic bulletin board based on a date of manufacture or on of Chief Counsel, Attention: Rules service (telephone: 202–512–1661), or some other basis. Based on economic Docket (AGC–200), Docket No. 28109, the FAA’s Aviation Rulemaking analysis and a recommendation from 800 Independence Avenue SW., Advisory Committee Bulletin Board National Transportation Safety Board Washington, DC 20591. Comments service (telephone: 202–267–5948). A personnel, the FAA determined that the delivered must be marked Docket No. modem and suitable communications ‘‘brought onto the U.S. register’’ 28109. Comments may also be software are required. language would avoid an expensive submitted electronically to the Internet users may reach the FAA’s retrofit of airplanes already operating in following Internet address: web page at http://www.faa.gov or the the United States. The agency also [email protected]. Comments may Federal Register’s web page at http:// concluded that the ‘‘brought onto the be examined in Room 915G weekdays, www.access.gpo.gov/suldocs for U.S. register’’ language would deter the except on Federal holidays, between access to recently published rulemaking importation of older non-DFDR 8:30 a.m. and 5 p.m. documents. equipped airplanes into the United FOR FURTHER INFORMATION CONTACT: Any person may obtain a copy of this States. Frank Rock, Aircraft Engineering SNPRM by submitting a request to the This same language was included in Division, Aircraft Certification Service, Federal Aviation Administration, Office Notice 96–7 as proposed § 121.344a(a) Federal Aviation Administration, 800 of Rulemaking, ARM–1, 800 in order to maintain the same Independence Avenue, SW., Independence Avenue, SW., applicability for airplanes that will be Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules 65143 operated under part 121 as of March 20, costs involved with bringing such determination was made that date of 1997, when the ‘‘commuter rule’’ takes airplanes into compliance with the manufacture would not be used so as effect. flight data recorder requirements as not to perpetuate the use (and import) In reviewing Notice 96–7, however, proposed. of older aircraft to avoid the installation the FAA discovered that it had of digital flight data recorders. overlooked one possible effect of the Compliance Time for Changed Policy The factors that were discussed in 1988 language—that Part 135 operators The NPRM also contained a Notice 96–7 concerning the need for would acquire non-DFDR equipped clarification of the meaning of the flight data information apply to all airplanes that were registered outside phrase ‘‘brought onto the U.S. register aircraft. Flight data recorder information the United States and decide not to after October 11, 1991’’ language as it is often a critical investigative tool; the place them on the U.S. register. These applies to part 135 aircraft that were current part 135 regulations were aircraft could be operated as foreign- removed from the U.S. register and issued, and the amendments proposed, registered airplanes in accordance with brought back onto the register after to ensure that all aircraft record flight § 135.25, but would not be subject to the October 11, 1991. As explained in the data to the maximum extent feasible. DFDR requirements of § 135.152. The preamble to the original proposed rule, Operators that consider certain aircraft FAA has determined that there is no airplanes that were on the register beyond the range of cost-effective justification for excluding these aircraft before October 11, 1991, but were retrofit were invited to submit from the DFDR requirements, removed from the register and brought information why those aircraft models considering the agency’s policy, as back on after October 11, 1991, would should be excluded. As discussed detailed in Notice 96–7, concerning the have to be retrofitted to be in below, such information was received necessity of upgrading flight data compliance with § 135.152. A previous on only one aircraft model. recorders. FAA interpretation erroneously While the FAA determined that Accordingly, the FAA is proposing to concluded that these airplanes were airplanes removed from the U.S. register change the requirement in current somehow ‘‘grandfathered’’ (and thus did are not grandfathered and must meet the § 135.152(a) and in proposed not have to have flight data recorders requirements for flight data recorders, § 121.344a(a), by describing the group of installed). This former interpretation no time for delayed compliance was airplanes that must be equipped with was found to be inconsistent with the proposed in Notice 96–7 for aircraft that DFDR’s as those that are either brought text of the rule (61 FR at 37154, July 16, may have been operating under the old onto the U.S. register after October 11, 1996). interpretation. To relieve the burden of 1991, or are foreign-registered and were Several commenters to the NPRM immediate compliance, the FAA is added to an operator’s U.S. operations state that because of the previous proposing that operators of these specifications after October 11, 1991. interpretation, their airplanes that were airplanes may take up to two years to This change would have a limited manufactured before October 11, 1991, install the required flight data recorders. effect on carriers operating under part did not have to have digital flight data The proposed compliance time of two 135 and those that will operate under recorders installed, and that to do so years may appear inconsistent with the part 121. Information available to the now would be expensive. The four-year compliance time proposed FAA indicates that there are no commenters argue that the date of elsewhere in Notice 96–7, but the four- operators currently taking advantage of manufacture should be used in year compliance time is intended for this rule language by operating foreign- determining applicability, rather than those airplanes undergoing an upgrade registered airplanes in the United States the date the aircraft were brought onto from current requirements. The two- under part 135. Accordingly, no costs the U.S. register, so that older aircraft year compliance time proposed here is are expected to result from this change will not be required to upgrade to digital for certain operators that thought their in the rule. The FAA has determined flight data recorders. aircraft were grandfathered to meet the that the change will have only a The FAA disagrees. In drafting the current requirements of part 135, not for prospective effect and prevent the NPRM, the FAA considered whether to installation of an upgrade. The FAA domestic operation of foreign-registered change the applicability for aircraft solicits comments that include the airplanes that are not equipped with operating under part 135, and number of airplanes that would be digital flight data recorders. determined that it was best to maintain affected by this proposed two-year Since there are no airplanes currently the date brought on the U.S. register as delayed compliance, as well as the operating that would be affected by this the determining factor for applicability appropriateness of a two-year change in the rule, the FAA has no basis of the rule requiring installation of a compliance time. to estimate whether there are airplanes DFDR. The FAA recognized that that, in the future, would have been whatever date is used (e.g., manufacture Aircraft Excluded From Upgrade brought into the U.S. for operation or registration) would present a burden Requirements under part 135 while maintaining to some operators. Finally, several comments on the foreign registration. Accordingly, it Nor does the FAA agree that some NPRM included airplanes that the would be speculative for the FAA to airplanes should be allowed to be commenters thought should be presume a specific number of airplanes removed from the U.S. register and be excluded from the applicability of the and estimate a cost of DFDR retrofit for brought back without complying with digital flight data recorder upgrades. them because the rule would no longer the regulations in effect at the time of Except for the DeHavilland DHC–6 allow operation without a DFDR. return, simply because they were (Twin Otter), however, the comments The FAA solicits comment on the manufactured prior to October 11, 1991. contained little or no support for the impact of this proposal, and particularly Since the adoption of the rule, the FAA exclusion of these airplanes. As the needs to know if there are any foreign- has always intended that when FAA stated in the NPRM, requests that registered airplanes that are not airplanes are added to the U.S. register, aircraft to be excluded ‘‘should contain equipped with an appropriate flight data they meet the standards in existence at a detailed explanation of the reasons recorder and are operating under the the time, and that intent is clear from why these aircraft should be included provisions of part 135. The FAA the language of the regulation. When on the list [of exclusions], and the specifically requests data concerning the that regulation was adopted in 1988, the number of aircraft that would be 65144 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules affected’’ (61 FR at 37153). The simple would alter the costs as developed in Executive Order 12866, and is statement that an aircraft is out of Notice 96–7 and has not altered the cost considered nonsignificant under DOT production is insufficient for the FAA to estimates. The reasons for this are Regulatory Policies and Procedures (44 make a decision on whether exclusion twofold. First, regarding the proposed FR 11034, Feb. 26, 1979). of the airplane is appropriate. Persons amendment to §§ 121.244a(a) and List of Subjects who commented on this issue are 135.152(a) to add the date a foreign- invited to resubmit their comments with registered aircraft is placed on the 14 CFR Part 121 the necessary explanation, number of operations specifications of a carrier, the airplanes affected, and any retrofit cost FAA does not know of any carriers Air carriers, Aviation safety, data that may be available. currently operating foreign-registered Reporting and recordkeeping The FAA did not propose an airplanes in domestic service. Even if requirements, Transportation. exemption paragraph for part 135 such aircraft are being operated, they 14 CFR Part 135 similar to that proposed for part 121 would already have been accounted for because the FAA has no information because the FAA’s fleet estimates are Aviation safety, Reporting and suggesting that there are specific derived from domestic air carrier recordkeeping requirements airplane types that cannot readily operations specifications. Air carrier The Proposed Amendment comply with the requirements of data for part 121 operators provided to § 135.152(a). The only aircraft currently the FAA by the Air Transport In consideration of the foregoing, the under consideration for exclusion from Association accounted for about 80 Federal Aviation Administration the rule is the DeHavilland DHC–6 percent of the domestic fleet; these data proposes to amend 14 CFR parts 121 using the information provided in the were adjusted to reflect the U.S. and 135 of the Federal Aviation comments referenced above. The FAA domestic fleet as estimated by the FAA’s Regulations as follows: has determined that if there is only one Economic Forecast Branch. Similarly, airplane type under consideration for detailed data from the Regional Airline PART 121ÐOPERATING exclusion, it would be more appropriate Association (RAA) is presumed to REQUIREMENTS: DOMESTIC, FLAG, to provide relief under an exemption reflect the RAA’s fleet estimates based AND SUPPLEMENTAL OPERATIONS pursuant to 14 CFR part 11. However, on the operations specification of part no determination on this will be made 135 operators, and already included any 1. The authority citation for part 121 until after the close of the comment foreign-registered airplanes that may be continues to read as follows: period for this supplemental notice, operated in domestic service. Authority: 49 U.S.C. 106(g), 40113, 40119, since the agency is inviting those Second, the cost estimates contained 44101, 44701–44702, 44705, 44709–44711, persons who submitted other airplane in Notice 96–7 apply only to the 44713, 44716–44717, 44722, 44901, 44903– types for exclusion to submit more upgrade of digital flight data recorders 44904, 44912, 46105. information in support of their as proposed in that notice. Any costs 2. In § 121.344a, the introductory text comments. associated with the installation of the of paragraph (a), as proposed in the The FAA is also proposing to revise flight data recorders as required under Federal Register issue of July 16, 1996, the language of current §§ 135.152(a) current § 135.152 (and the policy (61 FR 37161), is revised to read as and (d), and Appendices B and C of part statement discussed) were contained in follows: 135, to reflect that the industry standard the original costs estimates generated for for recorders is a 25-hour recorder, that rulemaking in 1988. The policy § 121.344a Digital flight data recorders for rather than the 8-hour recorder statement under which some operators 10±19 seat airplanes. currently required. The FAA is unaware did not install flight data recorders was (a) No person may operate a turbine- of any 8-hour recorder currently being made after that regulation was in place. engine-powered airplane having a used and has determined that this Initial Regulatory Flexibility passenger seating configuration, change would result in no costs to Determination excluding any required crewmember operators. The FAA requests that seat, of 10 to 19 seats, that was either commenters submit any information to The FAA has determined that the brought onto the U.S. register after or the contrary concerning usage of 8-hour costs associated with this rule have been was registered outside the United States recorders and any costs associated with considered and discussed in previous and added to an operator’s U.S. the proposed change in the standard. rulemaking actions, and therefore has operations specifications after October not made a duplicate determination for International Compatibility 11, 1991, unless it is equipped with one this SNPRM. Information currently or more approved flight recorders that The FAA has reviewed corresponding available to the FAA indicates that the use a digital method of recording and International Civil Aviation revisions proposed in this SNPRM, as storing data and a method of readily Organization standards and Joint described above, do not have any costs retrieving that data from the storage Aviation Authority regulations, where associated with them, and seeks any medium. On or before [4 years after the they exist. Any differences between information to the contrary. effective date of the final rule], airplanes those documents and these regulations International Trade Impact Assessment brought onto the U.S. register or are of a minor, technical nature, and are The FAA has determined that the registered outside of the United States deemed insignificant. They would not and added to an air carrier’s operations adversely affect harmonization. proposed amendments pertain to only U.S. operators and will not have an specifications after October 11, 1991, Paperwork Reduction Act impact on International trade. must comply with either the No information collection has been requirements in this section or the Conclusion proposed. applicable paragraphs in § 135.152 of For the reasons discussed in the this chapter. In addition, by [4 years Regulatory Evaluation Summary preamble, the FAA has determined that after the effective date of the final The FAA does not anticipate that the this proposed regulation would be a rule]— revisions proposed in this SNPRM nonsignificant regulatory action under * * * * * Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Proposed Rules 65145

PART 135ÐOPERATING approved flight recorders that use a Appendix B to Part 135—[Amended] REQUIREMENTS: COMMUTER AND digital method of recording and storing ON-DEMAND OPERATIONS data and a method of readily retrieving 6. In Appendix B to part 135, that data from the storage medium. On Airplane Flight Recorder Specifications, 3. The authority citation for part 135 or before [2 years after the effective date in the ‘‘Range’’ column, the first entry continues to read as follows: of the final rule], aircraft brought onto is amended by removing the phrase ‘‘8 Authority: 49 U.S.C. 106(g), 40113, 44701– the U.S. register or registered outside of hr minimum’’ and adding the phrase 44702, 44705, 44709, 44711–44713, 44715– the United States and added to an air ‘‘25 hr minimum’’ in its place. 44717, 44722. carrier’s operations specifications after Appendix C to Part 135—[Amended] 4. Section 135.152(a) is revised to October 11, 1991, must record the read as follows: parameters specified in either Appendix 7. In Appendix C to part 135, B or C of this part, as applicable. The Helicopter Flight Recorder § 135.152 Flight recorders. parameters must be recorded within the Specifications, in the ‘‘Range’’ column, (a) No person may operate a multi- range, accuracy, resolution, and the first entry is amended by removing engine, turbine-engine-powered recording intervals as specified. The the phrase ‘‘8 hr minimum’’ and adding airplane or rotorcraft having a passenger recorder shall retain no less than 25 the phrase ‘‘25 hr minimum’’ in its seating configuration, excluding any hours of aircraft operation. place. required crewmember seat, of 10 to 19 * * * * * seats, that was either brought onto the Issued in Washington, DC, on December 5, U.S. register after or was registered § 135.152 [Amended] 1996. outside the United States and added to 5. In § 135.152(d), the first sentence is Elizabeth Yoest, the operator’s U.S. operations amended by removing the phrase ‘‘8 Acting Director, Aircraft Certification Service. specifications after October 11, 1991, hours’’ and adding the phrase ‘‘25 [FR Doc. 96–31446 Filed 12–9–96; 8:45 am] unless it is equipped with one or more hours’’ in its place. BILLING CODE 4910±13±P i

Reader Aids Federal Register Vol. 61, No. 238 Tuesday, December 10, 1996

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING DECEMBER

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 1 CFR 12 CFR For additional information 523±5227 462...... 64954 1...... 63972 Presidential Documents 7...... 63972 Executive orders and proclamations 523±5227 3 CFR 8...... 63700 The United States Government Manual 523±5227 Proclamations: 12...... 63958 6959...... 63691 327...... 64609, 64960 Other Services 6960...... 64245 543...... 64007 Electronic and on-line services (voice) 523±4534 6961...... 64431 544...... 64007 Privacy Act Compilation 523±3187 6962...... 64581 545...... 64007 TDD for the hearing impaired 523±5229 6963...... 64957 552...... 64007 Executive Orders: 556...... 64007 12757 (Amended by 575...... 64007 ELECTRONIC BULLETIN BOARD EO 13028)...... 64589 902...... 64613 Free Electronic Bulletin Board service for Public Law numbers, 13028...... 64589 910...... 64021 Federal Register finding aids, and list of documents on public 13029...... 64591 912...... 64021 inspection. 202±275±0920 Administrative Orders: Presidential 14 CFR FAX-ON-DEMAND Determinations: 25...... 63952 You may access our Fax-On-Demand service. You only need a fax No. 97±6 of November 39 ...... 63702, 63704, 63706, machine and there is no charge for the service except for long 26, 1996 ...... 63693 63707, 64270, 64456, 64948, distance telephone charges the user may incur. The list of No. 97±7 of November 64985 documents on public inspection and the daily Federal Register’s 26, 1996 ...... 63695 71...... 64459 table of contents are available using this service. The document Memorandums: 73...... 64458 numbers are 7050-Public Inspection list and 7051-Table of November 20, 1996...... 64247 97 ...... 64459, 64460, 64462 Contents list. The public inspection list will be updated November 21, 1996...... 64249 107...... 64242 immediately for documents filed on an emergency basis. November 28, 1996...... 64439 108...... 64242 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 5 CFR Proposed Rules: FILE AND NOT THE ACTUAL DOCUMENT. Documents on 39 ...... 64489, 64491, 64492, 630...... 64441 64643, 64645, 65001, 65002. public inspection may be viewed and copied in our office located 890...... 64441 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 65004, 65006 Proposed Rules: telephone number is: 301±713±6905 71...... 64826 213...... 63762 73...... 64494, 64495 7 CFR 121...... 65142 FEDERAL REGISTER PAGES AND DATES, DECEMBER 135...... 65142 723...... 63697 63691±64006...... 2 760...... 64601 15 CFR 64007±64244...... 3 905...... 64251 732...... 64272 64245±64440...... 4 906...... 64253 736...... 64272 64441±64600...... 5 911...... 64255 920...... 64959 740...... 64272 64601±64814...... 6 742...... 64272 64815±64958...... 9 944...... 64251 981...... 64601 744...... 64272 64959±65146...... 10 989...... 64454 746...... 64272 1464...... 63697 748...... 64272 1806...... 63928 750...... 64272 1910...... 63928 752...... 64272 1922...... 63928 758...... 64272 1944...... 63928 770...... 64272 1951...... 63928 2301...... 64948 1955...... 63928 Proposed Rules: 1956...... 63928 39...... 63762 1965...... 63928 71 ...... 63764, 63765, 63766, 3550...... 63928 63767, 63768 Proposed Rules: 135...... 64230 987...... 64638 1205...... 64640 17 CFR 30...... 64985 10 CFR 240...... 63709 20...... 65120 60...... 64257 18 CFR 1021...... 64603 Proposed Rules: Proposed Rules: 4...... 64031 431...... 64948 375...... 64031 ii Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Reader Aids

19 CFR 32 CFR Proposed Rules: 2...... 63758 52 ...... 64042, 64304, 64307, Proposed Rules: 318...... 63712 15...... 63758 122...... 64041 64308, 64647 24...... 63758 33 CFR 70...... 64042, 64651 73...... 63759, 64999 20 CFR 81...... 64308 97...... 63758 100 ...... 64991, 64993, 64994 82...... 64045 404...... 64615 110...... 63715 Proposed Rules: Ch. I...... 63774, 63778 117...... 64995 41 CFR 21 CFR 157...... 64618 1...... 64045 301±1...... 64997 73...... 64027 334...... 64996 73 ...... 63809, 63810, 63811, 301±7...... 64997 178...... 64989 64309, 64660, 65008 Proposed Rules: 301±8...... 64997 510...... 63710 100...... 64645 301±11...... 64997 520...... 63711 48 CFR 301±17...... 64997 524...... 63712 36 CFR 231...... 64635 880...... 64616 223...... 64815 42 CFR 249...... 64636 252...... 64636 Proposed Rules: Proposed Rules: 401...... 63740 892...... 63769 1843...... 64823 223...... 64569 403...... 63740 1190...... 64832 1852...... 64823 22 CFR 405...... 63740 1191...... 64832 411...... 63740 49 CFR 605...... 64286 413...... 63740 37 CFR 1...... 64029 24 CFR 447...... 63740 1...... 64027 493...... 63740 106...... 64030 5...... 64617 251...... 63715 190...... 64030 81...... 63944 252...... 63715 43 CFR 367...... 64295 Proposed Rules: 257...... 63715 Proposed Rules: 571...... 64297 242...... 64414 259...... 63715 418...... 64832 Proposed Rules: 985...... 63930 Proposed Rules: 2200...... 64658 Ch. XI...... 64849 202...... 64042 2210...... 64658 28 CFR 2240...... 64658 50 CFR 31...... 65132 38 CFR 2250...... 64658 17...... 64475, 64481 513...... 64950 17...... 63719 2270...... 64658 622...... 64485 522...... 64953 630...... 64486 Proposed Rules: 39 CFR 45 CFR 648...... 64999 540...... 64954 111...... 61618 801...... 64998 679 ...... 63759, 64298, 64299, 1610...... 63749 64487, 64569 29 CFR 40 CFR 1617...... 63754 Proposed Rules: 4001...... 63988 39...... 64290 1632...... 63755 17...... 64496 4043...... 63988 52 ...... 64028, 64029, 64291 1633...... 63756 285...... 63812 4065...... 63988 61...... 64463 630...... 63812 63...... 64463, 64572 46 CFR 644...... 63812 30 CFR 70 ...... 63928, 64463, 64622 31...... 64618 648 ...... 64046, 64307, 64852, Proposed Rules: 81...... 64294 35...... 64618 64854 870...... 64220 82...... 64424 572...... 64822 656...... 64497 131...... 64816 678...... 63812 31 CFR 180...... 63721 47 CFR 679 ...... 63812, 63814, 64047, Ch. V...... 64289 721...... 63726 1...... 63758 64310 Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Reader Aids iii

REMINDERS Red snapper, etc.; Ohio; comments due by 12- Airbus; comments due by The items in this list were comments due by 12- 16-96; published 11-6-96 12-16-96; published 11-5- editorially compiled as an aid 16-96; published 11-20- HEALTH AND HUMAN 96 to Federal Register users. 96 SERVICES DEPARTMENT Fokker; comments due by Inclusion or exclusion from ENVIRONMENTAL Food and Drug 12-16-96; published 11-5- this list has no legal PROTECTION AGENCY Administration 96 significance. Air pollution control; new Food additives: McDonnell Douglas; motor vehicles and engines: Paper and paperboard comments due by 12-16- Light-duty vehicles and components-- 96; published 11-5-96 RULES GOING INTO Piper; comments due by 12- trucks-- Acrylic acid, sodium salt 16-96; published 10-10-96 EFFECT TODAY Durability testing copolymer with procedures and polyethyleneglycol allyl Raytheon; comments due by HEALTH AND HUMAN allowable maintenance; ether; comments due by 12-20-96; published 10- SERVICES DEPARTMENT 1994 and later model 12-18-96; published 11- 18-96 Food and Drug years; comments due 18-96 Class E airspace; comments Administration by 12-16-96; published due by 12-16-96; published INTERIOR DEPARTMENT 11-20-96 Food additives: 11-15-96 Surface Mining Reclamation Restricted areas; comments Adjuvants, production aids, Air programs: and Enforcement Office Fuels and fuel additives-- due by 12-17-96; published and sanitizers-- Permanent program and 11-5-96 1,4-bis[(2,4,6- Minor revisions; comments abandoned mine land due by 12-18-96; TRANSPORTATION trimethylphenyl)amino]- reclamation plan DEPARTMENT 9,1-anthracendedione; published 11-18-96 submissions: Federal Highway published 12-10-96 Air quality implementation Colorado; comments due by plans; √A√approval and Administration JUSTICE DEPARTMENT 12-19-96; published 11- Engineering and traffic promulgation; various 19-96 Justice Programs Office States; air quality planning operations: JUSTICE DEPARTMENT Formula grants: purposes; designation of Truck size and weight-- Juvenile Justice and areas: Federal Bureau of National Network for Investigation Delinquency Prevention Indiana; comments due by commercial vehicles; Office programs; 12-16-96; published 11- Criminal Assistance for Law route additions in North clarification and guidance; 15-96 Enforcement Act of 1994; Carolina; comments due published 12-10-96 Drinking water: implementation: by 12-20-96; published 10-21-96 TRANSPORTATION Marine sanitation device Significant upgrade and DEPARTMENT standards-- major modifications; Motor carrier safety standards: section 109 terms Parts and accessories Coast Guard Application requirements clarification; comment necessary for safe specific to drinking Regattas and marine parades: request; comments due operation-- water intake no Holiday Boat Parade of the by 12-19-96; published discharge zones; Protection against shifting Palm Beaches; published 11-19-96 or falling cargo; North 12-10-96 comments due by 12- 16-96; published 10-16- JUSTICE DEPARTMENT American standard TRANSPORTATION 96 Parole Commission development; comments DEPARTMENT due by 12-16-96; Water pollution control: Federal prisoners; paroling Federal Aviation published 10-17-96 Great Lakes System; water and releasing, etc.: Administration Motor carrier transportation: quality guidance-- Transfer treaty cases; Agricultural cooperative Airworthiness directives: Selenium criterion special transferee Cessna; published 12-5-96 hearings; comments due associations which maximum concentration; conduct compensated New Piper Aircraft, Inc.; by 12-16-96; published comments due by 12- transportation operations published 10-15-96 10-17-96 16-96; published 11-14- for nonmembers; notice 96 NUCLEAR REGULATORY filing requirements COMMENTS DUE NEXT FEDERAL COMMISSION exemption; comments due WEEK COMMUNICATIONS Deliberate misconduct by by 12-20-96; published COMMISSION unlicensed persons; 10-21-96 Common carrier services: comments due by 12-18-96; Compensated intercorporate AGRICULTURE published 10-4-96 DEPARTMENT Telecommunications Act of hauling; Federal regulatory 1996; implementation-- SECURITIES AND review; comments due by Agricultural Marketing EXCHANGE COMMISSION Service Infrastructure sharing; 12-20-96; published 10- comments due by 12- Securities 21-96 Dairy products; grading, 20-96; published 12-2- Offshore press conferences, inspection, and standards: TRANSPORTATION 96 meetings with company DEPARTMENT Fee increases; comments Practice and procedure: representatives conducted National Highway Traffic due by 12-16-96; Telecommunications Act of offshore and press related Safety Administration published 11-14-96 1996; conformance-- materials released Motor vehicle safety COMMERCE DEPARTMENT Universal service; offshore; comments due standards: National Oceanic and comments due by 12- by 12-17-96; published Power-operated window, Atmospheric Administration 16-96; published 12-2- 10-18-96 partition, and roof panel Fishery conservation and 96 TRANSPORTATION systems; comments due management: Radio stations; table of DEPARTMENT by 12-16-96; published Atlantic highly migratory assignments: Federal Aviation 11-15-96 species; comments due Iowa; comments due by 12- Administration TRANSPORTATION by 12-20-96; published 16-96; published 11-6-96 Airworthiness directives: DEPARTMENT 11-6-96 Kansas; comments due by Air Tractor, Inc.; comments Surface Transportation Caribbean, Gulf, and South 12-16-96; published 11-6- due by 12-20-96; Board Atlantic fisheries-- 96 published 10-18-96 Tariffs and schedules: iv Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / Reader Aids

Tariff filing requirements; freight forwarders exemption in noncontiguous domestic trade from rate reasonableness; comments due by 12-20- 96; published 11-20-96 TREASURY DEPARTMENT Fiscal Service Acceptance of bonds secured by Government obligations in lieu of bonds with sureties; comments due by 12-16-96; published 11-15- 96 TREASURY DEPARTMENT Internal Revenue Service Income taxes: Retirement plans accepting rollover contributions; relief from disqualification; comments due by 12-18- 96; published 9-19-96