Pages 8283±8520 Vol. 60 2±14±95 No. 30 federal register February 14,1995 Tuesday issue. Dallas, TX,seeannouncementontheinsidecoverofthis For informationonbriefingsinWashington,DC,and Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 Agricultural Marketing Service See Army Department RULES See Navy Department Practice and procedure: Formal adjudicatory proceedings, cease and desist Defense Nuclear Facilities Safety Board proceedings, etc.; telephone and correspondence NOTICES conferences, etc., 8446–8467 Meetings; Sunshine Act, 8442 Agriculture Department Drug Enforcement Administration See Agricultural Marketing Service NOTICES See Grain Inspection, Packers and Stockyards Applications, hearings, determinations, etc.: Administration Dupont Pharmaceuticals, 8413–8414 RULES Nycomed Inc., 8414 Practice and procedure: Formal adjudicatory proceedings, cease and desist Education Department proceedings, etc.; telephone and correspondence NOTICES conferences, etc., 8446–8467 Agency information collection activities under OMB review, 8346–8348 Air Force Department NOTICES Employment and Training Administration Cost comparison studies, 8345 NOTICES Adjustment assistance: Army Department AEG Transportation Systems, Inc., 8416 RULES BASF Corp., 8417, 8418 Military reservations and national cemeteries: Coach Factory, 8417 Arlington National Cemetery, VA— Delhi Gas Pipeline Co., 8417 Interment of former prisoners of war, 8305 Intera Information Technologies, Inc., 8417–8418 Fort Lewis, Yakima Training Center, and Camp Adjustment assistance and NAFTA transitional adjustment Bonneville, WA; land use policy, 8305 assistance: NOTICES Arthur Frisch Co., Inc., et al., 8414–8416 Environmental statements; availability, etc.: Job Training Partnership Act: Base realignment and closure— Allotments and preliminary planning estimates (1995 Sacramento Army Depot, CA, 8345 PY), 8418–8425 NAFTA transitional adjustment assistance: Arts and Humanities, National Foundation Footwear Management Co., 8425 See National Foundation on the Arts and the Humanities Regency Vegetable House, 8425 Bonneville Power Administration Energy Department NOTICES See Bonneville Power Administration Pacific Northwest Electric Power Planning and See Federal Energy Regulatory Commission Conservation Act: See Hearings and Appeals Office, Energy Department Federal Columbia River Transmission System, 8505–8511 NOTICES Transmission rates: Grant and cooperative agreement awards: Proposed modification, 8511–8513 Bolin, Kevin, 8348 Wholesale power rates: Brown, Jesse J., 8348 Proposed modification, 8496–8505 Milewski, John V., 8348–8349 Grant and cooperative agreements: Coast Guard Virginia Polytechnic Institute and State University, 8349 RULES Natural gas exportation and importation: Merchant marine officers and seamen: 1 Source Energy Services Co., 8349–8350 Radar-observer endorsement for uninspected towing ANR Pipeline Co., 8349 vessel operators, 8308–8309 Selkirk Cogen Partners, L.P., 8350 Transco Energy Marketing Co., 8350 Commerce Department See National Oceanic and Atmospheric Administration Environmental Protection Agency RULES Committee for the Implementation of Textile Agreements Air quality implementation plans; approval and NOTICES promulgation; various States: Cotton, wool, and man-made textiles: Florida, 8306–8308 India, 8344–8345 PROPOSED RULES Clean Air Act: Defense Department Fuel and fuel additives; deposit control gasoline additive See Air Force Department standards, 8341 IV Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Contents Hazardous air pollutants; constructed, reconstructed, or Mississippi River Transmission Corp., 8355 modified major sources; interpretive notice, 8333– Northern Natural Gas Co., 8355 8335 Northwest Pipeline Corp., 8355–8356 State operating permits programs— Montana, 8335–8341 Federal Maritime Commission NOTICES NOTICES Air pollution control: Investigations, hearings, petitions, etc.: Clean Air Act grants— Trans-Atlantic Agreement, 8386–8387 California, 8376–8377 Drinking water: Federal Reserve System Public water supply supervision program— NOTICES Indiana, 8377–8378 Meetings; Sunshine Act, 8442 Hazardous waste: Applications, hearings, determinations, etc.: Land disposal restrictions; exemptions— City Holding Co., 8387–8388 Chemical Waste Management, Inc., 8378–8381 Frickey, Carl L. et al., 8388 Meetings: Valrico Bancorp, Inc., 8388 California State nonroad engine and equipment pollution control standards; hearing, 8381–8384 Common sense initiative— Federal Retirement Thrift Investment Board Electronics sector, 8384 NOTICES Municipal solid waste landfill permit programs; adequacy Meetings; Sunshine Act, 8442 determinations: New Hampshire, 8384–8386 Federal Trade Commission PROPOSED RULES Executive Office of the President Comprehensive Smokeless Tobacco Health Education Act: See Presidential Documents Rotation of health warnings for promotional materials for smokeless tobacco products, 8312–8313 Federal Aviation Administration Telemarketing sales rule, 8313–8333 RULES NOTICES Airworthiness directives: Agency information collection activities under OMB Boeing, 8292–8294, 8295–8297 review, 8388–8389 Brackett Aircraft Co., Inc., 8286–8288 British Aerospace, 8294–8295, 8297–8298 Fish and Wildlife Service Jetstream, 8290–8292, 8294–8295 PROPOSED RULES McDonnell Douglas et al., 8284–8286, 8288–8290 Endangered and threatened species: Schweizer et al., 8283–8284 Chinese Camp brodiaea, etc. (ten plants from foothills of PROPOSED RULES Sierra Nevada Mountains, CA), 8342–8343 Air carrier certification and operations: Airplane simulators; advanced training program, 8490– Foreign Assets Control Office 8494 RULES Libyan sanctions regulations: Federal Communications Commission Specially designated Nationals; list, 8300–8304 RULES Frequency allocations and radio treaty matters: Grain Inspection, Packers and Stockyards Administration Satellite digital audio radio service allocation in 2310- RULES 2360 MHz band, 8309–8311 PROPOSED RULES Practice and procedure: Radio services, special: Formal adjudicatory proceedings, cease and desist Private land mobile services— procerdings, etc.; telephone and correspondence 800 MHz frequency band SMR systems; future conferences, etc., 8446–8467 development facilitation and competitive bidding, 8341–8342 Health and Human Services Department NOTICES See Health Care Financing Administration Agency information collection activities under OMB See National Institutes of Health review, 8386 See Public Health Service NOTICES Federal Energy Regulatory Commission Grants and cooperative agreements; availability, etc.: NOTICES Health professions recruitment program for Indians, Electric rate and corporate regulation filings: 8407–8409 Delmarva Power & Light Co. et al., 8350–8352 Organization, functions, and authority delegations: Southwestern Public Service Co. et al., 8352–8353 Assistant Secretary for Health, 8409–8410 Meetings; Sunshine Act, 8442 HIV/AIDS Policy Office, 8410 Natural gas certificate filings: Natural Gas Pipeline Co. of America et al., 8353–8354 Health Care Financing Administration Natural gas pipelines; alternatives to traditional cost-of- NOTICES service ratemaking criteria, 8356–8375 Medicare: Applications, hearings, determinations, etc.: Home health agency costs per visit; schedule of limits, Alabama-Tennessee Natural Gas Co., 8354–8355 8389–8406 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Contents V Hearings and Appeals Office, Energy Department National Transportation Safety Board NOTICES NOTICES Decisions and orders, 8375–8376 Meetings; Sunshine Act, 8442 Housing and Urban Development Department Navy Department NOTICES NOTICES Grant and cooperative agreement awards: Environmental statements; availability, etc.: Fair housing initiatives program, 8411–8412 Base realignment and closure— Naval Hospital Long Beach, CA, 8345–8346 Indian Affairs Bureau NOTICES Nuclear Regulatory Commission Agency information collection activities under OMB NOTICES review, 8412–8413 Meetings; Sunshine Act, 8442–8443 Interior Department Occupational Safety and Health Administration See Fish and Wildlife Service NOTICES See Indian Affairs Bureau Committees; establishment, renewal, termination, etc.: See Land Management Bureau Maritime Advisory Committee for Occupational Safety and Health, 8425–8426 Internal Revenue Service RULES Postal Service Procedure and administration: RULES User fees; installment agreement, special benefit services Organization and administration: for identifiable recipients, 8298–8300 Postal Inspection Service; seizure for forfeiture notice requirements, 8305–8306 Interstate Commerce Commission NOTICES Presidential Documents Railroad operation, acquisition, construction, etc.: PROCLAMMATIONS Caldwell County Economic Development Commission, Special observances: 8413 American Heart Month (Proc. 6768), 8517–8518 Older Workers Employment Week (Proc. 6769), 8519 Justice Department See Drug Enforcement Administration Public Health Service See National Institutes of Health Labor Department NOTICES See Employment and Training Administration Organization, functions, and authority delegations: See Occupational Safety and Health Administration National Institutes of Health, 8410–8411 Land Management Bureau Securities and Exchange Commission NOTICES NOTICES Alaska Native claims selection: Self-regulatory organizations; proposed rule changes: Chugach Alaska Corp., 8413 American Stock Exchange, Inc., 8426–8433 Chicago Board Options Exchange, Inc., 8433–8434 National Foundation on the Arts and the Humanities Depository Trust Co., 8434–8435 NOTICES National Association of Securities Dealers, Inc., 8436– Meetings: 8437 Public Partnership Office Advisory Panel, 8426 New York Stock Exchange, Inc., 8437–8438 National Highway Traffic Safety Administration Small Business Administration NOTICES NOTICES Meetings: Disaster loan areas: Safety performance standards, research, and safety North Carolina, 8438 assurance programs, 8439–8440 Northern Mariana Islands, 8438–8439 License surrenders: National Institutes of Health Jiffy Lube Capital Corp., 8439 NOTICES New Oasis Capital Corp., 8439 Meetings: National Institute of Dental Research, 8409 State Justice Institute NOTICES National Oceanic and Atmospheric Administration Meetings; Sunshine Act, 8443 RULES Fishery conservation and management: Textile Agreements Implementation Committee Bering Sea and Aleutian Islands groundfish; and limited See Committee for the Implementation of Textile access management of Federal fisheries in and off of Agreements Alaska, 8479–8488 Gulf of Alaska groundfish, 8478–8479 Thrift Supervision Office Gulf of Alaska groundfish; and limited access NOTICES management of Federal fisheries in and off of Alaska, Receiver appointments: 8470–8478 Carteret Federal Savings Bank of New Jersey, 8440 VI Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Contents Applications, hearings, determinations, etc.: Part III Community Bank Shares, M.H.C., 8440 Department of Commerce, National Oceanic and Community Federal Savings & Loan Association of Little Atmospheric Administration, 8470–8488 Falls, 8440 First Federal Banking & Savings, FSB, 8440 Part IV First Federal Savings & Loan Association of Florence, Department of Transportation, Federal Aviation 8440 Administration, 8490–8494 Home Loan Bank F.S.B., 8440 Pendelton Federal Savings & Loan Association, 8440– 8441 Part V Security Federal Bank, F.S.B., 8441 Department of Energy, Bonneville Power Administration, Wells Federal Bank, F.S.B., 8441 8496–8513 Transportation Department Part VI See Coast Guard The President, 8517–8519 See Federal Aviation Administration See National Highway Traffic Safety Administration Treasury Department Reader Aids See Foreign Assets Control Office Additional information, including a list of public laws, See Internal Revenue Service telephone numbers, and finding aids, appears in the Reader See Thrift Supervision Office Aids section at the end of this issue. Separate Parts In This Issue Electronic Bulletin Board Part II Free Electronic Bulletin Board service for Public Law Department of Agriculture, Agricultural Marketing Service, numbers, Federal Register finding aids, and a list of Grain Inspection, Packers and Stockyards documents on public inspection is available on 202–275– Administration, 8446–8467 1538 or 275–0920. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Contents VII CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 3 CFR Proclamations: 6768...... 8517 6769...... 8519 7 CFR 0...... 8446 1...... 8446 47...... 8446 50...... 8446 51...... 8446 52...... 8446 53...... 8446 54...... 8446 97...... 8446 9 CFR Ch. II ...... 8446 202...... 8446 14 CFR 39 (9 documents) ...... 8283, 8284, 8286, 8288, 8290, 8292, 8294, 8295, 8297 Proposed Rules: 121...... 8490 16 CFR Proposed Rules: 307...... 8312 310...... 8313 26 CFR 300...... 8298 31 CFR 550...... 8300 32 CFR 552...... 8305 553...... 8305 39 CFR 233...... 8305 40 CFR 52...... 8306 Proposed Rules: 63...... 8333 70...... 8335 80...... 8341 46 CFR 15...... 8308 47 CFR 2...... 8309 Proposed Rules: 90...... 8341 50 CFR 611 (2 documents) ...... 8470, 8479 672 (2 documents) ...... 8470, 8478 675...... 8479 676 (2 documents) ...... 8470, 8479 Proposed Rules: 17...... 8342 8283 Rules and Regulations Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 This section of the FEDERAL REGISTER loss of power to the rotor drive system, Since the issuance of that AD, the contains regulatory documents having general and a subsequent forced landing. manufacturer has issued a revised applicability and legal effect, most of which DATES: Effective March 1, 1995. service bulletin, Schweizer Service are keyed to and codified in the Code of The incorporation by reference of Bulletin (SB) B–256.2, dated June 11, Federal Regulations, which is published under 1993, that describes procedures for an 50 titles pursuant to 44 U.S.C. 1510. certain publications listed in the regulations was approved previously by initial and repetitive inspection for The Code of Federal Regulations is sold by the Director of the Federal Register as of component wear of the assembly in the Superintendent of Documents. Prices of September 1, 1994 (59 FR 38354, July greater detail than the previously-issued new books are listed in the first FEDERAL 28, 1994). service bulletin, and describes REGISTER issue of each week. Comments for inclusion in the Rules procedures for further inspections if Docket must be received on or before disassembly is necessary. It also April 17, 1995. describes procedures for replacement of DEPARTMENT OF TRANSPORTATION the aluminum spring retainer, P/N ADDRESSES: Submit comments in 269A5452, P/N 269A5452–3, P/N triplicate to the Federal Aviation Federal Aviation Administration 269A5452–5, or P/N 269A5483–7, and Administration (FAA), Office of the the plastic sleeve, P/N 269A5590–101, 14 CFR Part 39 Assistant Chief Counsel, Attention: which was not described in SB B–256.1, Rules Docket No. 94–SW–15–AD, 2601 dated January 20, 1993, the SB cited in Meacham Blvd., Room 663, Fort Worth, [Docket No. 94±SW±15±AD; Amendment AD 93–03–01. 39±9148; AD 95±03±12] Texas 76137. Since an unsafe condition has been The service information referenced in identified that is likely to exist or Airworthiness Directives; Schweizer this AD may be obtained from develop on other Schweizer Aircraft Aircraft Corporation and Hughes Schweizer Aircraft Corporation, P.O. Corporation and Hughes Helicopters, Helicopters, Inc. Model 269A, 269A±1, Box 147, Elmira, New York 14902. This Inc. Model 269A, 269A–1, 269B, 269C, 269B, 269C, and TH±55A Series information may be examined at the and TH–55A helicopters of the same Helicopters FAA, Office of the Assistant Chief type design, this AD supersedes AD 93– Counsel, 2601 Meacham Blvd., Room AGENCY: Federal Aviation 03–01 to require an initial and repetitive 663, Fort Worth, Texas; or at the Office Administration, DOT. visual inspection of the assembly for of the Federal Register, 800 North component wear; and, if any worn or ACTION: Final rule; request for Capitol Street NW., suite 700, unairworthy parts are found, comments. Washington, DC. disassembly, further inspections, and SUMMARY: This amendment supersedes FOR FURTHER INFORMATION CONTACT: Mr. replacement of any unairworthy parts. an existing airworthiness directive (AD), Raymond Reinhardt, Aerospace The actions are required to be applicable to Schweizer Aircraft Engineer, New York Aircraft accomplished in accordance with SB B– Corporation and Hughes Helicopters, Certification Office, FAA, New England 256.2, dated June 11, 1993, described Inc. Model 269A, 269A–1, 269B, 269C, Region, 10 Fifth Street, Valley Stream, previously. The assembly puts tension and TH–55A series helicopters, that New York 11581, telephone (516) 256– on the belt drive between the currently requires an initial and 7532; fax (516) 568–2716. transmission and the main rotor. If the repetitive visual inspection of the clutch SUPPLEMENTARY INFORMATION: On March assembly fails and there is no tension on control spring assembly for component 4, 1993, the FAA issued Priority Letter the belt, the transmission will not turn wear and replacement of affected AD 93–03–01, to require an initial and the main rotor. Due to the criticalness of unairworthy parts. This amendment repetitive visual inspection of the clutch the clutch control assembly, and a short requires the same initial and repetitive control spring assembly (assembly) for compliance time, this rule must be visual inspection and replacements component wear and security, and issued immediately to correct an unsafe required by the existing Priority Letter replacement of affected unairworthy condition in aircraft. AD, but references a revised service parts. That action was prompted by an Since a situation exists that requires bulletin and provides replacement accident involving a Schweizer Aircraft the immediate adoption of this procedures for the aluminum spring Corporation Model 269C helicopter. regulation, it is found that notice and retainer thermofit tube (plastic sleeve). Reportedly, the helicopter lost engine opportunity for prior public comment This amendment is prompted by a drive power and was unsuccessful in hereon are impracticable, and that good recent accident involving a Model 269C performing a forced landing from 100 cause exists for making this amendment helicopter that reportedly lost engine feet above ground level (AGL). A effective in less than 30 days. drive power at 100 feet above ground subsequent investigation revealed that level (AGL) with a resulting the assembly had failed, and that the Comments Invited unsuccessful autorotative landing, and aluminum spring retainer, part number Although this action is in the form of the manufacturer’s issuance of revised (P/N) 269A5483–7, of the failed a final rule that involves requirements service information that provides more assembly had excessive wear. That affecting flight safety and, thus, was not detailed instructions for replacement of condition, if not corrected, could result preceded by notice and an opportunity two components of the belt drive clutch in failure of the aluminum spring for public comment, comments are control assembly. The actions specified retainer, loss of power to the rotor drive invited on this rule. Interested persons by this AD are intended to prevent system, and a subsequent forced are invited to comment on this rule by failure of the aluminum spring retainer, landing. submitting such written data, views, or 8284 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations arguments as they may desire. List of Subjects in 14 CFR Part 39 compliance with this AD, if any, may be Communications should identify the obtained from the New York Aircraft Air transportation, Aircraft, Aviation Certification Office. Rules Docket number and be submitted safety, Incorporation by reference, (d) Special flight permits may be issued in in triplicate to the address specified Safety. under the caption ADDRESSES. All accordance with sections 21.197 and 21.199 communications received on or before Adoption of the Amendment of the Federal Aviation Regulations (14 CFR the closing date for comments will be 21.197 and 21.199) to operate the helicopter Accordingly, pursuant to the to a location where the inspection considered, and this rule may be authority delegated to me by the requirements of this AD can be amended in light of the comments Administrator, the Federal Aviation accomplished. received. Factual information that Administration amends part 39 of the (e) The inspections and replacement, if supports the commenter’s ideas and Federal Aviation Regulations (14 CFR necessary, shall be done in accordance with suggestions is extremely helpful in part 39) as follows: SB B–256.2, dated June 11, 1993. This evaluating the effectiveness of the AD incorporation by reference was approved action and determining whether PART 39ÐAIRWORTHINESS previously by the Director of the Federal additional rulemaking action would be DIRECTIVES Register in accordance with 5 U.S.C. 552(a) needed. and 1 CFR part 51 as of September 1, 1994 Comments are specifically invited on 1. The authority citation for part 39 (59 FR 38354, July 28, 1994). Copies may be the overall regulatory, economic, continues to read as follows: obtained from Schweizer Aircraft Corporation, P.O. Box 147, Elmira, New York environmental, and energy aspects of Authority: 49 U.S.C. App. 1354(a), 1421 14902. Copies may be inspected at the FAA, the rule that might suggest a need to and 1423; 49 U.S.C. 106(g); and 14 CFR Office of the Assistant Chief Counsel, 2601 modify the rule. All comments 11.89. Meacham Blvd., Room 663, Fort Worth, submitted will be available, both before § 39.13 [Amended] Texas; or at the Office of the Federal Register, and after the closing date for comments, 800 North Capitol Street, NW., suite 700, 2. Section 39.13 is amended by in the Rules Docket for examination by Washington, DC. adding a new airworthiness directive interested persons. A report that (f) This amendment becomes effective on (AD), Amendment 39–9148, to read as summarizes each FAA-public contact March 1, 1995. follows: concerned with the substance of this AD Issued in Fort Worth, Texas, on February will be filed in the Rules Docket. 95–03–12 Schweizer Aircraft Corporation 6, 1995. Commenters wishing the FAA to and Hughes Helicopters, Inc.: Eric Bries, acknowledge receipt of their comments Amendment 39–9148. Docket No. 94– Acting Manager, Rotorcraft Directorate, submitted in response to this rule must SW–15–AD. Supersedes Priority Letter Aircraft Certification Service. AD 93–03–01, issued on March 4, 1993. submit a self-addressed, stamped [FR Doc. 95–3513 Filed 2–13–95; 8:45 am] Applicability: Model 269A, 269A–1, 269B, postcard on which the following BILLING CODE 4910±13±P statement is made: ‘‘Comments to 269C, and TH–55A series helicopters, with aluminum spring retainer, part number (P/N) Docket No. 94–SW–15–AD.’’ The 269A5452, P/N 269A5452–3, P/N 269A5452– postcard will be date stamped and 5, or P/N 269A5483–7, installed, certificated 14 CFR Part 39 returned to the commenter. in any category. [Docket No. 94±SW±21±AD; Amendment The regulations adopted herein will Compliance: Required as indicated, unless 39±9147; AD 95±03±11] not have substantial direct effects on the accomplished previously. States, on the relationship between the To prevent failure of the aluminum spring Airworthiness Directives; McDonnell national government and the States, or retainer, loss of power to the rotor drive Douglas Helicopter Systems and system, and a subsequent forced landing, on the distribution of power and Hughes Helicopters, Inc. Model 369, responsibilities among the various accomplish the following: (a) Within the next 5 hours time-in-service OH±6A, and YOH±6A Series levels of government. Therefore, in after the effective date of this AD, and Helicopters accordance with Executive Order 12612, thereafter at intervals not to exceed 100 hours it is determined that this final rule does time-in-service from the last inspection, AGENCY: Federal Aviation not have sufficient federalism visually inspect the clutch control spring Administration, DOT. implications to warrant the preparation assembly for component wear in accordance ACTION: Final rule; request for of a Federalism Assessment. with the provisions of Part I, paragraph a(2) comments. The FAA has determined that this of Schweizer Service Bulletin (SB) B–256.2, regulation is an emergency regulation dated June 11, 1993. SUMMARY: This amendment adopts a that must be issued immediately to (b) If worn parts are found during the new airworthiness directive (AD) that is correct an unsafe condition in aircraft, inspections accomplished in accordance with applicable to McDonnell Douglas paragraph (a) of this AD, before the next and that it is not a ‘‘significant flight, disassemble and inspect the clutch Helicopter Systems and Hughes regulatory action’’ under Executive control spring assembly and replace parts Helicopters, Inc. Model 369, OH–6A, Order 12866. It has been determined found to be unairworthy with airworthy parts and YOH–6A series helicopters. This further that this action involves an in accordance with Part I, paragraph b. of SB action requires initial and repetitive emergency regulation under DOT B–256.2, dated June 11, 1993. inspections of the tail rotor blade Regulatory Policies and Procedures (44 (c) An alternative method of compliance or abrasion strip (abrasion strip), FR 11034, February 26, 1979). If it is adjustment of the compliance time that installation of stainless steel abrasion determined that this emergency provides an acceptable level of safety may be tape over the inboard end of the regulation otherwise would be used when approved by the Manager, New abrasion strip, and as a terminating York Aircraft Certification Office, FAA. significant under DOT Regulatory Operators shall submit their requests through action, installation of a tail rotor blade Policies and Procedures, a final an FAA Principal Maintenance Inspector, with a new-design abrasion strip. This regulatory evaluation will be prepared who may concur or comment and then send amendment is prompted by several and placed in the Rules Docket. A copy it to the Manager, New York Aircraft incidents of riveted abrasion strips of it, if filed, may be obtained from the Certification Office. debonding and separating during flight, Rules Docket at the location provided Note: Information concerning the existence resulting in severe out-of-balance under the caption ADDRESSES. of approved alternative methods of conditions and subsequent separation of Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8285 the tail rotor gearbox from the gearbox from the helicopter. Based on Since a situation exists that requires helicopter. The actions specified in this these incidents, the FAA has the immediate adoption of this AD are intended to prevent loss of the determined that riveting the abrasion regulation, it is found that notice and abrasion strip, separation of a tail rotor strips alone does not create a fail-safe opportunity for prior public comment blade, separation of the tail rotor design. An analysis has shown that the hereon are impracticable, and that good gearbox, and subsequent loss of control debonding starts at the inboard end of cause exists for making this amendment of the helicopter. the abrasion strip. This condition, if not effective in less than 30 days. corrected, could result in loss of the DATES: Effective March 1, 1995. Comments Invited The incorporation by reference of abrasion strip, separation of a tail rotor certain publications listed in the blade, separation of the tail rotor Although this action is in the form of regulations is approved by the Director gearbox, and subsequent loss of control a final rule that involves requirements of the Federal Register as of March 1, of the helicopter. Therefore, installation affecting flight safety and, thus, was not 1995. of stainless steel abrasion tape over the preceded by notice and an opportunity Comments for inclusion in the Rules inboard end of the abrasion strips for public comment, comments are Docket must be received on or before within 25 hours time-in-service (TIS) or invited on this rule. Interested persons April 17, 1995. 90 calendar days, whichever occurs are invited to comment on this rule by ADDRESSES: Submit comments in first, and thereafter, at intervals not to submitting such written data, views, or triplicate to the Federal Aviation exceed 100 hours TIS, is necessary to arguments as they may desire. Administration (FAA), Office of the prevent debonding of the abrasion strip Communications should identify the Assistant Chief Counsel, Attention: from the tail rotor and to ensure the Rules Docket number and be submitted Rules Docket No. 94–SW–21–AD, 2601 integrity of the helicopter. However, in triplicate to the address specified ADDRESSES. Meacham Blvd., Room 663, Fort Worth, owners and operators must install under the caption All Texas 76137. abrasion strip rivets as required by AD communications received on or before The service information referenced in 94–18–08 prior to installing the the closing date for comments will be this AD may be obtained from stainless steel abrasion tape. considered, and this rule may be McDonnell Douglas Helicopter Systems, Additionally, within 1,000 hours TIS, amended in light of the comments Technical Publications, Bldg. 530/B111, installation of a tail rotor blade with a received. Factual information that 5000 E. McDowell Road, Mesa, Arizona new-design abrasion strip is required. supports the commenter’s ideas and 85205–9797. This information may be The FAA has reviewed McDonnell suggestions is extremely helpful in examined at the FAA, Office of the Douglas Helicopter Systems Service evaluating the effectiveness of the AD Assistant Chief Counsel, 2601 Meacham Information Notice HN–238, DN–187, action and determining whether Blvd., Room 663, Fort Worth, Texas; or EN–80, FN–66, dated October 26, 1994, additional rulemaking action would be at the Office of the Federal Register, 800 which describes procedures for needed. Comments are specifically invited on North Capitol Street, NW., suite 700, inspection of the abrasion strips for the overall regulatory, economic, Washington, DC. separation or voids and replacement if separation or voids are evident; environmental, and energy aspects of FOR FURTHER INFORMATION CONTACT: Mr. installation of 304 stainless steel the rule that might suggest a need to Brent Bandley, Aerospace Engineer, Los abrasion tape (.0027-inch thick) over the modify the rule. All comments Angeles Aircraft Certification Office, inboard end of the abrasion strips; and submitted will be available, both before FAA, Transport Airplane Directorate, replacement of existing tail rotor blades and after the closing date for comments, 3960 Paramount Blvd., Lakewood, with tail rotor blades equipped with in the Rules Docket for examination by California 90712, telephone (310) 627– new-design abrasion strips. interested persons. A report that 5237, fax (310) 627–5210. Since an unsafe condition has been summarizes each FAA-public contact SUPPLEMENTARY INFORMATION: On August identified that is likely to exist or concerned with the substance of this AD 30, 1994, the FAA issued AD 94–18–08, develop on other McDonnell Douglas will be filed in the Rules Docket. Amendment 39–9021 (59 FR 46163, Helicopter Systems and Hughes Commenters wishing the FAA to September 7, 1994) to require Helicopters, Inc. Model 369, OH–6A, acknowledge receipt of their comments installation of abrasion strip rivets and YOH–6A series helicopters of the submitted in response to this rule must (rivets) within 25 hours time-in-service same type design, this AD is being submit a self-addressed, stamped or 7 calendar days, whichever occurs issued to prevent loss of the abrasion postcard on which the following first, on certain tail rotor blades. Also strip, separation of a tail rotor blade, statement is made: ‘‘Comments to required are owner/operator checks of separation of the tail rotor gearbox, and Docket No. 94–SW–21–AD.’’ The the abrasion strips for evidence of subsequent loss of control of the postcard will be date stamped and debonding along the abrasion strip bond helicopter. This AD requires initial and returned to the commenter. line before the first flight of each day; repetitive inspections of the abrasion The regulations adopted herein will a dye-penetrant and tap-test inspection strip, installation of stainless steel not have substantial direct effects on the to ensure the abrasion strip is secure if abrasion tape over the inboard end of States, on the relationship between the the owner/operator checks reveal the abrasion strip, and as a terminating national government and the States, or evidence of debonding; and, if action, installation of a tail rotor blade on the distribution of power and debonding is confirmed, replacement of with a new-design abrasion strip. Due to responsibilities among the various the tail rotor blade with an airworthy the criticality of the abrasion strip and levels of government. Therefore, in blade that has been modified with the maintaining a balanced tail rotor accordance with Executive Order 12612, installation of rivets. Since the issuance system, and the short compliance time it is determined that this final rule does of that AD, there have been several for installation of the stainless steel not have sufficient federalism incidents of riveted tail rotor blade abrasion tape, this rule must be issued implications to warrant the preparation abrasion strips debonding and immediately to correct an unsafe of a Federalism Assessment. separating during flight, resulting in condition. The actions are required to be The FAA has determined that this severe out-of-balance conditions, and accomplished in accordance with the regulation is an emergency regulation subsequent separation of the tail rotor service bulletin described previously. that must be issued immediately to 8286 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations correct an unsafe condition in aircraft, inspections, remove any abrasion tape from Federal Aviation Regulations (14 CFR 21.197 and that it is not a ‘‘significant the tail rotor blade. and 21.199) to operate the helicopter to a regulatory action’’ under Executive (1) If the inspection reveals debonding, location where the requirements of this AD Order 12866. It has been determined replace the tail rotor blade with an airworthy can be accomplished, provided there is no blade that has been modified by an evidence of debonding of the abrasion strip further that this action involves an installation of rivets, and install 304 stainless at any point along the entire abrasion strip emergency regulation under DOT steel abrasion tape (.0027-inch thick) over the bond line of the tail rotor blades. Regulatory Policies and Procedures (44 inboard end of the abrasion strip in (f) The modification and replacement shall FR 11034, February 26, 1979). If it is accordance with steps B through H of Part I be done in accordance with McDonnell determined that this emergency of the Accomplishment Instructions of Douglas Helicopter Systems Service regulation otherwise would be McDonnell Douglas Helicopter Systems Information Notice HN–238, DN–187, EN–80, significant under DOT Regulatory Service Information Notice (SIN) HN–238, FN–66, dated October 26, 1994. This DN–187, EN–80, FN–66, dated October 26, incorporation by reference was approved by Policies and Procedures, a final 1994. regulatory evaluation will be prepared the Director of the Federal Register in (2) If the inspection reveals no debonding, accordance with 5 U.S.C. 552(a) and 1 CFR and placed in the Rules Docket. A copy install 304 stainless steel abrasion tape part 51. Copies may be obtained from of it, if filed, may be obtained from the (.0027-inch thick) over the inboard end of the McDonnell Douglas Helicopter Systems, Rules Docket at the location provided abrasion strip in accordance with steps B Technical Publications, Bldg. 530/B111, 5000 under the caption ADDRESSES. through H of Part I of the Accomplishment E. McDowell Road, Mesa, Arizona 85205– Instructions of McDonnell Douglas 9797. Copies may be inspected at the FAA, Helicopter Systems SIN HN–238, DN–187, List of Subjects in 14 CFR Part 39 Office of the Assistant Chief Counsel, 2601 EN–80, FN–66, dated October 26, 1994. Meacham Blvd., Room 663, Fort Worth, Air transportation, Aircraft, Aviation (b) Within 1,000 hours TIS after the Texas; or at the Office of the Federal Register, safety, Incorporation by reference, effective date of this AD, replace the affected 800 North Capitol Street NW., suite 700, Safety. tail rotor blades in shipsets with tail rotor blades that contain the new-design abrasion Washington, DC. Adoption of the Amendment strips in accordance with Part II of the (g) This amendment becomes effective on March 1, 1995. Accordingly, pursuant to the Accomplishment Instructions of SIN HN– 238, DN–187, EN–80, FN–66, dated October Issued in Fort Worth, Texas, on February authority delegated to me by the 26, 1994. Once the new-design abrasion 6, 1995. Administrator, the Federal Aviation strips are installed on the tail rotor blades, Eric Bries, Administration amends part 39 of the the tail rotor assembly P/N changes as Acting Manager, Rotorcraft Directorate, Federal Aviation Regulations (14 CFR follows: Aircraft Certification Service. part 39) as follows: Old tail rotor assembly New tail rotor as- [FR Doc. 95–3512 Filed 2–13–95; 8:45 am] PART 39ÐAIRWORTHINESS No. sembly No. BILLING CODE 4910±13±P DIRECTIVES 369A1613±7 ...... 369A1613±11. 1. The authority citation for part 39 369A1613±503 ...... 369A1613±507. 14 CFR Part 39 continues to read as follows: 369A1613±505 ...... 369A1613±507. 369A1613±509 ...... 369A1613±507. [Docket No. 94±CE±08±AD; Amendment 39± Authority: 49 U.S.C. App. 1354(a), 1421 369D21606 ...... 369D21606±511. 9139; AD 95±03±02] and 1423; 49 U.S.C. 106(g); and 14 CFR 369D21606±509 ...... 369D21606±511. 11.89. 369D21613±11 ...... 369D21613±11N. Airworthiness Directives; Brackett 369D21613±31 ...... 369D21613±31N. Aircraft Company, Inc. Air Filter § 39.13 [Amended] 369D21613±41 ...... 369D21613±61. Assemblies Installed on Airplanes 2. Section 39.13 is amended by 369D21613±51 ...... 369D21613±61. adding a new airworthiness directive to 369D21613±71 ...... 369D21613±61. AGENCY: Federal Aviation read as follows: 369D21615 ...... 369D21615±N. Administration, DOT. 369D21615±21 ...... 369D21615±31. ACTION: Final rule. 95–03–11 McDonnell Douglas Helicopter 369D21615±41 ...... 369D21615±31. Systems and Hughes Helicopters, Inc.: 421±088 ...... 421±088±11. SUMMARY: This amendment adopts a Amendment 39–9147. Docket No. 94– new airworthiness directive (AD) that SW–21–AD. (c) Installation of tail rotor blades with Applicability: Model 369, OH–6A, and new-design abrasion strips installed in applies to airplanes with certain YOH–6A series helicopters, with tail rotor accordance with Part II of the Brackett Aircraft Company, Inc. blade assemblies, part number (P/N) Accomplishment Instructions of SIN HN– (Brackett) air filter assemblies that have 369A1613–7, 369A1613–503, 369A1613–505, 238, DN–187, EN–80, FN–66, dated October a neoprene gasket design installed 369A1613–509, 369D21606, 369D21606–509, 26, 1994, constitutes a terminating action for between the carburetor heat box and the 369D21613–11, 369D21613–31, 369D21613– the requirements of this AD. air filter frame. This action requires 41, 369D21613–51, 369D21613–71, (d) An alternative method of compliance or repetitively inspecting (visually) the air 369D21615, 369D21615–21, 369D21615–41, adjustment of the compliance time that provides an acceptable level of safety may be filter frame for a loose or deteriorating or 421–088, installed, certificated in any gasket, and replacing any gasket found category. used when approved by the Manager, Los Compliance: Required as indicated, unless Angeles Aircraft Certification Office, FAA. loose or deteriorated. An accident report accomplished previously. Operators shall submit their requests through concerning a Cessna Model 172 airplane To prevent loss of the abrasion strip, an FAA Principal Maintenance Inspector, that experienced engine loss because a separation of a tail rotor blade, separation of who may concur or comment and then send six-inch piece of neoprene gasket the tail rotor gearbox, and subsequent loss of it to the Manager, Los Angeles Aircraft material was lodged in the carburetor Certification Office. control of the helicopter, accomplish the prompted this action. The actions following: Note: Information concerning the existence specified by this AD are intended to (a) Within 25 hours time-in-service (TIS) or of approved alternative methods of compliance with this AD, if any, may be prevent gasket particles from entering 90 calendar days, whichever occurs first, and the carburetor because of air filter gasket thereafter, at intervals not to exceed 100 obtained from the Los Angeles Aircraft hours TIS, inspect the tail rotor blade Certification Office. failure, which could result in partial or abrasion strip for debonding from the tail (e) Special flight permits may be issued in complete loss of engine power. rotor blade. Prior to conducting the repetitive accordance with §§ 21.197 and 21.199 of the DATES: Effective March 17, 1995. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8287 The incorporation by reference of The FAA does not concur that this issuance of this document and based on certain publications listed in the proposal would be an economic burden the accident information that prompted regulations is approved by the Director upon the public. Under the criteria of the proposal, the FAA has determined of the Federal Register as of March 17, the Regulatory Flexibility Act of 1980 that AD action should be taken to 1995. (RFA), this AD action would not ensure proper inspections of Brackett air ADDRESSES: Service information that unnecessarily or disproportionally filter assemblies installed on aircraft. applies to this AD may be obtained from burden any small entities. FAA Order The proposal is unchanged as a result of the Brackett Aircraft Company, Inc., 2100.14A sets the size threshold for these comments. small entities operating aircraft for hire 7045 Flightline Drive, Kingman, After careful review of all available Arizona 86401. This information may at nine aircraft owned and the annualized cost threshold at $69,000 for information, including the comments also be examined at the Federal referenced above, the FAA has Aviation Administration (FAA), Central scheduled operators and $5,000 for unscheduled operators. In order for determined that air safety and the Region, Office of the Assistant Chief public interest require the adoption of Counsel, Room 1558, 601 E. 12th Street, these cost thresholds to be met (based on the inspection taking 1 workhour at the rule as proposed except for minor Kansas City, Missouri 64106; or at the editorial corrections. The FAA has Office of the Federal Register, 800 North $60 per hour), an owner in scheduled service would have to own 1,150 determined that these minor corrections Capitol Street, NW., suite 700, airplanes and an owner in unscheduled will not change the meaning of the AD Washington, DC. service would have to own 83 airplanes. nor add any additional burden upon the FOR FURTHER INFORMATION CONTACT: With this information in mind and public than was already proposed. Elizabeth Bumann, Aerospace Engineer, based on the above-referenced criteria The FAA estimates that 50,000 Los Angeles Aircraft Certification from FAA Order 2100.14A, no small airplanes in the U.S. registry will be Office, FAA, 3960 Paramount entities would meet the annualized cost affected by this AD, that it will take Boulevard, Lakewood, California 90712; threshold. The FAA has determined that approximately 1 workhour per airplane telephone (310) 627–5265; facsimile the safety aspect of the proposal to accomplish the initial inspection, and (310) 627–5210. outweighs the economic cost upon the that the average labor rate is SUPPLEMENTARY INFORMATION: A public. The FAA does concur that the approximately $60 an hour. Based on proposal to amend part 39 of the Federal cost figure does not reflect the cost of these figures, the total cost impact of the Aviation Regulations (14 CFR part 39) to repetitive inspections. As specified in AD on U.S. operators is estimated to be include an AD that would apply to the proposal, the FAA has no available $3,000,000 or $60 per owner/operator. means of determining the number of airplanes that have a Brackett air filter This figure represents the cost of the repetitive inspections each owner/ neoprene gasket installed in accordance initial inspection, and does not reflect operator would incur. The proposal is with Supplemental Type Certificate costs for repetitive inspections or unchanged as a result of this comment. (STC) SA71GL was published in the possible replacements. The FAA has no Federal Register on August 25, 1994 (59 In addition, Brackett and the other commenter suggest that the proposal is way of determining how many gaskets FR 43784). The action proposed to may need replacement or how many require repetitively inspecting (visually) unnecessary because part 43, appendix D, of the Federal Aviation Regulations repetitive inspections each owner/ the air filter frame for a loose or operator may incur. deteriorated gasket, and replacing any (14 CFR part 43, appendix D) already gasket found loose or deteriorated. addresses the proposed inspection. The regulations adopted herein will Interested persons have been afforded Brackett states that 14 CFR part 43, not have substantial direct effects on the an opportunity to participate in the appendix D, specifies inspecting the States, on the relationship between the engine accessories and systems for making of this amendment. Due national government and the States, or improper installation, poor general consideration has been given to the four on the distribution of power and condition, defects, and insecure comments received from two separate responsibilities among the various attachments during each 100-hour or commenters. levels of government. Therefore, in annual inspection. The other accordance with Executive Order 12612, The first commenter, the Brackett commenter states that this proposal Aircraft Co., Inc. (Brackett), states that it is determined that this final rule does specifies a maintenance action as not have sufficient federalism no full model designation was given of required by 14 CFR part 43, appendix D. the Cessna 172 airplane referenced in implications to warrant the preparation The FAA acknowledges that 14 CFR of a Federalism Assessment. the incident specified by the NPRM. part 43, appendix D, does address the Some Cessna 172’s use the Model BA– area of the proposed inspection, but For the reasons discussed above, I 5110A filter (which uses airlocks in the does not specify procedures required to certify that this action (1) Is not a air filter frame assembly) and others use properly inspect Brackett air filter ‘‘significant regulatory action’’ under the Model BA–5110 filter (which uses neoprene gaskets installed in Executive Order 12866; (2) is not a screws and nuts in the air filter frame accordance with STC SA71GL. Prior to ‘‘significant rule’’ under DOT assembly). This commenter feels that March 16, 1994, procedures for Regulatory Policies and Procedures (44 some reference to this difference should repetitively inspecting the air filter FR 11034, February 26, 1979); and (3) be made in the proposal. frame were not available to owners/ will not have a significant economic The FAA concurs. Paragraphs (a)(1) operators of airplanes with the affected impact, positive or negative, on a and (a)(3) of the proposal have been air filter assemblies installed. On that substantial number of small entities changed to specify removing or date, Brackett Aircraft Company, Inc., under the criteria of the Regulatory installing airlocks or screws, nuts, and issued Brackett Air Filter Document I– Flexibility Act. A copy of the final washers, as applicable. 194, which specifies inspection evaluation prepared for this action is Brackett also states that the proposal procedures for these air filter contained in the Rules Docket. A copy is an economic burden to the public and assemblies. Since there is no way of of it may be obtained by contacting the the proposal does not take into account knowing what type of inspection Rules Docket at the location provided the cost of the repetitive inspections. procedures were utilized prior to the under the caption ADDRESSES. 8288 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations List of Subjects in 14 CFR Part 39 PART 39ÐAIRWORTHINESS § 39.13 [Amended] 2. Section 39.13 is amended by Air transportation, Aircraft, Aviation DIRECTIVES adding a new AD to read as follows: safety, Incorporation by reference, 1. The authority citation for part 39 Safety. 95–03–02 Brackett Aircraft Company, Inc.: continues to read as follows: Amendment 39–9139; Docket No. 94– Adoption of the Amendment Authority: 49 U.S.C. App. 1354(a), 1421 CE–08–AD. Accordingly, pursuant to the and 1423; 49 U.S.C. 106(g); and 14 CFR Applicability: The following air filter 11.89. assemblies that utilize a neoprene gasket authority delegated to me by the incorporated in accordance with Administrator, the Federal Aviation Supplemental Type Certificate (STC) Administration amends part 39 of the SA71GL and installed on, but not limited to, Federal Aviation Regulations (14 CFR the following corresponding airplanes, part 39) as follows: certificated in any category: Air filter assembly Airplanes installed on BA±2010 ...... Beech Model 77 Airplanes. BA±4106 ...... Cessna Models 120, 140, 140A, 150, 150A, 150B, 150C, 150D, 150E, 150F, 150G, 150H, 150J, 150K, 150L, 150M, A150M, 152, and A152; Champion Models 7ACA, 7ECA, and 7FC; Christian Indus- tries Model Husky A±1; Luscombe Models 8, 8A, 8B, 8C, 8D, 8E, 8F, and T±8F; and Piper Models PA±22, PA±22±135, PA±22±150, PA±22±160, PA±22±180, PA±20±115, PA±20±135, PA±38, J±3, J3C±65, J3C±65's, PA±11, PA±11's, J4A, J4AS, J4E, J5A, J5A±80, PA±12, PA±12's, PA±16, PA±17, PA±18, PA±18A, PA±18's, PA± 18±``125'', PA±18AS±``125'', PA±18's±``125'', PA±18±``135'', PA± 18A±``135'', PA±18AS±``135'', and 8S±135 Airplanes. BA±4210 ...... Grumman American Aviation Corporation Models AA±1, AA±1A, AA± 1B, AA±1C, and AA±5 Airplanes. BA±5110 ...... Cessna 170, 170A, 170B, 172, 172A, 172B, 172C, 172D, 172E, 172F, 172G, 172H, 172I, 172K, 172L, and 172M; and Mooney Mite Aircraft Corporation Model M±18C Airplanes. BA±5110A ...... Cessna Models 172N and 172P Airplanes. BA±6110 ...... Mooney Models M20, M20A, M20B, M20C, M20D, and M20G; and Maule Models M4, M4C, M4S, M4T, M±4±220, M±4±220C, M±4± 220S, M±4±220T, M±4±180C, M±4±180S, M±4±180T, M±5±220C, M±5±235C, M±5±180C, M±5±210TC, M±6±180, M±6±235, and M± 7±235 Airplanes. BA±8910 ...... Aero Commander Models 100 and 100A Airplanes. Compliance: Required within the next 100 each nut to where the neoprene gasket is Central Region, Office of the Assistant Chief hours time-in-service (TIS) after the effective compressed to one-half its original thickness. Counsel, Room 1558, 601 E. 12th Street, date of this AD, unless already accomplished, (b) Special flight permits may be issued in Kansas City, Missouri, or at the Office of the and thereafter at intervals not to exceed 100 accordance with sections 21.197 and 21.199 Federal Register, 800 North Capitol Street, hours TIS. of the Federal Aviation Regulations (14 CFR NW., suite 700, Washington, DC. To prevent gasket particles from entering 21.197 and 21.199) to operate the airplane to (e) This amendment (39–9139) becomes the carburetor because of air filter gasket a location where the requirements of this AD effective on March 17, 1995. failure, which could result in partial or can be accomplished. Issued in Kansas City, Missouri, on January complete loss of engine power, accomplish (c) An alternative method of compliance or 31, 1995. adjustment of the compliance time that the following: Barry D. Clements, (a) Visually inspect the inside and outside provides an equivalent level of safety may be Manager, Small Airplane Directorate, Aircraft of the air filter frame for gasket looseness, approved by the Manager, Los Angeles Certification Service. movement, or deterioration in accordance Aircraft Certification Office (ACO), FAA, with Brackett Air Filter Document I–194, 3960 Paramount Boulevard, Lakewood, [FR Doc. 95–2786 Filed 2–13–95; 8:45 am] dated March 16, 1994. If any gasket California 90712. The request shall be BILLING CODE 4910±13±U looseness, movement, or deterioration is forwarded through an appropriate FAA found, prior to further flight, accomplish the Maintenance Inspector, who may add following: comments and then send it to the Manager, 14 CFR Part 39 (1) Remove the air filter frame by removing Los Angeles ACO. the screws, nuts, and washers on the air filter Note: Information concerning the existence [Docket No. 94±SW±05±AD; Amendment frame (3 to 4 each) or the airlocks, as of approved alternative methods of 39±9149; AD 95±03±13] applicable. Note that the screws securing the compliance with this AD, if any, may be grill to the frame need not be removed. obtained from the Los Angeles ACO. Airworthiness Directives; McDonnell (2) Remove and replace the neoprene (d) The inspections required by this AD Douglas Helicopter Systems and gasket in accordance with Brackett Air Filter shall be done in accordance with Brackett Air Hughes Helicopters, Inc. Model 369 Document 1–194. Inspect the carburetor in Filter Document I–194, dated March 16, and OH±6A Series Helicopters accordance with the applicable maintenance 1994. This incorporation by reference was manual for gasket material ingestion. Remove approved by the Director of the Federal AGENCY: Federal Aviation any material ingested. Register in accordance with 5 U.S.C. 552(a) Administration, DOT. (3) Reinstall the filter frame to the and 1 CFR part 51. Copies may be obtained ACTION: Final rule. carburetor heat box with the screws, nuts, from the Brackett Aircraft Company, Inc., and washers (3 to 4 each) or the airlocks, as 7045 Flightline Drive, Kingman, Arizona SUMMARY: This amendment supersedes applicable, that were earlier removed. Torque 86401. Copies may be inspected at the FAA, an existing airworthiness directive (AD), Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8289 applicable to McDonnell Douglas addition, that action proposed to Regulatory Policies and Procedures (44 Helicopter Company and Hughes require, within 25 hours TIS after the FR 11034, February 26, 1979); and (3) Helicopters, Inc. Model 369 and OH–6A effective date of the AD and thereafter will not have a significant economic series helicopters with certain main at intervals not to exceed 100 hours TIS impact, positive or negative, on a rotor (M/R) blade assemblies or certain from the last inspection, that the M/R substantial number of small entities M/R hub lead-lag assemblies installed, blade assembly be removed and that the under the criteria of the Regulatory that currently requires repetitive M/R blade root fittings (root fittings), Flexibility Act. A final evaluation has inspections and checks for cracks. This root fitting lugs, lead-lag lugs, the M/R been prepared for this action and it is amendment requires the same blade skin, and the doublers adjacent to contained in the Rules Docket. A copy inspections as the superseded AD, but the root fittings be inspected for cracks. of it may be obtained from the Rules would eliminate pilot checks, expand That action also proposed that the lug Docket at the location provided under the areas of inspection, and require the bushings be inspected for looseness and the caption ADDRESSES. application of slippage marks on each slippage, and that slippage marks be M/R blade root fitting lug and related applied if not already present. Visual List of Subjects in 14 CFR Part 39 bushings. This amendment is prompted inspections of the root fittings and M/ Air transportation, Aircraft, Aviation by additional reports of cracks in the M/ R lead-lag links for cracks and safety, Incorporation by reference, R blade root fittings, lugs, and adjacent inspection of the bushing slippage Safety. blade skin, and movement of the root marks for movement, without removing Adoption of the Amendment fitting bushings. The actions specified the M/R blade, were also proposed at by this AD are intended to prevent intervals not to exceed 25 hours TIS. Accordingly, pursuant to the failure of a M/R blade assembly or a M/ Interested persons have been afforded authority delegated to me by the R hub lead-lag link assembly, loss of a an opportunity to participate in the Administrator, the Federal Aviation M/R blade, and subsequent loss of making of this amendment. No Administration amends part 39 of the control of the helicopter. comments were received on the Federal Aviation Regulations (14 CFR DATES: Effective March 21, 1995. proposal or the FAA’s determination of part 39) as follows: The incorporation by reference of the cost to the public. The FAA has certain publications listed in the determined that air safety and the PART 39ÐAIRWORTHINESS regulations is approved by the Director public interest require the adoption of DIRECTIVES of the Federal Register as of March 21, the rule as proposed except for editorial 1. The authority citation for part 39 1995. changes and a change in the continues to read as follows: manufacturer’s name from McDonnell ADDRESSES: The service information Authority: 49 U.S.C. App. 1354(a), 1421 referenced in this AD may be obtained Douglas Helicopter Company to McDonnell Douglas Helicopter Systems. and 1423; 49 U.S.C. 106(g); and 14 CFR from McDonnell Douglas Helicopter 11.89. Systems, Technical Publications, Bldg. Additionally, the FAA has revised the 530/B111, 5000 E. McDowell Road, average labor rate from $55 per work § 39.13 [Amended] Mesa, Arizona 85205–9797. This hour to $60 per work hour, which raises 2. Section 39.13 is amended by information may be examined at the the estimated total cost impact of the removing Amendment 39–8003 (56 FR FAA, Office of the Assistant Chief AD to $1,320,000. The FAA has 42230, August 27, 1991), and by adding Counsel, 2601 Meacham Blvd., Room determined that these changes will a new airworthiness directive (AD), 663, Fort Worth, Texas; or at the Office neither increase the economic burden Amendment 39–9149, to read as of the Federal Register, 800 North on any operator nor increase the scope follows: Capitol Street, NW., suite 700, of the AD. 95–03–13 McDonnell Douglas Helicopter The FAA estimates that 1,000 Washington, DC. Systems and Hughes Helicopters, Inc.: helicopters of U.S. registry will be FOR FURTHER INFORMATION CONTACT: Mr. Amendment 39–9149. Docket No. 94– affected by this AD, that it will take SW–05–AD. Supersedes AD 91–17–04, Brent Bandley, Aerospace Engineer, approximately 22 work hours per Amendment 39–8003. FAA, Los Angeles Aircraft Certification helicopter to accomplish the required Applicability: Model 369 and OH–6A Office, Transport Airplane Directorate, actions, and that the average labor rate series helicopters, with any of the following 3960 Paramount Blvd., Lakewood, is $60 per work hour. Based on these parts installed: (1) Main rotor (M/R) blade California 90712, telephone (310) 627– figures, the total cost impact of the AD assembly (blade assembly), part number (P/ 5237, fax (310) 627–5210. on U.S. operators is estimated to be N) 369A1100–BSC, –501, –503, –505, –601, SUPPLEMENTARY INFORMATION: A $1,320,000. or –603; 369D21100–BSC, –503, –505, –507, proposal to amend part 39 of the Federal The regulations adopted herein will –509, –511, –513, or –515; 369D21102–BSC Aviation Regulations (14 CFR part 39) not have substantial direct effects on the or –501; or (2) M/R hub lead-lag link by superseding AD 91–17–04, assembly (lead-lag link assembly), P/N States, on the relationship between the 369A1203–BSC, –3, or –11; 369H1203–BSC, Amendment 39–8003 (56 FR 42230, national government and the States, or –11, –21, or –31, certificated in any category. August 27, 1991), which is applicable to on the distribution of power and Compliance: Required as indicated, unless McDonnell Douglas Helicopter Systems responsibilities among the various accomplished previously. and Hughes Helicopters, Inc. Model 369 levels of government. Therefore, in To prevent failure of a M/R blade assembly and OH–6A series helicopters with accordance with Executive Order 12612, or a M/R hub lead-lag link assembly, loss of certain main rotor (M/R) blade it is determined that this final rule does a M/R blade, and subsequent loss of control assemblies or certain M/R hub lead-lag not have sufficient federalism of the helicopter, accomplish the following: assemblies installed, was published in implications to warrant the preparation (a) Within 25 hours time-in-service (TIS) the Federal Register on July 21, 1994 after the effective date of this AD, and of a Federalism Assessment. thereafter at intervals not to exceed 100 hours (59 FR 37185). That action proposed to For the reasons discussed above, I TIS from the last inspection, remove each require application of a slippage mark certify that this action (1) is not a blade assembly from the helicopter and on each M/R blade root fitting lug and ‘‘significant regulatory action’’ under accomplish the following: related bushings to detect movement Executive Order 12866; (2) is not a (1) Inspect the attachment lugs of the M/ within 25 hours time-in-service (TIS). In ‘‘significant rule’’ under DOT R blade root fittings (root fittings) and the M/ 8290 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations R lead-lag links (links) for cracks and the lug Issued in Fort Worth, Texas, on February Brussels Aircraft Certification Office, bushings (bushings) for looseness. Conduct 7, 1995. FAA, Europe, Africa, and Middle East the inspections in accordance with paragraph Eric Bries, Office, c/o American Embassy, B–1000 (b) of Part I of McDonnell Douglas Helicopter Acting Manager, Rotorcraft Directorate, Brussels, Belgium; telephone (322) Company Service Information Notice HN– Aircraft Certification Service. 513.3830; facsimile (322) 230.6899; or 211.4, DN–51.6, EN–42.4, FN–31.4 (SIN), dated January 27, 1993. [FR Doc. 95–3511 Filed 2–13–95; 8:45 am] Mr. John P. Dow, Sr., Project Officer, (2) Visually inspect the following for BILLING CODE 4910±13±P Small Airplane Directorate, Airplane cracks— Certification Service, FAA, 1201 (i) The root fittings around the blade Walnut, suite 900, Kansas City, Missouri attachment lugs; and, 14 CFR Part 39 64106; telephone (816) 426–6932; (ii) The M/R blade doubler and blade skin facsimile (816) 426–2169. [Docket No. 92±CE±22±AD; Amendment 39± adjacent to the root fittings. 9124; AD 95±02±06] SUPPLEMENTARY INFORMATION: A (3) Mark the root fittings and bushings with proposal (supplemental notice of slippage marks in accordance with paragraph Airworthiness Directives; Jetstream proposed rulemaking) to amend part 39 (e) of Part I of the SIN, dated January 27, Aircraft Limited (Formerly British of the Federal Aviation Regulations (14 1993, if the slippage marks are degraded or missing. Aerospace, Regional Aircraft Limited) CFR part 39) to include an AD that (4) Replace any M/R blades or links found Jetstream Model 3101 Airplanes would apply to certain JAL Model 3101 to be cracked or to have loose bushings with airplanes was published in the Federal AGENCY: Federal Aviation airworthy parts before further flight. Register on October 13, 1994 (59 FR (b) Within 25 hours TIS after compliance Administration, DOT. 51875). The action proposed to with the requirements of paragraph (a) of this ACTION: Final rule. supersede AD 91–08–01, Amendment AD, and thereafter at intervals not to exceed 39–7007, with a new AD that would (1) 25 hours TIS from the last inspection, SUMMARY: This amendment supersedes Retain the flap system operating accomplish the following without removing Airworthiness Directive (AD) 91–08–01, revision and limitation currently the M/R blade: which currently requires the following required until the 35-degree flap system (1) Visually inspect the root fittings and on Jetstream Aircraft Limited (JAL) modification was incorporated; and (2) links for cracks or loose bushings in Jetstream Model 3101 airplanes: revising accordance with Part II of the SIN, dated eventually require incorporating the 35- the maximum speed for flaps at 50 degree flap system modification in January 27, 1993. degrees from 153/149 knots indicated (2) Replace any M/R blades or links found accordance with the instructions in to be cracked or to have loose bushings with airspeed (KIAS) to 130 KIAS; and Jetstream Aircraft Limited Service airworthy parts before further flight. limiting the maximum flap extension to Bulletin No. 27–JA 910541, which (c) An alternative method of compliance or 20 degrees anytime ice is present on the consists of the following pages: adjustment of the compliance time that airplane. This action requires provides an acceptable level of safety may be incorporating a flap system modification Page Nos. Revision Date used when approved by the Manager, Los as terminating action for the level Angeles Aircraft Certification Office, FAA. requirements of AD 91–08–01. The Operators shall submit their requests through actions specified by this AD are 2, 5 through 30 Revision 1 November and 33 11, 1991. an FAA Principal Maintenance Inspector, intended to prevent sudden pitch down who may concur or comment and then send through 45. it to the Manager, Los Angeles Aircraft of the airplane during icing conditions, 31 ...... Revision 2 February 4, Certification Office. which could lead to loss of control of 1992. Note: Information concerning the existence the airplane. 1, 3, 4, and 32 .. Revision 3 November of approved alternative methods of DATES: Effective March 10, 1995. 16, 1992. compliance with this AD, if any, may be The incorporation by reference of Interested persons have been afforded obtained from the Los Angeles Aircraft certain publications listed in the an opportunity to participate in the Certification Office. regulations is approved by the Director making of this amendment. One (d) Special flight permits may be issued in of the Federal Register as of March 10, comment was received in favor of the accordance with sections 21.197 and 21.199 1995. of the Federal Aviation Regulations (14 CFR proposal and no comments were ADDRESSES: 21.197 and 21.199) to operate the helicopter Service information that received concerning the FAA’s to a location where the requirements of this applies to this AD may be obtained from determination of the cost to the public. AD can be accomplished. Jetstream Aircraft Limited, Manager After careful review of all available (e) The inspections and replacements, if Product Support, Prestwick Airport, information, the FAA has determined necessary, shall be done in accordance with Ayrshire, KA9 2RW Scotland; telephone that air safety and the public interest McDonnell Douglas Helicopter Company (44–292) 79888; facsimile (44–292) require the adoption of the rule as Service Information Notice No. HN–211.4, 79703; or Jetstream Aircraft Inc., proposed except for minor editorial DN–51.6, EN–42.4, FN–31.4, dated January Librarian, P.O. Box 16029, Dulles corrections. The FAA has determined 27, 1993. This incorporation by reference was International Airport, Washington, DC approved by the Director of the Federal that these minor corrections will not Register in accordance with 5 U.S.C. 552(a) 20041–6029; telephone (703) 406–1161; change the meaning of the AD nor add and 1 CFR part 51. Copies may be obtained facsimile (703) 406–1469. This any additional burden upon the public from McDonnell Douglas Helicopter Systems, information may also be examined at than was already proposed. Technical Publications, Bldg. 530/B111, 5000 the Federal Aviation Administration The FAA estimates that 141 airplanes E. McDowell Road, Mesa, Arizona 85205– (FAA), Central Region, Office of the in the U.S. registry will be affected by 9797. Copies may be inspected at the FAA, Assistant Chief Counsel, Room 1558, this AD, that it will take approximately Office of the Assistant Chief Counsel, 2601 601 E. 12th Street, Kansas City, Missouri 23 workhours per airplane to Meacham Blvd., Room 663, Fort Worth, 64106; or at the Office of the Federal accomplish the required action, and that Texas; or at the Office of the Federal Register, Register, 800 North Capitol Street, NW., 800 North Capitol Street, NW., suite 700, the average labor rate is approximately Washington, DC. suite 700, Washington, DC. $55 an hour. The manufacturer will (f) This amendment becomes effective on FOR FURTHER INFORMATION CONTACT: Mr. provide parts at no cost to the owner/ March 21, 1995. Raymond A. Stoer, Program Officer, operator. Based on these figures, the Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8291 total cost impact of the AD on U.S. PART 39ÐAIRWORTHINESS could specifically be visible include the operators is estimated to be $178,365. DIRECTIVES windshield wipers, center windshield, This figure is based on the assumption propeller spinners, or inboard wing leading that no affected owner/operator has 1. The authority citation for part 39 edges. continues to read as follows: (2) Operate the airplane in accordance with incorporated the required modification. BAe Alert SB 27–A–JA 910340, dated March Jetstream Aircraft Limited has Authority: 49 U.S.C. App. 1354(a), 1421 25, 1991, Section 2.B.—Instruction for informed the FAA that 122 modification and 1423; 49 U.S.C. 106(g); and 14 CFR Aircraft Operations, paragraphs (1)(a) and kits have been delivered to affected 11.89. (1)(c) until Amendments P/32, P/49, and P/ airplane owners/operators. Since each 52 have been received. Upon receipt, § 39.13 [Amended] of these airplane operators have incorporate these amendments into Airplane incorporated revised flight manual 2. Section 39.13 is amended by Flight Manual (AFM) HP.4.10. Ensure that supplements, the FAA assumes that removing AD 91–08–01, Amendment Amendment G/10 is incorporated into AFM each of these kits is installed on one of 39–7007 (56 FR 24333, May 30, 1991), HP.4.10. the affected airplanes. With this in and adding a new AD to read as follows: (c) Within the next 100 hours TIS after the effective date of this AD, incorporate the 35- mind, the proposed cost impact upon 95–02–06 Jetstream Aircraft Limited: degree flap modification (Amendment JA U.S. operators would be reduced Amendment 39–9124; Docket No. 92– 910541) in accordance with the $154,330 from $178,365 to $24,035. In CE–22–AD. Supersedes AD 91–08–01, ACCOMPLISHMENT INSTRUCTIONS addition, Jetstream Aircraft Limited Amendment 39–7007. section of Jetstream Aircraft Limited SB 27– informed the FAA that the other 19 Applicability: Jetstream Model 3101 JA 910541. affected airplanes are in the storage airplanes (all serial numbers), certificated in (d) The actions required by paragraphs (a) inventory of its sister company JSX. The any category, that do not have the flap system and (b) of this AD may be terminated when policy of JSX is to incorporate this modified in accordance with the the flap system is modified in accordance ACCOMPLISHMENT INSTRUCTIONS with Jetstream Aircraft Limited SB 27–JA modification before distributing one of section of Jetstream Service Bulletin (SB) 27– 910541, as required by paragraph (c) of this the affected airplanes to an operator. JA 910541, which consists of the following AD. Taking these factors into consideration, pages and revision levels: (e) Special flight permits may be issued in this AD would provide no economic accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR cost impact upon U.S. operators. Page Nos. Revision Date The regulations adopted herein will level 21.197 and 21.199) to operate airplanes to a not have substantial direct effects on the location where the requirements of this AD States, on the relationship between the 2, 5 through 30 Revision 1 November can be accomplished. and 33 11, 1991. national government and the States, or (f) An alternative method of compliance or through 45. adjustment of the compliance times that on the distribution of power and 31 ...... Revision 2 February 4, provides an equivalent level of safety may be responsibilities among the various 1992. approved by the Manager, Brussels Aircraft levels of government. Therefore, in 1, 3, 4, and 32 .. Revision 3 November Certification Office (ACO), FAA, Europe, accordance with Executive Order 12612, 16, 1992. Africa, and Middle East Office, c/o American it is determined that this final rule does Embassy, B–1000 Brussels, Belgium. The not have sufficient federalism Note 1: Compliance with a previous request should be forwarded through an implications to warrant the preparation revision level of the above-referenced service appropriate FAA Maintenance Inspector, of a Federalism Assessment. bulletin fulfills the applicable requirements who may add comments and then send it to For the reasons discussed above, I of this AD. the Manager, Brussels ACO. certify that this action: (1) Is not a Compliance: Required as indicated after Note 2: Information concerning the ‘‘significant regulatory action’’ under the effective date of this AD, unless already existence of approved alternative methods of accomplished. compliance with this AD, if any, may be Executive Order 12866; (2) is not a To prevent sudden pitch down of the obtained from the Brussels ACO. ‘‘significant rule’’ under DOT airplane during icing conditions, which (g) The modifications required by this AD Regulatory Policies and Procedures (44 could lead to loss of control of the airplane, shall be done in accordance with Jetstream FR 11034, February 26, 1979); and (3) accomplish the following: Aircraft Limited Service Bulletin 27–JA will not have a significant economic (a) Within the next 10 hours time-in- 910541, which consists of the following impact, positive or negative, on a service (TIS) after June 10, 1991 (the effective pages and revision levels: substantial number of small entities date of superseded AD 91–08–01), accomplish the following: under the criteria of the Regulatory Page Nos. Revision Date Flexibility Act. A copy of the final (1) Modify the operating limitations level placards located on the flight deck in evaluation prepared for this action is accordance with British Aerospace (BAe) 2, 5 through 30 Revision 1 November contained in the Rules Docket. A copy Alert SB No. 27–A–JA 910340, dated March and 33 11, 1991. of it may be obtained by contacting the 25, 1991. This modification will limit the through 45. Rules Docket at the location provided maximum flap extension speed at the 50- 31 ...... Revision 2 February 4, under the caption ADDRESSES. degree position to 130 knots indicated 1992. airspeed (KIAS). 1, 3, 4, and 32 .. Revision 3 November List of Subjects in 14 CFR Part 39 (2) Insert a copy of this AD into the 16, 1992. Air transportation, Aircraft, Aviation Limitations Section of the airplane flight safety, Incorporation by reference, manual. This incorporation by reference was Safety. (b) Within the next 25 hours TIS after June approved by the Director of the Federal 10, 1991 (the effective date of superseded AD Register in accordance with 5 U.S.C. 552(a) Adoption of the Amendment 91–08–01), accomplish the following: and 1 CFR part 51. Copies may be obtained Accordingly, pursuant to the (1) Fabricate a placard with the words ‘‘Do from Jetstream Aircraft Limited, Manager not extend the flaps beyond the 20-degree Product Support, Prestwick Airport, authority delegated to me by the position if ice is visible on the airplane and Ayrshire, KA9 2RW Scotland; telephone (44– Administrator, the Federal Aviation ensure that the landing gear selector is down 292) 79888. Copies may be inspected at the Administration amends part 39 of the prior to landing.’’ Install this placard on the FAA, Central Region, Office of the Assistant Federal Aviation Regulations (14 CFR airplane’s instrument panel within the pilot’s Chief Counsel, Room 1558, 601 E. 12th part 39) as follows: clear view. Parts of the airplane where ice Street, Kansas City, Missouri, or at the Office 8292 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations of the Federal Register, 800 North Capitol 98055–4056; telephone (206) 227–2689; does not concur. Each incident report Street, NW., suite 700, Washington, DC. fax (206) 227–1181. and each modification presented to (h) This amendment (39–9124) supersedes SUPPLEMENTARY INFORMATION: A correct causes of fuel leakage incidents AD 91–08–01, Amendment 39–7007. is evaluated by the FAA. Both the (i) This amendment (39–9124) becomes proposal to amend part 39 of the Federal effective on March 10, 1995. Aviation Regulations (14 CFR part 39) to effectiveness of the modification and the economic impact to accomplish Issued in Kansas City, Missouri, on January include an airworthiness directive (AD) 18, 1995. that is applicable to certain Boeing corrective action required by an AD are Model 747 series airplanes was considered. The FAA has determined Barry D. Clements, that the installation required by this AD Manager, Small Airplane Directorate, Aircraft published in the Federal Register on June 9, 1994 (59 FR 29744). That action will improve the drainage system and Certification Service. prevent future fires that could be caused [FR Doc. 95–1698 Filed 2–13–95; 8:45 am] proposed to require installation of a seal on the wing front spar at each engine by fuel leakage from the fuel line BILLING CODE 4910±13±U strut. (Wiggins) coupling in the engine strut Interested persons have been afforded area. Scheduled replacement of the O- rings may reduce the potential for fuel 14 CFR Part 39 an opportunity to participate in the making of this amendment. Due leaks caused by worn or aged O-rings, [Docket No. 94±NM±52±AD; Amendment consideration has been given to the but it will not eliminate all causes of 39±9126; AD 95±02±07] comments received. fuel leakage in the area of the One commenter supports the modification. Airworthiness Directives; Boeing One commenter states that the seal proposed rule. Model 747 Series Airplanes Equipped described in the proposed rule will be Several commenters state that the one With General Electric CF6±45 or CF6± replaced during an anticipated ‘‘Boeing reported incident was an ‘‘isolated 50 Engines or Pratt & Whitney JT9D Model 747 strut modification program,’’ incident’’ and is not characteristic of Series Engines and that installing the seal before industry findings. One commenter also modifying the strut area would provide AGENCY: Federal Aviation states that the incident was not a safety- a short-lived increase in safety. This Administration, DOT. of-flight issue since the reported fire commenter, therefore, considers the ACTION occurred while the airplane was on the : Final rule. proposed installation to be ground. Because of this, these unwarranted. The FAA does not concur. SUMMARY: This amendment adopts a commenters request that the FAA new airworthiness directive (AD), The planned strut modification program withdraw the proposed rule. The FAA does not include a requirement for applicable to certain Boeing Model 747 does not concur. As explained in detail series airplanes, that requires incorporation of the installation in the preamble to the proposed rule, required by this AD, nor has a installation of a seal on the wing front airflow when the airplane is in flight or spar at each engine strut. This compliance time for the strut airflow from the engine running when modifications been established; it is amendment is prompted by a report of the airplane is on the ground does a fire that occurred due to fuel leakage likely that the compliance time may be prevent fuel from leaking onto hot a period of three to five years. Although from the fuel line coupling in the engine engine surface. However, a potential strut area along the wing front spar the planned strut modifications may unsafe condition still exists because fire require the removal and reinstallation of while the airplane was on the ground can occur after engine shutdown as a after engine shutdown. The actions the seal installation required by this AD, result of the fuel dripping onto the hot the risk of a fire occurring before the specified by this AD are intended to engine surface. The reported fire ensure that fuel is contained within the planned strut modification program is demonstrates that the design of the implemented outweighs the strut drainage area and channeled away flammable fluid drainage system does from ignition sources. convenience of waiting to install the not adequately separate the fuel leak seal until the strut modification is DATES: Effective March 16, 1995. from the hot surface of the engine accomplished. The installation required The incorporation by reference of following engine shutdown. The FAA by this AD can be incorporated during certain publications listed in the has determined that the actions required normal scheduled maintenance periods, regulations is approved by the Director by this AD are warranted in order to thereby reducing the costs associated of the Federal Register as of March 16, address that unsafe condition. with this installation since access to this 1995. Several commenters contend that the area will be necessitated in order to ADDRESSES: The service information proposed installation of a seal on the accomplish other scheduled referenced in this AD may be obtained wing front spar at each engine will not maintenance actions. from Boeing Commercial Airplane prevent a fuel leak from occurring. One Several commenters request that the Group, P.O. Box 3707, Seattle, commenter states that individual FAA extend the proposed compliance Washington 98124–2207. This modifications, such as the proposed time for the installation. Some of the information may be examined at the modification, should only be required as commenters request the compliance Federal Aviation Administration (FAA), part of a more comprehensive program time be extended from the proposed 12 Transport Airplane Directorate, Rules of modifications that will address all months to as much as 48 months. This Docket, 1601 Lind Avenue, SW., known fuel system leakage problems. would permit ample time to accomplish Renton, Washington; or at the Office of (The commenter did not, however, the installation during scheduled the Federal Register, 800 North Capitol provide any specific details of a maintenance periods. One of these Street, NW., suite 700, Washington, DC. program.) Another commenter states commenters requests that the FOR FURTHER INFORMATION CONTACT: G. that periodic replacement of the O-rings compliance time be extended to Michael Collins, Aerospace Engineer, in the fitting would prevent the leakage coincide with the planned strut Propulsion Branch, ANM–140S, FAA, of fuel; therefore, the proposed modification program to reduce the Transport Airplane Directorate, Seattle installation is not necessary. Because of additional cost to the operators. The Aircraft Certification Office, 1601 Lind these items, these commenters request FAA concurs that the compliance time Avenue, SW., Renton, Washington that the rule not be issued. The FAA may be extended somewhat. In Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8293 developing an appropriate compliance The FAA estimates that 183 airplanes of § 39.13 [Amended] time for this AD action, the FAA U.S. registry will be affected by this AD, 2. Section 39.13 is amended by considered not only the degree of that it will take approximately 14 work adding the following new airworthiness urgency associated with addressing the hours per airplane to accomplish the directive: subject unsafe condition, but the required actions, and that the average 95–02–07 Boeing: Amendment 39–9126. practical aspect of incorporating the labor rate is $60 per work hour. Docket 94–NM–52–AD. required installation into affected Required parts will cost approximately Applicability: Model 747 series airplanes, operators’ scheduled maintenance $57 per airplane. Based on these figures, equipped with General Electric CF6–45 or visits, when the airplanes would be the total cost impact of the AD on U.S. CF6–50 engines, or Pratt & Whitney JT9D located at a base where facilities and operators is estimated to be $164,151, or series engines; as listed in Boeing Service trained personnel would be readily $897 per airplane. Bulletin 747–28–2160, Revision 1, dated available, if necessary. The FAA has The total cost impact figure discussed December 16, 1993; certificated in any reviewed data submitted by the above is based on assumptions that no category. manufacturer as to recommended operator has yet accomplished any of Note 1: This AD applies to each airplane installation time, and concurs with the the requirements of this AD action, and identified in the preceding applicability commenters’ requests for an extension. that no operator would accomplish provision, regardless of whether it has been The FAA has determined that extending modified, altered, or repaired in the area those actions in the future if this AD subject to the requirements of this AD. For the compliance time from 12 months to were not adopted. airplanes that have been modified, altered, or 18 months will not compromise safety. The regulations adopted herein will repaired so that the performance of the Paragraph (a) of the final rule has been not have substantial direct effects on the requirements of this AD is affected, the revised accordingly. States, on the relationship between the owner/operator must use the authority As a result of recent communications national government and the States, or provided in paragraph (b) to request approval with the Air Transport Association on the distribution of power and from the FAA. This approval may address (ATA) of America, the FAA has learned responsibilities among the various either no action, if the current configuration that, in general, some operators may eliminates the unsafe condition; or different levels of government. Therefore, in actions necessary to address the unsafe misunderstand the legal effect of AD’s accordance with Executive Order 12612, on airplanes that are identified in the condition described in this AD. Such a it is determined that this final rule does request should include an assessment of the applicability provision of the AD, but not have sufficient federalism effect of the changed configuration on the that have been altered or repaired in the implications to warrant the preparation unsafe condition addressed by this AD. In no area addressed by the AD. The FAA of a Federalism Assessment. case does the presence of any modification, points out that all airplanes identified in For the reasons discussed above, I alteration, or repair remove any airplane from the applicability provision of an AD are certify that this action (1) Is not a the applicability of this AD. legally subject to the AD. If an airplane ‘‘significant regulatory action’’ under Compliance: Required as indicated, unless has been altered or repaired in the Executive Order 12866; (2) is not a accomplished previously. affected area in such a way as to affect ‘‘significant rule’’ under DOT To ensure that fuel is contained within the strut drainage area and channeled away from compliance with the AD, the owner or Regulatory Policies and Procedures (44 operator is required to obtain FAA ignition sources, accomplish the following: FR 11034, February 26, 1979); and (3) (a) Within 18 months after the effective approval for an alternative method of will not have a significant economic compliance with the AD, in accordance date of this AD, install a seal on the wing impact, positive or negative, on a front spar at each engine strut in accordance with the paragraph of each AD that substantial number of small entities with Boeing Service Bulletin 747–28–2160 provides for such approvals. A note has under the criteria of the Regulatory dated July 23, 1992, or Revision 1, dated been added to this final rule to clarify Flexibility Act. A final evaluation has December 16, 1993. this requirement. been prepared for this action and it is (b) An alternative method of compliance or Additionally, the FAA has recently contained in the Rules Docket. A copy adjustment of the compliance time that reviewed the figures it has used over the provides an acceptable level of safety may be of it may be obtained from the Rules past several years in calculating the used if approved by the Manager, Seattle Docket at the location provided under economic impact of AD activity. In Aircraft Certification Office (ACO), FAA, the caption ADDRESSES order to account for various inflationary . Transport Airplane Directorate. Operators costs in the airline industry, the FAA List of Subjects in 14 CFR Part 39 shall submit their requests through an has determined that it is necessary to appropriate FAA Principal Maintenance Air transportation, Aircraft, Aviation Inspector, who may add comments and then increase the labor rate used in these safety, Incorporation by reference, send it to the Manager, Seattle ACO. calculations from $55 per work hour to Safety. Note 2: Information concerning the $60 per work hour. The economic existence of approved alternative methods of impact information, below has been Adoption of the Amendment compliance with this AD, if any, may be revised to reflect this increase in the Accordingly, pursuant to the obtained from the Seattle ACO. specified hourly labor rate. authority delegated to me by the (c) Special flight permits may be issued in After careful review of the available Administrator, the Federal Aviation accordance with sections 21.197 and 21.199 data, including the comments noted Administration amends part 39 of the of the Federal Aviation Regulations (14 CFR above, the FAA has determined that air Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD safety and the public interest require the part 39) as follows: adoption of the rule with the changes can be accomplished. previously described. The FAA has PART 39ÐAIRWORTHINESS (d) The installation shall be done in determined that these changes will accordance with Boeing Service Bulletin DIRECTIVES 747–28–2160, dated July 23, 1992, or Boeing neither increase the economic burden 1. The authority citation for part 39 Service Bulletin 747–28–2160, Revision 1, on any operator nor increase the scope dated December 16, 1993. This incorporation of the AD. continues to read as follows: by reference was approved by the Director of There are approximately 610 Boeing Authority: 49 U.S.C. App. 1354(a), 1421 the Federal Register in accordance with 5 Model 747 series airplanes of the and 1423; 49 U.S.C. 106(g); and 14 CFR U.S.C. 552(a) and 1 CFR part 51. Copies may affected design in the worldwide fleet. 11.89. be obtained from Boeing Commercial 8294 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations Airplane Group, P.O. Box 3707, Seattle, facsimile (703) 406–1469. This passenger/crew door internal handle Washington 98124–2207. Copies may be information may also be examined at mounting platform structure inspected at the FAA, Transport Airplane the Federal Aviation Administration replacements nor repetitive inspections. Directorate, 1601 Lind Avenue, SW., Renton, (FAA), Central Region, Office of the The FAA has no way of determining Washington; or at the Office of the Federal how many of these structures may have Register, 800 North Capitol Street, NW., suite Assistant Chief Counsel, Room 1558, 700, Washington, DC. 601 E. 12th Street, Kansas City, Missouri cracks or the number of repetitive (e) This amendment becomes effective on 64106; or at the Office of the Federal inspections each owner/operator may March 16, 1995. Register, 800 North Capitol Street, NW., incur. Issued in Renton, Washington, on January suite 700, Washington, DC. The regulations adopted herein will 19, 1995. FOR FURTHER INFORMATION CONTACT: Mr. not have substantial direct effects on the Darrell M. Pederson, Raymond A. Stoer, Program Officer, States, on the relationship between the national government and the States, or Acting Manager, Transport Airplane Brussels Aircraft Certification Office, Directorate, Aircraft Certification Service. FAA, Europe, Africa, and Middle East on the distribution of power and responsibilities among the various [FR Doc. 95–1846 Filed 2–13–95; 8:45 am] Office, c/o American Embassy, B–1000 levels of government. Therefore, in BILLING CODE 4910±13±U Brussels, Belgium; telephone (322) 513– 3830; facsimile (322) 230–6899; or Mr. accordance with Executive Order 12612, John P. Dow, Sr., Project Officer, Small it is determined that this final rule does 14 CFR Part 39 Airplane Directorate, Airplane not have sufficient federalism Certification Service, FAA, 1201 implications to warrant the preparation [Docket No. 94±CE±16±AD; Amendment 39± of a Federalism Assessment. 9123; AD 95±02-05] Walnut, suite 900, Kansas City, Missouri 64106; telephone (816) 426–6932; For the reasons discussed above, I facsimile (816) 426–2169. certify that this action (1) is not a Airworthiness Directives; Jetstream ‘‘significant regulatory action’’ under SUPPLEMENTARY INFORMATION: Aircraft Limited (Formerly British A Executive Order 12866; (2) is not a Aerospace, Regional Airlines Limited) proposal to amend part 39 of the Federal ‘‘significant rule’’ under DOT HP137 Mk1, Jetstream Series 200, and Aviation Regulations (14 CFR part 39) to Regulatory Policies and Procedures (44 Jetstream Models 3101 and 3201 include an AD that would apply to FR 11034, February 26, 1979); and (3) Airplanes certain JAL HP137 Mk1, Jetstream series will not have a significant economic 200, and Jetstream Models 3101 and AGENCY: Federal Aviation impact, positive or negative, on a 3201 airplanes was published in the substantial number of small entities Administration, DOT. Federal Register on October 13, 1994 ACTION: Final rule. under the criteria of the Regulatory (59 FR 51879). The action proposed to Flexibility Act. A copy of the final require repetitively inspecting the SUMMARY: This amendment adopts a evaluation prepared for this action is passenger/crew cabin door handle new airworthiness directive (AD) that contained in the Rules Docket. A copy mounting platform structure for cracks, applies to Jetstream Aircraft Limited of it may be obtained by contacting the and, if found cracked, replacing with a (JAL) HP137 Mk1, Jetstream series 200, Rules Docket at the location provided structure of improved design as and Jetstream Models 3101 and 3201 under the caption ADDRESSES. terminating action for the repetitive airplanes. This action requires inspections. The proposed actions List of Subjects in 14 CFR Part 39 repetitively inspecting the passenger/ would be accomplished in accordance crew cabin door handle mounting Air transportation, Aircraft, Aviation with Jetstream Service Bulletin 52–A–JA platform structure for cracks, and, if safety, Incorporation by reference, 930901, Revision 1, dated February 11, found cracked, replacing with a Safety. 1994. structure of improved design as Interested persons have been afforded Adoption of the Amendment terminating action for the repetitive an opportunity to participate in the Accordingly, pursuant to the inspections. The actions specified by making of this amendment. No authority delegated to me by the this AD are intended to prevent the comments were received on the Administrator, the Federal Aviation inability to open the passenger/crew proposed rule or the FAA’s Administration amends part 39 of the door because of a cracked internal determination of the cost to the public. Federal Aviation Regulations (14 CFR handle mounting platform structure, After careful review of all available part 39) as follows: which, if not detected and corrected, information, the FAA has determined could result in passenger injury if that air safety and the public interest PART 39ÐAIRWORTHINESS emergency evacuation was needed. require the adoption of the rule as DIRECTIVES DATES: Effective March 17, 1995. proposed except for minor editorial The incorporation by reference of 1. The authority citation for part 39 corrections. The FAA has determined continues to read as follows: certain publications listed in the that these minor corrections will not regulations is approved by the Director change the meaning of the AD nor add Authority: 49 U.S.C. App. 1354(a), 1421 of the Federal Register as of March 17, any additional burden upon the public and 1423; 49 U.S.C. 106(g); and 14 CFR 11.89. 1995. than was already proposed. ADDRESSES: Service information that The FAA estimates that 165 airplanes § 39.13 [Amended] applies to this AD may be obtained from in the U.S. registry will be affected by 2. Section 39.13 is amended by Jetstream Aircraft Limited, Manager this AD, that it will take approximately adding a new AD to read as follows: Product Support, Prestwick Airport, 1 workhour per airplane to accomplish 95–02–05 Jetstream Aircraft Limited: Ayrshire, KA9 2RW Scotland; telephone the required action, and that the average Amendment 39–9123; Docket No. 94– (44–292) 79888; facsimile (44–292) labor rate is approximately $55 an hour. CE–16–AD. 79703; or Jetstream Aircraft Inc., Based on these figures, the total cost Applicability: HP137 Mk1, Jetstream Series Librarian, P.O. Box 16029, Dulles impact of the AD on U.S. operators is 200, and Jetstream Models 3101 and 3201 International Airport, Washington, DC, estimated to be $9,075. This figure does airplanes (all serial numbers), certificated in 20041–6029; telephone (703) 406–1161; not take into account any possible any category. Compliance: Required upon the Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8295 accumulation of 1,800 hours time-in-service Chief Counsel, Room 1558, 601 E. 12th Lind Avenue, SW., Renton, Washington (TIS) or within the next 100 hours TIS after Street, Kansas City, Missouri, or at the Office 98055–4056; telephone (206) 227–2779; the effective date of this AD, whichever of the Federal Register, 800 North Capitol fax (206) 227–1181. occurs later, unless already accomplished, Street, NW., suite 700, Washington, DC. and thereafter as indicated. (f) This amendment (39–9123) becomes SUPPLEMENTARY INFORMATION: A To prevent the inability to open the effective on March 17, 1995. proposal to amend part 39 of the Federal passenger/crew door because of a cracked Issued in Kansas City, Missouri, on January Aviation Regulations (14 CFR part 39) to internal handle mounting platform structure, 18, 1995. include an airworthiness directive (AD) which, if not detected and corrrected, could Barry D. Clements, that is applicable to certain Boeing result in passenger injury if emergency Manager, Small Airplane Directorate, Aircraft Model 737 series airplanes was evacuation was needed, accomplish the published in the Federal Register on following: Certification Service. (a) Inspect the passenger/crew door [FR Doc. 95–1699 Filed 2–13–95; 8:45 am] September 1, 1994 (59 FR 45249). That action proposed to require modification internal handle mounting platform structure BILLING CODE 4910±13±U for cracks in accordance with Part 1 of the of certain fuselage support structure for ACCOMPLISHMENT INSTRUCTIONS the number 2 galley. section of Jetstream Service Bulletin (SB) 52– 14 CFR Part 39 Interested persons have been afforded A–JA 930901, Revision 1, dated February 11, an opportunity to participate in the 1994 . [Docket No. 94±NM±80±AD; Amendment making of this amendment. Due (1) If any cracked structure is found, prior 39±9127; AD 95±02±08] consideration has been given to the to further flight, replace the mounting platform structure with a new structure, part Airworthiness Directives; Boeing comments received. number 137450C23, in accordance with Part Model 737 Series Airplanes Two commenters support the 2 of the ACCOMPLISHMENT proposed rule. INSTRUCTIONS section of Jetstream SB 52– AGENCY: Federal Aviation One commenter requests that the A–JA 930901, Revision 1, dated February 11, Administration, DOT. issuance of the proposed AD be delayed 1994. ACTION: Final rule. until a revision to the referenced service (2) If no cracks are found, reinspect the bulletin is issued by the manufacturer. mounting platform structure at intervals not SUMMARY: This amendment adopts a The commenter states that by the time to exceed 1,800 hours TIS until a part new airworthiness directive (AD), number 137450C23 mounting platform the revision is issued, which is expected applicable to certain Boeing Model 737 to be in the second quarter of 1995, the structure is installed. series airplanes, that requires (b) The repetitive inspections required by manufacturer will be able to supply this AD may be terminated upon installing a modification of certain fuselage support required modification parts ‘‘that fit.’’ part number 137450C23 passenger/crew door structure for the number 2 galley. This The FAA does not concur. The FAA internal handle mounting platform structure. amendment is prompted by results of does not consider that delaying this This installation may be accomplished engineering tests and analyses which action until after the release of the regardless of whether the existing structure is revealed that certain fuselage support manufacturer’s planned service bulletin cracked. structure for the number 2 galley is (c) Special flight permits may be issued in is warranted, since sufficient technology unable to support certain loads that may currently exists to perform the accordance with sections 21.197 and 21.199 occur during emergency landing of the Federal Aviation Regulations (14 CFR modification within the compliance 21.197 and 21.199) to operate the airplane to conditions. If the fuselage support time. Neither the manufacturer nor any a location where the requirements of this AD structure breaks, the galley may shift operator has notified the FAA of any can be accomplished. and cause blockage of the forward problems involving improper fit of parts (d) An alternative method of compliance or service door (galley door). The actions for the required modification. However, adjustment of the compliance time that specified by this AD are intended to paragraph (b) of the final rule does provides an equivalent level of safety may be prevent inability of passengers and crew approved by the Manager, Brussels Aircraft provide affected operators the to exit the airplane through this door opportunity to request an adjustment of Certification Office (ACO), Europe, Africa, after an emergency landing. Middle East office, FAA, c/o American the compliance time if a situation were Embassy, B–1000 Brussels, Belgium. The DATES: Effective March 16, 1995. to arise where ample required parts request should be forwarded through an The incorporation by reference of were not available. appropriate FAA Maintenance Inspector, certain publications listed in the One commenter requests that the who may add comments and then send it to regulations is approved by the Director proposed compliance time of 18 months the Manager, Brussels ACO. of the Federal Register as of March 16, be extended for an additional 18 months Note: Information concerning the existence 1995. to allow operators to schedule a heavy of approved alternative methods of ADDRESSES: The service information maintenance visit in which to compliance with this AD, if any, may be referenced in this AD may be obtained obtained from the Brussels ACO. accomplish the required modification. from Boeing Commercial Airplane The FAA does not concur. In (e) The inspection and modification (if Group, P.O. Box 3707, Seattle, necessary) required by this AD shall be done developing an appropriate compliance in accordance with Jetstream Service Bulletin Washington 98124–2207. This time for this action, the FAA considered 52–A–JA 930901, Revision 1, dated February information may be examined at the not only the safety implications, but the 11, 1994 . This incorporation by reference Federal Aviation Administration (FAA), availability of required parts, as well as was approved by the Director of the Federal Transport Airplane Directorate, Rules normal maintenance schedules for Register in accordance with 5 U.S.C. 552(a) Docket, 1601 Lind Avenue, SW., timely accomplishment of the and 1 CFR part 51. Copies may be obtained Renton, Washington; or at the Office of modification. The FAA determined that from Jetstream Aircraft Limited, Manager the Federal Register, 800 North Capitol an 18-month compliance time provides Product Support, Prestwick Airport, Street, NW., suite 700, Washington, DC. sufficient time within which the Ayrshire, KA9 2RW Scotland; telephone (44– FOR FURTHER INFORMATION CONTACT: 292) 79888; or Jetstream Aircraft Inc., majority of affected operators can Librarian, P.O. Box 16029, Dulles Thomas Rodriguez, Aerospace Engineer, schedule a heavy maintenance visit, and International Airport, Washington, DC, Airframe Branch, ANM–120S, Seattle an acceptable level of safety can be 20041–6029. Copies may be inspected at the Aircraft Certification Office, FAA, maintained. However, paragraph (b) of FAA, Central Region, Office of the Assistant Transport Airplane Directorate, 1601 the final rule does provide affected 8296 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations operators the opportunity to apply for previously described. The FAA has PART 39ÐAIRWORTHINESS an adjustment of the compliance time if determined that these changes will DIRECTIVES sufficient data are presented to justify neither increase the economic burden such an adjustment. on any operator nor increase the scope 1. The authority citation for part 39 One commenter requests that certain of the AD. continues to read as follows: editorial changes be made to the rule. There are approximately 613 Model Authority: 49 U.S.C. App. 1354(a), 1421 The commenter notes that the proposed 737 series airplanes of the affected and 1423; 49 U.S.C. 106(g); and 14 CFR rule refers to ‘‘the forward service design in the worldwide fleet. The FAA 11.89. door,’’ but the commenter suggests that estimates that 139 airplanes of U.S. § 39.13 [Amended] the term, ‘‘galley door,’’ is a more registry will be affected by this AD, that 2. Section 39.13 is amended by commonly recognized term when it will take approximately 64 work adding the following new airworthiness referring to the right-hand forward door. hours per airplane to accomplish the directive: The FAA concurs that clarification is required actions, and that the average necessary, and has revised the final rule labor rate is $60 per work hour. 95–02–08 Boeing: Amendment 39–9127. Docket 94–NM–80–AD. to express the term, ‘‘galley door,’’ Required parts will cost approximately parenthetically after each mention of the $1,205 per airplane. Based on these Applicability: Model 737 series airplanes; forward service door. as listed in Boeing Service Bulletin 737–53– figures, the total cost impact of the AD 1154, dated November 11, 1993; equipped This commenter also requests that the on U.S. operators is estimated to be rule be clarified to show that the results with rectangular intercostal support $701,255, or $5,045 per airplane. structures from Body Station (BS) 344 to BS of engineering tests and analyses The total cost impact figure discussed 360 (inclusive) and a number 2 galley weight revealed that the ‘‘fuselage support above is based on assumptions that no exceeding 1,170 pounds (including any structure’’ is unable to support certain operator has yet accomplished any of attached equipment that imposes loads on loads, rather than the ‘‘galley support the galley), or equipped with triangular the requirements of this AD action, and structure’’ or ‘‘overhead tie rods,’’ as intercostal support structures from BS 344 to that no operator would accomplish indicated in the preamble to the BS 360 (inclusive) and a number 2 galley those actions in the future if this AD proposed rule. The FAA concurs, and weight exceeding 1,050 pounds (including were not adopted. the description of the unsafe condition any attached equipment that imposes loads on the galley); certificated in any category. has been revised in this final rule to The regulations adopted herein will reflect this clarification. not have substantial direct effects on the Note 1: This AD applies to each airplane States, on the relationship between the identified in the preceding applicability As a result of recent communications provision, regardless of whether it has been with the Air Transport Association national government and the States, or on the distribution of power and modified, altered, or repaired in the area (ATA) of America, the FAA has learned subject to the requirements of this AD. For that, in general, some operators may responsibilities among the various airplanes that have been modified, altered, or misunderstand the legal effect of AD’s levels of government. Therefore, in repaired so that the performance of the on airplanes that are identified in the accordance with Executive Order 12612, requirements of this AD is affected, the applicability provision of the AD, but it is determined that this final rule does owner/operator must use the authority that have been altered or repaired in the not have sufficient federalism provided in paragraph (b) to request approval from the FAA. This approval may address area addressed by the AD. The FAA implications to warrant the preparation of a Federalism Assessment. either no action, if the current configuration points out that all airplanes identified in eliminates the unsafe condition; or different the applicability provision of an AD are For the reasons discussed above, I actions necessary to address the unsafe legally subject to the AD. If an airplane certify that this action (1) is not a condition described in this AD. Such a has been altered or repaired in the ‘‘significant regulatory action’’ under request should include an assessment of the affected area in such a way as to affect Executive Order 12866; (2) is not a effect of the changed configuration on the compliance with the AD, the owner or ‘‘significant rule’’ under DOT unsafe condition addressed by this AD. In no operator is required to obtain FAA Regulatory Policies and Procedures (44 case does the presence of any modification, FR 11034, February 26, 1979); and (3) alteration, or repair remove any airplane from approval for an alternative method of the applicability of this AD. compliance with the AD, in accordance will not have a significant economic Compliance: Required as indicated, unless with the paragraph of each AD that impact, positive or negative, on a accomplished previously. provides for such approvals. A note has substantial number of small entities To prevent inability of passengers and been added to this final rule to clarify under the criteria of the Regulatory crew to exit the forward service door (galley this requirement. Flexibility Act. A final evaluation has door) during an emergency landing The FAA has recently reviewed the been prepared for this action and it is condition, accomplish the following: figures it has used over the past several contained in the Rules Docket. A copy (a) Within 18 months after the effective years in calculating the economic of it may be obtained from the Rules date of this AD, modify the airplane support impact of AD activity. In order to Docket at the location provided under structure from BS 344 to BS 360 (inclusive), in accordance with Boeing Service Bulletin account for various inflationary costs in the caption ADDRESSES. 737–53–1154, dated November 11, 1993. the airline industry, the FAA has List of Subjects in 14 CFR Part 39 (b) An alternative method of compliance or determined that it is necessary to adjustment of the compliance time that increase the labor rate used in these Air transportation, Aircraft, Aviation provides an acceptable level of safety may be calculations from $55 per work hour to safety, Incorporation by reference, used if approved by the Manager, Seattle $60 per work hour. The economic Safety. Aircraft Certification Office (ACO), FAA, impact information, below, has been Transport Airplane Directorate. Operators Adoption of the Amendment shall submit their requests through an revised to reflect this increase in the appropriate FAA Principal Maintenance specified hourly labor rate. Accordingly, pursuant to the Inspector, who may add comments and then After careful review of the available authority delegated to me by the send it to the Manager, Seattle ACO. data, including the comments noted Administrator, the Federal Aviation Note 2: Information concerning the above, the FAA has determined that air Administration amends part 39 of the existence of approved alternative methods of safety and the public interest require the Federal Aviation Regulations (14 CFR compliance with this AD, if any, may be adoption of the rule with the changes part 39) as follows: obtained from the Seattle, ACO. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8297 (c) Special flight permits may be issued in Washington, DC 20041–6029. This revised to reflect this increase in the accordance with sections 21.197 and 21.199 information may be examined at the specified hourly labor rate. of the Federal Aviation Regulations (14 CFR Federal Aviation Administration (FAA), After careful review of the available 21.197 and 21.199) to operate the airplane to Transport Airplane Directorate, Rules data, including the comments noted a location where the requirements of this AD can be accomplished. Docket, 1601 Lind Avenue, SW., above, the FAA has determined that air (d) The modification shall be done in Renton, Washington; or at the Office of safety and the public interest require the accordance with Boeing Service Bulletin the Federal Register, 800 North Capitol adoption of the rule with the changes 737–53–1154, dated November 11, 1993. This Street, NW., suite 700, Washington, DC. previously described. The FAA has incorporation by reference was approved by FOR FURTHER INFORMATION CONTACT: determined that these changes will the Director of the Federal Register in William Schroeder, Aerospace Engineer, neither increase the economic burden accordance with 5 U.S.C. 552(a) and 1 CFR on any operator nor increase the scope part 51. Copies may be obtained from Boeing Standardization Branch, ANM–113, FAA, Transport Airplane Directorate, of the AD. Commercial Airplane Group, P.O. Box 3707, The FAA estimates that 10 airplanes Seattle, Washington 98124–2207. Copies may 1601 Lind Avenue, SW., Renton, be inspected at the FAA, Transport Airplane Washington 98055–4056; telephone of U.S. registry will be affected by this Directorate, 1601 Lind Avenue, SW., Renton, (206) 227–2148; fax (206) 227–1320. AD, that it will take approximately 2 work hours per airplane to accomplish Washington; or at the Office of the Federal SUPPLEMENTARY INFORMATION: A the required actions, and that the Register, 800 North Capitol Street, NW., suite proposal to amend part 39 of the Federal 700, Washington, DC. average labor rate is $60 per work hour. Aviation Regulations (14 CFR part 39) to (e) This amendment becomes effective on Based on these figures, the total cost include an airworthiness directive (AD) March 16, 1995. impact of the AD on U.S. operators is that is applicable to certain British Issued in Renton, Washington, on January estimated to be $1,200, or $120 per Aerospace Model ATP airplanes was 19, 1995. airplane. Darrell M. Pederson, published in the Federal Register on The total cost impact figure discussed February 18, 1994 (59 FR 8145). That Acting Manager, Transport Airplane above is based on assumptions that no Directorate, Aircraft Certification Service. action proposed to require inspections operator has yet accomplished any of of the DC connections and cooling fans [FR Doc. 95–1847 Filed 2–13–95; 8:45 am] the requirements of this AD action, and in certain transformer rectifier units BILLING CODE 4910±13±U that no operator would accomplish (TRU) to detect damage or overheating those actions in the future if this AD and to ensure correct operation, and were not adopted. 14 CFR Part 39 repair or replacement, if necessary. The regulations adopted herein will Interested persons have been afforded not have substantial direct effects on the [Docket No. 93±NM±217±AD; Amendment an opportunity to participate in the 39±9128; AD 95±02±09] States, on the relationship between the making of this amendment. Due national government and the States, or Airworthiness Directives; British consideration has been given to the on the distribution of power and Aerospace Model ATP Airplanes single comment received. responsibilities among the various The commenter supports the rule. levels of government. Therefore, in AGENCY: Federal Aviation As a result of recent communications accordance with Executive Order 12612, Administration, DOT. with the Air Transport Association it is determined that this final rule does ACTION: Final rule. (ATA) of America, the FAA has learned not have sufficient federalism that, in general, some operators may implications to warrant the preparation SUMMARY: This amendment adopts a misunderstand the legal effect of AD’s new airworthiness directive (AD), of a Federalism Assessment. on airplanes that are identified in the For the reasons discussed above, I applicable to certain British Aerospace applicability provision of the AD, but Model ATP airplanes, that requires certify that this action (1) Is not a that have been altered or repaired in the ‘‘significant regulatory action’’ under inspections to detect damage, area addressed by the AD. The FAA overheating, and proper operation of the Executive Order 12866; (2) is not a points out that all airplanes identified in ‘‘significant rule’’ under DOT DC connections and cooling fans in the applicability provision of an AD are certain transformer rectifier units (TRU), Regulatory Policies and Procedures (44 legally subject to the AD. If an airplane FR 11034, February 26, 1979); and (3) and repair or replacement, if necessary. has been altered or repaired in the This amendment is prompted by a will not have a significant economic affected area in such a way as to affect impact, positive or negative, on a report of the loss of all DC electrical compliance with the AD, the owner or power, except for the battery emergency substantial number of small entities operator is required to obtain FAA under the criteria of the Regulatory bus, due to failure of the TRU’s, which approval for an alternative method of occurred during flight. The actions Flexibility Act. A final evaluation has compliance with the AD, in accordance been prepared for this action and it is specified by this AD are intended to with the paragraph of each AD that prevent such failures that could lead to contained in the Rules Docket. A copy provides for such approvals. A note has of it may be obtained from the Rules loss of essential electrical power been added to this final rule to clarify required to continue safe flight of the Docket at the location provided under this requirement. the caption ADDRESSES. airplane. Additionally, The FAA has recently DATES: Effective March 16, 1995. reviewed the figures it has used over the List of Subjects in 14 CFR Part 39 The incorporation by reference of past several years in calculating the Air transportation, Aircraft, Aviation certain publications listed in the economic impact of AD activity. In safety, Incorporation by reference, regulations is approved by the Director order to account for various inflationary Safety. of the Federal Register as of March 16, costs in the airline industry, the FAA 1995. has determined that it is necessary to Adoption of the Amendment ADDRESSES: The service information increase the labor rate used in these Accordingly, pursuant to the referenced in this AD may be obtained calculations from $55 per work hour to authority delegated to me by the from Jetstream Aircraft, Inc., P.O. Box $60 per work hour. The economic Administrator, the Federal Aviation 16029, Dulles International Airport, impact information, below, has been Administration amends part 39 of the 8298 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations Federal Aviation Regulations (14 CFR (3) Perform a visual inspection of the DEPARTMENT OF THE TREASURY part 39) as follows: cooling fan blades to detect any damage due to overheating, in accordance with Ferranti Internal Revenue Service PART 39ÐAIRWORTHINESS Service Bulletin 24–20–172, dated September DIRECTIVES 1993. If any damage is found, prior to further 26 CFR Part 300 flight, replace the fan blade with a 1. The authority citation for part 39 [TD 8589] serviceable part in accordance with the continues to read as follows: airplane maintenance manual. RIN 1545±AS84 Authority: 49 U.S.C. App. 1354(a), 1421 (4) Perform a functional test of the and 1423; 49 U.S.C. 106(g); and 14 CFR operation of the cooling fan by energizing the User Fees 11.89. relay and confirming that cooling air exits AGENCY: Internal Revenue Service (IRS), § 39.13 [Amended] from the grill on top of the unit, in Treasury. 2. Section 39.13 is amended by accordance with Ferranti Service Bulletin ACTION: Final regulations. adding the following new airworthiness 24–20–172, dated September 1993. Prior to further flight, repair or replace any SUMMARY: directive: This document contains final malfunctioning or damaged cooling fan or regulations relating to user fees for 95–02–09 British Aerospace (Commercial cooling fan relay, in accordance with the certain services provided to specific Aircraft), Limited: Amendment 39–9128. airplane maintenance manual. persons and implements the Docket 93–NM–217–AD. (b) An alternative method of compliance or Independent Offices Appropriations Act Applicability: Model ATP airplanes adjustment of the compliance time that (IOAA). equipped with Ferranti Transformer Rectifier provides an acceptable level of safety may be Unit TR202A (Pt. No. 84/59100) or TR202B EFFECTIVE DATE: March 16, 1995. used if approved by the Manager, (Pt. No. 84/60040), certificated in any FOR FURTHER INFORMATION CONTACT: category. Standardization Branch, ANM–113, FAA, Concerning costing methodology, Robert Transport Airplane Directorate. Operators Note 1: This AD applies to each airplane Miller, (202) 535–9701(x3222); shall submit their requests through an identified in the preceding applicability concerning installment agreements, appropriate FAA Principal Maintenance provision, regardless of whether it has been Kevin Connelly, (202) 622–3640 (not Inspector, who may add comments and then modified, altered, or repaired in the area toll-free numbers). subject to the requirements of this AD. For send it to the Manager, Standardization airplanes that have been modified, altered, or Branch, ANM–113. SUPPLEMENTARY INFORMATION: repaired so that the performance of the Note 2: Information concerning the Background requirements of this AD is affected, the existence of approved alternative methods of owner/operator must use the authority compliance with this AD, if any, may be The IOAA, codified at 31 U.S.C. 9701, provided in paragraph (b) to request approval obtained from the Standardization Branch, authorizes agencies to prescribe from the FAA. This approval may address regulations that establish charges for either no action, if the current configuration ANM–113. eliminates the unsafe condition; or different (c) Special flight permits may be issued in services provided by the agency (user actions necessary to address the unsafe accordance with sections 21.197 and 21.199 fees). The charges must be fair and be condition described in this AD. Such a of the Federal Aviation Regulations (14 CFR based on the costs to the Government, request should include an assessment of the 21.197 and 21.199) to operate the airplane to the value of the service to the recipient, effect of the changed configuration on the a location where the requirements of this AD the public policy or interest served, and unsafe condition addressed by this AD. In no can be accomplished. other relevant facts. The IOAA expressly case does the presence of any modification, (d) The inspections and test shall be done provides that regulations implementing alteration, or repair remove any airplane from in accordance with Ferranti Service Bulletin user fees ‘‘are subject to policies the applicability of this AD. 24–20–171, dated September 1993; and prescribed by the President * * *.’’ Compliance: Required as indicated, unless Ferranti Service Bulletin 24–20–172, dated The FY 1995 Appropriations Bill for accomplished previously. September 1993. This incorporation by the Treasury Department (the 1995 To prevent loss of essential electrical Appropriations Bill) includes a power required to continue safe flight of the reference was approved by the Director of the airplane, accomplish the following: Federal Register in accordance with 5 U.S.C. provision relating to the establishment (a) Within 225 hours time-in-service after 552(a) and 1 CFR part 51. Copies may be of new fees for services provided by the the effective date of this AD, and thereafter obtained from Jetstream Aircraft, Inc., P.O. IRS if the fees are authorized by another at intervals not to exceed 625 hours time-in- Box 16029, Dulles International Airport, law, such as the IOAA. service, accomplish paragraphs (a)(1), (a)(2), Washington, DC 20041–6029. Copies may be Since 1959, the Office of Management (a)(3), and (a)(4) of this AD. inspected at the FAA, Transport Airplane and Budget (OMB) has issued policy (1) Perform a visual inspection of the DC Directorate, 1601 Lind Avenue, SW., Renton, guidance on user fees through Circular connections to detect any damage or Washington; or at the Office of the Federal A–25 (the OMB Circular). See FPC v. overheating, in accordance with Ferranti Register, 800 North Capitol Street, NW., suite New England Power Co., 415 U.S. 345, Service Bulletin 24–20–171, dated September 1993. If any damage or overheating is found, 700, Washington, DC. 349–51 (1974) (citing the OMB prior to further flight, repair in accordance (e) This amendment becomes effective on Circular). On July 15, 1993, OMB issued with a method approved by Manager, March 16, 1995. a revised version of the OMB Circular in Standardization Branch, ANM–113, FAA, Issued in Renton, Washington, on January the Federal Register (58 FR 38142), Transport Airplane Directorate. 19, 1995. which provides updated policy (2) Perform a torque loading inspection of Darrell M. Pederson, guidance on user fees. Under the OMB each DC connection to ensure that torque Circular, user fees for Government- loads are within the limits specified in Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. provided services that confer benefits on Ferranti Service Bulletin 24–20–171, dated identifiable recipients over and above September 1993; and, during this inspection, [FR Doc. 95–1849 Filed 2–13–95; 8:45 am] those benefits received by the general ensure that each terminal stud is secure in its BILLING CODE 4910±13±P mounting by visually observing that the stud public are encouraged. The amount of does not rotate; in accordance with Ferranti the user fee imposed should recover the Service Bulletin 24–20–171, dated September cost for providing the special benefit or 1993. the value of the special benefit. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8299 For these fees, the IRS followed the The costs incurred in establishing new substantive changes were made to these guidance provided by the OMB Circular installment agreements at Service regulations subsequent to their and the relevant court cases in Centers and District Offices were submission to the Office of Management calculating the costs of the services averaged in computing a uniform fee. and Budget, the provisions of section provided. Under the OMB Circular, each Projected costs for program start-up and 6(a)(3)(E) of EO 12866 do not apply. It agency is to include in its calculation of training and software maintenance were is hereby certified that these regulations the cost of providing a benefit: developed. Lockbox and remittance will not have a significant economic (1) Direct and indirect personnel processing costs (based on an historic impact on a substantial number of small costs, including salaries and fringe average of 8.5 payments per agreement) entities. Accordingly, a regulatory benefits such as medical insurance and were calculated. These figures were flexibility analysis is not required. This retirement. added to the initial activity-based certification is based on the information (2) Physical overhead, consulting, and costing totals. The activity-based that follows. The economic impact of other indirect costs, including material methodology did not include some these regulations on any small entity and supply costs, utilities, insurance, indirect cost elements (primarily would result from the entity being travel, and rents or imputed rents on executive support) which were then required to pay a fee prescribed by these land, buildings, and equipment. calculated at a 2.3% indirect cost rate. regulations in order to obtain a (3) Management and supervisory Based on this costing methodology, the particular service. However, due to the costs. installment agreement fee is $43. small dollar amount of each of these (4) The costs of enforcement, fees, the economic impact on any entity collection, research, establishment of Restructuring or Reinstating Installment Agreements subject to one of the fees would not be standards, and regulation, including any significant. Pursuant to section 7805(f) environmental impact statements. When a taxpayer fails to meet any of of the Internal Revenue Code, the notice On December 28, 1994, a notice of the conditions of an installment of proposed rulemaking preceding these proposed rulemaking (PS–39–94) agreement, that agreement is deemed to regulations was submitted to the Chief relating to user fees under 31 U.S.C. be in default. The IRS has the right to Counsel for Advocacy of the Small 9701 was published in the Federal terminate an installment agreement in Business Administration for comment Register (59 FR 66828). Written default. Each taxpayer that has an on its impact on small business. comments responding to the notice were installment agreement restructured or received and a public hearing was held reinstated receives not only the special Drafting Information on January 20, 1995. Commenters benefit of being allowed to pay an The principal authors of these expressed concern that some taxpayers outstanding tax obligation over time regulations are Ruth Hoffman, Office of cannot afford to pay a fee in addition to rather than immediately but also the Assistant Chief Counsel (Passthroughs their installment payments. The IRS is special benefit of avoiding a potential and Special Industries) and Tom Baker, concerned about the effect of the fee on enforcement action, including but not Office of Assistant Chief Counsel such taxpayers. Accordingly, the IRS limited to the filing of liens and the (General Legal Services). However, other intends to use existing administrative making of levies. personnel from the IRS and Treasury procedures to take into account the Before restructuring or reinstating an Department participated in their taxpayer’s ability to pay in structuring installment agreement, the IRS must development. the payment schedule, including the monitor for nonconformance, analyze payment of the fee. After consideration the cause(s) of default, correspond with List of Subjects in 26 CFR Part 300 of the comments, the proposed the taxpayer, analyze the taxpayer’s Estate taxes, Excise taxes, Gift taxes, regulations are adopted by this Treasury responses, and, if appropriate, Income taxes, Reporting and decision. restructure or reinstate the agreement. recordkeeping requirements, User fees. The amount of the restructuring or Entering into Installment Agreements reinstatement fee was calculated by Adoption of Amendments to the Section 6159 of the Internal Revenue determining direct labor costs and Regulations Code authorizes the IRS to enter into a overhead labor costs derived from the Accordingly, 26 CFR part 300 is written agreement with any taxpayer for IRS’ Work Planning and Control added to read as follows: the payment of that taxpayer’s tracking system, standard PART 300ÐUSER FEES outstanding tax obligation in correspondence and postage costs installments. Each taxpayer that enters incurred in preparing and mailing Sec. 300.0 User fees; in general. into an installment agreement receives certified notices, and an indirect cost 300.1 Installment agreement fee. the special benefit of being allowed to factor representing support cost. 300.2 Restructuring or reinstatement of pay an outstanding tax obligation over Examining program history through installment agreement fee. time rather than immediately. fiscal year 1993, the IRS estimated the Authority: 31 U.S.C. 9701. Before entering into an installment total number of installment agreements agreement, the IRS must first determine likely to be restructured or reinstated in § 300.0 User fees; in general. whether such an agreement is fiscal year 1995 as approximately (a) In general. The regulations in this appropriate, then set up the agreement, 150,000. Based on this costing part 300 are designated the User Fee process payments, and monitor for methodology, the restructuring or Regulations and provide rules relating conformance with the agreement. reinstatement fee is $24. to user fees under 31 U.S.C. 9701. The amount of the installment Special Analyses (b) Applicability. User fees are agreement fee has been determined by imposed on the following services: using activity-based costing. In a 1993 Although it has been determined that (1) Entering into an installment study, the IRS analyzed the work this Treasury decision is a significant agreement. activities related to establishing new regulatory action as defined in EO (2) Restructuring or reinstating an installment agreements at both the 12866, the Office of Management and installment agreement. Service Center (pre-assessment) and Budget has waived the preparation of a (c) Effective date. This part 300 is District Office levels (post assessment). regulatory assessment. Because no effective March 16, 1995. 8300 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations § 300.1 Installment agreement fee. Avenue, N.W., Washington, D.C. 20220. Determinations that persons fall (a) Applicability. This section applies The full list of persons blocked pursuant within the definition of the term to installment agreements under section to economic sanctions programs ‘‘Government of Libya’’ and are thus 6159 of the Internal Revenue Code. administered by the Office of Foreign Specially Designated Nationals of Libya (b) Fee. The fee for entering into an Assets Control is available electronically are effective upon the date of installment agreement is $43. on The Federal Bulletin Board (see determination by the Director of FAC, (c) Person liable for fee. The person SUPPLEMENTARY INFORMATION). acting under the authority delegated by liable for the installment agreement fee FOR FURTHER INFORMATION CONTACT: J. the Secretary of the Treasury. Public is the taxpayer entering into an Robert McBrien, Chief, International notice is effective upon the date of installment agreement. Programs Division, Office of Foreign publication or upon actual notice, Assets Control, tel.: 202/622–2420. whichever is sooner. § 300.2 Restructuring or reinstatement of The list of Specially Designated installment agreement fee. SUPPLEMENTARY INFORMATION: Nationals in appendices A and B is a (a) Applicability. This section applies Electronic Availability partial one, since FAC may not be aware to installment agreements under section of all agencies and officers of the 6159 of the Internal Revenue Code that This document is available as an Government of Libya, or of all persons are in default. An installment agreement electronic file on The Federal Bulletin that might be owned or controlled by, or is deemed to be in default when a Board the day of publication in the acting on behalf of the Government of taxpayer fails to meet any of the Federal Register. By modem dial 202/ Libya within the meaning of conditions of the installment agreement. 512–1387 or call 202/512–1530 for disks § 550.304(a). Therefore, one may not (b) Fee. The fee for restructuring or or paper copies. This file is available in rely on the fact that a person is not reinstating an installment agreement is Postscript, WordPerfect 5.1 and ASCII. listed in appendix A or B as a Specially $24. Background Designated National as evidence that (c) Person liable for fee. The person such person is not owned or controlled liable for the restructuring or The Office of Foreign Assets Control by, or acting or purporting to act reinstatement fee is the taxpayer that (‘‘FAC’’) is amending the Libyan directly or indirectly on behalf of, the has an installment agreement Sanctions Regulations, 31 CFR part 550 Government of Libya. The Treasury restructured or reinstated. (the ‘‘Regulations’’), to add new entries Department regards it as incumbent to appendices A and B. Appendix A, upon all persons governed by the Margaret Milner Richardson, Organizations Determined to Be within Regulations to take reasonable steps to Commissioner of Internal Revenue. the Term ‘‘Government of Libya’’ ascertain for themselves whether Approved: February 1, 1995. (Specially Designated Nationals of persons with whom they deal are owned Leslie Samuels, Libya), is a list of organizations or controlled by, or acting or purporting Assistant Secretary of the Treasury. determined by the Director of FAC to be to act on behalf of, the Government of [FR Doc. 95–3755 Filed 2–10–95; 12:57 pm] within the definition of the term Libya, or on behalf of other countries ‘‘Government of Libya,’’ as set forth in BILLING CODE 4830±01±P subject to blocking or transactional § 550.304(a) of the Regulations, because restrictions administered by FAC. they are owned or controlled by or act Section 206 of the International Office of Foreign Assets Control or purport to act directly or indirectly Emergency Economic Powers Act, 50 on behalf of the Government of Libya. U.S.C. 1705, provides for civil penalties 31 CFR Part 550 Appendix B, Individuals Determined to not to exceed $10,000 for each violation Be Specially Designated Nationals of the of the Regulations. Criminal violations Libyan Sanctions Regulations; Government of Libya, lists individuals of the Regulations are punishable by Specially Designated Nationals List determined by the Director of FAC to be fines of up to $250,000 or imprisonment acting or purporting to act directly or AGENCY: Office of Foreign Assets for up to 10 years per count, or both, for indirectly on behalf of the Government Control, Treasury. individuals, and criminal fines of up to of Libya, and thus to fall within the $500,000 per count for organizations. ACTION: Final rule; amendments to the definition of the term ‘‘Government of See 50 U.S.C. 1705; 18 U.S.C. 3571. list of specially designated nationals. Libya’’ in § 550.304(a). Because the Regulations involve a Appendix A to part 550 is amended SUMMARY: The Office of Foreign Assets foreign affairs function, Executive Order to provide public notice of the Control is amending the Libyan 12866 and the provisions of the designation as Specially Designated Sanctions Regulations to add 144 Administrative Procedure Act, 5 U.S.C. Nationals of Libya of an additional 144 entities to appendix A, Organizations 553, requiring notice of proposed companies owned by the Government of Determined to Be Within the Term rulemaking, opportunity for public Libya or by a company owned by the ‘‘Government of Libya’’ (Specially participation, and delay in effective Government of Libya. Designated Nationals of Libya), and to date, are inapplicable. Because no Appendix B to part 550 is amended to add 19 individuals to appendix B, notice of proposed rulemaking is provide public notice of 19 individuals Individuals Determined to Be Specially required for this rule, the Regulatory determined to be Specially Designated Designated Nationals of the Government Flexibility Act, 5 U.S.C. 601–612, does Nationals of the Government of Libya. not apply. of Libya. All prohibitions in the Regulations EFFECTIVE DATE: February 14, 1995. pertaining to the Government of Libya List of Subjects in 31 CFR Part 550 ADDRESSES: Copies of the list of persons apply to the entities and individuals Administrative practice and whose property is blocked pursuant to identified in appendices A and B. All procedure, Banks, Banking, Blocking of the Libyan Sanctions Regulations are unlicensed transactions with such assets, Exports, Foreign investment, available upon request at the following persons, or transactions in property in Foreign trade, Government of Libya, location: Office of Foreign Assets which they have an interest, are Imports, Libya, Loans, Penalties, Control, U.S. Department of the prohibited unless otherwise exempted Reporting and recordkeeping Treasury, Annex, 1500 Pennsylvania or generally licensed in the Regulations. requirements, Securities, Services, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8301 Specially designated nationals, Travel Sabha Branch, Sabha, Libya. Benghazi Office, Benghazi, Libya. restrictions. * * * * * * * * * * ARAB CO. FOR IMPORTATION AND EMNUHOOD EST. FOR CONTRACTS PART 550ÐLIBYAN SANCTIONS MANUFACTURE OF CLOTHING AND P.O. Box 1380, Benghazi, Libya. REGULATIONS TEXTILES * * * * * Libya. FOOTWEAR PLANT For the reasons set forth in the * * * * * Misurata, Libya. preamble, 31 CFR part 550 is amended ARAB UNION CONTRACTING CO. P.O. Box 3475, Tripoli, Libya. * * * * * as set forth below: GAMOENNS CONTRACTS AND UTILITIES 1. The authority citation for part 550 * * * * * EST. is revised to read as follows: AUTO BATTERY PLANT P.O. Box 3038, Benghazi, Libya. Libya. * * * * * Authority: 50 U.S.C. 1701–1706; 50 U.S.C. * * * * * 1601–1651; 22 U.S.C. 287c; 49 U.S.C. App. GARABULLI FODDER PLANT AZIZIA BOTTLE PLANT Libya. 1514; 22 U.S.C. 2349aa–8 and 2349aa–9; 3 Libya. * * * * * U.S.C. 301; E.O. 12543, 51 FR 875, 3 CFR, * * * * * 1986 Comp., p. 181; E.O. 12544, 51 FR 1235, GENERAL CATERING CORPORATION BENGHAZI CEMENT PLANT P.O. Box 491, Tripoli, Libya. 3 CFR, 1986 Comp., p. 183; E.O. 12801, 57 Libya. FR 14319, 3 CFR, 1992 Comp., p. 294. * * * * * * * * * * GENERAL CLEANING COMPANY BENGHAZI EST. FOR BUILDING AND 2. Appendix A to part 550 is amended P.O. Box 920, Tripoli, Libya. by adding the following entries in CONSTRUCTION P.O. Box 2118, Benghazi, Libya. * * * * * alphabetical order, to read as follows: * * * * * GENERAL CO. FOR AGRICULTURAL MACHINERY AND NECESSITIES Appendix A to Part 550—Organizations BENGHAZI LIME PLANT Determined To Be Within The Term Libya. P.O. Box 324, Tripoli, Libya. Branches: ‘‘Government of Libya’’ (Specially * * * * * Alziraia, Libya. Designated Nationals of Libya) BENGHAZI PAPER BAGS PLANT Benghazi Office, P.O. Box 2094, Benghazi, Libya. * * * * * Libya. AGRICULTURAL ENGINEERING COMPANY * * * * * Sebha, Libya. Libya. BENGHAZI TANNERY Zawia, Libya. Libya. * * * * * * * * * * GENERAL CO. FOR AGRICULTURAL AHLYA BUILDING MATERIALS CO. * * * * * CIVIL AVIATION AUTHORITY PROJECTS P.O. Box 8545, Jumhouriya Street, Tripoli, Sharia El Saidi, Tripoli, Libya. P.O. Box 2284, Tripoli, Libya. Libya. * * * * * Branch: Branch: P.O. Box 265, Gharian, Libya. P.O. Box 1351, Benghazi, Libya. COMPRESSED LEATHER BOARD FIBRE PLANT * * * * * * * * * * Tajoura, Libya. GENERAL CO. FOR CERAMIC AND GLASS AHMAD QASSEM AND SONS CO. * * * * * PRODUCTS Libya. DRY BATTERY PLANT Aziza, Amiri Bldg., Suani Ben Adam, P.O. * * * * * Libya. Box 12581, Dhara-Tripoli, Libya. AL ABIAR FODDER PLANT * * * * * * * * * * Libya. EL BAIDA ROADS AND UTILITIES CO. GENERAL COMPANY FOR CHEMICAL * * * * * P.O. Box 232/561, El Baida, Libya. INDUSTRIES P.O. Box 100/411, 100/071, Zuara, Libya. AL AHLIYA CO. FOR TRADING AND * * * * * MANUFACTURE OF CLOTHING EL FATAH AGENCY * * * * * P.O. Box 4152, Benghazi, Libya. P.O. Box 233, Tripoli, Libya. GENERAL CO. FOR CIVIL WORKS Branch: P.O. Box 3306, Tripoli, Libya. * * * * * Branch: P.O. Box 15182, Tripoli, Libya. EL MAMOURA FOOD COMPANY P.O. Box 1299, Benghazi, Libya. * * * * * P.O. Box 15058, Tripoli, Libya. AL AMAL CO. FOR TRADING AND Branches: * * * * * MANUFACTURING OF CLOTHING Tripoli, Libya. GENERAL CO. FOR CONSTRUCTION AND Libya. Benghazi, Libya. EDUCATIONAL BUILDINGS * * * * * P.O. Box 1186, Tripoli, Libya. * * * * * Branch: ELECTRIC WIRES AND CABLES PLANT AL GAZEERA BENGHAZI P.O. Box 4087, Benghazi, Libya. P.O. Box 2456, Benghazi, Libya. Libya. * * * * * * * * * * * * * * * GENERAL CO. FOR ELECTRIC WIRES AND ELECTRICAL CONSTRUCTION CO. AL JAMAL TRADING EST. (BENGHAZI) PRODUCTS P.O. Box 5309, Tripoli, Libya. Benghazi, Libya. Branches: P.O. Box 1177, Benghazi, Libya. * * * * * Tripoli, Libya (head office). Branch: AMAN CO. FOR TYRES AND BATTERIES Benghazi, Libya. P.O. Box 12629, Tripoli, Libya. Tajura Km. 19, P.O. Box 30737, Tripoli, Misurata, Libya. * * * * * Libya. Sebha and Delhi, India. GENERAL CO. FOR LAND RECLAMATION Branches: * * * * * P.O. Box 307, Souani Road, Tripoli, Libya. Benghazi Branch, P.O. Box 2394, Bengazi, ELKHALEGE GENERAL CONSTRUCTION * * * * * Libya. CO. GENERAL CO. FOR LEATHER PRODUCTS Tripoli Branch, Tripoli, Libya. P.O. Box 445, Agedabia, Libya. AND MANUFACTURE Misurata Branch, P.O. Box 17757, Branches: P.O. Box 2319, Tripoli, Libya. Misurata, Libya. Sirti Office, P.O. Box 105, Sirti, Libya. Branch: 8302 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations P.O. Box 152, Benghazi, Libya. Tripoli Branch, P.O. Box 295, Tripoli, Cyprus. * * * * * Libya. * * * * * GENERAL CO. FOR MARKETING AND Benghazi Branch, Gamal Abd El Naser LIBYAN ARAB CO. FOR DOMESTIC AGRICULTURAL PRODUCTION Street, P.O. Box 9502. ELECTRICAL MATERIALS P.O. Box 2897, Hadba Al Khadra, Tripoli, * * * * * P.O. Box 12718, Tripoli, Libya. Libya. GENERAL NATIONAL MARITIME Branch: Branch: TRANSPORT CO. P.O. Box 453, Benghazi, Libya. P.O. Box 4251, Benghazi, Libya. (a.k.a. THE NATIONAL LINE OF LIBYA) * * * * * * * * * * P.O. Box 80173, 2 Ahmed Sharif Street, LIBYAN BRICK MANUFACTURING CO. GENERAL CO. FOR TEXTILES Tripoli, Libya (and at all Libyan ports). P.O. Box 10700, Tripoli, Libya. P.O. Box 1816, Benghazi, Libya. Branch: Branch: Branch: P.O. Box 2450, Benghazi, Libya. P.O. Box 25, Km. 17, Suani Road, Suani, P.O. Box 3257, Tripoli, Libya. * * * * * Libya. * * * * * GENERAL NATIONAL ORGANISATION * * * * * GENERAL CO. FOR TOYS AND SPORT FOR INDUSTRIALIZATION LIBYAN CEMENT CO. EQUIPMENT Shaira Sana’a, P.O. Box 4388, Tripoli, P.O. Box 2108, Benghazi, Libya. P.O. Box 3270, Tripoli, Libya. Libya. * * * * * Branch: * * * * * LIBYAN CINEMA CORPORATION GENERAL CONSTRUCTION COMPANY Benghazi Branch, P.O. Box 2779. P.O. Box 878, Tripoli, Libya. P.O. Box 8636, Tripoli, Libya. * * * * * Branch: Branch: GENERAL ORGANISATION FOR TOURISM P.O. Box 2076, Benghazi, Libya. Gharian Office, P.O. Box 178, Gharian, AND FAIRS Libya. P.O. Box 891, Sharia Haiti, Tripoli, Libya. * * * * * LIBYAN ETERNIT COMPANY * * * * * * * * * * GENERAL CORPORATION FOR PUBLIC P.O. Box 6103, Zanzour Km. 17, Tripoli, GENERAL PAPER AND PRINTING CO. Libya. TRANSPORT P.O. Box 8096, Tripoli, Libya. 2175 Sharia Magaryef, Tatanaka Bldg., P.O. Branch: * * * * * Box 4875, Tripoli, Libya. Benghazi, Sebha. LIBYAN FISHING COMPANY Branch: P.O. Box 3749, Tripoli, Libya. * * * * * P.O. Box 9528, Benghazi, Libya. * * * * * * * * * * GENERAL POST AND TELECOMMUNICATIONS CORP. LIBYAN HOTELS AND TOURISM CO. GENERAL DAIRIES AND PRODUCTS CO. Maidan al Jazair, Tripoli, Libya. P.O. Box 2977, Tripoli, Libya. P.O. Box 5318, Tripoli, Libya. Branches: * * * * * * * * * * Benghazi Branch, P.O. Box 9118, Benghazi, GENERAL RAHILA AUTOMOBILE CO. LIBYAN INSURANCE COMPANY Libya. Libya. Ousama Bldg., 1st September Street, P.O. Box 2438, Tripoli, Libya. Tripoli Factory, Tripoli, Libya. * * * * * Benghazi Factory, Benghazi, Libya. Branches: GENERAL TOBACCO COMPANY Benghazi, Libya. Khoms Factory, Khoms, Libya. Gorji Road Km. 6, P.O. Box 696, Tripoli. Jebel Akhdar Factory, Jebel Akhdar, Libya. Derna, Libya. Branches: Sebha, Libya. * * * * * Benghazi, Libya. Gharian, Libya. GENERAL ELECTRICITY CORPORATION Sebha, Libya. Misurata, Libya. P.O. Box 3047, Benghazi, Libya. Zavia, Libya. Zawiya, Libya. Branch: Garian, Libya. Homs, Libya. P.O. Box 668, Tripoli, Libya. Khoms, Libya. * * * * * * * * * * * * * * * LIBYAN MILLS COMPANY GENERAL ELECTRONICS CO. GENERAL WATER WELL DRILLING CO. Sharia 1st September, P.O. Box 310, P.O. Box 12580, Tripoli, Libya. P.O. Box 2532, Sharia Omar Muktar, Tripoli, Libya. Branch: Mormesh Bldg., Tripoli, Libya. P.O. Box 2068, Benghazi. Branch: * * * * * LIBYAN TRACTOR ESTABLISHMENT P.O. Box 2532, Benghazi, Libya. * * * * * P.O. Box 12507, Dahra, Libya. GENERAL FURNITURE CO. * * * * * * * * * * Suani Road, Km. 15, P.O. Box 12655, JANUARY SHUHADA (MARTYRS) PLANT MAGCOBAR (LIBYA) LTD. Tripoli, Libya. Libya. * * * * * P.O. Box 867, Tripoli, Libya. * * * * * Branch: GENERAL LIBYAN CO. FOR ROAD KHOMS CEMENT PLANT Benghazi, Libya. CONSTRUCTION AND MAINTENANCE Khoms, Libya. P.O. Box 2676, Swani Road, Tripoli, Libya. * * * * * * * * * * * * * * * MEDICAL EQUIPMENT COMPANY KUFRA AGRICULTURAL CO. P.O. Box 12419, Tripoli, Libya. GENERAL NATIONAL CO. FOR FLOUR P.O. Box 4239, Benghazi, Libya. MILLS AND FODDER Branches: Branch: Bab Bin Ghashir, P.O. Box 984, Tripoli, P.O. Box 750, Benghazi, Libya. Tripoli Office, P.O. Box 2306, Damascus Libya. P.O. Box 464, Sebha, Libya. Street, Tripoli, Libya. Branch: * * * * * Benghazi Office, Gamel Abdumaser Street, * * * * * MISURATA GENERAL ROADS CO. P.O. Box 209, KUFRA PRODUCTION PROJECT P.O. Box 200, Misurata, Libya. Benghazi, Libya. P.O. Box 6324, Benghazi, Libya. Branch: * * * * * Branch: P.O. Box 958, Tripoli, Libya. GENERAL NATIONAL CO. FOR P.O. Box 2306, Tripoli, Libya. * * * * * INDUSTRIAL CONSTRUCTION * * * * * THE MODERN FASHION CO. FOR P.O. Box 953, Beida, Libya. LIBYA INSURANCE CO. (CYPRUS OFFICE) TRADING AND MANUFACTURING OF Branches: LTD. CLOTHING Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8303 Libya. P.O. Box 259, Benghazi, Libya. P.O. Box 101, Ibn El Jarrah Street, Tripoli, * * * * * * * * * * Libya. MAHARI GENERAL AUTOMOBILE CO. NATIONAL CONSULTING BUREAU * * * * * Libya. P.O. Box 12795, Tripoli, Libya. OKBA FOOTWEAR PLANT * * * * * Branch: Tajoura, Libya. Sirte City Branch Office, Sirte City, Libya. MUHARIKAAT GENERAL AUTOMOBILE * * * * * CO. * * * * * PUBLIC COMPANY FOR GARMENTS P.O. Box 259, Tripoli, Libya. NATIONAL CORPORATION FOR HOUSING P.O. Box 4152, Benghazi, Libya. Branch: P.O. Box 4829, Sharia el Jumhuriya, Tripoli, Libya. * * * * * P.O. Box 203, Benghazi, Libya. PUBLIC ELECTRICAL WORKS CO. * * * * * * * * * * P.O. Box 8539, Sharia Halab, Tripoli, NATIONAL DEPARTMENT STORES CO. NATIONAL CEMENT AND BUILDING Libya. P.O. Box 5327, Sharia el Jumhuriya, MATERIALS EST. Branch: Tripoli, Libya. P.O. Box 628, Sharia Hayati 21, Tripoli, P.O. Box 32811, Benghazi, Libya. Libya. * * * * * * * * * * NATIONAL FOODSTUFFS IMPORTS, * * * * * PUBLIC SAFETY COMMODITY IMPORTING EXPORTS AND MANUFACTURING CO. CO. NATIONAL CO. FOR CHEMICAL SAL PREPARATION AND COSMETIC (a.k.a. SILAMNIA) P.O. Box 11114, Tripoli, Libya. P.O. Box 12942, Tripoli, Libya. PRODUCTS Branch: P.O. Box 2442, Tripoli, Libya. P.O. Box 2439, Benghazi, Libya. * * * * * Branch: * * * * * QAFALA GENERAL AUTOMOBILE CO. Benghazi Office, Benghazi, Libya. Libya. NATIONAL GENERAL INDUSTRIAL * * * * * CONTRACTING CO. * * * * * NATIONAL CO. FOR CONSTRUCTION AND Sharia el Jumhouria, P.O. Box 295, Tripoli, RAS HILAL MARITIME CO. MAINTENANCE OF MUNICIPAL Libya. P.O. Box 1496, Benghazi, Libya. WORKS * * * * * * * * * * P.O. Box 12908, Zavia Street, Tripoli, NATIONAL LIVESTOCK AND MEAT CO. READY–MADE SUITS PLANT Libya. P.O. Box 389, Sharia Zawiet Dahmani, Derna, Libya. Branch: Tripoli, Libya. P.O. Box 441, Benghazi, Libya. * * * * * Branch: SAHABI OIL FIELD PROJECT * * * * * P.O. Box 4153, Sharia Jamal Abdulnasser, P.O. Box 982, Tripoli, Libya. NATIONAL CO. FOR LIGHT EQUIPMENT Benghazi. P.O. Box 8707, Tripoli, Libya. * * * * * * * * * * SEBHA FODDER PLANT Branch: NATIONAL PHARMACEUTICAL CO. SAL Libya. P.O. Box 540, Benghazi, Libya. 20 Jalal Bayer Street, P.O. Box 2296, * * * * * * * * * * Tripoli, Libya. SEBHA GRAIN MILL NATIONAL CO. FOR METAL WORKS Branches: Libya. P.O. Box 2913, Tripoli, Libya. Jamahiriya Street, P.O. Box 10225, Tripoli, Libya. Branches: * * * * * P.O. Box 2620, Benghazi, Libya. P.O. Box 4093, Benghazi, Libya. SEBHA ROADS AND CONSTRUCTION CO. Lift Department, P.O. Box 1000, Tripoli, * * * * * P.O. Box 92, Sebha, Libya. Libya. NATIONAL SOFT DRINKS EST. Branch: P.O. Box 559, Benghazi, Libya. P.O. Box 8264, Tripoli, Libya. * * * * * Branch: NATIONAL CO. FOR ROAD EQUIPMENT * * * * * Litraco Impex Ltd., P.O. Box 5686, 7TH APRIL CARD BOARD FACTORY P.O. Box 12392, Tripoli, Libya. Benghazi, Libya. Branch: Tajoura, Libya. * * * * * P.O. Box 700, Benghazi, Libya. * * * * * NATIONAL STORES AND COLD STORES * * * * * SHELL PETROLEUM DEVELOPMENT CO. CO. OF LIBYA NATIONAL CO. FOR ROADS AND P.O. Box 8454, Tripoli, Libya. P.O. Box 1420, Benghazi, Libya. AIRPORTS Branch: P.O. Box 4050, Benghazi, Libya. Benghazi branch, P.O. Box 9250, Benghazi, * * * * * Branch: Libya. SOCIALIST EST. FOR SPINNING AND P.O. Box 8634, Sharia Al Jaraba, Tripoli, * * * * * WEAVING Zanzour Km. 15, P.O. Box 30186, Tripoli, Libya. NATIONAL SUPPLIES CORPORATION Libya. (a.k.a. NASCO) * * * * * Branch: NATIONAL CO. FOR TRADING AND P.O. Box 3402, Sharia Omar Mukhtar, P.O. Box 852, Benghazi, Libya. MANUFACTURING OF CLOTHING Tripoli, Libya. Libya. Branch: * * * * * P.O. Box 2071, Benghazi, Libya. SORMAN FODDER PLANT * * * * * Libya. NATIONAL CO. OF SOAP AND CLEANING * * * * * MATERIALS NATIONAL TELECOMMUNICATIONS CO. * * * * * P.O. Box 12025, Tripoli, Libya. P.O. Box 886, Shara Zawia, Tripoli, Libya. SOUK EL KHAMIS CEMENT CO. Branch: Branch: Libya. P.O. Box 246, Benghazi, Libya. P.O. Box 4139, Benghazi, Libya. * * * * * * * * * * * * * * * SOUK EL KHAMIS GENERAL CEMENT AND NATIONAL CONSTRUCTION AND NORTH AFRICA INDUSTRIAL TRADING BUILDING MATERIALS CORP. ENGINEERING CO. AND CONTRACTING CO. Tarhuna, Sharia Bou Harida, P.O. Box P.O. Box 1060, Sharia Sidi Issa, Tripoli, P.O. Box 245, Tripoli, Libya. 1084, Tripoli, Libya. Libya. * * * * * * * * * * Branch: OEA DRINKS CO. SOUK EL KHAMIS LIME FACTORY 8304 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations Libya. Libya. Secretary of Libya’s General People’s * * * * * * * * * * Committee SOUSA SHIPPING AND STEVEDORING 3. Appendix B to part 550 is amended Libya EST. by adding a note following the appendix DOB 1943 P.O. Box 2973, Benghazi, Libya. title to read as follows: POB Ghariar, Libya. * * * * * * * * * * SUANI GYPSUM PLANT Appendix B to Part 550—Individuals AL–SHAMIKH, Mubarak Libya. Determined To Be Specially Designated Secretary of Housing and Utilities of the * * * * * Nationals of the Government of Libya Government of Libya TAJOURA MODERN TANNERY Note: In the entries below, ‘‘DOB’’ means Libya Libya. ‘‘date of birth’’ and ‘‘POB’’ means ‘‘place of DOB 1950. * * * * * birth.’’ * * * * * TAHARAR FOOTWEAR PLANT * * * * * AL–ZANATI, Muhammad Tripoli, Libya. 4. Appendix B to part 550 is amended Secretary of the General People’s Congress * * * * * by adding the following entries in of Libya TECHNICAL CO. FOR AGRICULTURAL alphabetical order, to read as follows: Libya. PEST CONTROL * * * * * New Gourgy Road, P.O. Box 6445, Tripoli, Appendix b to part 550—Individuals BADI, Mahmud Libya. Determined to be Specially Designated Secretary of People’s Control and Follow– Branch: Nationals of the Government of Libya up of the Government of Libya Nacer Street, Benghazi, Libya. * * * * * Libya. * * * * * AL–HIJAZI, Mahmud * * * * * TIBESTI AUTOMOBILE GENERAL CO. Secretary of Justice and Public Security of DURDA, Abu Zayd Umar P.O. Box 8456, Tripoli, Libya. the Government of Libya Assistant Secretary of Libya’s General Branches: Libya P.O. Box 5397, Benghazi, Libya. People’s Congress DOB 1944 Libya. Derna, Libya. POB Batta, Libya. Misurata, Libya. * * * * * Khums, Libya. * * * * * FAZANI, Juma AL–HINSHIRI, Izz Al–Din Al–Muhammad Sebha, Libya. Secretary of Arab Unity of the Government Secretary of Communications and Gharian, Libya. of Libya Transport of the Government of Libya Zawia, Libya. Libya. Tripoli, Libya. Libya DOB 6 October 1951. * * * * * * * * * * IBN SHATWAN, Fathi TOLMETHA SHIPPING ESTABLISHMENT * * * * * Secretary of Industry of the Government of P.O. Box 208, Derna, Libya. AL–JIHIMI, Tahir Libya * * * * * Secretary of Economy and Trade of the Government of Libya Libya TRIPOLI CEMENT SILOS Libya. DOB 1950. Libya. * * * * * * * * * * * * * * * AL–KAFI, Isa Abd IBRAHIM, Muhammad Ahmad TRIPOLI GRAIN MILL Secretary of Agrarian Reform, Land Secretary of Information, Culture and Mass Libya. Reclamation and Animal Resources of Mobilization of the Government of Libya * * * * * the Government of Libya Libya. TYRE PLANT Libya. Libya. * * * * * * * * * * KUWAYBAH, Muftah Muhammad * * * * * AL–MAHMUDI, Baghdadi Secretary of Marine Resources of the TYRES RETREADING CENTRES Secretary of Health and Social Security of Government of Libya Libya. the Government of Libya Libya. * * * * * Libya. * * * * * UNIVERSAL SHIPPING AGENCY * * * * * MATUQ, Matuq Muhammad Benghazi, Libya. AL–MAL, Muhammad Bayt Secretary of Education, Youth, Scientific UNIVERSAL SHIPPING AGENCY Secretary of Planning and Finance of the Mersa El Brega, Libya. Research, and Vocational Education of Government of Libya the Government of Libya UNIVERSAL SHIPPING AGENCY Libya. Misurata, Libya. Libya UNIVERSAL SHIPPING AGENCY * * * * * DOB 1956. Tripoli, Libya. AL–MUNTASIR, Umar Mustafa * * * * * UNIVERSAL SHIPPING AGENCY Secretary of People’s External Liaison and OMRANI, Abuzeid Ramadan Zuetina, Libya. International Cooperation Bureau of the Administrative Manager of Libyan Arab Government of Libya Foreign Investment Company * * * * * Libya Libya. WEAVING, DYEING AND FINISHING DOB 1939 PLANT POB Misurata, Libya. * * * * * Libya. * * * * * Dated: January 25, 1995. * * * * * AL–QADHAFI, Muammar Abu Minyar R. Richard Newcomb, WOOL WASHING AND SPINNING PLANT Head of the Libyan Government and de Director, Office of Foreign Assets Control. Marj, Libya. facto chief of state Approved: January 27, 1995. * * * * * Libya ZLITEN FODDER PLANT DOB 1942 John Berry, Libya. POB Sirte, Libya. Deputy Assistant Secretary (Enforcement). * * * * * * * * * * [FR Doc. 95–3507 Filed 02–8–95; 2:48 pm] ZLITEN GRAIN MILL AL–QA’UD, Abd Al Majid BILLING CODE 4810±25±P Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8305 DEPARTMENT OF DEFENSE rule at 59 FR 34761 (July 7, 1994) is PART 553ÐARMY NATIONAL adopted as final without change. CEMETERIES Department of the Army Kenneth L. Denton, 1. In § 553.15a, the section heading is Army Federal Register Liaison Officer. 32 CFR Part 552, Subpart M corrected to read as follows: [FR Doc. 95–3268 Filed 2–13–95; 8:45 am] Land Use Policy for Fort Lewis, Yakima BILLING CODE 3710±08±M § 553.15a Persons eligible for inurnment of cremated remains in Columbarium in Training Center, and Camp Bonneville, Arlington National Cemetery. Washington 32 CFR Part 553 * * * * * AGENCY: Department of the Army, I Army National Cemeteries § 553.15a [Amended] Corps and Fort Lewis, DOD. AGENCY: Department of the Army, DOD. 2. In paragraph (e)(2) of § 553.15a, the words ‘‘active, military, naval, or air ACTION: Final rule. ACTION: Final rule. service’’ are corrected to read ‘‘active SUMMARY: This action was published in SUMMARY: This action adopts as final an military, naval, or airservice’’. the Federal Register (59 FR 34761), 7 interim rule which was published in the Kenneth L. Denton, July 1994, as an interim rule. This Federal Register (59 FR 60559) 25 Army Federal Register Liaison Officer. action establishes 32 CFR 552, Subpart November 1994. In accordance with [FR Doc. 95–3269 Filed 2–13–95; 8:45 am] M, Land Use Policy for Fort Lewis, Section 1176 of the National Defense BILLING CODE 3710±08±M Yakima Training Center, and Camp Authorization Act for Fiscal Year 1994, Bonneville as a final rule. Uninterrupted Pub. L. 103–160, the Department of the military use of training areas is vital to Army amended the regulations POSTAL SERVICE the maintenance of US and Allied governing eligibility for interment in Armed Forces combat readiness. In Arlington National Cemetery to include 39 CFR Part 233 addition, maneuver training areas may former prisoners of war (POWs). be dangerous to persons entering DATES: This final rule is effective Notice of Seizure for Forfeiture February 14, 1995. without warning provided during AGENCY: Postal Service. training scheduling or use permit ADDRESSES: Superintendent, Arlington ACTION: Final rule. processing. National Cemetery, Arlington, Virginia 22211–5003. DATES: SUMMARY: This final rule amends Postal This final rule is effective FOR FURTHER INFORMATION CONTACT: February 14, 1995. Service forfeiture regulations by John C. Metzler, Jr., Superintendent, changing the requirements of the notice ADDRESSES: Headquarters, I Corps and Arlington National Cemetery, (703) 695– of seizure that the Postal Inspection Fort Lewis, ATTN: Range Officer, 3175. Service must send to each known party AZFH–PTM–R, Fort Lewis, Washington, SUPPLEMENTARY INFORMATION: 32 CFR that may have a possessory or 98433–5000. Part 553 changed in accordance with ownership interest in the seized Section 1176 of the National Defense property. The amended notice must FOR FURTHER INFORMATION CONTACT: Authorization Act for Fiscal Year 1994, describe the property seized; state the Ms. Virginia Lanoue or A. J. Weller, Pub. L. 103–160. That section extended date, place, and cause for seizure; and (206) 967–6165/6371. eligibility for interment in Arlington inform the party of the intent of the National Cemetery to any former Executive Order 12291 Postal Inspection Service to forfeit the prisoner of war who, while a prisoner of property. Modifying the language of the This final rule has been classified as war, served honorably in the active Postal Service’s notice requirements nonmajor. military, naval, or air service and who will eliminate the redundancy and make dies on or after the date of enactment of Postal Service forfeiture regulations Regulatory Flexibility Act the 1994 Authorization Act (November more consistent with Justice and 30, 1993). This final rule has been reviewed Treasury forfeiture regulations. This final rule governs eligibility for EFFECTIVE DATE: February 14, 1995. with regard to the requirements of the interment in Arlington National Regulatory Flexibility Act of 1980. This Cemetery, an Army national cemetery FOR FURTHER INFORMATION CONTACT: final rule does not have a significant which is under the jurisdiction of the Frederick I. Rosenberg, Associate impact on small entities. Department of the Army. Because this Counsel, Postal Inspection Service, (202) 268–5477. Paperwork Reduction Act final rule pertains to a military function of the Department of the Army, the SUPPLEMENTARY INFORMATION: The This final rule does not contain new provisions of Executive Order 12866 do forfeiture authority and regulations of reporting or recordkeeping requirements not apply. It is hereby certified that this the Postal Service are published in 39 subject to approval by the Office of final rule will not have a significant CFR 233.7. Section 233.7(h)(1) contains Management and Budget under the impact on small business or the requirements for the notice of requirements of the Paperwork governments in the area. seizure that the Postal Inspection Reduction Act of 1980 (44 U.S.C. 3507). Service must send to each known party List of Subjects in 32 CFR Part 553 that may have a possessory or List of Subjects in 32 CFR Part 552, Cemeteries, National cemeteries. ownership interest in seized property Subpart M For the reasons set out in the having a value of $500,000 or less, or for monetary instruments or conveyances Military personnel, Government preamble, the amendments to 32 CFR that were used to transport or store any employees, Land use. Part 553 published as an interim rule on November 25, 1994, (59 FR 60559) are controlled substance. Accordingly, subpart M to 32 CFR adopted as final with the following Included within the current part 552 which was added as an interim corrections: requirements are provisions requiring 8306 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations the notice to state the statutory basis of SUMMARY: EPA is approving revisions to requisite revisions to the SIP the seizure and a brief narration of the the State Implementation Plan (SIP) establishing the PROGRAM. These facts leading to the conclusion that the submitted by the State of Florida revisions were adopted by the Florida property seized is subject to forfeiture. through the Florida Department of Legislature by amending chapter 403 of These two requirements are somewhat Environmental Protection (FDEP) for the the Florida Statute, approved on April redundant, and their language varies purpose of establishing a Small 8, 1992. The EPA reviewed this request from the notice requirements of the Business Stationary Source Technical for revision of the federally approved seizing agencies of the Departments of and Environmental Compliance SIP and found it to be in conformance Justice and Treasury. Modifying the Assistance Program (PROGRAM), which with the requirements of the 1990 CAA. language of the Postal Service’s notice will be fully implemented by November EPA therefore published a notice to requirements will eliminate the 1994. This implementation plan was approve the revisions without prior redundancy and make Postal Service submitted by FDEP on February 24, proposal (59 FR 8542, February 23, forfeiture regulations more consistent 1993, to satisfy the federal mandate to 1994). with Justice and Treasury forfeiture ensure that small businesses have access In the final rulemaking, EPA advised regulations. to the technical assistance and the public the effective date of the regulatory information necessary to List of Subjects in 39 CFR Part 233 action was deferred for 60 days (until comply with the Clean Air Act, as April 25, 1994) to provide an Crime, Law enforcement, Postal amended (CAA). opportunity to submit comments. EPA service, Seizures and forfeitures. EFFECTIVE DATE: This approval is announced if notice was received Accordingly, 39 CFR part 233 is effective March 16, 1995. within 30 days of the publication of the amended as set forth below. ADDRESSES: Copies of the documents final rule that someone wanted to PART 233ÐINSPECTION SERVICE/ relative to this action are available for submit adverse or critical comments, the INSPECTOR GENERAL AUTHORITY public inspection during normal final action would be withdrawn and a business hours at the following new rulemaking would begin by 1. The authority citation for part 233 locations. The interested persons proposing a 30 day comment period. continues to read as follows: wanting to examine these documents EPA had earlier published a general Authority: 39 U.S.C. 101, 401, 402, 403, should make an appointment with the notice explaining this special procedure 404, 406, 410, 411, 3005(e)(1); 12 U.S.C. appropriate office at least 24 hours (56 FR 44477, September 4, 1991). 3401–3422; 18 U.S.C. 981, 1956, 1957, 2254, before the visiting day. Adverse comments were received on the 3061; 21 U.S.C. 881; Inspector General Act of Air and Radiation Docket and 59 FR 8542 notice (February 23, 1994). 1978, as amended (Pub. L. No. 95–452, as Information Center (Air Docket 6102), Accordingly, EPA withdrew the direct amended), 5 U.S.C. App. 3. U.S. Environmental Protection final rule (59 FR 21664, April 26, 1994) 2. Section 233.7(h)(1) is amended by Agency, 401 M Street SW., and simultaneously proposed approval revising the second sentence to read as Washington, DC 20460 (59 FR 21738, April 26, 1994) of the follows: Environmental Protection Agency, aforementioned Florida revisions to the Region 4 Air Programs Branch, 345 § 233.7 Forfeiture authority and SIP. The proposed rule formally procedures. Courtland Street NE., Atlanta, Georgia solicited comments and one adverse 30365 comment was subsequently received. * * * * * Air Resources Management Division, (h) * * * Comments. The commenter, Florida Department of Environmental representing a trade association, (1) * * * The notice must describe Protection, Twin Towers Office the property seized; state the date, indicated the proposed structure of the Building, 2600 Blair Stone Road, place, and cause for seizure; and inform Florida Small Business Assistance Tallahassee, Florida 32399–2400. the party of the intent of the Postal Program (SBAP) was ‘‘fraught with risk’’ Inspection Service to forfeit the FOR FURTHER INFORMATION CONTACT: Mr. and ‘‘created a potential conflict of property. * * * Joey LeVasseur, Regulatory Planning interest.’’ The Florida Program and Development Section, Air Programs * * * * * combines the roles of the ombudsman, Branch, Air, Pesticides & Toxics technical assistance and staffing for the Stanley F. Mires, Management Division, Region 4 Compliance Advisory Panel in a single Chief Counsel, Legislative. Environmental Protection Agency, 345 office. The commenter was thus [FR Doc. 95–3559 Filed 2–13–95; 8:45 am] Courtland Street, NE., Atlanta, Georgia concerned that the inherent checks and BILLING CODE 7710±12±P 30365. The telephone number is 404/ balances intended by section 507 of the 347–3555 x4215. Reference file FL053– CAA would be compromised. 01–5923. Response. The Agency recognizes the ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: legitimacy of the commenter’s concerns. AGENCY Implementation of the CAA requires Prior to the publication of the February small businesses to comply with 40 CFR Part 52 23, 1994, Federal Register notice, the specific regulations in order for areas to Agency considered this particular issue [FL±53±1±6740; FRL±5114±8] attain and maintain the national in depth. The governing document is ambient air quality standards (NAAQS) the Guidelines for Implementation of Approval and Promulgation of and reduce the emission of air toxics. In Section 507 of the 1990 Clean Air Act Implementation Plans Florida: Title V, anticipation of the impact of these Amendments; and, in particular, two Section 507, Small Business Stationary requirements on small businesses, the specific portions therein: Source Technical and Environmental CAA requires that states adopt a Compliance Assistance Program The State must comply with all statutory PROGRAM, and submit this PROGRAM requirements of the Act, however, to the AGENCY: Environmental Protection as a revision to the federally approved extent that the EPA is interpreting the Act Agency (EPA). SIP. On February 24, 1993, the Florida requirements, these interpretations are not Department of Environmental Protection binding on the States * * * (Preface of ACTION: Final rule. submitted to EPA for approval, the Guidelines); and Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8307 The EPA does not prescribe the placement represent small businesses and the that the rule will not have a significant of the Ombudsman Office or the office to be Florida SBAP is performing efficiently. impact on a substantial number of small charged with the implementation of an Florida’s proposed SIP revision, entities. Small entities include small SBAP. * * * The critical test for EPA therefore, clearly meets the first two of approval, with respect to this element of the businesses, small not-for-profit PROGRAM [the ombudsman], will be the required tests identified in the enterprises, and government entities whether (1) the designated office is Guidance. with jurisdiction over populations of encumbered with activities that prevent it After a thorough review of the less than 50,000. from performing effectively; (2) sufficient PROGRAM in light of the comment, By this action, EPA is approving a expertise exists to represent small businesses; EPA believes the PROGRAM meets the PROGRAM created for the purpose of and (3) no conflicts of interest exist within requirements of the CAA. The the office that would prevent the assisting small businesses in complying PROGRAM as conceived by the CAA with existing statutory and regulatory Ombudsman from serving has an inherent system of checks and effectively * * * (Section 2.0 of the requirements. The program does not Guidelines, pp. 14 and 15). balances to guard against this potential impose any new regulatory burden on likelihood. The Florida PROGRAM does In the spirit of the guidelines, the small businesses; it is a program under not circumvent or obviate any of them. which small businesses may elect to Agency examined Florida’s submission The Florida Ombudsman has direct from several perspectives. The State of take advantage of assistance provided by access to the Governor of the State the State. Therefore, because the EPA’s Florida held public hearings regarding should the necessary support of the the proposed statutory changes and SIP approval of this program does not Department to implement the impose any new regulatory currently at issue. No one, including PROGRAM be deemed wanting. The requirements on small businesses, I trade associations, made an adverse CAP is responsible for assuring certify that it does not have a significant comment either at the hearings or in adherence to the SIP and providing a economic impact on any small entities writing at a later time. The Agency source for small businesses to voice affected. concluded, therefore, every effort had concerns regarding either the been made to provide the regulated ombudsman or the SBAP. The List of Subjects in 40 CFR Part 52 community and other potentially utilization of the SBAP staff to serve and affected parties with an opportunity to assist the CAP is, in fact, mandated by Environmental protection, Air craft the PROGRAM in an acceptable the CAA. In addition, both Region 4 and pollution control, Incorporation by form. the EPA Ombudsman are responsible for reference, Intergovernmental relations, The selection of the Ombudsman and monitoring and overseeing the Small business stationary source the Small Business Section Program implementation of the SIP in Florida. technical and environmental assistance Administrator, who has the Should any conflict of interest or any program. responsibility of directing the SBAP, is other concern be realized, corrective or Dated: November 8, 1994. the responsibility of the Chief of the remedial action can be taken Patrick M. Tobin, Bureau of Air Regulation. The decision immediately. The Agency concludes, Acting Regional Administrator. was made to have the current therefore, the Florida PROGRAM as ombudsman also serve as the Program proposed meets the requisite criteria for Part 52 of chapter I, title 40, Code of Administrator. Florida has taken the approval. Federal Regulations, is amended as position that the combined functions follows: permit the ombudsman to effect Final Action immediate improvements and correct EPA is approving the PROGRAM SIP PART 52Ð[AMENDED] deficiencies in the SBAP through the revision submitted by the State of 1. The authority citation for part 52 advocacy responsibilities inherent in Florida through the FDEP for the continues to read as follows: the office. The Agency accepts this as establishment of a Small Business the prerogative of the State provided it Stationary Source Technical and Authority: 42 U.S.C. 7401–7671q. works as the CAA intended. The CAA Environmental Compliance Assistance Subpart KÐFlorida does not require that these offices be Program. The Agency has reviewed this separate. Should personnel, resources request for revision of the federally 2. Section 52.520, is amended by and/or the needs of either the approved SIP for conformance with the Ombudsman’s or the Administrator’s adding paragraph (c)(80) to read as CAA, including sections 507 and follows: office warrant a different approach, the 110(a)(2). Agency acknowledges that the Bureau The Office of Management and Budget § 52.520 Identification of plan. Chief can divide the responsibilities has exempted these actions from review * * * * * accordingly. From its inception, the under Executive Order 12866. (c) * * * high quality of Florida’s PROGRAM has Nothing in this action shall be been recognized by the Agency. Indeed, construed as permitting or allowing or (80) The Florida Department of even the commenter stated: ‘‘Our establishing a precedent for any future Environmental Regulation has comments are not meant to convey an request for a revision to any SIP. Each submitted revisions to chapter 403.0852 impression that we feel the Florida request for revision to the SIP shall be of the Florida Statutes on February 24, program is not working. In fact it seems considered separately in light of specific 1993. These revisions address the to be working better than in many other technical, economic, and environmental requirements of section 507 of title V of states.’’ The acknowledged fact that factors and in relation to relevant the CAA and establish the Small Florida’s PROGRAM is working well statutory and regulatory requirements. Business Stationary Source Technical goes to the heart of the issue. The Under the Regulatory Flexibility Act, and Environmental Assistance Program Agency believes the structure of a 5 U.S.C. 600 et seq., EPA must prepare (PROGRAM). PROGRAM is secondary to its a regulatory flexibility analysis (i) Incorporation by reference. Florida effectiveness. The Agency has assessing the impact of any proposed or Statutes 403.031(20), 403.0852 (1), (2), determined the Florida Ombudsman’s final rule on small entities. 5 U.S.C. 603 (3), (4), 403.0872(10)(b), 403.0873, office has sufficient expertise to and 604. Alternatively, EPA may certify 403.8051, effective on April 28, 1992. 8308 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations (ii) Other material. None. FOR FURTHER INFORMATION CONTACT: Mr. recommendations for improving safety * * * * * Robert S. Spears, Jr., Project Manager, in the towing industry. One of the [FR Doc. 95–3577 Filed 2–13–95; 8:45 am] Office of Marine Safety, Security, and recommendations was to require radar Environmental Protection (G–MVP–3), BILLING CODE 6560±50±P observer training and endorsements for (202) 267–0224, between 9 a.m. and 5 operators of radar-equipped p.m., Monday through Friday, except uninspected towing vessels 8 meters Federal holidays. DEPARTMENT OF TRANSPORTATION (approximately 26 feet) or more in SUPPLEMENTARY INFORMATION: length. That recommendation was Coast Guard approved, and on October 26, 1994 (59 Request for Comments FR 53754), the Coast Guard published 46 CFR Part 15 The Coast Guard encourages an interim rule establishing requirements for radar training. The [CGD 94±041] interested persons to participate in this rulemaking by submitting written data, interim rule also added topics to the list RIN 2115±AE92 views, or arguments. Persons submitting of required subjects taught in approved comments should include their names radar-training courses that must be Radar-Observer Endorsement for and addresses, identify this rulemaking completed in order to receive a radar- Operators of Uninspected Towing (CGD 94–041) and the specific section of observer endorsement. Vessels this rule to which each comment The interim rule went into effect on AGENCY: Coast Guard, DOT. applies, and give the reason for each November 25, 1994. However, to ACTION: Interim rule; reopening of comment. Please submit two copies of provide a reasonable opportunity for comment period. all comments and attachments in an affected persons to complete the unbound format, no larger than 81⁄2 by training and obtain the required SUMMARY: On October 26, 1994 (59 FR 11 inches, suitable for copying and endorsements, 46 CFR 15.815(c) 53754), the Coast Guard published an electronic filing. Persons wanting provided that the endorsement was interim rule establishing radar-training acknowledgment of receipt of comments required only for those licenses to be requirements for licensed masters, should enclose stamped, self-addressed issued after February 15, 1995. Persons mates, and operators of radar-equipped postcards or envelopes. holding valid licenses issued prior to uninspected towing vessels 8 meters The Coast Guard will consider all February 15, 1995, would be required to (approximately 26 feet) or more in comments received during the comment undergo basic radar training and receive length. Under the interim rule, on period. It may change this rule in view a certificate of completion for that February 15, 1995, these licensed of the comments. training prior to February 15, 1995. persons would be required to hold Drafting Information Without the endorsement or certificate either an endorsement as a radar of completion, after February 15, 1995, observer or, if holding a valid license The principal persons involved in the no person may serve as a master, mate, drafting of this document are Mr. Robert issued before February 15, 1995, a or operator of a radar-equipped towing S. Spears, Jr., Project Manager, Office of certificate from a Radar-Operation vessel, 8 meters (approximately 26 feet) Marine Safety, Security, and course. In response to comments from or more in length, required to have a Environmental Protection, Mr. Patrick J. members of the regulated public, the licensed operator. For a person holding Murray, Project Counsel, Office of the Coast Guard is amending the interim a license issued before February 15, Chief Counsel, and Commander Thomas rule to change the date on which the 1995, the additional training needed to Cahill, Office of the Chief Counsel. radar-observer endorsement or the qualify for a radar-observer endorsement Radar-Operation course certificate will Regulatory Information would then be required before the be required from February 15, 1995, to This rule amends an interim rule individual renewed or upgraded his or June 1, 1995. The Coast Guard is also issued by the Coast Guard on October her license. reopening the comment period to solicit 26, 1994 (59 FR 53754). Comments The comment period for the interim additional public involvement in this received from members of the regulated rule closed on January 24, 1995. Prior to rulemaking. public have indicated that difficulties the close of the comment period, the DATES: This interim rule is effective on were encountered in obtaining the Coast Guard received over 300 February 14, 1995. Comments must be required training in the time allowed. comments. A number of the comments received before June 1, 1995. This rule amends the date by which a expressed concern that the required ADDRESSES: Comments may be mailed to license endorsement or a certificate of training would not be available before the Executive Secretary, Marine Safety training must be obtained, and relieves February 15, 1995. Therefore, to relieve Council (G–LRA, 3406) (CGD 94–041), a potential burden on members of the this potential burden, the Coast Guard is U.S. Coast Guard Headquarters, 2100 regulated public by providing additional amending the interim rule. The Coast Second Street SW., Washington, DC time to achieve compliance. It should Guard will also continue to evaluate the 20593–0001, or may be delivered to not adversely affect navigation safety. comments received on this rulemaking. room 3406 at the same address between Therefore, under 5 U.S.C. 553(d)(3), the Discussion of Amendment 8 a.m. and 3 p.m., Monday through Coast Guard certifies that good cause Friday, except Federal holidays. The exists for this rule to be effective upon This rule changes the date in 46 CFR telephone number is (202) 267–1477. publication. 15.815(c) by which a radar-observer The Executive Secretary maintains the endorsement or certificate of training public docket for this rulemaking. Background must be received from February 15, Comments will become part of this Following the derailment of the 1995 to June 1, 1995. This extension docket and will be available for Amtrak Sunset Limited, with extensive permits affected mariners who are not inspection or copying at room 3406, injury and loss of life, on September 22, able to complete radar training by U.S. Coast Guard Headquarters, between 1993, the Coast Guard conducted a February 15 to continue to operate 8 a.m. and 3 p.m., Monday through study of uninspected towing vessel legally. Further, the related reopening of Friday, except Federal holidays. safety. The study made a number of the comment period provides a greater Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8309 opportunity for comment on the interim however, you think that your business (2) If the person holds a valid license rule. or organization qualifies as a small dated before June 1, 1995, a valid Mariners opting for the Radar- entity and that this rule will have a certificate from a Radar-Operation Operation courses in lieu of radar- significant economic impact on your course. observer courses approved by the Coast business or organization, please submit Dated: February 2, 1995. Guard may renew or upgrade their ADDRESSES a comment (see ) explaining J.C. Card, licenses (to be issued before June 1, why you think it qualifies and in what Rear Admiral, U.S. Coast Guard, Chief, Office 1995) before completing Radar- way and to what degree this rule will Operation courses. Upon completion of of Marine Safety, Security and Environmental economically affect it. Protection. such courses they must hold the courses’ certificates with their licenses. Collection of Information [FR Doc. 95–3663 Filed 2–13–95; 8:45 am] BILLING CODE 4910±14±M Regulatory Evaluation This rule contains no new collection of information requirements under the This proposal is not a significant Paperwork Reduction Act (44 U.S.C. regulatory action under section 3(f) of 3501 et seq.). FEDERAL COMMUNICATIONS Executive Order 12866 and does not COMMISSION require an assessment of potential costs Federalism 47 CFR Part 2 and benefits under section 6(a)(3) of that The Coast Guard has analyzed this order. It has not been reviewed by the rule under the principles and criteria [GEN Docket No. 90±357; FCC 95±17] Office of Management and Budget under contained in Executive Order 12612 and that order. It is not significant under the has determined that this rule does not New Digital Audio Radio Services regulatory policies and procedures of have sufficient federalism implications the Department of Transportation (DOT) AGENCY: Federal Communications to warrant the preparation of a Commission. (44 FR 11040; February 26, 1979). Federalism Assessment. The Coast Guard expects the ACTION: Final rule. economic impact of this rule to be so Environment SUMMARY: By this action the minimal that a full Regulatory The Coast Guard considered the Commission amends its rules regarding Evaluation under paragraph 10e of the environmental impact of this rule and frequency allocation to allocate regulatory policies and procedures of concluded that, under paragraph 2.B.2 spectrum in the 2310–2360 MHz band DOT is unnecessary. This rule relieves of Commandant Instruction M16475.1B, for new satellite digital audio radio a potential regulatory burden by this proposal is categorically excluded services (DARS). This action will bring providing additional time for persons from further environmental about a new service, which will provide subject to the rule to obtain required documentation. This rule is an enhanced quality of reception and training. It does not significantly change administrative matter involving increased program diversity to all the regulatory evaluation contained in personnel training and licensing and markets nationwide. the interim rule published October 26, clearly has no environmental impact. A EFFECTIVE DATE: March 16, 1995. 1994 (59 FR 53754). ‘‘Categorical Exclusion Determination’’ FOR FURTHER INFORMATION CONTACT: is available in the docket for inspection Small Entities Lynn L. Remly, Office of Engineering or copying here indicated under Under the Regulatory Flexibility Act and Technology, at (202) 776–1623. ADDRESSES. (5 U.S.C. 601 et seq.), the Coast Guard SUPPLEMENTARY INFORMATION: This is a must consider whether this rule will List of Subjects in 46 CFR Part 15 summary of the Commission’s Report have a significant economic impact on Reporting and recordkeeping and Order in GEN Docket No. 90–357, a substantial number of small entities. requirements, Seamen, Vessels. adopted January 12, 1995 and released ‘‘Small entities’’ may include (1) small For the reasons set forth in the January 18, 1995. By this action, the businesses and not-for-profit preamble, the Coast Guard amends 46 Commission amends its Rules with organizations that are independently CFR part 15 as follows: regard to the establishment and owned and operated and are not regulation of new satellite digital audio dominant in their fields and (2) PART 15ÐMANNING REQUIREMENTS radio services. The full text of this governmental jurisdictions with decision is available for inspection and populations of less than 50,000. 1. The citation of authority for part 15 copying during normal business hours This rule relieves a potential continues to read as follows: in the FCC Dockets Reference Center regulatory burden by providing Authority: 46 U.S.C. 2103, 3703, 8502; 49 (Room 239), 1919 M Street, N.W., additional time for persons subject to CFR 1.45, 1.46. Washington, D.C. 20554. The full text of the rule to obtain required training, and § 15.815 [Amended] this decision may also be purchased should have no economic impact on from the Commission’s copy contractor, small entities. As discussed in the 2. In § 15.815, paragraph (c) is revised International Transcription Service, interim rule, the Coast Guard expects to read as follows: Inc., (202) 857–3800, 2100 M Street that the burdens of complying with the * * * * * N.W., Washington, D.C. 20037. interim rule will fall on individuals, (c) On or after June 1, 1995, each rather than on small entities. This person having to be licensed under 46 Summary of Order change may provide any affected small U.S.C. 8904(a) for employment or 1. In 1990, three parties requested the entities with additional flexibility in service as master, mate, or operator on Commission to allocate spectrum or scheduling required training and result board an uninspected towing vessel of otherwise authorize the provision of in some economic benefit. Therefore, 8 meters (approximately 26 feet) or more digital audio radio services. On May 18, the Coast Guard certifies under 5 U.S.C. in length shall, if the vessel is equipped 1990, Satellite CD Radio, Inc. (SCDR) 605(b) that this rule will not have a with radar, hold— filed a Petition for Rule Making in significant economic impact on a (1) A valid endorsement as radar which it requested spectrum to offer a substantial number of small entities. If, observer; or, compact disk quality digital audio radio 8310 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations service to be delivered by satellites and Broadcasting Company, Primosphere 6. In the Report and Order the complementary radio transmitters. On Limited Partnership, and American Commission allocates spectrum in the May 22, 1990, Radio Satellite Mobile Radio Corporation each 2310–2360 MHz band for new satellite Corporation filed a Request for submitted applications. As a result, DARS. This domestic allocation is in Authorization to build and operate an there are currently four pending satellite accordance with the international earth station that would provide DARS DARS license applications. allocation made at WARC–92. We are and other mobile satellite services over 4. Further, two industry committees making this allocation, rather than an a system planned to be built by the are presently considering DARS alternative allocation in the 1.4–1.5 GHz American Mobile Satellite Corporation technical standards issues. The band, because it was strongly favored by in the 1.6/2.4 GHz bands. Finally, on Electronics Industry Association (EIA) commenters and because this band was July 27, 1990, Strother Communications, has formed a subcommittee to consider allocated for BSS (Sound) at WARC–92. Inc. filed a Petition for Rule Making the development of standards for Satellite DARS will provide continuous requesting that the Commission allocate terrestrial and satellite DARS. Also, the spectrum and adopt rules for terrestrial radio service of compact disk quality on National Radio Systems Committee a nationwide or regional basis, digital audio broadcasting services. (NRSC) has agreed to examine terrestrial including areas which are presently 2. In August 1990, the Commission DARS systems which would operate in unserved or underserved. In addition, issued a Notice of Inquiry (NOI), 55 FR the AM or FM broadcast bands, and EIA this new service will provide 34940 (August 27, 1990), soliciting and NRSC are cooperating in testing information necessary to identify such DARS technologies. opportunities for domestic economic spectrum and develop technical rules development and will improve U.S. 5. Comments to the NPRM comprised and regulatory policies for DARS in the a wide variety of parties. Proponents of competitiveness in the world United States. In the NOI, we noted the allocation, including potential marketplace by promoting rapid international interest in the DARS providers, equipment technological development in various development of digital sound manufacturers, and potential users, state areas, such as satellite communications broadcasting and expressed concern that that there will be major benefits from and audio compression. Furthermore, the United States would be satellite DARS. These parties argued we continue to support efforts to disadvantaged if it did not participate in generally that a satellite-delivered implement terrestrial DARS technology. this new technology. In a parallel effort, system will meet the needs of unserved We believe that existing radio by a series of inquiries between 1989 broadcasters can and should have the and 1991, the Commission solicited and undeserved markets as well as opportunity to profit from new digital comment on appropriate U.S. positions provide enhanced quality of reception radio technologies, and we anticipate to be taken at the 1992 World and increased audio program diversity. Administrative Radio Conference Further, they pointed out that a satellite that technical advances will soon permit (WARC–92). We sought comment on DARS system that would provide both AM and FM broadcasters to offer possible spectrum to be used for the enhanced quality of reception for all improved digital sounds. These provision of high-quality audio listeners is currently feasible. In innovations will also help promote the programming by the broadcasting addition, they asserted that the future viability of our terrestrial satellite service (BSS Sound). Based on allocation would create economic broadcasting system, which provides the inquiries, and in coordination with opportunities in the United States for local news and public affairs the National Telecommunications various segments of industry, especially programming. Finally, we note that we Information Administration (NTIA), the manufactures of DARS-related are deferring licensing and service rules Commission supported a U.S. position equipment. Finally, proponents argued for satellite DARS until a further seeking an allocation for satellite and that a satellite DARS allocation will proceeding. complementary terrestrial DARS at improve U.S. competitiveness in the 2310–2360 MHz. world marketplace. Opponents, Ordering Clauses 3. At WARC–92, three different BSS primarily existing broadcast entities, Accordingly, it is ordered, that Part 2 (Sound) allocations were adopted. either rejected a satellite DARS International Radio Regulation RR750B allocation or recommended that an of the Commission’s Rules is amended allocated the 2310–2360 MHz band in allocation not be until terrestrial DARS as specified below, effective March 16, the United States for digital audio allocation options have been fully 1995. This action is taken pursuant to satellite broadcasting (BSS Sound). This explored. Many of these commenters Sections 4(i), 7(a), 302, 303(c), 303(f), allocation, like those adopted for other argued that satellite systems will 303(g), and 303(r) of the areas of the world, was limited to audio adversely impact present AM/FM radio Communications Act of 1934, as broadcasting by digital modulation. In services by driving local stations out of amended, 47 U.S.C. Sections 154(i), November 1992 the Commission business. This, they contended, will 157(a), 302, 303(c), 303(f), 303(g), and released the Notice of Proposed Rule cause a loss of local service, which a 303(r). Making and Further Notice of Inquiry satellite service by its nature cannot (NPRM), 57 FR 57049 (December 2, replace. This effect, these opponents List of Subjects in 47 CFR Part 2 1992), in which we proposed to adopt argued, contravenes the intent of the Radio. the WARC–92 allocation of 2310–2360 Communications Act of 1934 that local MHz for satellite DARS; proposed to needs be met by broadcast media. In Federal Communications Commission. accommodate aeronautical telemetry addition, opponents argued that William F. Caton, services now operating in the 2310– programming will become less, not Acting Secretary. 2390 MHz band at 2360–2390 MHz; and more, diverse as a result of satellite solicited comment on regulatory and DARS. Some commenters did not Rule Changes technical aspects of satellite DARS. Also oppose a satellite DARS allocations, but Part 2 of Chapter I of Title 47 of the in 1992, we accepted for comment recommended that the Commission Code of Federal Regulations is amended SCDR’s license application and invited allocate frequencies in the 1.4–1.5 GHz as follows: competing applications. Digital Satellite band in lieu of the proposed allocation. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8311 PART 2ÐFREQUENCY ALLOCATIONS 47 U.S.C. Sections 154, 154(i), 302, 303, b. International footnotes No. 743A is AND RADIO TREATY MATTERS; 303(r), and 307, unless otherwise noted. removed and Nos. 750B, 751A, and GENERAL RULES AND REGULATIONS 2. Section 2.106, the Table of 751B are added in numerical order. Frequency Allocations is amended as c. United States (US) footnotes Nos. 1. The authority citation for Part 2 follows: US327 and US328 are added in continues to read as follows: numerical order. a. The entry for 2300–2450 MHz is The additions read as follows: Authority: Sec. 4, 302, 303, and 307 of the removed and new entries for 2300–2450 Communications Act of 1934, as amended, MHz are added in numerical order. § 2.106 Table of Frequency Allocations International table United States table FCC use designators Government Non-Government Region 1Ðalloca- Region 2Ðalloca- Region 3Ðalloca- Rule part(s) Special-use fre- tion MHz tion MHz tion MHz Allocation MHz Allocation Mhz quencies (1) (2) (3) (4) (5) (6) (7) ******* 2300±2450, FIXED, 2300±2450, ...... 2300±2310, 2300±2310, Ama- Amateur (97). MOBILE, Ama- FIXED, MOBILE, RADIO- teur, US253. teur, Radio- RADIO- LOCATION, location. LOCATION, Fixed, Mobile, Amateur. US253 G2. 2310±2360, Mo- 2310±2360, ...... Digital Audio bile, Radio- BROADCAST- Radio Serv- location, Fixed, ING-, SAT- ices US276 US327 ELLITE, Mobile, US328 G2 US276 US327 751B G120. US328 751B. 2360±2390, MO- 2360±2390 MO- BILE, RADIO- BILE US276. LOCATION, Fixed US276 G2 G120. 2390±2450 2390±2450 Ama- Amateur (97). RADIO- teur. LOCATION. 664 751A 752 ... 664 750B 751 ...... 664 752 G2 ...... 664 752. 751B 752. ******* International Footnotes may affect services to which this band is US328 In the band 2310–2360 MHz, the * * * * * allocated in other countries shall be mobile and radiolocation services are 750B Additional allocation: In the United coordinated and notified in accordance with allocated on a primary basis until 1 January States of America and India, the band 2310– Resolution 33. Complementary terrestrial 1997 or until a broadcasting-satellite (sound) 2360 MHz is also allocated to the broadcasting stations shall be subject to service has been brought into use in such a broadcasting-satellite service (sound) and bilateral coordination with neighboring manner as to affect or be affected by the complementary terrestrial broadcasting countries prior to their bringing into use. mobile and radiolocation services in those service on a primary basis. Such use is * * * * * service areas, whichever is later. The limited to digital audio broadcasting and is broadcasting-satellite (sound) service during subject to the provisions of Resolution 528. United States (US) Footnotes implementation should also take cognizance * * * * * * * * * * of the expendable and reusable launch 751A In France, the use of the band US327 The band 2310–2360 MHz is vehicle frequencies 2312.5, 2332.5, and 2310–2360 MHz by the aeronautical mobile allocated to the broadcasting-satellite service 2352.5 MHz, to minimize the impact on this service for telemetry has priority over other (sound) and complementary terrestrial mobile service use to the extent possible. uses by the mobile service. broadcasting service on a primary basis. Such * * * * * 751B Space stations of the broadcasting- use is limited to digital audio broadcasting satellite service in the band 2310–2360 MHz and is subject to the provisions of Resolution [FR Doc. 95–2949 Filed 2–13–95; 8:45 am] operating in accordance with No. 750B that 528. BILLING CODE 6712±01±M 8312 Proposed Rules Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 This section of the FEDERAL REGISTER ADDRESSES: Send comments to rotation of health warnings or utilitarian contains notices to the public of the proposed Secretary, Federal Trade Commission, objects on the costs, profitability, issuance of rules and regulations. The 6th and Pennsylvania Avenue NW., competitiveness, and employment of purpose of these notices is to give interested Washington, DC 20580. small business entities? persons an opportunity to participate in the Question 2. The Smokeless Tobacco rule making prior to the adoption of the final FOR FURTHER INFORMATION CONTACT: rules. Phillip S. Priesman, Attorney, (202) Act requires smokeless tobacco 326–2484, Division of Advertising companies to submit plans to the Practices, Federal Trade Commission, Commission that specify the method the FEDERAL TRADE COMMISSION 6th & Pennsylvania Avenue NW., companies will use to rotate, display, Washington, DC 20580. and distribute the required health 16 CFR Part 307 warning statements on their packaging SUPPLEMENTARY INFORMATION: and advertising. The original Regulations Under the Comprehensive Section A—Background requirement for the submission of plans Smokeless Tobacco Health Education by marketers of smokeless tobacco Act of 1986 On January 15, 1993, the Commission proposed amending 16 CFR part 307 (58 products was submitted to, and AGENCY: Federal Trade Commission. FR 4874) to modify the rotational approved by, the Office of Management ACTION: Notice of proposed rulemaking. schedule for health warnings on and Budget. OMB Control No. 3084– promotional materials. Some of the 0082. SUMMARY: On March 20, 1991, the comments received suggested that the By changing the requirements for the Federal Trade Commission (‘‘the Commission should not only amend the rotation of the health warnings on Commission’’) issued final regulations rotational provisions for promotional utilitarian objects, the proposed (56 FR 11653) amending 16 CFR part materials, but also amend the amendments will require some of the 307, the Commission’s existing regulations governing the rotation of smokeless tobacco companies to revise regulations pursuant to the utilitarian objects. their rotational plans for utilitarian Comprehensive Smokeless Tobacco The proposed rule would provide that objects. What are the possible Health Education Act of 1986 (‘‘the a satisfactory plan for utilitarian objects paperwork burdens that the proposed Smokeless Tobacco Act’’). The could provide for rotation according to utilitarian objects amendment to 16 CFR amendments deleted the exemption of either the date the object is Part 307 may impose? utilitarian objects from the regulations, disseminated or the date the object is Question 3. What are the possible and provided a method for displaying ordered. It would also delete the regulatory alternatives that would and rotating the health warnings on exception permitting random rotation reduce the economic impact of the utilitarian objects. The amendments also under certain circumstances. This proposed rotational requirements for changed the requirements for the exception was intended to alleviate the warning labels on utilitarian objects, yet rotation of the health warnings on point- hardship caused when date of fully implement the regulatory mandate of-sale and non-point-of-sale dissemination was specified as the only of the Smokeless Tobacco Act? promotional materials (‘‘promotional acceptable basis for a rotation schedule. Section C—Regulatory Flexibility Act materials’’). On January 15, 1993, the The Commission currently permits Commission deleted the promotional rotation methods based on When the Smokeless Tobacco materials portion of the 1991 dissemination date or order date for Regulations were first proposed, the amendment, indicating that it had failed promotional materials. See 58 FR 4874 FTC certified that the Regulatory to receive sufficient comment on this (Jan. 15, 1993). The proposed rule for Flexibility Act requirement for portion of the Regulation. At the same utilitarian items follows the rotation regulatory analysis was not applicable time, the Commission re-proposed its method currently in effect for because the regulations did not appear 1991 rule for promotional materials promotional materials. However, the to have a significant economic impact warning label rotations and sought proposed rule would permit rotation on a substantial number of small comment. Some of the comments based on dissemination date or order entities. 51 FR 24378 (1986). The received suggested that the Commission date only if the production of materials Commission has re-examined that issue should not only amend the rotational is carried out in a manner consistent with respect to the proposed schedule for promotional materials, but with customary business practices. amendment for utilitarian objects and also amend the regulations governing Thus, under the proposed rule, there has preliminarily determined that the the rotation of utilitarian objects. Thus, would no longer be any need for proposed amendment will not change the Commission is seeking public random rotation. For these reasons, the that determination because the comment on whether the regulations Commission is proposing the deletion of amendment merely enables governing the rotation schedule for the random rotation exception from the manufacturers of smokeless tobacco to utilitarian objects should be amended. regulations. modify slightly an already existing All persons are hereby notified of the schedule by which they rotate the three opportunity to submit written data, Section B—Questions required warnings on utilitarian objects. views, and arguments concerning the In particular, the Commission is In order to ensure, however, that no requirements for the rotation of health soliciting information on the following substantial economic impact is being warnings on utilitarian objects. questions: overlooked, public comment is DATES: Written comments will be Question 1. What is the likely effect requested on the effect of the proposed accepted on or before April 17, 1995. of the proposed requirements for the regulations on costs, profitability, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8313 competitiveness, and employment of according to either the scheduled or the ADDRESSES: Five paper copies of each small entities. actual appearance of the advertising. A written comment should be submitted Subsequent to the receipt of public satisfactory plan for point-of-sale and to the Office of the Secretary, Room 159, comments, it will be decided whether non-point-of-sale promotional materials Federal Trade Commission, the preparation of a final regulatory each as leaflets, pamphlets, coupons, Washington, DC 20580. To encourage flexibility analysis is warranted. direct mail circulars, paperback book prompt and efficient review and In light of the above, it is certified that inserts, or non-print items, or for dissemination of the comments to the the proposed amendments will not have utilitarian objects, could provide for public, all comments also should be a significant economic impact on a rotation according to the date the submitted, if possible, in electronic substantial number of small entities. 5 materials or objects are ordered by the form, on either a 51⁄4 or a 31⁄2 inch U.S.C. 605(b) (1982). This notice serves smokeless tobacco manufacturer, or the computer disk, with a label on the disk as certification to that effect for the date the objects or materials are stating the name of the commenter and purposes of the Small Business scheduled to be disseminated, provided the name and version of the word Administration. that the production of such materials or processing program used to create the document. (Programs based on DOS are List of Subjects in 16 CFR Part 307 objects is carried out in a manner consistent with customary business preferred. Files from other operating Health warnings, Smokeless tobacco, practices. systems should be submitted in ASCII Trade practices. * * * * * text format to be accepted.) Individuals Accordingly, it is proposed that part By direction of the Commission. filing comments need not submit 307 of 16 CFR be amended as follows: Donald S. Clark, multiple copies or comments in Secretary. electronic form. Submissions should be PART 307ÐREGULATIONS UNDER captioned: ‘‘Proposed Telemarketing [FR Doc. 95–3536 Filed 2–13–95; 8:45 am] THE COMPREHENSIVE SMOKELESS Sales Rule,’’ FTC File No. R411001. TOBACCO HEALTH EDUCATION ACT BILLING CODE 6750±01±M Notification of interest in the Public OF 1986 Workshop-Conference should be submitted in writing to Carole 1. The authority for part 307 16 CFR Part 310 continues to read as follows: Danielson, Division of Marketing Telemarketing Sales Rule Practices, Federal Trade Commission, Authority: 15 U.S.C. 4401 et seq. Washington, D.C. 20580. 2. Section 307.12 is amended by AGENCY: Federal Trade Commission. The Public Workshop-Conference will revising paragraph (b) to read as follows: ACTION: Notice of proposed rulemaking. be held in Chicago, Illinois, at the Chicago Hilton Hotel, 720 South § 307.12 Rotation, display, and SUMMARY: In this document, the Federal Michigan Avenue, Chicago, Illinois dissemination of warning statements in Trade Commission (‘‘FTC’’ or 60605. smokeless tobacco advertising. ‘‘Commission’’) proposes to implement FOR FURTHER INFORMATION CONTACT: * * * * the Telemarketing and Consumer Fraud David M. Torok, (202) 326–3140, or [b] Each manufacturer, packager, or and Abuse Prevention Act Judith M. Nixon, (202) 326–3173, importer of a smokeless tobacco product (‘‘Telemarketing Act’’ or ‘‘the Act’’). Division of Marketing Practices, Bureau must submit a plan to the Commission Section 3 of the Act directs the FTC to of Consumer Protection, Federal Trade or its designated representative that prescribe rules, within 365 days of Commission, Washington, DC 20580. ensures that the three warning enactment of the Act, prohibiting statements are rotated every 4 months in deceptive telemarketing acts or practices SUPPLEMENTARY INFORMATION: alternating sequence. There may be and other abusive telemarketing acts or Section A. Background more than one system, however, that practices. On August 16, 1994, the President complies with the Act and these DATES: Written comments must be regulations. For example, a plan may signed into law the Telemarketing Act, submitted on or before March 31, 1995. Public Law No. 103–297. In enacting the require all brands to display the same Due to the time constraints of this warning during each 4-month period or Telemarketing Act, Congress made the rulemaking proceeding, the Commission following findings, set forth in section 2 require each brand to display a different does not contemplate any extensions of of the Act: 1 warning during a given 4-month period. this comment period or any additional (1) Telemarketing differs from other A plan shall describe the method of periods for written comment or rebuttal sales activities in that it can be carried rotation and shall include a list of the comment. out by sellers across State lines without designated warnings for each 4-month Following the period for written direct contact with the consumer. period during the first year for each comments, Commission staff plan to Telemarketers also can be very mobile, brand. A plan shall describe the method conduct a Public Workshop Conference easily moving from State to State. that will be used to ensure the proper to afford Commission staff and (2) Interstate telemarketing fraud has rotation in different advertising media interested parties an opportunity to become a problem of such magnitude in sufficient detail to ensure compliance explore and discuss issues raised during that the resources of the Federal Trade with the Act and these regulations, the comment period. Notification of Commission are not sufficient to ensure although a number of different methods interest in representing an affected, adequate consumer protection from may satisfy these requirements. For interested party at the Public Workshop- such fraud. example, a satisfactory plan for Conference must be submitted on or (3) Consumers and others are advertising in newspapers, magazines, before March 6, 1995. A list of affected estimated to lose $40 billion a year in or other periodicals could provide for interests appears in Section D of the telemarketing fraud. rotation according to either the cover or Supplementary Information section. (4) Consumers are victimized by other closing date of the publication. A The Public Workshop-Conference will forms of telemarketing deception and satisfactory plan for posters and be held in Chicago, Illinois on April 18 abuse. placards, other than billboard through 20, 1995, from 9 a.m. until 5 advertising, could provide for rotation p.m. each day. 1 15 U.S.C. 6101. 8314 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules (5) Consequently, Congress should in actual damages for each such person. behalf of the seller, including postcards, enact legislation that will offer As with State actions, such private brochures and advertisements. consumers necessary protection from persons must give prior written notice The Telemarketing Act and the telemarketing deception and abuse. to the Commission, when feasible. proposed rule exempt from the Based on the above findings, Congress Section B of this notice discusses the definition of telemarketing all directed the Commission to issue a rule, proposed rule that the Commission has solicitations of sales through the mailing within 365 days from the date of drafted pursuant to the Telemarketing of a catalog,13 when the person making enactment of the Act, prohibiting Act. the solicitation does not call customers deceptive and abusive telemarketing but only receives calls from customers acts and practices.2 The Act specifies Section B. Discussion of the Proposed in response to the catalog and only takes that the rule shall contain a definition Rule orders during those calls, without of deceptive telemarketing acts or Section 310.1 Scope of the Regulations further solicitation. The proposed rule practices.3 According to the statute, this states that during such calls from definition may include acts or practices Section 310.1 states that this part customers, the person taking the order of entities or individuals that assist or implements the Telemarketing Act, and may provide further information to the facilitate deceptive telemarketing, shall be referred to as the customer about, or may try to sell, any including credit card laundering.4 The ‘‘Telemarketing Sales Rule.’’ other item included in the same catalog Act further specifies that, in order to Section 310.2 Definitions which prompted the customer’s calls prohibit other abusive acts or practices, without losing the exemption from the the rule shall include: Section 310.2 of the proposed rule definition of ‘‘telemarketing.’’ (1) A requirement prohibiting a defines the following terms: Acquirer; A number of terms are used in the pattern of unsolicited telephone calls attorney general; business venture; proposed rule’s prohibitions on credit which the reasonable consumer would cardholder; Commission; credit card; card laundering. The term ‘‘acquirer’’ is consider coercive or abusive of such credit card sales draft; credit card defined, in § 310.2(a) of the proposed consumer’s right to privacy; system; customer; goods or services; rule, to include any business (2) Restrictions on the hours when investment opportunity; material; organization, financial institution, or unsolicited telephone calls can be made merchant; merchant agreement; person; agent of such organization or institution to consumers; and premium; prize; prize promotion; seller; that has authority from an organization (3) A requirement that telemarketers State; telemarketer; telemarketing; that operates or licenses a credit card promptly and clearly disclose to the telephone solicitation; and verifiable system to authorize merchants to accept, person receiving the call that the retail sales price. transmit, or process payment by credit purpose of the call is to sell goods or The definition of ‘‘telemarketing’’ sets card through the credit card system for services, and make any other the parameters of the proposed rule’s anything of value. The term ‘‘credit disclosures the Commission deems coverage. It tracks the definition of card’’ is defined expansively, in appropriate, including the nature and ‘‘telemarketing’’ included in the § 310.2(f), to include any instrument or price of the goods or services being Telemarketing Act, with certain device, however named, used by a sold.5 The Act also directs the additions noted below.10 As set forth in cardholder to obtain money, goods, Commission to consider recordkeeping the Act, telemarketing is defined as any services, or anything else of value. requirements.6 plan, program, or campaign which is § 310.2(g) defines a ‘‘credit card sales Enforcement actions for violations of conducted to induce payment for goods draft’’ as any record or evidence, the final rule will be brought by the or services by use of one or more including a writing or an electronic or Commission in the same manner as for telephones and which involves more magnetic transmission or record, of a credit card transaction. The term ‘‘credit other rules with respect to unfair or than one interstate telephone call.11 One card system’’ is defined, in § 310.2(h), as deceptive acts or practices under section addition to the definition in the 7 any method or procedure used to 5 of the FTC Act. In addition, Section proposed rule clarifies that 8 generate, transmit, or process for 4 of the Telemarketing Act authorizes telemarketing includes the use of a payment a credit card sales draft. For the attorneys general of the States to facsimile machine, computer modem, or purposes of this rule, the term enforce compliance with the final rule any other telephonic medium.12 ‘‘merchant’’ is narrowly defined, in by instituting Federal court enforcement Another addition to the definition § 310.2(m), to include only those actions, after serving prior written explicitly states that telemarketing notice upon the Commission when persons authorized under a written includes not just calls initiated by contract with an acquirer to honor or feasible. Moreover, Section 5 of the telemarketers, but also calls initiated by Telemarketing Act 9 authorizes actions, accept, transmit, or process credit cards persons in response to any form of in payment for goods or services. in Federal district court, by private promotional messages used by or on persons adversely affected by any Finally, § 310.2(n) defines the term pattern or practice of telemarketing ‘‘merchant agreement’’ as the written 10 See 15 U.S.C. 6106(4). contract between a merchant and an which violates the final rule, where the 11 The Act’s definition of the term amount in controversy exceeds $50,000 ‘‘telemarketing’’ states that the plan, program, or acquirer. campaign must be conducted to induce the The proposed rule includes certain 2 15 U.S.C. 6102(b). purchase of goods or services. The proposed rule requirements for the telemarketing sale 3 15 U.S.C. 6102(a)(2). states that the plan, program, or campaign must be of business ventures and investment conducted to induce payment for goods or services. 4 Id. opportunities. The term ‘‘business This change is intended to make clear that the 5 15 U.S.C. 6102(a)(3). definition of telemarketing includes plans, venture’’ is defined, in § 310.2(c) of the 6 Id. programs, or campaigns conducted to induce 7 15 U.S.C. 45. The Telemarketing Act provides rentals or leases, as well as certain donations. 13 The Telemarketing Act and the proposed rule that the FTC rule shall be treated as a rule issued 12 Since telemarketing includes the use of require catalogs to include multiple pages of written under section 18(a)(1)(B) of the FTC Act, 15 U.S.C. computer modems and other telephonic media, the descriptions or illustrations of the goods or services 57a(a)(1)(B). proposed definition states that telemarketing being offered for sale, to include a business address 8 15 U.S.C. 6103. involves not just telephone calls, but also telephone of the seller, and to be issued not less frequently 9 15 U.S.C. 6104. connections. than once a year. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8315 proposed rule, to include any written or statement.17 It states that material means Finally, the definition of ‘‘verifiable oral business arrangement, however likely to affect a consumer’s choice of, retail sales price,’’ in § 310.2(x), is based named, including but not limited to or conduct regarding, goods or services. on the Commission’s Guides Against franchises,14 which consists of the The proposed rule defines ‘‘prize’’ Deceptive Pricing.19 The term means the payment of consideration for (1) the and ‘‘premium’’ in a relatively parallel actual, bona fide price at which one or right or means to offer, sell, or distribute fashion. Section 310.2(q) states that a more retailers, in the area of the seller’s goods or services, and (2) the promise of ‘‘prize’’ means anything offered, or principal place of business, has made a more than nominal assistance in purportedly offered, to a person at no substantial number of sales. The seller establishing, maintaining or operating a cost and with no obligation to purchase must be able to document such a retail new business, or an existing business goods or services and given, or sales price. that is entering into a new line or type purportedly given, by chance. A of business. The term ‘‘investment ‘‘premium,’’ on the other hand, is Section 310.3 Deceptive Telemarketing opportunity’’ is defined, in § 310.2(k), to defined in § 310.2(p) as anything offered Acts or Practices include anything, tangible or intangible, or given, independent of chance, to Section 310.3 of the proposed rule except a business venture, that is customers as an incentive to purchase includes lists of specific, deceptive offered, offered for sale, sold, or traded goods or services offered through telemarketing acts or practices either for purposes of profit or income telemarketing. prohibited under the rule. It also sets or based on express or implied The proposed definition of ‘‘prize forth prohibited acts or practices that representations about income, profit, or promotion,’’ set forth in § 310.2(r), assist and facilitate deceptive appreciation.15 In addition, these two includes the traditional sweepstakes or telemarketing. This Section ends with definitions state that any business other game of chance as well as any oral prohibitions on the practice of credit arrangement in which persons acquire, or written representation that a person card laundering. or purportedly acquire, government- has won, has been selected to receive, issued licenses, or interests in one or or may be eligible to receive a prize or 1. Prohibited Deceptive Telemarketing more businesses derived from the purported prize. Thus, the definition of Acts or Practices possession of such licenses, are ‘‘prize promotion’’ covers not only Section 310.3(a) of the proposed rule considered to be an ‘‘investment legitimate contests or sweepstakes, but states that certain acts or practices, opportunity,’’ and not a ‘‘business also fraudulent representations that a when conducted by any seller or venture.’’ consumer has won a prize, when no telemarketer, are considered deceptive The term ‘‘goods or services’’ is such prize is to be distributed. telemarketing acts or practices and defined expansively, in § 310.2(j), to A ‘‘seller’’ is defined, in § 310.2(s) of violations of the rule. The first cover virtually any item for which the proposed rule, as any person who, subsection prohibits the failure to payment can be induced over the in conjunction with telemarketing, disclose certain information before telephone. A list of specific items is provides or offers to provide goods or payment is requested for goods or included in the definition for services in exchange for consideration services. The second subsection lists a illustrative purposes only.16 or a donation. A ‘‘telemarketer,’’ on the The proposed definition for series of prohibited misrepresentations other hand, is defined in § 310.2(u) as covering all telemarketing transactions, ‘‘material,’’ in § 310.2(l), is taken from any person who, in connection with the Commission’s deception while the third subsection lists telemarketing, initiates or receives a prohibited misrepresentations in telephonic communication from a 14 The term ‘‘franchise’’ is defined in the FTC connection with the offer, offer for sale, customer. Since many of the provisions or sale of any business venture. The Franchise Rule, formally entitled ‘‘Disclosure in the proposed rule apply to both the Requirements and Prohibitions Concerning final two subsections prohibit obtaining Franchising and Business Opportunity Ventures,’’ seller and the telemarketer, these two funds without proper authorization. at 16 CFR 436.2(a). definitions make clear that the proposed 15 The application of the proposed rule to rule’s obligations run not only to the Section 310.3(a)(1) of the proposed investment opportunities is limited, to some extent, rule states that it is a prohibited by sections 3(d) and (e) of the Telemarketing Act, person making or answering a telephone call or telephonic communication from deceptive telemarketing practice for any 15 U.S.C. 6102(d) and (e), which exclude from rule seller or telemarketer to fail to disclose coverage any of the following persons: A broker, a consumer, but also to the business dealer, transfer agent, municipal securities dealer, providing the goods or services to be certain material information before municipal securities broker, government securities sold during that call.18 payment is requested for goods or broker, government securities dealer (as those terms services offered.20 These disclosures are defined in section 3(a) of the Securities and The definition of ‘‘telephone Exchange Act of 1934, 15 U.S.C. 78c(a)), an solicitation,’’ in § 310.2(w) of the must be made in the same manner and investment adviser (as that term is defined in proposed rule, is intended to include form as the payment request. The Section 202(a)(11) of the Investment Advisers Act only out-bound sales calls, i.e., information required to be disclosed is of 1940, 15 U.S.C. 80b-2(a)(11)), an investment as follows: First, the total costs, terms company (as that term is defined in section 3(a) of telephone calls that are initiated by a the Investment Company Act of 1940, 15 U.S.C. telemarketer to a customer to induce and material restrictions, limitations, or 80a-3(a)), any individual associated with those payment for goods or services. conditions of receiving any goods or persons, or any persons described in section 6(f)(1) services; second, the quantity of any of the Commodity Exchange Act, 7 U.S.C. 8, 9, 15, goods or services sold; and third, all 13b, 9a. 17 The Commission’s Deception Statement, first 16 The term ‘‘goods or services’’ specifically set out in a letter dated October 14, 1983, to the material terms and conditions of the includes any charitable service that is promoted in Honorable John D. Dingell, Chairman, seller’s refund, cancellation, exchange, conjunction with any offer of a prize, chance to win Subcommittee on Oversight and Investigations, or repurchase policies, including a a prize, or opportunity to purchase any other goods Committee on Energy and Commerce, is attached as or services. Thus, plans, programs, or campaigns an appendix to Cliffdale Associates, 103 F.T.C. 110 conducted to induce payment for such charitable (1984). See also Thompson Medical Co., 104 F.T.C. 19 16 CFR Part 233. services are the only charitable solicitations covered 648, 816 (1984). 20 The proposed rule permits sellers or by the proposed rule. In addition, only charitable 18 It is possible for a person to be both a seller and telemarketers to discuss the price of goods or solicitations conducted by an entity ‘‘organized to a telemarketer in the same transaction, if that services with potential customers before disclosing carry on business for its own profit or that of its person both provides the goods or services in the required information, but they may not ask that members’’ are within the jurisdiction of the exchange for consideration or a donation and payment be made until after the disclosures are Commission. See 15 U.S.C. 44. engages in the telephone calls with consumers. made. 8316 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules statement that no such policies exist, if by the government agency, of the seller’s Sections 310.3(a)(2)(xvii) through (xx) that is the case. or telemarketer’s business or conduct. of the proposed rule prohibit Section 310.3(a)(2) sets forth 24 Thus, a telemarketer cannot falsely misrepresentations concerning different misrepresentations prohibited claim that it is registered with a State, investment opportunities. Any seller or in connection with telemarketing. The or, even if registered, that such telemarketer is prohibited from first five subsections go to the heart of registration indicates that the State had misrepresenting key attributes of any any telemarketing sales transaction, approved the telemarketer’s method of investment opportunity, such as the prohibiting misrepresentations of the operation. In addition, it is also a level of risk, liquidity, markup over total costs, terms or material violation of the proposed rule to acquisition costs, past performance, restrictions, limitations, or conditions 21 misrepresent any affiliation, association, earnings potential, or market value. Any of receiving any goods or services. connection, or relationship with law seller or telemarketer is also prohibited These subsections also prohibit enforcement, a public safety from misrepresenting the likelihood that misrepresentations of the quantity of organization, or other Federal, State, or the market value for an investment any goods or services, or any material local government agency. opportunity will either increase or aspect of the performance, efficacy, or Under § 310.3(a)(2)(xii) of the decrease. In addition, a seller or central characteristics of any goods or proposed rule, any seller or telemarketer telemarketer cannot misrepresent the services. In addition, sellers and is prohibited from misrepresenting the seller’s success in assisting persons to telemarketers are prohibited from purpose for which the seller or liquidate goods or services they misrepresenting the duration of any telemarketer will use information purchased from the seller, or the profit offer made, as well as the nature or relating to a person’s checking, savings, derived from such liquidation. Thus, for terms of the seller’s refund, share, or similar account number, credit example, false claims about an ability to cancellation, exchange, or repurchase card account number, or social security resell an investment opportunity for a policies. number. This prohibits, for example, a profit are prohibited. Sections 310.3(a)(2) (vi) through (viii) telemarketer from asking for a Sections 310.3(a)(2)(xxi) and (xxii) of of the proposed rule prohibit consumer’s credit card number ‘‘to the proposed rule address the problem misrepresentations about prizes. It is a verify’’ the consumer’s identity, when in of deceptive credit repair or credit violation of the proposed rule to fact the telemarketer plans to charge a opportunity telemarketing claims. misrepresent that any person has been fee to that account. Section 310.3(a)(2)(xxi) prohibits selected to receive a prize, i.e. an item Sections 310.3(a)(2)(xiii) and (xiv) of misrepresentations that certain goods or offered, or purportedly offered, at no the proposed rule prohibit services can or are likely to improve a cost and with no other obligation to misrepresentations particularly common person’s credit history, credit record, or make a purchase and given, or to certain charitable solicitations.22 Any credit rating, or that certain goods or purportedly given, by chance. seller or telemarketer is prohibited from services can result in a person obtaining Therefore, a telemarketer could not misrepresenting the seller’s or credit. Section 310.3(a)(2)(xxii) claim that a consumer has won a prize, telemarketer’s non-profit, tax-exempt, or prohibits misrepresentations about the when in fact the consumer must pay charitable status, purpose, affiliation, or eligibility or likelihood that a person, shipping and handling charges to identity. Also prohibited are regardless of that person’s credit history, receive the prize. In addition, a seller or misrepresentations that a person is will obtain a loan or other credit-related telemarketer is prohibited from eligible or likely to receive a tax service. misrepresenting that a premium is a deduction, loan, or other benefit if the Section 310.3(a)(2)(xxiii) of the prize. Thus, for example, a telemarketer person pays money to the seller or proposed rule prohibits could not claim that a consumer has telemarketer. misrepresentations that a seller or ‘‘won’’ an item, when in fact many It is a prohibited deceptive telemarketer can recover or otherwise consumers will be given that item as an telemarketing act or practice, under effect or assist in the return of money or incentive to purchase goods or services, § 310.3(a)(2)(xv) of the proposed rule, any other item of value to a person. This without any element of chance involved for any seller or telemarketer to would prohibit, for example, in selecting the ‘‘winners.’’ Finally, a misrepresent the nature, terms, or telemarketers from falsely claiming that seller or telemarketer is prohibited from existence of any prior affiliation, for a fee, paid in advance, they can misrepresenting the odds of winning association, connection, or relationship obtain a refund for a consumer who has any prize. with any person. Under been victimized in the past by a The next three prohibited practices, in § 310.3(a)(2)(xvi), neither a seller nor a telemarketing scam. §§ 310.3(a)(2) (ix) through (xi) of the telemarketer may misrepresent the Finally, § 310.3(a)(2)(xxiv) of the proposed rule, deal with nature, terms, or existence of any prior proposed rule prohibits the misrepresentations about compliance purchase or agreement to purchase by misrepresentation of any other with various laws or about an affiliation any person. These sections prohibit, for information required to be disclosed with law enforcement authorities. Any example, claims that a telemarketer is under this rule. For example, a seller or telemarketer is prohibited from calling to confirm a prior order, when telemarketer cannot misrepresent the misrepresenting its compliance with no such order exists, or claims that a verifiable retail sales price of a prize or any Federal, State, or local law, statute, telemarketer is calling all of its premium, or misrepresent that the sales regulation, or ordinance, or from falsely customers to ask if they would like to price of a prize or premium is less than claiming that such compliance purchase additional products, when in $20.00, when that information is constitutes an endorsement or approval, fact the person called was not a prior required to be disclosed under §§ customer of that telemarketer. 310.4(d)(3) and (4) of the proposed rule. 21 Given the definition of the term ‘‘material,’’ in The next section of the proposed rule, Section 310.2(l) of the proposed rule, any seller or 22 Based on the definition of ‘‘goods or services,’’ § 310.3(a)(3), prohibits any seller or telemarketer would be prohibited from in § 310.2(j) of the proposed rule, only charitable telemarketer from misrepresenting misrepresenting any restriction, limitation, or services promoted in conjunction with an offer of important information in connection condition that would be likely to affect a a prize, chance to win a prize, or opportunity to consumer’s choice of, or conduct regarding, goods purchase any goods or services would be covered with the offer, offer for sale, or sale of or services. by these provisions. any business venture. This information Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8317 includes the level of earnings for the section states that it is a deceptive deceiving an acquirer by submitting for business venture, the extent or nature of telemarketing act or practice, and a payment credit card transactions that the market for the goods or services to violation of the rule, for a person to are not the merchant’s own. This be sold, and the nature or availability of provide substantial assistance or deception is crucial for telemarketers any territory. Thus, a seller of business support to any seller or telemarketer engaged in fraud, since such ventures could not falsely inflate the when that person knows or should telemarketers find it difficult, if not sales levels of previous owners, or know that the seller or telemarketer is impossible, to obtain merchant accounts incorrectly claim that a purchaser engaged in any act or practice that to process their credit card transactions. would obtain exclusive rights to market violates the rule. Credit card laundering facilitates goods or services in a certain territory. Section 310.3(b)(2) of the proposed deceptive telemarketing acts or practices The proposed rule also prohibits rule lists five specific types of conduct by providing fraudulent telemarketers misrepresentations about (1) the that provide substantial assistance or with ready access to cash through the existence, availability, or provision of support to telemarketing. This list is not credit card system. retail outlets or accounts; (2) the meant to limit, in any way, the general This Section of the proposed rule is locations or sites for vending machines, scope of § 310.3(b)(1) concerning divided into three parts. Section rack displays, or any other sales display; assisting or facilitating deceptive 310.3(c)(1) of the proposed rule deals or (3) the nature or availability of any telemarketing acts or practices.23 with merchants who engage in credit services offered to secure any such Assistors who engage in these activities card laundering. Under this section, it is outlets, accounts, locations, sites or will violate the rule if they know, or a deceptive telemarketing act or displays. Also prohibited are should know, that the person they are practice, and a violation of the rule, for misrepresentations that any person assisting is engaged in an act or practice a merchant to present to or deposit into owns or operates a business venture that violates the rule. the credit card system for payment, a purchased from the seller, or that a The five types of assisting and credit card sales draft generated by a person can give an accurate, facilitating activities listed in the telemarketing transaction that is not the independent description of his or her proposed rule are as follows: First, result of a telemarketing credit card experience as an owner or operator of providing lists of customer contacts to a transaction between the cardholder and such a business venture. These seller or telemarketer (e.g., serving as a the merchant. It is also a deceptive act provisions prohibit, for example, false list broker); second, receiving or practice for a merchant to cause claims that a shill—a phony reference consideration in exchange for providing another person to present to or deposit that is paid to tout a business a testimonial, endorsement, into the credit card system for payment opportunity he does not own or certification, appraisal, or financing, or such a credit card sales draft. operate—has actually purchased a for serving as a reference, with respect Section 310.3(c)(2) of the proposed business venture, or false claims about to any business venture or investment rule deals with telemarketers, brokers, any person’s experience as a business opportunity (e.g., acting as a paid shill or others who employ merchants to venture owner. or an art appraiser, or providing engage in credit card laundering. This Under § 310.3(a)(4) of the proposed financing for a business opportunity); section states that it is a deceptive rule, it is a prohibited deceptive third, securing retail outlets or accounts telemarketing act or practice, and a telemarketing act or practice for a seller for the sale of goods or services, or violation of the proposed rule, for any or telemarketer to obtain or submit for locations or sites for vending machines, person to employ, solicit, or otherwise payment from a person’s checking, rack displays, or any other sales cause a merchant or an employee, savings, share, or similar account, a displays, used in connection with any representative, or agent of a merchant, check, draft, or other form of negotiable business venture (e.g., operating as a to present to or deposit into the credit paper without that person’s express locating company); fourth, furnishing card system for payment, a credit card written authorization. For example, a any certificate or coupon which may sales draft generated by a telemarketing telemarketer cannot submit an unsigned later be exchanged for goods or services transaction that is not the result of a draft on a consumer’s bank account (e.g., producing generic vacation telemarketing credit card transaction without that consumer’s prior written certificates used in prize promotion between the cardholder and the authorization. Similarly, § 310.3(a)(5) of scams); and fifth, providing any script, merchant. the proposed rule prohibits the advertising, brochure, promotional Finally, § 310.3(c)(3) prohibits joint collection of any amount of money from material, or direct marketing piece to be ventures or other business relationships a person through any means, unless used in telemarketing. between a merchant and a telemarketer such amount is expressly authorized by for the purpose of engaging in credit the person. This section is intended to 3. Credit Card Laundering card laundering. Specifically, this cover other forms of payment, in Section 310.3(c) of the proposed rule section prohibits any person from addition to unsigned drafts, and to prohibits credit card laundering, or the obtaining access to the credit card prohibit misrepresentations of the practice of depositing into the credit system through the use of a business amount collected. For example, if a card system a sales draft that is not the relationship or an affiliation with a consumer pays for goods or services by result of a credit card transaction merchant, when such access is not credit card, no amount may be charged between the cardholder and a authorized by the merchant agreement. to the consumer’s account unless the merchant.24 For example, credit card Section 310.4 Abusive Telemarketing consumer authorizes that charge. This laundering involves a merchant with Acts or Practices authorization does not have to be in access to the credit card system writing, however. Section 310.4 of the proposed rule 23 Thus, practices not included on this list could begins with a list of specific abusive 2. Assisting and Facilitating still be found to provide substantial assistance or conduct that is prohibited. This section Section 310.3(b)(1) of the proposed support to telemarketing. also prohibits repeated telemarketing 24 As defined in § 310.2(m), a merchant is the rule sets forth a general prohibition person who is under a contractual agreement with calls and calls to persons who have against assisting or facilitating deceptive an acquirer to honor or accept, transmit, or process stated that they do not wish to receive telemarketing acts or practices. This credit cards in payment for goods or services. such calls. In addition, this section sets 8318 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules restrictions on the times when Recovery room scams are the focus of any seller or telemarketer from offering telemarketers may make calls, and § 310.4(a)(4). In these operations, a or selling goods or services through a includes oral and written disclosures telemarketer typically calls a consumer telephone solicitation to a person who that must be made. This Section of the who has lost money in a previous scam, previously has paid the same seller for proposed rule ends with a prohibition promising that, for a fee paid up front, goods or services, until all terms and on the sale or distribution of lists of the telemarketer can recover the money conditions of the initial sales customer contacts by persons found to the consumer previously lost. After the transaction have been fulfilled.26 The have violated certain provisions of this consumer pays the requested fee, the proposed rule makes clear that all prizes rule. promised services are not delivered. In or premiums offered in conjunction fact, the consumer may never hear from with the initial transaction must also be 1. Abusive Conduct Generally the telemarketer again. This Section of distributed before a second offer or sale Section 310.4(a) of the proposed rule the proposed rule prohibits any seller or can be made. sets forth eight different abusive telemarketer from requesting or The final abusive telemarketing act or telemarketing acts or practices that are receiving payment of any fee or practice prohibited by the proposed rule violations of the rule. The first such consideration for goods or services concerns the use of shills. Section practice is the use of threats or represented to recover or otherwise 310.4(a)(8) of the proposed rule intimidation in connection with effect or assist in the return of money or prohibits any seller or telemarketer from telemarketing. The second prohibited any other item of value to a person until identifying a person as a reference for a practice is providing for or directing a three days after such money or other business venture unless the following courier to pick up a payment from a item is delivered to that person. The three criteria are satisfied: (1) Such customer. This prohibition is intended proposed rule states that this provision person has actually purchased the to address a prevalent practice used by does not apply to goods or services business venture; (2) such person has fraudulent telemarketers of sending an provided to a person by a licensed operated the business venture for at overnight courier to a consumer’s home attorney or licensed private investigator least six months or the seller or to pick up cash or a check shortly after pursuant to a written agreement with telemarketer has disclosed the length of a successful sales pitch. In this manner, that person. time the reference has operated the the telemarketer obtains payment from Section 310.4(a)(5) of the proposed business venture; and (3) such person the consumer before the consumer has rule is intended to limit advance fee does not receive consideration for any adequate time to think about the loan scams and similar practices, in statements made to prospective transaction or obtain information about which telemarketers guarantee that they purchasers. the telemarketer. The proposed rule will obtain a loan or other credit-related 2. Pattern of Calls would prohibit this practice. service for a consumer, if the consumer Section 310.4(a)(3) of the proposed pays them a fee in advance. As with Section 310.4(b) of the proposed rule rule restricts the telemarketing of credit recovery room scams, after the deals with repeated telemarketing calls, repair services. This section prohibits consumer pays the fee, the promised and calls to persons who have indicated any seller or telemarketer from services typically are not provided. an unwillingness to receive such calls. requesting or receiving payment of any Under this section of the proposed rule, This section prohibits a telemarketer fee or consideration for goods or any seller or telemarketer is prohibited from engaging in such calls, or a seller services represented to improve a from requesting or receiving payment of from causing a telemarketer to engage in person’s credit history, credit record, or any fee or consideration in advance of such calls.27 Specifically, this Section credit rating until the contract for the obtaining a loan or any credit service states that it is an abusive act or practice services has expired and the promised when the seller or telemarketer has and a violation of the rule to call a results have been achieved. Specifically, guaranteed or represented a high person’s residence to offer, offer for sale, two events must occur before payment likelihood of success in obtaining or or sell, on behalf of the same seller, the can be requested or received for these arranging a loan or credit service for a same or similar goods or services more services: first, either the term of the person. than once within any three-month contract or the time frame in which the Prize promotions conducted through period. This prohibition does not apply seller has represented the goods or telemarketing are the subject of if the person gives prior consent to more services will be provided has expired; § 310.4(a)(6). Any seller or telemarketer frequent calls,28 or if the person is not and second, the seller has provided the conducting such promotions must reached during an earlier attempted call. purchaser with documentation showing distribute all prizes or purported prizes It also does not apply to verification that the promised results have been offered within 18 months of the initial calls—those calls made solely to verify achieved. This documentation may be offer to any person. a previous telephone sale. either (1) from the original furnisher or Section 310.4(a)(7) of the proposed The proposed rule also prohibits calls provider of the information to the rule addresses the problem of reloading, to a person’s residence when that consumer reporting agency, confirming the practice of offering to sell additional person previously has stated that he or that the promised results have been goods or services to a person who she does not wish to receive telephone achieved; or (2) in the form of a previously has made a purchase from solicitations made by or on behalf of the consumer report from the consumer that seller. In deceptive telemarketing reporting agency demonstrating that the scams, consumers may be victimized 26 By limiting this prohibition to offering or promised results have been achieved. numerous times by reloading that selling goods or services through telephone Such a report must have been issued solicitations, this Section does not prevent occurs prior to delivery of the first items consumers from calling telemarketers to make an more than six months after the results sold, before realizing they have been additional purchase before the first transaction is were achieved.25 deceived. This serial deception often complete. occurs because consumers have not seen 27 A seller may cause a telemarketer to engage in 25 The proposed rule makes clear that nothing in the goods or services already purchased, such calls by providing the telemarketer with a customer contact list that includes customers that the rule alters the requirement in the Fair Credit and therefore do not know that they Reporting Act, 15 U.S.C. 1681, that a consumer should not be called. report may only be obtained for a specified were deceived in the previous 28 The person may give prior consent either orally permissible purpose. transaction. The proposed rule prohibits or in writing. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8319 seller whose goods or services are being If the telephone solicitation includes 5. Written Disclosures/ offered. a charitable solicitation, slightly Acknowledgements Sellers and telemarketers are given a different and additional information Section 310.4(e) of the proposed rule limited safe harbor against liability for must be disclosed at the beginning of states that it is an abusive telemarketing violating these provisions. Section the call. Not only must the caller’s true act or practice for a seller or 310.4(b)(2) of the proposed rule states first and last name and the name of the telemarketer that conducts a prize that a seller or telemarketer will not be seller or charity be disclosed, but the promotion or offers for sale any liable for such violations once in any telemarketer’s name also must be investment opportunity to request or calendar year per person called if the disclosed in these calls. In addition, the accept any payment from a person following four requirements are met: (1) telemarketer’s status as a paid without first providing the person with It has established and implemented professional fundraiser must be a written disclosure, in duplicate, and written procedures to comply with disclosed, as well as the fact that the receiving from the person a written §§ 310.4(b)(1)(i) and (ii); (2) it has purpose of the call is to solicit acknowledgement that the person has trained its personnel in those charitable donations. If other goods or read the disclosure. The information procedures; (3) the seller, or the services are offered for sale during the required to be disclosed must be printed telemarketer acting on behalf of the call, the caller must disclose that the in not less than 10-point type (unless seller, has maintained and recorded lists purpose of the call is also to sell goods otherwise noted), in a color or shade of persons who may not be contacted, in or services. that readily contrasts with the compliance with §§ 310.4(b)(1)(i) and Section 310.4(d)(2) of the proposed background of the notice. The (ii); and (4) any subsequent call is the rule states that if a caller verifies a information in the investment result of administrative error. telemarketing sale, either during the call opportunity disclosure must be 3. Calling Time Restrictions containing the original sales segregated from all other information presentation or in a separate call, the that may be included in the document, Under § 310.4(c) of the proposed rule, caller verifying the sale must repeat all while the information in the prize any telemarketer is prohibited from of the disclosures required under promotion disclosure must be on one engaging in telephone solicitations 29 to § 310.3(a)(1).32 In this fashion, page. a person’s residence at any time other consumers will hear all of the important Both disclosures must be sent in an than between 8 a.m. and 9 p.m. local envelope that contains no other time at the called person’s location. This terms and conditions of the sale at the time they are verifying that purchase. enclosures except for a return envelope, prohibition does not apply if the person if the seller or telemarketer wishes to called gives his or her prior consent to Section 310.4(d)(3) of the proposed include such an envelope. The envelope receive a call at a different time.30 rule requires three additional oral for the prize promotion disclosure may disclosures for any telemarketing which 4. Required Oral Disclosures not contain any writing representing includes a prize promotion. The first that the person to whom the envelope Section 310.4(d) of the proposed rule disclosure is that no purchase or is addressed has been selected or may sets forth certain oral disclosures that payment is necessary to win.33 Second, be eligible to receive a prize. must be made in telemarketing.31 The the caller must disclose the verifiable For prize promotions, the following preamble to this section states that it is retail sales price of each prize offered, information is required: (1) The seller’s an abusive telemarketing act or practice, or a statement that the retail sales price legal name and telephone number, and and a violation of the rule, for a of the prize offered is less than $20.00.34 the complete street address of the telemarketer to fail to make any of these The third required disclosure is the seller’s principal place of business; (2) required oral disclosures. odds of winning each prize offered. A if the seller has been in operation under All telephone solicitations must begin true statement that the odds of winning any other name(s), each such name and by disclosing key information to the cannot be determined in advance, or the length of time the seller operated person called. This information that the odds of winning are determined under each name; (3) the verifiable retail includes the caller’s true first and last by the number of entrants, would satisfy sales price of each prize offered, or a name, the seller’s name, and that the this requirement. statement that the retail sales price of purpose of the call is to sell goods or Under § 310.4(d)(4) of the proposed the prize offered is less than $20.00; (4) services. The proposed rule does not rule, any telemarketing which includes the odds of winning each prize offered require that the telemarketer’s name be an offer of a premium must make the and the number of persons who will disclosed, if it is different from the additional disclosure of the verifiable receive each prize; (5) the total amount seller’s. In addition, the proposed rule retail sales price of such premium or and description of any shipping or does not set forth the exact language comparable item, or a statement that the handling fees or any other charges that that must be used to convey the message retail sales price of the premium is less must be paid to receive or use a prize; that the purpose of the call is to sell than $20.00. (6) a complete description of any goods or services. The choice of restrictions, conditions, or limitations language is left to the telemarketer. on eligibility to receive or use a prize, 32 These disclosures include the total costs, terms, and material restrictions, limitations, or conditions including all steps a person must take 29 Based on the definition of ‘‘telephone of receiving any goods or services, the quantity of to receive the most valuable prize solicitation’’ in § 310.2(w) of the proposed rule, any goods or services, and all material terms and offered; (7) the statement: ‘‘No purchase these calling time restrictions apply only to conditions of the seller’s refund, cancellation, or payment is necessary to win,’’ with outbound telemarketing calls. exchange, or repurchase policies. 30 As with the pattern of calls requirement in 33 If a purchase or payment were required in a a description of the no-purchase entry § 310.4(b)(1), the person may give prior consent prize promotion that by definition involves a game method; (8) a statement that a list of either orally or in writing. of chance, that promotion would be an illegal winners is available and the address to 31 The disclosures required by this section are in lottery. See 18 U.S.C. 1301. which a person may write to obtain 34 addition to the disclosures required under Misrepresenting the retail sales price would be such a list; (9) a statement that it is a § 310.3(a)(1) of the proposed rule, which must be a violation of § 310.3(a)(2)(xxiv) of the proposed made before any payment is requested for goods or rule because such information is required to be violation of this rule for the seller to services. disclosed under the rule. accept payment in any form unless the 8320 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules seller has received from the person a If sellers or telemarketers offer for sale Section 310.5 Recordkeeping written disclosure acknowledgement; any investment opportunity involving Requirements and (10) the statement: ‘‘I have read and tangible assets sold on credit or Section 310.5 of the proposed rule understand this disclosure.’’ This final leverage, they must include in the requires any seller or telemarketer to statement must be in at least 12-point written disclosure all of the information keep, for 24 months from the date the bold face type, immediately preceding a set forth in §§ 310.4(e)(2)(i) and (ii) of record is produced, certain records signature block. the proposed rule, as well as the relating to its telemarketing activities. For investment opportunities, the following: (1) The percentage of a Failure to keep those records shall be following information must be included person’s down payment that would be considered a violation of the rule. The in the written disclosure: (1) The seller’s devoted to fees and costs by the end of seller and its telemarketer are not legal name and telephone number, and the first six months after the investment required to keep duplicative records, if the complete street address of the is made; (2) the percentage of a person’s they have entered into a written seller’s principal place of business; (2) down payment that would be devoted to agreement allocating responsibility for if the seller has been in operation under fees and costs by the end of the first year the recordkeeping requirements of the any other name(s), each such name and after the investment is made; and (3) a proposed rule. The terms of any such the length of time the seller operated statement that all such investment agreement shall govern, unless those under that name; (3) the complete cost opportunities are extremely risky. terms are unclear as to whom must to make the investment and a detailed maintain any required records. In that list of all present charges and any Finally, if a seller or telemarketer case, the responsibility for anticipated future charges; (4) a offers for sale any investment recordkeeping shall fall on the seller. description of all known risks opportunity involving the acquisition of Section 310.5(c) of the proposed rule associated with the investment government-issued licenses or interests sets forth the parties responsible for opportunity, including the possibility in businesses derived from the maintaining records at the end of, or that additional payments might be possession of such licenses, the after a change in ownership of, the required for a person purchasing the following additional information must seller’s or telemarketer’s business. In the investment opportunity to retain that be included in the written disclosure set event of dissolution or termination of person’s interest in the investment forth in § 310.4(e)(2)(i) of the proposed such business, the principal of the seller opportunity, to realize the projected or rule: (1) All material terms and or telemarketer is required to maintain stated returns of the investment limitations of any government-issued these records. On the other hand, in the opportunity, to prevent total loss of the license(s) that serve as the basis for the event of any sale, assignment, investment opportunity, or for any other investment opportunity, including succession, or other change in reason; (5) the length of time the seller whether and to whom the license or ownership of the seller’s or has been in business and has offered the licenses have been issued; (2) the telemarketer’s business, the successor particular investment opportunity; (6) a percentage of the person’s payment that business is required to maintain the statement disclosing whether or not the will be used to acquire any applicable records. seller is licensed and, if so, with whom, license(s) from the licensee(s) or from the type of license, and the length of Section 310.6 Exemptions any person or entity not affiliated in any time the seller has held such license; (7) Certain acts or practices are exempt way with the seller; and (3) the a statement that it is a violation of this from the proposed rule. The first percentage of the person’s payment that rule for the seller to effect an investment exemption, set forth in § 301.6(a), is for transaction unless the seller has will be used to capitalize any business incidental telemarketing sales—that is, received from the person a written derived from such license(s). sales by any person who engages in disclosure acknowledgement; and (8) 6. Distribution of Lists fewer than ten sales each year through the statement: ‘‘I have read and the use of the telephone. Second, understand this disclosure.’’ This final The final abusive practice set forth in telephonic contacts between businesses statement must be in at least 12-point § 310.4 of the proposed rule involves the also are exempt, except for such bold face type, immediately preceding a distribution of lists of customer contacts that involve the sale of office or signature block. contacts. Section 310.4(f) states that it is cleaning supplies, or the inducement of Additional written disclosures, an abusive telemarketing act or practice, payment for any charitable service provided in duplicate, are required for and a violation of the rule, for any promoted in conjunction with (1) an certain types of investment person, subject to any federal court offer of a prize, (2) a chance to win a opportunities. If a seller or telemarketer order resolving a case in which the prize, or (3) the opportunity to purchase offers for sale any investment complaint alleged a violation of § 310.3, any goods or services. Finally, on opportunity involving tangible assets, 310.4(a), or 310.4(e) of this rule,35 and § 310.6(c) of the proposed rule exempts § 310.4(e)(2)(ii) of the proposed rule the court did not dismiss or strike all any telephonic contact made solely by requires the following additional such allegations from the case, to sell, a person, when there has been no initial information to be included in the rent, publish, or distribute any list of sales contact directed to that particular written investment disclosure: (1) The customer contacts from that person. In person, by telephone or otherwise, from percentage markup that the seller places the seller or telemarketer. However, this other words, any such person will be on the item above its own cost in exemption does not apply to calls prohibited from circulating its customer acquiring the item; and (2) an estimate regarding employment services where of the value that persons would be contact lists in any fashion. the seller or telemarketer requests or likely to receive if they were to liquidate receives payment prior to providing the the asset through a market sale 35 The enumerated sections cover all of the promised services, business ventures, immediately following the purchase. prohibited deceptive telemarketing acts or practices, the eight general abusive telemarketing investment opportunities, prize The proposed rule makes clear that all acts or practices, and the written disclosures and promotions, or credit-related programs. such estimates must be substantiated by acknowledgements required for prize promotions Given the definition of competent and reliable evidence. and investment opportunities. ‘‘telemarketing’’ in § 310.2(v) and the Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8321 exemptions set forth in this section, the written comments submitted to the the transcription placed on the public proposed rule covers all outbound Secretary of the Commission on or record. telephone calls intended to induce before March 31, 1995. Comments To the extent possible, Commission payment for goods or services, except submitted will be available for public staff will select parties to represent the for calls made by a person who engages inspection in accordance with the following affected interests: Sellers; in fewer than ten telephone sales each Freedom of Information Act (5 U.S.C. telemarketers; list providers; year, or for telephonic contacts made 552) and Commission regulations, on representatives of the credit card from one business to another that do not normal business days between the hours system; consumers; Federal, State and involve the sale of office or cleaning of 8:30 a.m. and 5 p.m. at the Public local law enforcement and regulatory supplies or certain charitable Reference Section, Room 130, Federal authorities; and any other interests that solicitations. The only inbound Trade Commission, 6th Street and Commission staff may identify and telemarketing calls covered are those Pennsylvania Avenue, N.W., deem appropriate for representation. received from a person who is Washington, D.C. 20580. Parties to represent the above- responding to an initial communication, referenced interests will be selected on Section D. Public Workshop-Conference other than a catalog, from the seller or the basis of the following criteria: telemarketer that was directed to that The FTC staff will conduct a Public 1. The party submits a written particular person. In addition, all Workshop-Conference to discuss written comment during the 45-day comment inbound telemarketing calls related to comments received in response to the period. business ventures, investment Notice of Proposed Rulemaking. The 2. The party notifies Commission staff opportunities, prize promotions, or purpose of the conference is to afford of its interest and authorization to credit-related programs are covered. Commission staff and interested parties represent an affected interest within 20 a further opportunity to openly discuss days of publication of the Notice of Section 310.7 Actions by States and and explore issues raised in the Proposed Rulemaking. Private Persons rulemaking proceeding, and, in 3. The party’s participation would The Telemarketing Act permits particular, to examine publicly any promote a balance of interests being certain State officials and private areas of significant controversy or represented at the conference. persons to bring civil actions in an divergent opinions that are raised in the 4. The party’s participation would appropriate Federal district court for written comments. The conference is promote the consideration and violations of this rule.36 Section 310.7 of not intended to achieve a consensus discussion of a variety of issues raised the proposed rule sets forth the notice opinion among participants or between in the rulemaking proceeding. such parties must provide to the participants and Commission staff with 5. The party has expertise in activities Commission concerning those actions. respect to any issue raised in the affected by the proposed regulations. 6. The party adequately reflects the Such parties must serve written notice rulemaking proceeding. Commission views of the affected interest(s) which it of its action on the Commission, if staff will consider the views and purports to represent, not simply a feasible, prior to initiating an action suggestions made during the conference, single entity or firm within that interest. under this rule. The notice must include in conjunction with the written a copy of the complaint and any other 7. The number of parties selected will comments, in formulating its final not be so large as to inhibit effective pleadings to be filed with the court. If recommendation to the Commission prior notice is not feasible, the State discussion among them. concerning the proposed rule. A neutral third-party facilitator will official or private person must serve the Commission staff will select a limited be retained for the conference. It will be Commission with the required notice number of parties, from among those held over the course of three immediately upon instituting its action. who submit written comments, to consecutive days, on April 18–20, 1995. Section 310.8 Federal Preemption represent the significant interests Parties interested in participating and affected by the proposed regulations. authorized to represent an affected Section 310.8 of the proposed rule These parties will participate in an open states that nothing in the rule shall be interest at the conference must notify discussion of the issues. It is Commission staff by March 6, 1995. construed to preempt any State law that contemplated that the selected parties is not in direct conflict with any Prior to the conference, parties selected might ask and answer questions based to represent an affected interest will be provision of the rule. Thus, State on their respective comments. statutes concerning telemarketing that provided with computer disks In addition, the conference will be contain prohibitions or requirements containing copies of the comments open to the general public. Members of that are not imposed by this rule would received in response to this notice. the general public who attend the remain in effect, as long as those conference may have an opportunity to Section E. Communications by Outside statutes do not conflict with this rule. make a brief oral statement presenting Parties to Commissioners or Their Section 310.9 Severability their views on issues raised in the Advisors Section 310.9 of the proposed rule rulemaking proceeding. Oral statements Pursuant to Commission Rule sets forth the Commission’s intent that of views by members of the general 1.26(b)(5), communications with respect the provisions of this rule be separate public will be limited to a few minutes to the merits of this proceeding from and severable from one another. Thus, in length. The time allotted for these any outside party to any Commissioner if any provision is stayed or determined statements will be determined on the or Commissioner advisor during the to be invalid, the remaining provisions basis of the time allotted for discussion course of this rulemaking shall be shall continue in effect. of the issues by the selected parties, as subject to the following treatment. well as by the number of persons who Written communications, including Section C. Invitation to Comment wish to make statements. written communications from members Before adopting this proposed rule as Written submissions of views, or any of Congress, shall be forwarded final, consideration will be given to any other written or visual materials, will promptly to the Secretary for placement not be accepted during the conference. on the public record. Oral 36 See 15 U.S.C. 6103 and 6104. The discussion will be transcribed and communications, not including oral 8322 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules communications from members of been made to make the proposed rule’s 3. The proposed rule defines the term Congress, are permitted only when such requirements flexible, in part to ‘‘goods or services.’’ oral communications are transcribed minimize any unforeseen burden on a. Is this definition clear, meaningful, verbatim or summarized at the small entities, as described elsewhere in and appropriate? What are the discretion of the Commissioner or this notice. advantages and disadvantages of Commissioner advisor to whom such To ensure that no substantial defining the term in this manner? oral communications are made and are economic impact is being overlooked, b. Is the definition as drafted promptly placed on the public record, public comment is requested on the sufficiently comprehensive to together with any written effect of the proposed regulations on the encompass the types of products, communications and summaries of any costs to, profitability and services, or other offers which have oral communications relating to such competitiveness of, and employment in been, are, or may be sold through oral communications. Oral small entities. Subsequent to the receipt telemarketing? communications from members of of public comments, it will be decided c. Are there other approaches for Congress shall be transcribed or whether the preparation of a final defining the term ‘‘goods or services’’ summarized at the discretion of the regulatory flexibility analysis is that would be more useful? Commissioner or Commissioner advisor warranted. Accordingly, based on 4. The proposed rule defines the term to whom such oral communications are available information, the Commission ‘‘investment opportunity.’’ made and promptly placed on the hereby certifies under the Regulatory a. Is this definition clear, meaningful, public record, together with any written Flexibility Act, 5 U.S.C. 605(b), that the and appropriate? What are the communications and summaries of any proposed regulations will not have a advantages and disadvantages of oral communications relating to such significant economic impact on a defining the term in this manner? oral communications. substantial number of small entities. b. Is the definition as drafted sufficiently comprehensive to Section F. Regulatory Flexibility Act This notice serves as certification to that effect for the purposes of the Small encompass the types of investment The provisions of the Regulatory Business Administration. opportunities which have been, are, or Flexibility Act relating to an initial and may be sold or traded through final regulatory analysis (5 U.S.C. 603, Section G. Questions on the Proposed telemarketing? 604) are not applicable to this document Rule c. Are there other approaches to because it is believed that these The Commission seeks comments on defining the term ‘‘investment regulations, if promulgated, will not various aspects of the proposed rule. opportunity’’ that would be more have a significant economic impact on Without limiting the scope of issues it useful? a substantial number of small entities (5 seeks comment on, the Commission is 5. The proposed rule defines the U.S.C. 605). terms ‘‘premium,’’ ‘‘prize,’’ and ‘‘prize The Telemarketing Act requires the particularly interested in receiving comments on the questions that follow. promotion.’’ Commission to issue regulations, not a. Are these definitions clear, later than 365 days after the date of Responses to these questions should be itemized according to the numbered meaningful, and appropriate? Are the enactment, prohibiting deceptive distinctions between a ‘‘premium’’ and telemarketing acts or practices and other questions in this Notice. In responding to these comments, include detailed, a ‘‘prize’’ clear, meaningful, and abusive telemarketing acts or practices. appropriate? What are the advantages The Act limits the scope of the factual supporting information whenever possible. and disadvantages of defining these regulations to entities that engage in terms in this manner? telemarketing through one or more Section 310.2 Definitions b. Are the definitions as drafted interstate telephone calls; telemarketing 1. The proposed rule defines the sufficiently comprehensive to sales by local companies to local encompass the types of premiums, customers would most likely be following terms for use in the prohibition on credit card laundering: prizes, and prize promotions which intrastate calls and thus outside the have been, are, or may be offered parameters of the proposed rule. The ‘‘acquirer,’’ ‘‘cardholder,’’ ‘‘credit card,’’ ‘‘credit card sales draft,’’ ‘‘credit card through telemarketing? Act also exempts certain catalog sales c. Are there other approaches to system,’’ ‘‘merchant,’’ and ‘‘merchant operations from the scope of the defining these terms that would be more agreement.’’ regulations. In addition, the proposed useful? rule exempts incidental telemarketing a. Are these definitions clear, 6. The proposed rule defines the sales, i.e., calls made by any person who meaningful, and appropriate? terms ‘‘seller’’ and ‘‘telemarketer.’’ engages in fewer than ten sales each b. Are there other approaches to a. Are these definitions clear, year through the use of the telephone. defining these terms that would be more meaningful, and appropriate? Are the The proposed rule also exempts certain useful? distinctions between a ‘‘seller’’ and a contacts between businesses, and 2. The proposed rule defines the term ‘‘telemarketer’’ clear, meaningful, and certain calls initiated by a person when ‘‘business venture.’’ appropriate? What are the advantages there is no initial sales contact directed a. Is this definition clear, meaningful, and disadvantages of defining these to that particular person from a seller or and appropriate? What are the terms in this manner? telemarketer. advantages and disadvantages of b. Are there other approaches to As a result of these statutory and defining the term in this manner? defining these terms that would be more regulatory limitations, we believe that b. Is the definition as drafted useful? many small entities will fall outside the sufficiently comprehensive to c. Since most of the provisions of the scope of the regulations. In addition, encompass the types of business proposed rule apply to sellers and/or any economic costs imposed on small ventures which have been, are, or may telemarketers, do these definitions entities remaining within the be sold through telemarketing? reflect the appropriate scope of the rule? parameters of the rule are, in many c. Are there other approaches to 7. The proposed rule states that the instances, specifically imposed by defining the term ‘‘business venture’’ term ‘‘telemarketing’’ includes the use statute. Where they are not, efforts have that would be more useful? of a facsimile machine, computer Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8323 modem, or any other telephonic certain disclosures and the offered, and that the disclosures be medium, as well as calls initiated by misrepresentation of certain made in the same manner and form as persons in response to postcards, information. Questions 13 through 18 the payment request. brochures, advertisements, or any other seek comments on the particular types a. Are there other disclosures that printed, audio, video, cinematic, or of acts and practices included in this should be required? Are any of the electronic communications by or on Section of the proposed rule. Looking at required disclosures unnecessary? behalf of the seller. § 310.3(a) as a whole: b. Is the description of the a. Is this definition clear, meaningful, a. Would it be appropriate to include information to be disclosed clear, and appropriate? in the final rule a general prohibition meaningful, and appropriate? b. Is the definition of ‘‘telemarketing’’ against material misrepresentations or c. What are the current practices of sufficiently broad to encompass current the failure to disclose material sellers and telemarketers regarding such as well as future technology? information? What would be the disclosures? c. Are there other approaches to advantages and disadvantages to this d. What costs will this disclosure defining the term ‘‘telemarketing’’ that approach? requirement impose on legitimate would be more useful? b. Are there other approaches to businesses? 8. The proposed definition of prohibiting deceptive telemarketing acts e. What are the advantages or ‘‘telemarketing’’ includes within the or practices that would be more useful disadvantages of requiring these rule’s coverage on-line information to consumers? That would be more disclosures before payment is services which a person accesses by useful to law enforcement authorities? If requested? Is it more appropriate to computer modem. so, how would these alternatives affect require these disclosures at some other a. Is such coverage appropriate? the burden the rule places on businesses time? b. Is the proposed rule as drafted forced to comply with it? 14. As part of the prohibition against sufficiently comprehensive to regulate c. Are there other approaches to deceptive telemarketing acts or the types of plans, programs, or prohibiting deceptive telemarketing acts practices, § 310.3(a)(2) of the proposed campaigns for the sale of goods or or practices that would reduce the rule prohibits specific services that have been, are, or may be burden imposed on legitimate misrepresentations in connection with conducted through such computer businesses attempting to comply with telemarketing. information services? the rule’s requirements? If so, how a. Are there other misrepresentations 9. The proposed definition of would these alternatives affect the that should be included in the ‘‘telemarketing’’ tracks the usefulness of the rule to consumers? To prohibited list? Are any of the Telemarketing Act in exempting catalog law enforcement authorities? prohibited misrepresentations sales from coverage under the rule. One 12. Section 310.3(a) of the proposed unnecessary? of the requirements of this exemption is rule makes both the seller and the b. Is the description of the prohibited that ‘‘the person making the solicitation telemarketer equally liable for any misrepresentations clear, meaningful, ** * only receives calls initiated by deceptive telemarketing acts or and appropriate? customers in response to the catalog and practices. c. How will this section benefit during those calls takes orders only a. Are there parts of this Section that consumers or law enforcement efforts? without further solicitation.’’ The should apply only to the seller or to the What, if any, costs will this Section proposed rule states that the term telemarketer? If so, what specific impose on legitimate businesses? ‘‘further solicitation’’ does not include Sections should apply only to sellers? 15. As part of the prohibition against providing the customer with To telemarketers? Why are such deceptive telemarketing acts or information about, or attempting to sell, limitations appropriate? practices, § 310.3(a)(3) of the proposed any other item included in the same b. What are the benefits of making rule prohibits specific catalog which prompted the customer’s both sellers and telemarketers jointly misrepresentations in connection with call. liable for violations? the offer, offer for sale, or sale of any a. Does the proposed rule sufficiently c. What additional costs or other business venture. clarify the types of solicitation activities burdens will the rule impose on sellers a. Are there other misrepresentations that are permitted in connection with and/or telemarketers if the rule makes that should be included in the catalog sales? both liable for any violations of this prohibited list? Are any of the b. How much will the additional Section? If the rule makes telemarketers prohibited misrepresentations flexibility provided by this definition jointly liable with sellers, will this unnecessary? benefit catalog sellers? How will it affect reduce the ability of telemarketers to b. Is the description of the prohibited law enforcement efforts to stop respond to the needs of their clients in misrepresentations clear, meaningful, fraudulent or deceptive telemarketers? a timely fashion? and appropriate? 10. The proposed rule defines the d. If telemarketers are not jointly c. How will this section benefit term ‘‘verifiable retail sales price.’’ liable for deceptive practices of the consumers or law enforcement efforts? a. Is this definition clear, meaningful, sellers for whom they work, would What, if any, costs will this Section and appropriate? some telemarketers simply seek to avoid impose on legitimate businesses? b. Are there other approaches to knowledge of any questionable practices 16. Section 310.3(a)(4) of the defining this term that would be more of the sellers from whom they work? proposed rule prohibits obtaining or useful? Are there alternative ways to keep submitting a check, draft, or other form telemarketers from taking such an of negotiable paper for payment from a Section 310.3 Deceptive Telemarketing approach, without imposing full person’s checking, savings, share, or Acts or Practices liability for all of the actions taken by similar account without that person’s 11. Section 310.3(a) of the proposed their clients? express written authorization. rule sets forth certain conduct that will 13. Section 310.3(a)(1) of the a. Is this prohibition clear, be considered a deceptive telemarketing proposed rule requires that certain meaningful, and appropriate? act or practice and a violation of the disclosures be made before payment is b. What are the advantages or rule, including the failure to make requested for any goods or services disadvantages of this prohibition? 8324 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules c. Is the proposed prohibition c. Is the description of the listed acts respond to the needs of their clients in sufficiently broad to encompass all or practices clear, meaningful, and a timely fashion? forms by which a person’s account appropriate? d. If telemarketers are not jointly could be debited in this manner for 20. Under § 310.3(c) of the proposed liable for abusive practices of the sellers payment of goods or services? rule, certain acts or practices that for whom they work, would some d. What will be the economic impact constitute ‘‘credit card laundering’’ will telemarketers simply seek to avoid on sellers and telemarketers of requiring be considered deceptive and a violation knowledge of any questionable practices express written authorization prior to of the rule. of the sellers from whom they work? debiting a person’s account in this a. Is the description of prohibited acts Are there alternative ways to keep manner? or practices clear, meaningful, and telemarketers from taking such an e. What are the current practices of appropriate? approach, without imposing full entities regarding authorizations for b. What are the advantages or liability for all of the actions taken by debiting a person’s checking, savings, disadvantages of this provision? their clients? share, or similar account? c. Is the proposed prohibition 23. Section 310.4(a)(1) of the 17. Section 310.3(a)(5) of the sufficiently comprehensive to proposed rule prohibits any seller or proposed rule prohibits obtaining any encompass all forms of credit card telemarketer from engaging in threats or amount of money from a person through laundering which have been, are, or intimidation. a. Is it appropriate to include this any means unless the amount is may be used in connection with practice as an abusive act or practice? expressly authorized by the person. telemarketing? a. Is this prohibition clear, b. Is the description of the prohibited d. Are there other approaches to activity clear, meaningful, and meaningful, and appropriate? prohibiting credit card laundering that b. What are the advantages or appropriate? would be more useful to consumers? To c. Are there other approaches to disadvantages of this prohibition? law enforcement authorities? If so, how c. Is the proposed prohibition prohibiting this type of activity? would these alternatives affect the sufficiently broad to encompass all d. Do the terms ‘‘threats’’ and burden the rule places on businesses forms by which a seller or telemarketer ‘‘intimidation’’ need additional required to comply with it? could obtain unauthorized amounts of definition in order to specify the type of e. Are there other approaches to money? behavior that would violate the rule, or 18. Under § 310.3(b)(1) of the prohibiting credit card laundering that are the terms self-explanatory? proposed rule, it would be a deceptive would reduce the burden imposed on 24. Section 310.4(a)(2) prohibits a telemarketing act or practice for any legitimate businesses attempting to seller or telemarketer from providing for person to provide substantial assistance comply with the rule’s requirements? If or directing a courier to pick up or support to any seller or telemarketer so, how would these alternatives affect payment from a customer. a. Is it appropriate to include this when that person knows or should the usefulness of the rule to consumers? practice as an abusive act or practice? know that the seller or telemarketer is To law enforcement authorities? f. Will the regulations against credit b. Is the description of the prohibited engaged in any act or practice that activity clear, meaningful, and violates the rule. card laundering interfere with current practices of legitimate businesses? appropriate? a. What are the advantages or c. Are there other approaches to disadvantages to providing such a Section 310.4 Abusive Acts or prohibiting this type of activity? general prohibition against ‘‘assisting Practices d. What will be the economic impact, and facilitating?’’ 21. Section 310.4(a) of the proposed and the costs and benefits, of this b. Is this general prohibition against provision? ‘‘assisting and facilitating’’ clear, rule lists specific activities that will be considered to be abusive telemarketing e. Do legitimate telemarketers use meaningful, and appropriate? couriers to pick up payments? If so, in c. Are there other approaches to acts or practices and a violation of the Telemarketing Sales Rule. Is there other what circumstances? How would these prohibiting ‘‘assisting and facilitating’’ businesses be affected if they could not that would be more useful to conduct that should be included in § 310.4(a)? use couriers to pick up payments? consumers? That would be more useful f. Will a prohibition on courier pick- 22. Section 310.4(a) of the proposed to law enforcement authorities? If so, ups be effective in reducing the how would these alternatives affect the rule makes both the seller and the consumer injury that results from burden the rule places on businesses telemarketer equally liable for engaging telemarketing fraud? How will a forced to comply with it? in the listed abusive telemarketing acts fraudulent telemarketer adjust his or her d. Are there other approaches to or practices. practices in response to this prohibiting ‘‘assisting and facilitating’’ a. Are there parts of this Section that prohibition? that would reduce the burden imposed should apply only to the seller or to the 25. Section 310.4(a)(3) of the on legitimate businesses attempting to telemarketer? If so, what specific proposed rule prohibits requesting or comply with the rule’s requirements? If sections should apply only to sellers? receiving payment of any fee or so, how would these alternatives affect To telemarketers? Why are such consideration for ‘‘credit repair’’ goods the usefulness of the rule to consumers? limitations appropriate? or services until the time frame in To law enforcement authorities? b. What are the benefits of making which the seller has represented the 19. Section 310.3(b)(2) of the both sellers and telemarketers jointly goods or services will be provided has proposed rule lists specific acts or liable for violations? expired and the seller has provided practices that provide substantial c. What additional costs or other documentation that the promised results assistance or support to telemarketing. burdens will the rule impose on sellers have been achieved. a. Is it appropriate to single out the and/or telemarketers if the rule makes a. Is it appropriate to include this acts and practices listed in this section? both liable for any violations of this practice as an abusive act or practice? b. Are there other acts or practices Section? If the rule makes sellers and b. Is the description of the prohibited which should be included in this telemarketers jointly liable, will this activity clear, meaningful, and section? reduce the ability of telemarketers to appropriate? Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8325 c. Are there other approaches to d. What will be the economic impact, a. Is it appropriate to include this prohibiting this type of activity? and the costs and benefits, of this practice as an abusive act or practice? d. What will be the economic impact, provision? b. Are the descriptions of the and the costs and benefits, of this e. Are there any legitimate services prohibited activity and of the stated provision? that could not be provided, or would be requirements clear, meaningful, and e. Are there any legitimate services more costly to provide, if this appropriate? that could not be provided, or would be prohibition were promulgated? If such c. Are there other approaches to more costly to provide, if this services exist, how could the rule be prohibiting this type of activity? prohibition were promulgated? If such crafted to prohibit deceptive advance- d. What will be the economic impact, fee loan schemes while still permitting services exist, how could the rule be and the costs and benefits, of this these legitimate activities? crafted to prohibit deceptive credit provision? repair services while still permitting 28. Section 310.4(a)(6) of the proposed rule prohibits failing to e. What are the current practices of these legitimate activities? telemarketers regarding the use of 26. Section 310.4(a)(4) of the distribute all prizes or purported prizes offered in a telemarketing prize references in the telemarketing of proposed rule prohibits requesting or business ventures? receiving payment of any fee or promotion within 18 months of the initial offer to any person. 31. Section 310.4(b)(1) of the consideration for goods or services proposed rule prohibits more than one represented to recover or otherwise a. Is it appropriate to include this practice as an abusive act or practice? telephone solicitation in any three- assist in the return of money or any b. Is the description of the prohibited month period to a person’s residence to other item of value to a person until activity clear, meaningful, and offer, offer for sale, or sell the same or three days after such money or other appropriate? similar goods or services on behalf of item is delivered to that person. This c. Are there other approaches to the same seller, without the person’s provision does not apply to a licensed prohibiting this type of activity? prior consent. The requirement does not attorney or licensed private investigator d. What will be the economic impact, apply to calls made solely to verify who has a written agreement with that and the costs and benefits, of this previous sales or attempted calls which person. provision? do not reach a person. This Section also a. Is it appropriate to include this e. What are the current practices of would prohibit calling a person’s practice as an abusive act or practice? sellers or telemarketers regarding the residence when that person has stated b. Is the description of the prohibited time frame within which prizes are that he or she does not wish to receive activity clear, meaningful, and distributed in telemarketing prize further telephone solicitations made by appropriate? promotions? or on behalf of the seller. c. Are there other approaches to f. Is 18 months an appropriate period a. Are the descriptions of the of time in which to require that all prohibiting this type of activity? prohibited activities clear, meaningful, prizes or purported prizes be d. What will be the economic impact, and appropriate? and the costs and benefits, of this distributed? b. Are there other approaches to provision? 29. Section 310.4(a)(7) of the prohibiting this type of activity? e. Are there any legitimate services proposed rule prohibits offering or that could not be provided, or would be selling goods or services through a c. Should these prohibitions be more costly to provide, if this telephone solicitation to a person who extended to business-to-business calls? prohibition were promulgated? If such previously has paid the same seller for d. What will be the economic impact, services exist, how could the rule be goods or services, until all terms and and the costs and benefits, of crafted to prohibit deceptive recovery conditions of the initial transaction have prohibiting more than one telephone services while still permitting these been fulfilled, including the distribution solicitation within any three-month legitimate activities? of all prizes and premiums offered in period? Is a three-month period of time f. Is it necessary, useful, and conjunction with the initial transaction. appropriate? appropriate to exempt licensed a. Is it appropriate to include this e. What will be the economic impact, attorneys and licensed private practice as an abusive act or practice? and the costs and benefits, of investigators from this provision? b. Is the description of the prohibited prohibiting further calls after a person g. Does this prohibition impact on activity clear, meaningful, and has asked not to receive telephone legitimate businesses other than appropriate? solicitations by or on behalf of the c. Are there other approaches to licensed attorneys or licensed private seller? prohibiting this type of activity? f. What are the current practices of investigators? d. What will be the economic impact, sellers and telemarketers regarding the 27. Section 310.4(a)(5) of the and the costs and benefits, of this number of calls to a person’s residence proposed rule prohibits requesting or provision? receiving payment of any fee or e. What are the current practices of within a specified period of time for the consideration in advance of obtaining a sellers and telemarketers regarding same or similar goods or services on loan or any credit service when the making additional telephone behalf of the same seller? seller or telemarketer has guaranteed or solicitations before fulfilling the terms g. What are the current practices of represented a high likelihood of success and conditions of the initial sales sellers and telemarketers regarding in obtaining or arranging a loan or credit transaction? identifying those persons who do not service for a person. f. Are there telemarketing activities wish to receive further telephone a. Is it appropriate to include this for which this prohibition would not be solicitations by or on behalf of the practice as an abusive act or practice? feasible? seller? b. Is the description of the prohibited 30. Section 310.4(a)(8) of the 32. Section 310.4(b)(2) of the activity clear, meaningful, and proposed rule prohibits identifying a proposed rule sets forth certain actions appropriate? person as a reference for a business that a seller or telemarketer can take that c. Are there other approaches to venture unless certain requirements are would provide a defense against prohibiting this type of activity? met. liability for violating §§ 310.4(b)(1). 8326 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules a. Is it appropriate to provide a information to consumers? If so, how f. What are the current practices of defense against potential liability with will this information be useful to telemarketers regarding the disclosure of regard to these activities? consumers? What impact will these the information required by b. Is it appropriate to limit this disclosure requirements have on §§ 310.4(d)(3) and (4)? defense to one erroneous call per person professional fundraisers? What impact 37. In addition to the oral disclosures called in any calendar year? will these disclosure requirements have required during telephone solicitations, c. Are there other requirements which on charities that use these professional § 310.4(e) of the proposed rule requires should be included in the list of fundraisers? that written disclosures be provided in practices which provide a defense e. Do telemarketers currently make duplicate in connection with against potential liability? Are any of the disclosures required by telemarketing involving a prize the activities required by the proposed § 310.4(d)(1)? Why or why not? promotion or the offer for sale of any rule inappropriate? f. The proposed rule would prohibit investment opportunity. d. Is the description of the the use of aliases by persons making a. What are the advantages and requirements to avoid liability clear, telephone solicitations. Is this disadvantages of these required meaningful, and appropriate? appropriate? What are the costs and disclosures? Are written disclosures e. Are there other approaches to benefits of prohibiting the use of appropriate or necessary? providing a defense for potential aliases? Is there an alternative approach b. Is it appropriate to include a failure liability that would be more useful? that would permit the use of aliases to make these disclosures as an abusive f. What will be the economic impact, while still ensuring that consumers and act or practice? and the costs and benefits, of taking the law enforcement authorities could c. Are the descriptions of the required actions set forth in § 310.4(b)(2)? identify a particular caller? What are the disclosures, their timing, size, and other g. What are the current practices of costs and benefits of such an requirements clear, meaningful, and sellers or telemarketers with respect to alternative? appropriate? the activities set forth in § 310.4(b)(2)? 35. Section 310.4(d)(2) of the d. Are there other written disclosures 33. Section 310.4(c) of the proposed proposed rule requires that certain oral that should be required? Are any of the rule prohibits telephone solicitations to disclosures be made whenever a caller required written disclosures a person’s residence at any time other verifies a telemarketing sale. unnecessary? than between the hours of 8 a.m. and 9 a. Are the descriptions of the required e. Are there any forms of prize p.m. local time at the called person’s disclosures clear, meaningful, and promotions or investment opportunities location, without the prior consent of appropriate? for which the disclosures would not be the person being called. b. Are there other oral disclosures that feasible? a. Is the description of the prohibited should be required? Are any of the f. Section 310.4(e) specifies the size of activity clear, meaningful, and required disclosures unnecessary? the disclosures, what else can be appropriate? c. What will be the economic impact included in the envelope with the b. What will be the economic impact, of requiring these disclosures in any disclosure, and, for prize promotions, and the costs and benefits, of this verification call? provision? d. Do telemarketers currently make what may appear on the face of the c. What are the current practices of the disclosures required by envelope. Are these specifications telemarketers regarding the times during § 310.4(d)(2)? Why or why not? necessary to ensure the clarity of the which telephone solicitations are made 36. Sections 310.4(d)(3) and (4) of the disclosures and to ensure that to residences? proposed rule require additional consumers pay attention to them, or d. Should the period when telephone disclosures where telemarketing would a more general standard (e.g., solicitations are permitted be narrowed includes a prize promotion or an offer clear and conspicuous) be equally or or expanded? Why or why not? of a premium. more effective? How would the costs of e. Should this prohibition be a. Is it appropriate to classify the complying with the requirements of this extended to contacts between failure to make these additional Section be affected if the more general businesses? disclosures as an abusive act or standard were employed? 34. Section 310.4(d)(1) of the practice? g. Section 310.4(e)(2)(iii) of the proposed rule requires that certain oral b. Are the descriptions of the required proposed rule requires, for the sale of disclosures be made at the beginning of disclosures clear, meaningful, and any investment opportunity involving all telephone solicitations. appropriate? tangible assets sold on credit or a. Are the descriptions of the required c. Are there other oral disclosures that leverage, the written disclosure of the disclosures clear, meaningful, and should be required? Are any of the percentage of the purchaser’s down appropriate? required disclosures unnecessary? payment that would be devoted to fees b. Are there other oral disclosures that d. What will be the economic impact and costs by the end of both the first six should be required? Are any of the of requiring these additional oral months and the first year after the required disclosures unnecessary? disclosures? Will these additional oral investment is made. Are these time c. What will be the economic impact disclosures help consumers protect frames useful and appropriate? Would it of requiring these disclosures at the themselves from fraudulent or deceptive be better not to have a time frame in this beginning of the telephone solicitation? telemarketers? disclosure requirement? If these disclosures are not required at e. Is it appropriate to require that h. What will be the economic impact, the beginning of the telephone these disclosures be made both orally and the costs and benefits, of requiring solicitation, when should they be and in writing, as is required by these disclosures? Of requiring a written required? What are the advantages or § 310.4(e)(1), or would it be sufficient to acknowledgement prior to payment? disadvantages of this alternative? permit either an oral or a written i. What are the current practices of d. Are the disclosure requirements for disclosure alone? How would the telemarketers regarding the disclosures those engaged in charitable solicitations economic costs of this Section be required in § 310.4(e)? Regarding necessary? Will these disclosure affected if the latter approach were written acknowledgement prior to requirements provide useful adopted? payment? Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8327 j. What will be the economic impact, permitted at the time of sale, or should agree to buy goods or services? How and the costs and benefits, of requiring payment be prohibited until the end of many employee records will have to be that the written disclosures be provided the cooling-off period? Would it be more maintained by the average firm engaged in duplicate? Will this requirement appropriate to impose a mandatory right in telemarketing? ensure that consumers retain a copy of to a refund in all telemarketing sales? 41. Under Section 310.5(b) of the the required disclosure, or are there How long of a period would be proposed rule, a seller and a other approaches to achieve this goal? appropriate for consumers to examine a telemarketer calling on behalf of that What are the costs and benefits of these product before returning it? seller need not keep duplicative records, alternative approaches? but can enter into a written agreement k. How many telemarketing Section 310.5 Recordkeeping allocating recordkeeping responsibilities campaigns per year will be required to Requirements between themselves. Section 310.5(c) of comply with the written disclosure 40. Section 310.5(a) of the proposed the proposed rule sets forth the requirements? How many prize rule requires sellers or telemarketers to recordkeeping requirements in the event promotions per year are conducted as keep certain records relating to their of the dissolution, termination, or part of telemarketing campaigns? How telemarketing activities for a period of change in ownership of a seller or many people participate in the average 24 months from the date the record is telemarketer. prize promotion conducted via produced. a. Are these provisions clear, telemarketing? a. Are the specified records meaningful, and appropriate? l. How many telemarketing campaigns appropriate to verify compliance with b. What are the advantages or per year involve sales of investment the rule? Are any of the required records disadvantages to these provisions? goods? What particular investment unnecessary to verify compliance with c. What are the current practices of goods are sold via telemarketing by the rule? Should any additional records sellers and telemarketers regarding the legitimate sellers? On average, how be required? Specifically, should sellers distribution of responsibility for many people buy investments as a result and telemarketers keep copies of any maintaining records? Regarding the of a telemarketing campaign? consumer complaints they receive? How maintenance of records in the event of 38. Section 310.4(f) of the proposed burdensome would it be to maintain the dissolution, termination, or change rule prohibits any person who is subject such complaints? How many consumer in ownership of a seller or telemarketer? to any federal court order resolving a complaints will the average legitimate case in which the complaint alleged a firm have involving its telemarketing Section 310.6 Exemptions violation of certain sections of the rule, sales? 42. The proposed rule exempts the and the court did not dismiss or strike b. Is the 24-month record retention solicitation of sales by any person who all such allegations from the case, to period appropriate? Why or why not? If engages in fewer than ten telephone sell, rent, publish, or distribute any list not, what period is appropriate? sales per year. of customer contacts from that person. c. Are there other approaches to a. Is this proposed exemption clear, a. Is this prohibition appropriate? Is recordkeeping requirements that would meaningful, and appropriate? the description of the prohibited be more useful? b. Is the scope of the proposed rule activities clear, meaningful, and d. What are the current record sufficiently limited to exempt those appropriate? retention policies and practices of persons who do not regularly engage in b. What will be the economic impact, sellers and telemarketers with respect to telemarketing? and the costs and benefits, of the records listed in § 310.5? c. Are there other approaches to prohibiting the sale of lists by such Specifically, what records, required to limiting the scope of the rule that would persons? be maintained by § 310.5(a), currently be more useful? c. What are the current practices of are maintained by sellers or d. Does this exemption pose problems telemarketers regarding the sale of lists? telemarketers? How long are they for law enforcement efforts to stop Specifically, under what circumstances maintained? deceptive or abusive telemarketing acts do sellers or telemarketers sell or e. What will be the economic impact, or practices? otherwise distribute lists to others? and the costs and benefits, of these 43. The proposed rule also exempts d. What would be the effect if this recordkeeping requirements? telephonic contacts between businesses, prohibition only applied for a certain f. If the records listed are not required except such contacts involving the sale period of time after the court order was to be retained, how would rule of office or cleaning supplies or certain entered? How would this limitation compliance be verified? charitable solicitations. hinder law enforcement efforts? What g. What has been the experience of a. Is this proposed exemption clear, would be an appropriate period of time State and local law enforcement meaningful, and appropriate? following the entry of an order to agencies with respect to record retention b. Are there other types of goods or prohibit list sales? requirements? Have such requirements services sold in business-to-business e. Should this prohibition extend to a been useful? If yes, how? If no, why not? contacts which should not be exempted broader class of rule violations than that What types of enforcement issues could from the rule? currently proposed? A narrower class? arise if recordkeeping were not c. Are there other approaches to 39. In addition to or in lieu of some required? limiting the scope of the rule that would of the provisions in § 310.4 of the h. What volume of records will have be more useful? proposed rule, would it be more to be maintained to comply with the d. Does this exemption pose problems appropriate that telemarketing sales be requirements of § 310.5(a)? In particular, for law enforcement efforts to stop subject to a cooling-off rule, or a period how many telemarketing campaigns will deceptive or abusive telemarketing acts of time in which the purchaser can the average firm conduct on an annual or practices? cancel a transaction? How would such basis? How many different scripts are 44. Finally, the proposed rule a rule be structured? Should all used during an average campaign? How exempts a telephonic contact made telemarketing sales be subject to such a many consumers are called during an solely by a person when there has been rule? What is an appropriate ‘‘cooling- average telemarketing campaign, and no initial sales contact directed to that off’’ time period? Should payment be what percentage of the persons called particular person by the seller or 8328 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules telemarketer, except for such contacts preemption standard clear, meaningful, PART 310ÐTELEMARKETING SALES related to certain employment services, and appropriate? RULE business ventures, investment Other Sec. opportunities, prize promotions, or 310.1 Scope of regulations in this part. credit-related programs. 48. Is it appropriate for the proposed 310.2 Definitions. a. Is this proposed exemption clear, rule to take effect 30 days after its date 310.3 Deceptive telemarketing acts or meaningful, and appropriate? of publication in the Federal Register? practices. b. Is the scope of the proposed rule a. Would 30 days be sufficient time to 310.4 Abusive telemarketing acts or sufficiently limited to exempt come into compliance with the rule? practices. businesses, such as restaurants, car Why or why not? 310.5 Recordkeeping requirements. b. For which specific provisions of the 310.6 Exemptions. rental companies, travel agents, and 310.7 Actions by states and private persons. providers of services, such as plumbers, rule would compliance be possible 310.8 Federal preemption. that rely on the telephone for the taking within 30 days, and for which specific 310.9 Severability. of orders or the scheduling of provisions would compliance take Authority: 15 U.S.C. 6101–6108. appointments? longer? Would a staggered effective date c. Is it appropriate to exclude from be more appropriate? § 310.1 Scope of regulations in this part. this exemption contacts related to c. If 30 days is an insufficient period This part implements the employment services, business of time, what time period would be Telemarketing and Consumer Fraud and ventures, investment opportunities, sufficient? Abuse Prevention Act (15 U.S.C. 6101– prize promotions, or credit-related 49. One of the findings which led 6108). programs? Are there other types of Congress to pass the Telemarketing Act § 310.2 Definitions. goods or services sold through these was that telemarketing differs from (a) Acquirer means a business types of contacts that should not be other sales activities because it can be organization, financial institution, or an exempted from the rule? carried out across State lines without agent of a business organization or d. Is this exemption appropriate for direct, face-to-face contact with the financial institution that has authority on-line computer information services? consumer. Are there new types of from an organization that operates or How would this exemption affect technology by which sales can be made licenses a credit card system to advertising on computer bulletin without direct contact between the authorize merchants to accept, transmit, boards? Is it more appropriate to include buyer and seller? Is the proposed rule or process payment by credit card all contacts made over computer broad enough to encompass such forms through the credit card system for information services in the rule? of technology? Will the proposed rule money, goods or services, or anything e. Are there other approaches to requirements be appropriate and/or else of value. limiting the scope of the rule that would feasible for such other technology? (b) Attorney General means the chief be more useful? 50. What kinds of technological legal officer of a State. f. Does this exemption pose problems changes may be anticipated in the area (c) Business venture means any for law enforcement efforts to stop of telemarketing? Will the proposed rule written or oral business arrangement, deceptive or abusive telemarketing? requirements be appropriate and/or however denominated, including but 45. Are there other telemarketing feasible after these technological not limited to a ‘‘franchise,’’ as that term activities, such as the sale of particular changes are implemented? is defined in the ‘‘Franchise Rule,’’ 16 products or other particular kinds of 51. As already noted in Section F, CFR 436.2(a), which consists of the telemarketing, currently covered by the comment is invited on the effect of the payment of any consideration for: proposed rule but which should be proposed rule with regard to costs, (1) The right or means to offer, sell, exempted? How would the exemption of profitability, competitiveness, and or distribute goods or services (whether these firms or activities affect the ability employment of small business entities. or not identified by a trademark, service of law enforcement to stop deceptive or 52. To the extent not otherwise mark, trade name, advertising, or other abusive telemarketing acts or practices? addressed by the questions above, are commercial symbol); and How would such exemptions affect there any regulatory alternatives that (2) The promise of more than nominal consumers? How would they benefit the would reduce any adverse economic assistance to any person or entity in firms exempted from the rule’s impact of the proposed rule, yet fully connection with or incidental to the coverage? How many firms would be implement the Telemarketing Act? establishment, maintenance, or exempted from the coverage of the rule 53. What are the aggregate costs and operation of a new business or the entry if any proposed change were adopted? benefits of the proposed rule? Are there by an existing business into a new line 46. How many firms in the United any provisions in the proposed rule that or type of business. States sell their products, either in are not necessary to implement the The term ‘‘business venture’’ does not whole or in part, through telemarketing, statute or that impose costs not include any business arrangement in as that term is defined in the proposed outweighed by benefits? Who will which persons acquire, or purportedly rule? How many of these firms engage benefit and who will bear the cost? Can acquire, government-issued licenses or in telemarketing on their own behalf? we expect either the costs or benefits of interests in one or more businesses How many employ others to engage in the rule to dissipate over time? derived from the possession of such telemarketing for them? How would the 54. Does the proposed rule overlap or licenses. number of firms subject to the rule be conflict with other Federal, State, or (d) Cardholder means a person to changed if one or more of the local government laws or regulations? whom a credit card is issued or who is exemptions in § 310.6 were eliminated? List of Subjects in 16 CFR Part 310 authorized to use a credit card on behalf of or in addition to the person to whom Section 310.8 Federal Preemption Telemarketing, Trade practices. the credit card is issued. 47. Under § 310.8 of the proposed Accordingly, it is proposed that (e) Commission means the Federal rule, State laws are preempted only chapter I of 16 CFR be amended by Trade Commission. when they are in direct conflict with adding a new part 310 to read as (f) Credit card means any instrument any provision of the rule. Is this follows: or device, whether known as a credit Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8329 card, credit plate, bank service card, merchant to honor or accept, transmit, term ‘‘further solicitation’’ does not banking card, check guarantee card, or process credit cards in payment for include providing the customer with charge card, or debit card, or by any goods or services. information about, or attempting to sell, other name, issued with or without a fee (o) Person means any individual, any other item included in the same for the use of the cardholder in group, unincorporated association, catalog which prompted the customer’s obtaining money, goods, services, or limited or general partnership, call. anything else of value. corporation, or other business entity. (w) Telephone solicitation means the (g) Credit card sales draft means any (p) Premium means anything offered initiation of a telephone call by a record or evidence of a credit card or given, independent of chance, to telemarketer to induce payment for transaction, including but not limited to customers as an incentive to purchase goods or services. any paper, sales record, instrument, or goods or services offered through (x) Verifiable retail sales price means other writing, or any electronic or telemarketing. the actual, bona fide price at which one magnetic transmission or record. (q) Prize means anything offered, or or more retailers, in the area of the (h) Credit card system means any purportedly offered, to a person at no seller’s principal place of business, has method or procedure used to generate, cost and with no obligation to purchase made a substantial number of sales, transmit, or process for payment a credit goods or services and given, or which the seller has documented. card sales draft. purportedly given, by chance. (i) Customer means any person who is (r) Prize promotion means: § 310.3 Deceptive telemarketing acts or or may be required to pay for goods or (1) A sweepstakes or other game of practices. services offered through telemarketing. chance; or (a) Prohibited deceptive telemarketing (j) Goods or services means any goods (2) An oral or written representation acts or practices. or services, including but not limited to: that a person has won, has been selected It is a deceptive telemarketing act or Any investment opportunity; any to receive, or may be eligible to receive practice and a violation of this Rule for business venture; any certificate or a prize or purported prize. any seller or telemarketer to engage in coupon which may be later exchanged (s) Seller means any person who, in the following conduct: for a product or service; any connection with telemarketing, provides (1) Before payment is requested for membership; any license right; any or offers to provide goods or services in goods or services offered, failing to timeshare or campground interest; any exchange for consideration or a disclose any of the following offer to list a timeshare or campground donation. information in the same manner and interest for sale; any real property (t) State means any State of the United form as the payment request: interest; any offer to improve a person’s States, the District of Columbia, Puerto (i) The total costs, terms, and material credit record, history, rating, or to Rico, the Northern Mariana Islands, and restrictions, limitations, or conditions of obtain an extension of credit; any any territory or possession of the United receiving any goods or services; charitable service promoted in States. (ii) The quantity of any goods or conjunction with an offer of a prize, (u) Telemarketer means any person services; and chance to win a prize, or the who, in connection with telemarketing, (iii) All material terms and conditions opportunity to purchase any other goods initiates or receives a telephonic of the seller’s refund, cancellation, or services; any service promoted by an communication from a customer. exchange, or repurchase policies, employment agency; any multi-level (v) Telemarketing means a plan, including, if applicable, a statement that marketing service; and any offer of program, or campaign which is no such policies exist; advice or assistance to a person. conducted to induce payment for goods (2) Misrepresenting, directly or by (k) Investment opportunity means or services by use of one or more implication, any of the following: anything, tangible or intangible, telephones (including the use of a (i) The total costs, terms, or material excluding a business venture, that is facsimile machine, computer modem, or restrictions, limitations, or conditions of offered, offered for sale, sold, or traded any other telephonic medium) and receiving any goods or services; (1) to be held, wholly or in part, for which involves more than one interstate (ii) The quantity of any goods or purposes of profit or income; or (2) telephone call or connection. The term services; based wholly or in part on includes, but is not limited to, calls (iii) Any material aspect of the representations, either express or initiated by persons in response to performance, efficacy, or central implied, about past, present or future postcards, brochures, advertisements, or characteristics of any goods or services; income, profit, or appreciation. The any other printed, audio, video, (iv) The duration of any offer made; term ‘‘investment opportunity’’ cinematic or electronic communications (v) The nature or terms of the seller’s includes, but is not limited to, any by or on behalf of the seller. The term refund, cancellation, exchange, or business arrangement where persons does not include the solicitation of sales repurchase policies; acquire, or purportedly acquire, through the mailing of a catalog which: (vi) That any person has been selected government-issued licenses or interests Contains a written description or to receive a prize; in one or more businesses derived from illustration of the goods or services (vii) That a premium is a prize; the possession of such licenses. offered for sale; includes the business (viii) The odds of winning any prize; (l) Material means likely to affect a address of the seller; includes multiple (ix) That a seller or telemarketer is in person’s choice of, or conduct regarding, pages of written material or compliance with any Federal, State, or goods or services. illustrations; and has been issued not local law, statute, regulation, or (m) Merchant means a person who is less frequently than once a year, when ordinance; authorized under a written contract the person making the solicitation does (x) That compliance with any Federal, with an acquirer to honor or accept, not solicit customers by telephone but State, or local law, statute, regulation, or transmit, or process credit cards in only receives calls initiated by ordinance constitutes an endorsement payment for goods or services. customers in response to the catalog and or approval of the seller’s or (n) Merchant agreement means a during those calls takes orders only telemarketer’s business or conduct; written contract between a merchant without further solicitation. For (xi) Any affiliation, association, and an acquirer authorizing the purposes of the previous sentence, the connection, or relationship with law 8330 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules enforcement, a public safety (vii) That any person owns or operates credit card sales draft generated by a organization, or any Federal, State, or a business venture purchased from the telemarketing transaction that is not the local government agency; seller; or result of a telemarketing credit card (xii) The purpose for which the seller (viii) That a person can give an transaction between the cardholder and or telemarketer will use a person’s accurate, independent, description of the merchant; or checking, savings, share, or similar his or her experience as an owner or (3) Any person to obtain access to the account number, credit card account operator of a business venture credit card system through the use of a number, social security number, or purchased from the seller; business relationship or an affiliation related information; (4) Obtaining or submitting for with a merchant, when such access is (xiii) The nonprofit, tax-exempt, or payment from a person’s checking, not authorized by the merchant charitable status, purpose, affiliation, or savings, share, or similar account, a agreement. identity of the seller or telemarketer; check, draft, or other form of negotiable (xiv) A person’s eligibility or paper without the person’s express § 310.4 Abusive telemarketing acts or likelihood to receive a tax deduction, written authorization; or practices. loan, or other benefit if the person pays (5) Obtaining any amount of money (a) Abusive conduct generally. It is an money to the seller or telemarketer; from a person through any means, abusive telemarketing act or practice (xv) The nature, terms, or existence of unless such an amount is expressly and a violation of this Rule for any any prior affiliation, association, authorized by the person. seller or telemarketer to engage in the connection, or relationship with any (b) Assisting and facilitating. (1) It is following conduct: person; a deceptive telemarketing act or practice (1) Threats or intimidation; (xvi) The nature, terms, or existence and a violation of this Rule for a person (2) Providing for or directing a courier of any prior purchase or agreement to to provide substantial assistance or to pick up payment from a customer; purchase by any person; support to any seller or telemarketer (xvii) The level of risk, liquidity, (3) Requesting or receiving payment when that person knows or should of any fee or consideration for goods or markup over acquisition costs, past know that the seller or telemarketer is performance, or earnings potential of services represented to improve a engaged in any act or practice that person’s credit history, credit record, or any investment opportunity; violates this Rule. (xviii) The market value of any credit rating until: (2) Substantial assistance or support (i) The term of the contract, or time investment opportunity; to telemarketing for purposes of (xix) The likelihood that the market frame in which the seller has § 310.3(b)(1) includes, but is not limited value for an investment opportunity represented all of the goods or services to, the following: will either increase or decrease; will be provided to that person, has (i) Providing lists of customer contacts (xx) The seller’s success in assisting expired; and to a seller or telemarketer; persons to liquidate goods or services (ii) The seller has provided the person (ii) Receiving consideration in they purchased from the seller, or the with documentation: exchange for providing a testimonial, profit derived from such liquidation; (A) From the original furnisher or endorsement, certification, appraisal, or (xxi) That goods or services can or are provider of the information to the financing, or for serving as a reference, likely to improve a person’s credit consumer reporting agency, confirming with respect to any business venture or history, credit record, or credit rating, or that the promised results have been investment opportunity offered by a result in a person obtaining credit; achieved; or seller; (xxii) The eligibility of, or likelihood (B) In the form of a consumer report that, a person, regardless of that (iii) Securing retail outlets or accounts for the sale of goods or services, or from the consumer reporting agency person’s credit history, will obtain a demonstrating that the promised results loan or other credit-related service; locations or sites for vending machines, rack displays, or any other sales have been achieved, such report having (xxiii) That a seller or telemarketer been issued more than six months after can recover or otherwise effect or assist displays, used in connection with any business venture; the results were achieved. Nothing in in the return of money or any other item this Rule alters the requirement in the of value to a person; or (iv) Providing any certificate or coupon which may later be exchanged Fair Credit Reporting Act, 15 U.S.C. (xxiv) Any other information required 1681, that a consumer report may only to be provided under this Rule; for goods or services; or (v) Providing any script, advertising, be obtained for a specified permissible (3) Misrepresenting, directly or by purpose. implication, in connection with the brochure, promotional material, or (4) Requesting or receiving payment offer, offer for sale, or sale of any direct marketing piece to be used in of any fee or consideration for goods or business venture, any of the following: telemarketing. (i) The level of earnings; (c) Credit card laundering. It is a services represented to recover or (ii) The extent or nature of the market deceptive telemarketing act or practice, otherwise assist in the return of money for the goods or services to be sold; and a violation of this Rule, for: or any other item of value to a person (iii) The nature or availability of any (1) A merchant to present to or until three (3) days after such money or territory; deposit into, or cause another to present other item is delivered to that person. (iv) The existence, availability, or to or deposit into, the credit card system This provision shall not apply to goods provision of retail outlets or accounts for payment, a credit card sales draft or services provided to a person by a for the sale of goods or services; generated by a telemarketing transaction licensed attorney or licensed private (v) The existence, availability, or that is not the result of a telemarketing investigator pursuant to a written provision of locations or sites for credit card transaction between the agreement with that person; vending machines, rack displays, or any cardholder and the merchant; (5) Requesting or receiving payment other sales display; (2) Any person to employ, solicit, or of any fee or consideration in advance (vi) The nature or availability of any otherwise cause a merchant or an of obtaining a loan or any credit service services offered to secure any retail employee, representative, or agent of the when the seller or telemarketer has outlets, accounts, sites, locations, or merchant, to present to or deposit into guaranteed or represented a high displays; the credit card system for payment, a likelihood of success in obtaining or Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8331 arranging a loan or credit service for a (c) Calling time restrictions. Without from the person a written person; the prior consent of a person, it is an acknowledgement that the person has (6) Failing to distribute all prizes or abusive telemarketing act or practice read the disclosure. The information purported prizes offered in a prize and a violation of this Rule for a shall be disclosed on one page, in not promotion, within 18 months of the telemarketer to engage in telephone less than 10-point type (unless initial offer to any person; solicitations to a person’s residence at otherwise noted), and of a color or (7) Offering or selling goods or any time other than between 8 a.m. and shade that readily contrasts with the services through a telephone solicitation 9 p.m. local time at the called person’s background of the notice. This to a person who previously has paid the location. disclosure shall be sent in an envelope same seller for goods or services, until (d) Required oral disclosures. It is an that contains no writing representing all terms and conditions of the initial abusive telemarketing act or practice that the person to whom the envelope transaction have been fulfilled, and a violation of this Rule for a is addressed has been selected or may including but not limited to the telemarketer to fail to make any oral be eligible to receive a prize and shall distribution of all prizes or premiums disclosures set forth in this section. contain no other enclosures except for a offered in conjunction with the initial (1) All telephone solicitations shall return envelope, if the seller or transaction; or begin by disclosing: telemarketer wishes to include such an (8) Identifying a person as a reference (i) The caller’s true first and last envelope. This disclosure must contain for a business venture unless: name, the seller’s name, and that the the following information: (i) Such person has actually purpose of the call is to sell goods or (i) The seller’s legal name and purchased the business venture; services; or telephone number, and the complete (ii) Such person has operated that (ii) If a telephone solicitation includes street address of the seller’s principal business venture for a period of at least a charitable solicitation, the caller’s true place of business; six (6) months, or the seller or first and last name, the telemarketer’s (ii) If the seller has been in operation telemarketer discloses the length of time name, the telemarketer’s status as a paid under any other name(s), each such the person has operated such business professional fundraiser, the seller’s name and the length of time the seller venture; and name, that the purpose of the call is to has operated under each name; (iii) Such person does not receive solicit charitable donations, and if other (iii) The verifiable retail sales price of consideration for any statements made goods or services are offered, that the each prize offered or a statement that to prospective business venture purpose of the call is also to sell goods the retail sales price of the prize offered purchasers. or services. is less than $20.00; (b) Pattern of calls. (1) It is an abusive (2) If a caller verifies a telemarketing (iv) The odds of winning each prize telemarketing act or practice and a sale, the caller verifying the sale must offered and the number of persons who violation of this Rule for a telemarketer repeat the disclosures required under will receive each prize; to engage in, or for a seller to cause a § 310.3(a)(1). (v) The total amount and description telemarketer to engage in, the following (3) Any telemarketing which includes of any shipping or handling fees or any conduct: a prize promotion must disclose, in other charges that must be paid to (i) Without a person’s prior consent, addition to all other disclosures receive or use a prize; calling that person’s residence to offer, required under this Section, the (vi) A complete description of any offer for sale, or sell, on behalf of the following information: restrictions, conditions, or limitations same seller, the same or similar goods (i) That no purchase or payment is on eligibility to receive or use a prize, or services more than once within any necessary to win; including all steps a person must take three (3) month period. This (ii) The verifiable retail sales price of to receive the most valuable prize requirement does not apply to each prize offered or a statement that offered; attempted calls which do not reach a the retail sales price of the prize offered (vii) The statement: ‘‘No purchase or person or to calls made solely to verify is less than $20.00; and payment is necessary to win,’’ with a a previous telephone sale; or (iii) The odds of winning each prize description of the no-purchase entry (ii) Calling a person’s residence when offered. method; that person previously has stated that he (4) Any telemarketing which includes (viii) A statement that a list of or she does not wish to receive an offer of a premium must disclose, in winners is available and the address to telephone solicitations made by or on addition to all other disclosures which a person may write to obtain behalf of the seller whose goods or required under this Section, the such a list; services are being offered. verifiable retail sales price of such (ix) A statement that it is a violation (2) A seller or telemarketer will not be premium or comparable item, or a of this Rule for the seller to accept liable for violating § 310.4(b)(1) once in statement that the retail sales price of payment in any form unless the seller any calendar year per person called if: the premium is less than $20.00. has received from the person the written (i) It has established and implemented (e) Written disclosures/ disclosure acknowledgment required written procedures to comply with acknowledgements. It is an abusive pursuant to § 310.4(e)(1); and § 310.4(b)(1) (i) and (ii); telemarketing act or practice and a (x) The statement: ‘‘I have read and (ii) It has trained its personnel in the violation of this Rule for a seller or understand this disclosure,’’ in at least procedures established pursuant to telemarketer to fail to make any written 12-point bold face type immediately § 310.4(b)(2)(i); disclosures set forth in this section. preceding a signature block. (iii) The seller, or the telemarketer (1) Prize promotions. If a seller or (2) Investment opportunities. (i) If a acting on behalf of the seller, has telemarketer conducts a prize seller or telemarketer offers for sale any maintained and recorded lists of promotion, the seller or telemarketer investment opportunity, the seller or persons who may not be contacted, in may not request that a person pay for telemarketer may not request that a compliance with § 310.4(b)(1) (i) and goods or services, or accept a payment person pay, or accept a payment in any (ii); and in any form from a person, without first form from a person, for that investment (iv) Any subsequent call is the result providing the person with a written opportunity without first providing the of administrative error. disclosure, in duplicate, and receiving person with a written disclosure, in 8332 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules duplicate, and receiving from the person to liquidate the asset through a market (1) All advertising, brochures, a written acknowledgement that the sale immediately following the telemarketing scripts, and promotional person has read the disclosure. The purchase. All such estimates must be materials; information shall be disclosed in not substantiated by competent and reliable (2) The name and address of each less than 10-point type (unless evidence. prize recipient and the prize awarded; otherwise noted), of a color or shade (iii) If a seller or telemarketer offers (3) The name and address of each that readily contrasts with the for sale any investment opportunity customer, the goods or services background of the notice, and involving tangible assets sold on credit purchased, the date such goods or segregated from all other information. or leverage, the following additional services were shipped or provided, and This disclosure shall be sent in an information, as well as the information the amount paid by the customer for the envelope that contains no other set forth in § 310.4(e)(2)(ii), must be goods or services; enclosures except for a return envelope, included in the written disclosure set (4) The name, home address and if the seller or telemarketer wishes to forth in § 310.4(e)(2)(i): telephone number, and job title(s) for all current and former employees directly include such an envelope. This (A) The percentage of a person’s down involved in telephone sales; and disclosure must contain the following payment that would be devoted to fees (5) Any written notices, disclosures, information: and costs by the end of the first six and acknowledgements required to be (A) The seller’s legal name and months after the investment is made; telephone number, and the complete provided or received under this Rule. (B) The percentage of a person’s down street address of the seller’s principal (b) Failure to keep all records required payment that would be devoted to fees place of business; by § 310.5(a) shall be a violation of this (B) If the seller has been in operation and costs by the end of the first year Rule. The seller and telemarketer calling under any other name(s), each such after the investment is made; and on behalf of the seller are not required name and the length of time the seller (C) A statement that all such to keep duplicative records if the seller has operated under each name; investment opportunities are extremely and telemarketer have entered into a (C) The complete cost to make the risky. written agreement allocating investment and a detailed list of all (iv) If a seller or telemarketer offers for responsibility for the recordkeeping present charges and any anticipated sale any investment opportunity required by this Section. When a seller future charges; involving the acquisition of and telemarketer have entered into such (D) A description of all known risks government-issued licenses or interests an agreement, the terms of that associated with the investment in businesses derived from the agreement shall govern. If the agreement opportunity, including the possibility possession of such licenses, the is unclear as to whom must maintain that additional payments might be following additional information must any required record(s), the seller shall required for a person purchasing the be included in the written disclosure set be responsible for keeping such investment opportunity to retain that forth in § 310.4(e)(2)(i): record(s). person’s interest in the investment (A) All material terms and limitations (c) In the event of any dissolution or opportunity, to realize the projected or of any government-issued license(s) that termination of the seller’s or stated returns of the investment serve as the basis for the investment telemarketer’s business, the principal of opportunity, to prevent total loss of the opportunity, including but not limited that seller or telemarketer shall maintain investment opportunity, or for any other to whether and to whom the license or all records as required under this reason; licenses have been issued; Section. In the event of any sale, (E) The length of time the seller has (B) The percentage of the person’s assignment, succession, or other change been in business and has offered the payment that will be used to acquire in ownership of the seller’s or particular investment opportunity; any applicable license(s) from the telemarketer’s business, the successor (F) A statement disclosing whether or licensee(s) or from any person or entity business shall maintain all records not the seller is licensed and, if so, with not affiliated in any way with the seller; required under this Section. whom, the type of license, and the and length of time the seller has held such § 310.6 Exemptions. license; (C) The percentage of the person’s The following acts or practices are (G) A statement that it is a violation payment that will be used to capitalize exempt from this Rule: of this Rule for the seller to effect an any business derived from such (a) The solicitation of sales by any investment transaction unless the seller license(s). person who engages in fewer than ten has received from the person the written (f) Distribution of lists. It is an abusive (10) sales each year through the use of disclosure acknowledgement required telemarketing act or practice and a the telephone; pursuant to § 310.4(e)(2); and violation of this Rule for any person (b) Telephonic contacts between (H) The statement: ‘‘I have read and who is subject to any federal court order businesses, except such contacts understand this disclosure,’’ in at least resolving a case in which the complaint involving the sale of office or cleaning 12-point bold face type immediately alleged a violation of §§ 310.3, 310.4(a) supplies or the inducement of payment preceding a signature block. or 310.4(e) of this Rule, and the court for any charitable service promoted in (ii) If a seller or telemarketer offers for did not dismiss or strike all such conjunction with an offer of a prize, sale any investment opportunity allegations from the case, to sell, rent, chance to win a prize, or the involving tangible assets, the following publish, or distribute any list of opportunity to purchase any goods or additional information must be customer contacts from that person. services; and included in the written disclosure set (c) A telephonic contact made solely § 310.5 Recordkeeping requirements. forth in § 310.4(e)(2)(i): by a person when there has been no (A) The percentage markup that the (a) Any seller or telemarketer shall initial sales contact directed to that seller places on the item above its own keep, for a period of 24 months from the particular person, by telephone or cost in acquiring the item; and date the record is produced, the otherwise, from the seller or (B) An estimate of the value that following records relating to its telemarketer; provided, however, that persons are likely to receive if they were telemarketing activities: this exemption does not apply to such Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8333 contacts related to employment services Clean Air Act’s (Act) requirements on a case-by-case basis by ‘‘the where the seller or telemarketer requests regarding the effective date of section Administrator (or the State)’’ if no or receives payment prior to providing 112(g) of the Act. The interpretation MACT standard has been issued. the promised services, business adopted here postpones the effective Section 112(g)(1)(B) also provides that ventures, investment opportunities, date of section 112(g) until after the EPA the Administrator ‘‘shall, after notice prize promotions, or credit-related has promulgated a rule addressing that and opportunity for comment and not programs. provision. later than [May 15, 1992] publish EFFECTIVE DATE: February 14, 1995. guidance with respect to § 310.7 Actions by States and private implementation of this subsection.’’ The persons. FOR FURTHER INFORMATION CONTACT: Ms. Kathy Kaufman at (919) 541–0102, guidance must address the relative Any attorney general or other officer Information Transfer and Program hazard of HAP in a manner ‘‘sufficient of a State authorized by the State to Integration Division (MD–12), U. S. to facilitate the offset showing’’ allowed bring an action under the Telemarketing Environmental Protection Agency, in the definition of ‘‘modification.’’ and Consumer Fraud and Abuse Research Triangle Park, North Carolina The EPA proposed a rule Prevention Act, and any private person 27711. implementing section 112(g) on April 1, who brings an action under that Act, 1994 (59 FR 15504). The EPA currently shall serve written notice of its action SUPPLEMENTARY INFORMATION: anticipates promulgation of this rule on the Commission, if feasible, prior to I. Summary of EPA’s Policy during the summer of 1995. In its initiating an action under this Rule. anticipation of the fact that many title The notice shall be sent to the Office of The Administrator of the EPA is today V permit programs would be approved the Director, Bureau of Consumer announcing the EPA’s interpretation of before the section 112(g) rule was Protection, Federal Trade Commission, the Act requirements regarding the promulgated, the OAQPS issued a Washington, D.C. 20580, and shall effective date of section 112(g) during guidance memorandum on June 28, include a copy of the State’s or private the period prior to promulgation of a 1994 1 to assist States in their person’s complaint and any other Federal rule addressing implementation implementation of section 112(g) during pleadings to be filed with the court. If of that section. This notice effects this transition period. The guidance prior notice is not feasible, the State or changes from the view embodied in the states that section 112(g) takes effect private person shall serve the preamble to the proposed rulemaking upon approval of a title V program in a Commission with the required notice under section 112(g), Federal Register State regardless of whether the EPA’s immediately upon instituting its action. notices of proposed and final approvals rule has been promulgated. The of operating permits programs under guidance also offers suggestions for how § 310.8 Federal preemption. title V of the Act, and in guidance States may implement section 112(g) Nothing in this Rule shall be issued by the EPA’s Office of Air during the transition period. construed to preempt any State law that Quality Planning and Standards To date, the EPA has approved several is not in direct conflict with any (OAQPS). title V programs, the first of which was provision of this Rule. For the reasons set forth in this notice, for the State of Washington on the EPA now interprets section 112(g) § 310.9 Severability. November 9, 1994 (59 FR 55813). EPA not to take effect before the EPA issues also has proposed approval of numerous The provisions of this Rule are notice and comment guidance other programs. In each of these notices, separate and severable from one addressing implementation of that the Agency has restated its position that another. If any provision is stayed or section. In the interim period before this the requirements of section 112(g) determined to be invalid, it is the guidance is promulgated, States may, as would take effect in these States upon Commission’s intention that the a matter of State law, implement a approval of the title V program, and has remaining provisions shall continue in program for the review of section 112(g) described its understanding of how effect. modifications, constructions, or section 112(g) would be implemented in reconstructions. However, the section By direction of the Commission. that State during the transition period. 112(g) requirement that major source Donald S. Clark, modifications, constructions, or B. Reconsideration Based on Concerns Secretary. reconstructions meet the maximum Raised [FR Doc. 95–3537 Filed 2–13–95; 8:45 am] achievable control technology States and the regulated community BILLING CODE 6750±01±P (MACT)—as determined on a case-by- have voiced considerable concern with case basis where no Federal standard for the impracticality of implementation of a source category has been set—will not section 112(g) during the transition ENVIRONMENTAL PROTECTION take effect as a matter of Federal law period.2 These concerns have focused AGENCY until the section 112(g) rule is on the provisions for determining the promulgated. applicability of section 112(g), and in 40 CFR Part 63 II. Discussion particular on provisions addressing de [AD±FRL±5155±2] minimis levels and offsets for A. Requirements of Section 112(g). modifications, as well as the definition Hazardous Air Pollutants: Provisions Previous Policy Position of ‘‘major source’’ for constructions and Governing Constructed, After the effective date of a title V Reconstructed or Modified Major permit program in a State, section 112(g) 1 Guidance for the Initial Implementation of Sources prohibits any person from constructing Section 112(g), Memorandum from John S. Seitz to EPA Regional Air Division Directors, June 28, 1994. AGENCY: Environmental Protection or reconstructing a major source of 2 For State and regulated community comments Agency (EPA). hazardous air pollutants (HAP), or submitted on the proposed section 112(g) rule, see Docket Number A–91–64 inserts IV-D–199, IV-D– ACTION: Interpretive notice. modifying a major HAP’s source, without a determination from ‘‘the 213, IV-D–217, IV-D–219, IV-D–222, IV-D–229, IV- D–255, IV-D–295, IV-D–323, IV-D–333, IV-D–337, SUMMARY: This notice announces the Administrator (or the State)’’ that MACT IV-D-PH217, IV-D–199, IV-D–213, IV-D–295, IV-D- EPA’s revised interpretation of the will be met. The determination must be PH221, and IV-D-PH222. 8334 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules reconstructions. States and the regulated the Act. Natural Resources Defense lacking the lower boundary that the community have noted that the Council versus EPA, 22 F.3d 1125 (D.C. statute contemplates will be established applicability of the section 112(g) Cir. 1994). Section 182(c)(3) of the Act through a notice and comment process. modification provisions have the requires States to establish programs for The statute, recognizing that potential to vary significantly ‘‘enhanced’’ vehicle inspection and establishment of de minimis values depending on how these issues are maintenance programs. The statute would require the application of addressed in the final section 112(g) further requires that these programs scientific expertise and judgment, called rule, that these provisions are among the must be in compliance with regulatory for the EPA to set these values based on most complex and controversial in the ‘‘guidance’’ published by the a notice and comment process. It would section 112(g) proposal, and that Administrator, and must be effective by be contrary to the intent of the Act to implementation of these provisions in Nov. 15, 1992. In NRDC versus EPA, the require the section 112(g) program for the absence of a promulgated rule will Court held that, because the EPA was review of modifications to go forward present considerable uncertainty and late in issuing the guidance called for in when the issue of what constitutes a legal and financial risk for States and the statute, without which it was ‘‘modification’’ cannot be resolved with emissions sources. impossible as a practical matter for the degree of certainty envisioned by the After careful consideration, the EPA States to create their own programs, the statute. concludes that these concerns are valid statutory requirement for States to have It thus appears that certain crucial and, as a policy matter, justify re- an effective program should be delayed. elements in the section 112(g) program examining and modifying the Agency’s The section 112(g) modification for dealing with modifications are interpretation concerning the effective provisions bear two important missing until the EPA promulgates date of section 112(g). Moreover, the similarities to the statutory provisions at guidance. Under these circumstances, it EPA believes it should announce its issue in NRDC versus EPA. First, the is consistent with the statute, and with revised view now, before there is a EPA was obligated to issue guidance on applicable precedent, to conclude that significant expenditure of State, source, section 112(g) for the States well before the obligation of States to establish the and Agency resources and before they were expected to begin required program for review of questions of source liability are raised. implementing section 112(g) on the modifications hinges on promulgation In light of this conclusion, the EPA has effective date of title V programs. of the requisite ‘‘guidance’’—which is in revisited its prior legal interpretation Second, that guidance is intended to be fact, as the statute makes clear, a that section 112(g) must take effect upon binding. This is because the guidance binding rule—governing both offsets approval of the title V program forms an essential link between the and de minimis values. regardless of whether a rule has been statutory directives triggered on the D. Analysis of Statutory Requirements promulgated. These practical difficulties effective date of permit program for Major Source Construction and confirm for the Agency the soundness of approval and the ability to actually Reconstruction a reading that implementation of section implement these directives. 112(g) is to be delayed until a rule is Regarding offsets, section 112(g)(1)(A) The guidance required to be promulgated. provides that offsets are to be published under section 112(g)(1)(B) determined ‘‘pursuant to guidance addressing implementation of C. Analysis of Statutory Requirements issued by the Administrator * * *’’ It ‘‘subsection’’ 112(g) must extend not for Modifications follows that the absence of guidance only to modifications under section On its face, the section 112(g) precludes the issuance of valid offset 112(g)(2)(A), but also to major source requirement for case-by-case MACT determinations by a reviewing agency. constructions and reconstructions determination for new major sources, Moreover, the absence of guidance addressed in section 112(g)(2)((B). This reconstructed sources, and makes it impossible for the owner or general directive aside, the statutory modifications to existing major sources operator of the source to submit a linkage between the section 112(g) appears to be triggered upon the title V ‘‘showing’’ provided for by the last guidance and implementation is not as program effective date. However, the sentence ‘‘that such increase has been detailed for constructions and Act also calls for guidance ‘‘with respect offset under the preceding sentence,’’ reconstructions as it is for modification to the implementation of’’ section 112(g) that is, pursuant to the Administrator’s requirements. Notwithstanding this, the to be issued ‘‘after notice and guidance (emphasis added). While a EPA believes that even with regard to opportunity for comment and not later State permitting authority could decide constructions and reconstructions, than’’ May 15, 1992. Section to impose offsetting provisions that are guidance is necessary to resolve issues 112(g)(1)(B). Section 112(g)(1)(A) more stringent than those in the EPA critical to the scope of applicability of provides further that a greater-than-de guidance, the EPA believes that these provisions, and that delaying the minimis increase ‘‘shall not be Congress intended the EPA guidance as effectiveness of these provisions considered a modification’’ if it is offset integral to the implementation of this therefore represents a permissible by an equal or greater decrease in a provision. reading of the Act. more hazardous pollutant, ‘‘pursuant to The concept of de minimis values is In the April 1, 1994 proposal, the EPA guidance issued by the Administrator likewise integral to the definition of solicited comment on two alternative under subparagraph (B).’’ The guidance ‘‘modification’’ in section 112(a)(5). interpretations of the phrase ‘‘construct must specifically ‘‘facilitate the offset This is because a ‘‘modification’’ is a major source.’’ See 59 FR 15517. One showing’’ and ‘‘include an defined in section 112(a)(5) as a interpretation would treat new major- identification, to the extent practicable, ‘‘physical change in, or change in the emitting equipment at existing major of the relative hazard to human health method of operation of, a major source source plant sites as ‘‘modifications,’’ resulting from emissions’’ of HAP. which increases the actual emissions of while the other interpretation would Section 112(g) is analogous in certain any hazardous air pollutant * * * by treat such additions as ‘‘constructions.’’ important respects to statutory more than a de minimis amount * * *.’’ Under the ‘‘modification’’ alternative, provisions at issue in the recent D.C. Until de minimis values are established such equipment could be offset by a Circuit decision concerning inspection in the section 112(g) rule, the definition decrease elsewhere at the plant site. and maintenance (I/M) programs under of ‘‘modification’’ remains incomplete, Under the ‘‘construction’’ alternative, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8335 such equipment would be required to interpretation need not be addressed in 40 CFR Part 70 install new source technology and individual title V approvals. The EPA [MT±001; FRL±5155±3] offsets would not be available. has indicated in a number of title V Similarly, the April 1, 1994 proposal approval actions that the State would Clean Air Act Proposed Interim contained two alternative definitions of use its existing SIP-approved Approval, or in the Alternative major source ‘‘reconstruction.’’ The preconstruction review program to Proposed Disapproval, of Operating alternative definitions are similar in implement section 112(g) during the Permits Program; State of Montana that, for each, the replacement of transition period. However, there have components, where the cost of the been no approvals of State programs AGENCY: Environmental Protection replacement components is greater than designed specifically to implement Agency (EPA). 50 percent of the capital cost of ACTION: Proposed interim approval. ‘‘constructing a major source,’’ would section 112(g). Therefore, there is no trigger reconstruction requirements. The need to revisit any EPA rulemaking SUMMARY: The EPA proposes interim alternatives differ in that one alternative action in order to implement today’s approval of the Operating Permits treats the entire plant site as the basis notice. Program submitted by the State of for comparison, while the other This interpretation should not require Montana for the purpose of complying alternative treats a major-emitting significant changes to any title V with Federal requirements for an ‘‘emission unit’’ as the basis for program submittal. Each State program approvable State program to issue comparison. reviewed by EPA to date has included operating permits to all major stationary The ambiguities surrounding the term a general commitment to implement sources, and to certain other sources. In ‘‘construction’’ have potentially section 112(g), in accordance with the the alternative, EPA proposes significant impacts on the nature and EPA regulations and/or guidance, upon disapproval of the Montana Operating scope of the Federal program, approval of their title V program. Permits Program if the corrective actions particularly in a transition period However, those commitments were necessary for final interim PROGRAM during which the modification approval are not completed and provisions of section 112(g) are delayed. fashioned broadly enough to accommodate today’s announced submitted to EPA prior to the statutory While there are likely to be few deadline. constructions of ‘‘greenfield’’ facilities interpretation, and so no program DATES: Comments on this proposed emitting major amounts of HAPs prior revisions should be necessary for those action must be received in writing by to promulgation of the section 112(g) States. March 16, 1995. rule, there will be a far greater number The EPA is aware of concerns that ADDRESSES: Comments should be of additions of major-emitting units at States may need additional time addressed to Laura Farris at the Region existing major source plant sites. Until following the promulgation of the the issue of whether these additions 8 address. Copies of the State’s section 112(g) rule before they can begin submittal and other supporting constitute a ‘‘construction’’ is clarified implementing section 112(g). The EPA through rulemaking, there will be information used in developing the believes the statute may be read to allow proposed rule are available for uncertainty as to how these additions for an additional period of delay so that must be treated as a matter of Federal inspection during normal business States may adopt conforming rules if it law. For similar reasons, the scope of hours at the following location: U.S. would otherwise be impossible for the section 112(g) requirements for Environmental Protection Agency, ‘‘reconstructions’’ will continue to be in States to implement the program. Region 8, 999 18th Street, suite 500, doubt until the section 112(g) rule is However, the EPA has not determined Denver, Colorado 80202. promulgated. whether additional time will in fact be FOR FURTHER INFORMATION CONTACT: These implementation difficulties needed. If it is decided that additional Laura Farris, 8ART–AP, U.S. demonstrate that, as is the case for the time should be provided before the Environmental Protection Agency, section 112(g) modification provisions, provisions of section 112(g) become Region 8, Air Programs Branch, 999 rulemaking is needed to provide the effective, the EPA will so provide in the 18th Street, suite 500, Denver, Colorado degree of certainty EPA believes was final section 112(g) rulemaking. 80202, (303) 294–7539. intended by Congress regarding the Finally, certain States have already SUPPLEMENTARY INFORMATION: applicability of the provisions for major promulgated regulations designed to source construction and reconstruction. implement section 112(g). The EPA I. Background and Purpose For this reason, EPA believes it would wishes to emphasize that nothing in this A. Introduction be unreasonable to require the notice is intended to preclude or As required under title V of the 1990 implementation of the section 112(g) discourage States from implementing a provisions relating to construction and Clean Air Act Amendments (sections program similar to section 112(g) as a reconstruction prior to completion of 501–507 of the Clean Air Act (‘‘the matter of State law prior to the rulemaking. Act’’)), EPA has promulgated rules promulgation by the EPA of the section which define the minimum elements of F. Additional Clarifications 112(g) guidance. an approvable State operating permits The EPA’s interpretation, announced Dated: February 8, 1995. program and the corresponding today, regarding the timing for Carol M. Browner, standards and procedures by which the implementation of section 112(g), EPA will approve, oversee, and applies to every title V program that has Administrator. withdraw approval of State operating been or will be approved prior to [FR Doc. 95–3661 Filed 2–13–95; 8:45 am] permits programs (see 57 FR 32250 (July promulgation of a Federal rule BILLING CODE 6560±50±P 21, 1992)). These rules are codified at 40 implementing section 112(g). The Code of Federal Regulations (CFR) part interpretation concerns the effective 70 (part 70). Title V requires States to date of a Federal requirement set forth develop, and submit to EPA, programs in the Act. In this sense, this for issuing these operating permits to all 8336 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules major stationary sources and to certain the State of Montana still had not 2. Regulations and Program other sources. submitted a corrective program that EPA Implementation The Act requires that States develop found complete, a second sanction The Montana PROGRAM, including and submit these programs to EPA by would be required. the operating permit regulation (Sub- November 15, 1993, and that EPA act to If, following final interim PROGRAM Chapter 20, §§ 16.8.2001 through approve or disapprove each program approval, EPA were to disapprove the 16.8.2025, inclusive, of the within 1 year after receiving the State’s complete corrective program, Administrative Rules of Montana), submittal. The EPA’s program review EPA would be required to apply one of substantially meets the requirements of occurs pursuant to section 502 of the the section 179(b) sanctions on the date 40 CFR parts 70.2 and 70.3 with respect Act and the part 70 regulations, which 18 months after the effective date of the to applicability; parts 70.4, 70.5, and together outline criteria for approval or disapproval, unless prior to that date the 70.6 with respect to permit content disapproval. Where a program State of Montana had submitted a including operational flexibility; part substantially, but not fully, meets the revised program and EPA had 70.5 with respect to complete requirements of part 70, EPA may grant determined that it corrected the application forms and criteria which the program interim approval for a deficiencies that prompted the define insignificant activities; part 70.7 period of up to 2 years. If EPA has not disapproval. Moreover, if the with respect to public participation and fully approved a program by 2 years Administrator found a lack of good faith after the November 15, 1993 date, or by minor permit modifications; and part on the part of the State of Montana, both 70.11 with respect to requirements for the end of an interim program, it must sanctions under section 179(b) would establish and implement a Federal enforcement authority. apply after the expiration of the 18- Section 16.8.2006(3) of Sub-Chapter program. month period until the Administrator 20 provides, in part, that ‘‘Insignificant B. Federal Oversight and Sanctions determined that the State of Montana emission units need not be addressed in If EPA were to finalize this proposed had come into compliance. In all cases, an application for an air quality interim approval, it would extend for if, six months after EPA applied the first operating permit, except that the two years following the effective date of sanction, the State of Montana had not application must include a list of such final interim PROGRAM approval, and submitted a revised program that EPA insignificant emission units and could not be renewed. During the had determined corrected the emissions from insignificant emission interim approval period, the State of deficiencies that prompted disapproval, units must be included in emission Montana would be protected from a second sanction would be required. inventories and are subject to sanctions, and EPA would not be In addition, discretionary sanctions assessment of permit fees.’’ The term obligated to promulgate, administer and may be applied where warranted any ‘‘insignificant emissions unit’’ is enforce a Federal permits program for time after the end of an interim approval defined in § 16.8.2002(22)(a) of Sub- the State of Montana. Permits issued period if a State has not timely Chapter 20 as ‘‘any activity or emissions under a program with interim approval submitted a complete corrective unit located within a source that (i) has have full standing with respect to part program or EPA has disapproved a a potential to emit less than 15 tons per 70, and the 1-year time period for submitted corrective program. year of any pollutant, other than a submittal of permit applications by Moreover, if EPA has not granted full hazardous air pollutant listed pursuant subject sources begins upon the approval to a State program by the to sec. 7412(b) of the FCAA or lead; (ii) effective date of interim approval, as expiration of an interim approval and has a potential to emit of less than 500 does the 3-year time period for that expiration occurs after November pounds per year of lead; (iii) does not processing the initial permit 15, 1995, EPA must promulgate, have a potential to emit hazardous air applications. administer and enforce a Federal pollutants listed pursuant to sec. Following final interim PROGRAM permits program for that State upon 7412(b) in any amount; and (iv) is not approval, if the State of Montana failed interim approval expiration. regulated by an applicable to submit a complete corrective program II. Proposed Action and Implications requirement.’’ The 15 ton per year for full approval by the date 6 months threshold is considered by EPA to be a before expiration of the interim A. Analysis of State Submission PROGRAM deficiency that must be approval, EPA would start an 18-month 1. Support Materials addressed prior to full PROGRAM clock for mandatory sanctions. If the approval and is discussed in more detail State of Montana then failed to submit The Governor of Montana submitted below. a corrective program that EPA found an administratively complete title V Section 70.6(a)(3)(iii)(B) of EPA’s complete before the expiration of that Operating Permit Program (PROGRAM) operating permit regulations provides 18-month period, EPA would be for the State of Montana on March 29, that each permit shall require ‘‘prompt required to apply one of the sanctions 1994. EPA deemed the PROGRAM reporting of deviations from permit in section 179(b) of the Act, which administratively complete in a letter to requirements, including those would remain in effect until EPA the Governor dated May 12, 1994. The attributable to upset conditions as determined that the State of Montana PROGRAM submittal includes a legal defined in the permit, the probable had corrected the deficiency by opinion from the Attorney General of cause of such deviations, and any submitting a complete corrective Montana stating that the laws of the corrective actions or preventive program. Moreover, if the Administrator State provide adequate legal authority to measures taken.’’ Under found a lack of good faith on the part carry out all aspects of the PROGRAM, § 16.8.2010(3)(c) of Sub-Chapter 20 of of the State of Montana, both sanctions and a description of how the State Montana’s regulations, reporting is under section 179(b) would apply after intends to implement the PROGRAM. considered ‘‘prompt’’ if made at least the expiration of the 18-month period The submittal additionally contains every six months as part of the routine until the Administrator determined that evidence of proper adoption of the reporting requirements and, if the State of Montana had come into PROGRAM regulations, permit applicable, in accordance with the compliance. In any case, if, six months application forms, a data management malfunction reporting requirements after application of the first sanction, system and a permit fee demonstration. under § 16.8.705 of Subchapter 7, unless Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8337 otherwise specified in an applicable that require corrective action prior to interim PROGRAM approval, the State requirement. However, EPA’s position is interim PROGRAM approval by January must clarify that it has the authority to that reporting only once every six 20, 1995. ‘‘terminate, modify, revoke and reissue months is not sufficiently ‘‘prompt’’ to Areas in which the Montana permits for cause’’ pursuant to section allow for protection of public health and PROGRAM is deficient and require 502(b)(5)(D) of the Act. (4) Section safety and to provide a forewarning of corrective action prior to final interim 16.8.2021(1)(c) of Sub-Chapter 20 states potential problems. Usually, reporting PROGRAM approval are as follows: (1) that a significant modification includes within two to ten days should be Section 16.8.2004(3) of Sub-Chapter 20 ‘‘every significant relaxation of permit sufficient for these purposes, although allows the State to exempt sources from reporting or recordkeeping terms or with more serious permit deviations, the requirement to obtain an air quality conditions.’’ Section 70.7(e)(4)(i) of the earlier reporting may be necessary. Only operating permit by establishing Federal permitting regulation requires for sources with a low level of excess Federally enforceable limitations which that any relaxation of reporting or emissions, would it be appropriate to limit the source’s potential to emit. recordkeeping permit terms be allow more than ten days to elapse However, the State’s rules do not processed as a significant modification. before reporting. EPA may veto state describe the process which will be used Prior to interim PROGRAM approval, permits that do not require to create these limits. Prior to interim the State must provide an Attorney appropriately prompt reporting. PROGRAM approval, the State must General’s opinion that the language in Montana has the authority to issue a clarify how Federally enforceable limits § 16.8.2021(1)(c) of Sub-Chapter 20 variance from emission limitations. The will be created to limit a source’s regarding significant modifications will Clean Air Act of Montana, Section 75– potential to emit, and verify its be interpreted as ‘‘every relaxation of 2–212, Montana Code Annotated authority to create such limits. If the reporting or recordkeeping permit (MCA), provides that the State may State plans to create Federally terms’’, and prior to full PROGRAM grant a variance if ‘‘(a) the emissions enforceable limits through title V approval, the word ‘‘significant’’ must occurring or proposed to occur do not operating permits, such permits must go be removed from this regulatory constitute a danger to public health or through all of the title V public language. safety; and (b) compliance with the Areas in which the Montana participation requirements, including rules from which exemption is sought PROGRAM is deficient and require affected State review, 45-day EPA would produce hardship without equal corrective action prior to full review period and EPA veto authority. or greater benefits to the public.’’ EPA PROGRAM approval are as follows: (1) regards Montana’s variance provision as (2) Section 16.8.2008(2)(j) of Sub- Section 16.8.2002(1)(d) of Sub-Chapter wholly external to the PROGRAM Chapter 20 states that the State’s 20 is part of the definition of submitted for approval under part 70, decision regarding issuance, renewal, administrative permit amendment and and consequently is proposing to take revision, denial, revocation, reissuance, allows for the ‘‘department’s discretion’’ no action on this provision of State law. or termination of a permit is not in determining whether or not a change The EPA has no authority to approve effective until 30 days have elapsed in monitoring or reporting requirements provisions of State law, such as the from the date of the decision, and that would be as stringent as current variance provision referred to, which the decision may be appealed to the monitoring or reporting requirements. are inconsistent with the Act. The EPA board by filing a request for hearing Changes in monitoring or reporting does not recognize the ability of a within 30 days after the date of the requirements must be processed through permitting authority to grant relief from decision. EPA interprets this language to either the minor permit modification the duty to comply with a Federally mean that the 30-day period for making procedures or the significant permit enforceable part 70 permit, except appeals to the board would occur after modification procedures, unless the where such relief is granted through EPA’s 45-day review/approval period change requires more frequent procedures allowed by part 70. If the for the proposed permit. If this is the monitoring or reporting, in which case State uses its variance provision strictly case, any permits appealed to the board it can be processed through the to establish a compliance schedule for a that are changed must be submitted to administrative permit amendment non-complying source that will be EPA for additional review. Prior to procedures. This portion of Montana’s incorporated into a title V permit, then interim PROGRAM approval, the State definition does not meet the criteria of EPA would consider this an acceptable must clarify whether the appeal process an administrative permit amendment use of a variance provision. However, on the State’s decisions regarding listed in § 70.7(d)(1)(iii) of the Federal the routine process for establishing a permit issuance, renewal, revision, permitting regulation. Prior to full compliance schedule is through denial, revocation, reissuance, or PROGRAM approval, the State must appropriate enforcement action. The termination occurs before or after EPA’s delete § 16.8.2002(1)(d) of Sub-Chapter EPA reserves the right to enforce the 45-day review/approval period. If the 20, which allows for the ‘‘department’s terms of the part 70 permit where the appeal process follows EPA’s review/ discretion’’ in determining whether or permitting authority purports to grant approval period, then language must be not a change in monitoring or reporting relief from the duty to comply with a added to the State’s permitting requirements would be as stringent as part 70 permit in a manner inconsistent regulation to ensure that permits that current monitoring or reporting with part 70 procedures. are changed after appeal to the board are requirements. Comments noting deficiencies in the submitted to EPA for additional review. (2) Section 16.8.2002(1)(f) of Sub- Montana PROGRAM were sent to the (3) Section 16.8.2008(2)(a) allows the Chapter 20 is part of the definition of State in a letter dated October 3, 1994. State to terminate, or revoke and administrative permit amendment and The deficiencies were segregated into reissue, permits for continuing and allows the State to determine if other those that require corrective action prior substantial violations, but does not types of permit changes not listed in the to interim PROGRAM approval, and provide the full authority under section definition of administrative permit those that require corrective action prior 502(b)(5)(D) of the Act which requires amendment can be incorporated into a to full PROGRAM approval. In a letter that state permit programs have permit through the administrative dated October 20, 1994 the State authority to ‘‘terminate, modify, revoke permit amendment process. Section committed to address the deficiencies and reissue permits for cause.’’ Prior to 70.7(d)(1)(vi) of the Federal permitting 8338 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules regulation requires that such contained in a preconstruction permit certify its ability to make case-by-case determinations be made by the issued under these Sub-Chapters (which MACT determinations pursuant to Administrator of EPA and be similar to currently are, or soon will be, included section 112(j) of the Act. those changes listed in § 70.7(d)(1)(i)- in the State’s SIP) is considered to be (9) The State’s February 28, 1994 (iv) of the Federal permitting regulation. Federally enforceable. Prior to full letter to EPA also discusses the State’s This provision must be changed prior to PROGRAM approval this language must authority to implement section 112(r) of full PROGRAM approval to allow the be revised or deleted. the Act, but does not address the State’s Administrator of EPA (or EPA and the (5) Section 16.8.2008 of Sub-Chapter ability to require annual certifications State) to determine if changes not 20 which lists the permit content from part 70 sources as to whether their included in the definition of requirements does not require a risk management plans (RMPs) are being administrative permit amendment can severability clause consistent with properly implemented, or provide a be processed through the administrative § 70.6(a)(5) of the Federal permitting compliance schedule for sources that permit amendment process. regulation. Prior to full PROGRAM fail to submit the required RMP. Prior to (3) The definition of ‘‘insignificant approval, the State must include a full PROGRAM approval, the State must emissions unit’’ in § 16.8.2002(22)(a) of severability clause in Sub-Chapter 20 certify its ability to require annual Sub-Chapter 20 includes an emission consistent with § 70.6(a)(5) of the certifications from part 70 sources threshold of 15 tons per year of any Federal permitting regulation. regarding proper implementation of pollutant other than a hazardous air (6) Section IX.C.2 of the checklist that their RMPs and to provide a compliance pollutant. EPA does not consider this to was part of the PROGRAM submittal schedule for sources that fail to submit be a reasonable level from which to regarding the implementation of the the required RMP. exempt emissions units from title V enhanced monitoring requirements of Refer to the Technical Support operating permit requirements. For section 114(a)(3) of the Act states that Document accompanying this other State title V programs, EPA has there are no impediments to using any rulemaking for a detailed explanation of proposed to accept, as sufficient for full monitoring data to determine each comment and the corrective approval, emission levels for compliance and for direct enforcement. actions required of the State. However, the State has incorporated by insignificant activities of 2 tons per year 3. Permit Fee Demonstration of regulated air pollutants and the lesser reference the Federal new source of 1000 pounds per year, section 112(g) performance standards (NSPS) and The Montana PROGRAM includes a de minimis levels, or other title I national emissions standards for HAPs fee structure that collects in the significant modification levels for HAPs (NESHAPs) in 40 CFR parts 60 and 61 aggregate fees that are below the and other toxics (40 CFR into its SIP-approved regulations, which presumptive minimum set in part 70. 52.21(b)(23)(i)). EPA believes that these provide that compliance can be Therefore, it was necessary for the State levels are sufficiently below determined only by performance tests to include a permit fee demonstration in applicability thresholds for most (see 40 CFR 60.11(a) and 40 CFR its PROGRAM submittal to demonstrate applicable requirements to assure that 61.12(a)). that the title V fee structure would no unit potentially subject to an Prior to full PROGRAM approval, the collect sufficient fees to cover the applicable requirement is left off a part State must provide an Attorney reasonable direct and indirect costs of 70 application and are consistent with General’s opinion verifying the State’s developing and administering the current permitting thresholds for the authority to use any monitoring data to PROGRAM. The permit fee State under consideration here. EPA is determine compliance and for direct demonstration included a workload requesting comment on the enforcement. If the State does not have analysis which estimated the annual appropriateness of these emission levels such authority, then the State’s SIP- cost of running the PROGRAM to be for determining insignificant activities approved regulations must be revised $585,130 for fiscal year 1994, increasing in this State. This request for comment prior to full PROGRAM approval to to $849,705 for fiscal year 1995. The fee is not intended to restrict the ability of provide authority to use any monitoring structure for fiscal year 1994, based on the State to propose and EPA to approve data to determine compliance and for the previous year’s emission inventory, other emission levels if the State direct enforcement. included a fee of $8.55 per ton for demonstrates that such alternative (7) The Attorney General’s Opinion particulates, sulfur dioxide and lead; emission levels are insignificant regarding the State’s authority to $2.14 per ton for nitrogen oxides and compared to the level of emissions from terminate permits is unclear. MCA 75– volatile organic compounds; with a and types of units that are permitted or 2–211(1) and 217(1) refer to ‘‘issuance, minimum fee of $250 per source. These subject to applicable requirements. Prior modification, suspension, revocation, fees are projected to increase to $11.75 to full PROGRAM approval, the State and renewal’’ of permits, but not and $2.94 per ton, respectively, for must lower the emissions cap for ‘‘termination.’’ Prior to full PROGRAM fiscal year 1995, and the State defining ‘‘insignificant emissions units’’ approval, the State must provide an anticipates adding a fee for HAPs in the to assure they will not encompass Attorney General’s interpretation that future. After careful review, the State activities that trigger applicable Montana’s statutory authority extends to has determined that these fees would requirements. If the State defines ‘‘terminating’’ permits. support the Montana PROGRAM costs insignificant activity levels greater than (8) The PROGRAM submittal as required by section 70.9(a) of the those suggested, a demonstration must contained a letter to Douglas M. Skie Federal operating permitting regulation. be made to show why such levels are, dated February 28, 1994 certifying the Upon review of the State’s permit fee in fact, insignificant. State’s authority to implement section demonstration, the EPA noted the (4) Section 16.8.2002(24)(ii) of Sub- 112 of the Act. The letter discusses the following concerns: chapter 20 defines ‘‘non-Federally State’s authority to require permit (1) Although the State has the enforceable requirement’’ to include any applications from sources subject to authority to assess and collect annual term contained in a preconstruction section 112(j) of the Act, but does not permit fees in an amount sufficient to permit issued under Sub-Chapters 9, 11, address the State’s ability to make case- cover all reasonable direct and indirect 17, or 18 that is not Federally by-case MACT determinations. Prior to costs of the PROGRAM, the State enforceable. However, everything full PROGRAM approval, the State must Legislature must appropriate the money Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8339 to operate the PROGRAM every during the transition period between the EPA is also proposing to grant biennium. If an adequate appropriation title V approval and adoption of a State approval under section 112(l)(5) and 40 is not made, and the State is not able to rule implementing EPA’s section 112(g) CFR 63.91 of the State’s program for fund all the costs of the PROGRAM, the regulations. EPA believes this approval receiving delegation of section 112 EPA would be required to disapprove or is necessary so that Montana has a standards that are unchanged from the withdraw the part 70 program, impose mechanism in place to establish Federal standards as promulgated. sanctions, and implement a Federal Federally enforceable restrictions for Montana has informed EPA that it permitting program. section 112(g) purposes from the date of intends to accept delegation of section (2) EPA was unable to determine if part 70 approval. Section 112(l) 112 standards through incorporation by sufficient fees will be available to fund provides statutory authority for reference or case-by-case rulemaking. the PROGRAM due to deficiencies in approval for the use of State air This program applies to both existing the State’s Permit Fee Demonstration. programs to implement section 112(g). and future standards. The State agreed to address these Title V and section 112(g) provide The radionuclide NESHAP is a deficiencies in a letter to EPA dated authority for this limited approval section 112 regulation and therefore, October 20, 1994 and submit a revised because of the direct linkage between also an applicable requirement under Permit Fee Demonstration to EPA prior implementation of section 112(g) and the State PROGRAM. Sources which are to final interim PROGRAM approval. title V. The scope of this approval is currently defined as part 70 sources and emit radionuclides are subject to 4. Provisions Implementing the narrowly limited to section 112(g), and Federal radionuclide standards. Requirements of Other Titles of the Act does not confer or imply approval for purposes of any other provision under Additionally, sources which are not a. Authority and/or Commitments for the Act. If Montana does not wish to currently part 70 sources may be Section 112 Implementation implement section 112(g) through its defined as major sources under Montana has demonstrated in its preconstruction permit program and can forthcoming Federal radionuclide PROGRAM submittal adequate legal demonstrate that an alternative means of regulations. The EPA will work with the authority to implement and enforce all implementing section 112(g) exists, the State in the development of its section 112 requirements, with the EPA may, in the final action approving radionuclide program to ensure that exception of the deficiencies noted Montana’s PROGRAM, approve the permits are issued in a timely manner. above, through the title V permit. This alternative instead. To the extent d. Program for Implementing Title IV legal authority is contained in Montana does not have the authority to of the Act Montana’s enabling legislation and in regulate HAPs through existing State Montana’s PROGRAM contains regulatory provisions defining law, the State may disallow new adequate authority to issue permits ‘‘applicable requirements’’ and stating construction or modifications during the which reflect the requirements of title that the permit must incorporate all transition period. IV of the Act, and commits to adopt the applicable requirements. EPA has This approval is for an interim period rules and requirements promulgated by determined that this legal authority is only, until such time as the State is able EPA to implement an acid rain program sufficient to allow Montana to issue to adopt regulations consistent with any through the title V permit. permits that assure compliance with all regulations promulgated by EPA to B. Options for Approval/Disapproval section 112 requirements, and to carry implement section 112(g). Accordingly, and Implications out all section 112 activities, contingent EPA is proposing to limit the duration upon the State completing the above of this approval to a reasonable time The EPA is proposing to grant interim noted corrective actions related to following promulgation of section approval to the operating permits section 112. 112(g) regulations so that Montana, program submitted by the State of For further rationale on this acting expeditiously, will be able to Montana on March 29, 1994. If interpretation, please refer to the adopt regulations consistent with the promulgated, the State must complete Technical Support Document section 112(g) regulations. The EPA is the following corrective actions, as accompanying this rulemaking and the proposing here to limit the duration of discussed above, to receive final interim April 13, 1993 guidance memorandum this approval to 12 months following PROGRAM approval: (1) The State must titled ‘‘Title V Program Approval promulgation by EPA of section 112(g) clarify how the Federally enforceable Criteria for Section 112 Activities,’’ regulations. Comment is solicited on limits allowed under § 16.8.2004(3) of signed by John Seitz. whether 12 months is an appropriate Sub-Chapter 20 will be created to limit b. Implementation of 112(g) Upon period considering Montana’s a source’s potential to emit, and verify Program Approval procedures for adoption of Federal its authority to create such limits. If the As a condition of approval of the part regulations. State plans to create these Federally 70 PROGRAM, Montana is required to c. Program for Straight Delegation of enforceable limits through the title V implement section 112(g) of the Act Section 112 Standards PROGRAM, such permits must go from the effective date of the part 70 Requirements for approval, specified through all of the title V public PROGRAM. Imposition of case-by-case in 40 CFR 70.4(b), encompass section participation requirements, including determinations of maximum achievable 112(l)(5) requirements for approval of a affected State review, 45-day EPA control technology (MACT) or offsets program for delegation of section 112 review period and EPA veto authority; under section 112(g) will require the use General Provisions Subpart A and (2) The State must clarify whether the of a mechanism for establishing standards as promulgated by EPA as appeal process in § 16.8.2008(2)(j) of Federally enforceable restrictions on a they apply to sources covered by the Sub-Chapter 20 on the State’s decisions source-specific basis. The EPA is part 70 Program, as well as non-part 70 regarding permit issuance, renewal, proposing to approve Montana’s sources. Section 112(l)(5) requires that revision, denial, revocation, reissuance, preconstruction permitting program the State’s PROGRAM contain adequate or termination occurs before or after found in Sub-Chapter 11, §§ 16.8.1101 authorities, adequate resources for EPA’s 45-day review/approval period. If through 16.8.1120, under the authority implementation, and an expeditious the appeal process follows EPA’s of title V and part 70 solely for the compliance schedule, which are also review/approval period, then additional purpose of implementing section 112(g) requirements under part 70. Therefore, language must be added to the State’s 8340 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules permitting regulation to ensure that enforcement; (8) The State must provide subject to the jurisdiction of any Indian permits that are changed after appeal to an Attorney General’s interpretation that Tribe. the board are submitted to EPA for Montana’s statutory authority under This interim approval, which may not additional review; (3) The State must MCA 75–2–211(1) and 217(1) extends to be renewed, extends for a period of up clarify that it has the authority to ‘‘terminating’’ permits; (9) The State to 2 years. During the interim approval ‘‘terminate, modify, revoke and reissue must certify its ability to make case-by- period, the State is protected from permits for cause’’ pursuant to section case MACT determinations for sources sanctions for failure to have a program, 502(b)(5)(D) of the Act; (4) The State subject to section 112(j) of the Act; (10) and EPA is not obligated to promulgate must provide an Attorney General’s The State must certify its ability to a Federal permits program in the State. opinion that the language in require annual certifications from part Permits issued under a program with § 16.8.2021(1)(c) of Sub-Chapter 20 70 sources regarding proper interim approval have full standing with regarding significant modifications will implementation of their section 112(r) respect to part 70, and the 1-year time be interpreted as ‘‘every relaxation of RMPs and to provide a compliance period for submittal of permit reporting or recordkeeping permit schedule for sources that fail to submit applications by subject sources begins terms.’’ the required RMP. upon interim approval, as does the 3- The State must complete the Evidence of these corrective actions year time period for processing the following corrective actions, as for full PROGRAM approval must be initial permit applications. discussed above, to receive full submitted to EPA within 18 months of The EPA is proposing to disapprove EPA’s interim approval of the Montana PROGRAM approval: (1) The word in the alternative the Montana PROGRAM. ‘‘significant’’ must be removed from the PROGRAM if the specified corrective The scope of Montana’s part 70 language in § 16.8.2021(1)(c) of Sub- actions for final interim PROGRAM PROGRAM that EPA proposes to approval are not completed and Chapter 20; (2) The State must delete approve in this notice would apply to § 16.8.2002(1)(d) of Sub-Chapter 20 that submitted to EPA prior to EPA’s all part 70 sources (as defined in the statutory deadline for acting on allows for the ‘‘department’s discretion’’ PROGRAM) within the State, except the in determining whether or not a change Montana’s title V submittal. If following: any sources of air pollution promulgated, this disapproval would in monitoring or reporting requirements located in ‘‘Indian Country,’’ as defined would be as stringent as current constitute a disapproval under section in 18 U.S.C. 1151, including the 502(d) of the Act (see generally 57 FR monitoring or reporting requirements; Northern Cheyenne, Rocky Boys, (3) Section 16.8.2002(1)(f) of Sub- 32253–54). As provided under section Blackfeet, Crow, Flathead, Fort Belknap, 502(d)(1) of the Act, Montana would Chapter 20 must be changed to allow and Fort Peck Indian Reservations, or the Administrator of EPA (or EPA and have up to 180 days from the date of any other sources of air pollution over EPA’s notification of disapproval to the the State) to determine if changes not which an Indian Tribe has jurisdiction. included in the definition of Governor of Montana to revise and See, e.g., 59 FR 55813, 55815–18 (Nov. resubmit the PROGRAM. ‘‘administrative permit amendment’’ 9, 1994). The term ‘‘Indian Tribe’’ is can be processed through the Requirements for approval, specified defined under the Act as ‘‘any Indian in 40 CFR 70.4(b), encompass section administrative permit amendment Tribe, band, nation, or other organized process; (4) The State must lower the 112(l)(5) requirements for approval of a group or community, including any program for delegation of section 112 emissions cap for defining Alaska Native village, which is ‘‘insignificant emissions units’’ in standards as promulgated by EPA as Federally recognized as eligible for the they apply to part 70 sources. Section § 16.8.2002(22)(a) of Sub-Chapter 20 to special programs and services provided assure they will not encompass 112(l)(5) requires that the State’s by the United States to Indians because program contain adequate authorities, activities that trigger applicable of their status as Indians.’’ See section requirements. If the State defines adequate resources for implementation, 302(r) of the CAA; see also 59 FR 43955, and an expeditious compliance insignificant activity levels greater than 43962 (Aug. 25, 1994); 58 FR 54364 those suggested, a demonstration must schedule, which are also requirements (Oct. 21, 1993). under part 70. Therefore, the EPA is also be made to show why such levels are, In proposing not to extend the scope proposing to grant approval under in fact, insignificant; (5) The language in of Montana’s part 70 PROGRAM to section 112(l)(5) of the Act and 40 CFR § 16.8.2002(24)(ii) of Sub-Chapter 20 sources located in ‘‘Indian Country,’’ 63.91 of the State’s program for which defines ‘‘non-Federally EPA is not making a determination that enforceable requirement’’ must be the State either has adequate receiving delegation of section 112 revised or deleted to avoid the jurisdiction or lacks jurisdiction over standards that are unchanged from implication that terms contained in a such sources. Should the State of Federal standards as promulgated. This preconstruction permit issued under Montana choose to seek program program for delegations applies to Sub-Chapters 9, 11, 17, or 18 are not approval within ‘‘Indian Country,’’ it sources covered by the part 70 program Federally enforceable; (6) The State may do so without prejudice. Before as well as non part 70 sources. must include a severability clause in EPA would approve the State’s part 70 III. Administrative Requirements § 16.8.2008 of Sub-Chapter 20 consistent PROGRAM for any portion of ‘‘Indian with § 70.6(a)(5) of the Federal Country,’’ EPA would have to be A. Request for Public Comments permitting regulation; (7) The State satisfied that the State has authority, The EPA is requesting comments on must provide an Attorney General’s either pursuant to explicit all aspects of this proposed interim opinion verifying the State’s authority to Congressional authorization or approval. Copies of the State’s submittal use any monitoring data to determine applicable principles of Federal Indian and other information relied upon for compliance and for direct enforcement. law, to enforce its laws against existing the proposed interim approval are If the State does not have such and potential pollution sources within contained in a docket maintained at the authority, then the State’s SIP-approved any geographical area for which it seeks EPA Regional Office. The docket is an regulations must be revised to provide program approval, that such approval organized and complete file of all the authority to use any monitoring data to would constitute sound administrative information submitted to, or otherwise determine compliance and for direct practice, and that those sources are not considered by, EPA in the development Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8341 of this proposed interim approval. The replaced by a full certification detergent FEDERAL COMMUNICATIONS principal purposes of the docket are: program in a subsequent action. COMMISSION (1) To allow interested parties a On December 28, 1994 (59 FR 66860), 47 CFR Part 90 means to identify and locate documents EPA issued a supplemental notice so that they can effectively participate reopening the comment period for the [PR Docket No. 93±144 and PP Docket No. in the approval process, and final detergent additive certification 93±253; DA 95±67] (2) To serve as the record in case of program and requesting comment on judicial review. The EPA will consider Facilitation of Future Development of any comments received by March 16, issues related to the final detergent SMR Systems in the 800 MHz 1995. additive certification program. This Frequency Band; Implementation of document extends the public comment Section 309(j) of the Communications B. Executive Order 12866 period for the supplemental notice. ActÐCompetitive Bidding, 800 MHz The Office of Management and Budget DATES: The comment period for the SMR has exempted this action from Executive supplemental notice will be extended Order 12866 review. AGENCY: Federal Communications from the original closing date of January Commission. C. Regulatory Flexibility Act 27, 1995 to February 21, 1995. ACTION: Proposed rule; extension of The EPA’s actions under section 502 ADDRESSES: Comments on this time. of the Act do not create any new document should be submitted in SUMMARY: On November 4, 1994, the requirements, but simply address duplicate to: EPA Air Docket Section Commission released a Further Notice operating permits programs submitted (LE–131); Attention: Public Docket No. of Proposed Rule Making, FCC 94–271, to satisfy the requirements of 40 CFR A–91–77; Room M–1500, 401 M Street concerning establishment of a flexible part 70. Because this action does not S.W., Washington, DC 20460. (Phone regulatory scheme and competitive impose any new requirements, it does 202–260–7548; FAX 202–260–4000). bidding procedures for Specialized not have a significant impact on a This docket is open for public Mobile Radio (SMR) systems in the 800 substantial number of small entities. inspection from 8:00 a.m. until 4:00 MHz band. List of Subjects in 40 CFR Part 70 p.m. except on government holidays. As Based on the number of initial provided in 40 CFR part 2, a reasonable comments received and the variety of Environmental protection, views expressed in this proceeding, this Administrative practice and procedure, fee may be charged for copying docket Order extends the deadline for reply Air pollution control, Intergovernmental materials. comments from January 20 to March 1, relations, Operating permits, Reporting Electronic copies of this and other 1995. The intended effect of this action and recordkeeping requirements. documents related to this rulemaking is to provide members of the SMR are available through the Office of Air Authority: 42 U.S.C. 7401–7671q. industry with an opportunity to further Quality Planning and Standards Dated: February 3, 1995. evaluate, discuss, and attempt to reach (OAQPS) Technology Transfer Network Jack W. McGraw, consensus regarding the proposals Bulletin Board System (TTNBBS). Acting Regional Administrator. presented and issues addressed both in [FR Doc. 95–3659 Filed 2–13–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: For the Further Notice of Proposed Rule BILLING CODE 6560±50±P general information and information Making and the initial comments related to technical issues contact: Mr. submitted in this proceeding. Jeffery A. Herzog, U.S. EPA (RDSD–12), DATES: Reply comments must be filed 40 CFR Part 80 Regulation Development and Support on or before March 1, 1995. Division, 2565 Plymouth Road, Ann ADDRESSES: Federal Commission, 1919 [AMS±FRL±5154±7] Arbor, MI 48105; Telephone: (313) 668– M Street, NW., Washington, DC 20554. RIN 2060±AD71 4227, FAX: (313) 741–7816. For FOR FURTHER INFORMATION CONTACT: information on enforcement related D’wana R. Speight, Legal Branch, Regulation of Fuels and Fuel issues contact: Judith Lubow, U.S. EPA, Commercial Radio Division, Wireless Additives: Standards for Deposit Office of Enforcement and Compliance Telecommunications Bureau, (202) 418– Control Gasoline Additives Assurance, Western Field Office, 12345 0620. West Alameda Parkway, Suite 300, AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: Lakewood, CO 80228; Telephone: (303) Agency (EPA). Order Extending Reply Comment 969–6483, FAX: (303) 966–6490. ACTION: Reopening of comment period. Period List of Subjects in 40 CFR Part 80 Adopted: January 18, 1995 SUMMARY: Section 211(l) of the Clean Air Released: January 18, 1995 Act requires the Environmental Environmental protection, Fuel Protection Agency to establish additives, Gasoline detergent additives, By the Acting Chief, Commercial Radio Division: specifications for deposit control Gasoline motor vehicle pollution, detergent additives. On November 22, Penalties, Reporting and recordkeeping 1. We have received requests from the 1993, the Environmental Protection requirements. American Mobile Telecommunications Agency issued a notice of proposed Association, Inc. (‘‘AMTA’’), Personal rulemaking for standards for deposit Dated: February 7, 1995. Communications Industry Association control detergent additives. On October Richard D. Wilson, (‘‘PCIA’’), and SMR WON for an 15, 1994, EPA promulgated a final Acting Assistant Administrator for Air and extension of time for filing Reply regulation (published in the Federal Radiation. Comments in response to the Further Register on November 1, 1994 (59 FR [FR Doc. 95–3603 Filed 2–13–95; 8:45 am] Notice of Proposed Rule Making on this 54678)), with an interim program for BILLING CODE 6560±50±P detergent additives, which will be 8342 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules proceeding.1 AMTA’s and SMR WON’s nevertheless remain concerned about Clarkia springvillensis, Fritillaria motions, both filed on January 11, 1995, avoiding a substantial delay in the striata, Navarretia setiloba, and Verbena request that the Commission extend the resolution of issues presented in this californica. deadline for filing reply comments proceeding. Thus, we believe that a 40- DATES: The comment period, which (currently January 20, 1995) by 60 days. day extension of the reply comment originally closed on December 5, 1994, PCIA’s motion, also filed on January 11, period is appropriate. We emphasize and was reopened and extended to 1995, requests that the deadline be that in granting this extension, we February 13, 1995, now closes on June extended by 30 days. To date, no expect SMR industry representatives to 4, 1995. Any comments received by the opposition to these requests has been use the additional time productively by closing date will be considered in the filed. continuing their efforts to find solutions final decision on this proposal. 2. AMTA seeks an extension in order to the issues presented in this ADDRESSES: Comments and materials to ‘‘facilitate continued industry efforts proceeding that will be broadly should be submitted to the U.S. Fish to resolve certain of the matters on supported by industry members. and Wildlife Service, Sacramento Field which no consensus has yet been 4. Accordingly, it is hereby ordered Office, 2800 Cottage Way, E–1803, achieved.’’ In its motion, SMR WON that the Motions of Extension of Time Sacramento, California 95825–1846. notes that additional time is necessary filed by the American Mobile Comments and materials received will to ‘‘work out a consensus acceptable to Telecommunications Association, the be available for public inspection during all major interested parties, even though Personal Communications Industry normal business hours, by appointment, SMR WON and other trade associations Association, and SMR WON are hereby at the above address. held weekly meetings and conference GRANTED to the extent stated herein. FOR FURTHER INFORMATION CONTACT: Ken calls throughout November and 5. It is further ordered, pursuant to Fuller (see ADDRESSES section) or at 916/ December.’’ In addition, PCIA observes § 1.46 of the Commission’s Rules, 47 979–2120. that ‘‘the number of Comments, the CFR 1.46, that the deadline for filing controversial issues discussed, and the reply comments in this proceeding is SUPPLEMENTARY INFORMATION: complexity of the proceeding dictate extended from January 20, 1995 to Background that careful consideration be given to March 1, 1995. the Comments filed by all parties.’’ As Allium tuolumnense (Rawhide Hill a result, AMTA, SMR WON and PCIA Federal Communications Commission. onion), Brodiaea pallida (Chinese Camp agree that an extension of time would Rosalind K. Allen, brodiaea), Calyptridium pulchellum allow interested and affected parties to Acting Chief, Commercial Radio Division, (Mariposa pussypaws), Carpenteria submit well-reasoned options and Wireless Telecommunications Bureau. californica (carpenteria), Clarkia comments on the complex issues [FR Doc. 95–3575 Filed 2–13–95; 8:45 am] springvillensis (Springville clarkia), addressed in this proceeding. BILLING CODE 6712±01±M Fritillaria striata (Greenhorn adobe lily), 3. Based on the number of comments Lupinus citrinus var. deflexus (Mariposa received and the variety of views lupine), Mimulus shevockii (Kelso Creek expressed in this proceeding, it appears DEPARTMENT OF THE INTERIOR monkeyflower), Navarretia setiloba that an extension of the reply comment (Piute Mountains navarretia), and period is warranted. We agree with both Fish and Wildlife Service Verbena californica (Red Hills vervain) AMTA and SMR WON that the public are plant species found in the foothills interest would be served by granting an 50 CFR Part 17 of the Sierra Nevada Mountains of California. These ten plants are extension so that members of the SMR RIN 1018±AC99 industry can further evaluate, discuss, restricted to various substrate-specific and attempt to reach consensus Endangered and Threatened Wildlife habitats in Fresno, Kern, Madera, regarding the proposals presented and and Plants; Extension of Comment Mariposa, Tulare, and Tuolumne issues addressed both in the Further Period on Proposed Endangered Counties. These plants face ongoing Notice and the initial comments Status for Four Plants and Threatened threats from one or more of the submitted in this proceeding. Both Status for Six Plants From the following: urbanization, inadequate parties indicate that discussions among Foothills of the Sierra Nevada regulatory mechanisms, random industry members have been ongoing Mountains of California stochastic events, off-highway vehicle and that the members are continuing use, logging, overgrazing, illegal their efforts towards developing AGENCY: Fish and Wildlife Service, dumping, alteration of natural fire consensus positions. We believe that Interior. regimes, maintenance of roads and additional time is needed to allow this ACTION: Proposed rule; notice of rights-of-ways, insect predation, process to continue. We also agree with extension of comment period. agricultural land conversion, mining, PCIA that additional time is needed to proposed highway projects, and enable industry members to review the SUMMARY: The Fish and Wildlife Service competition from brush species and extensive comment record filed in this (Service) provides notice that the nonnative grass species. proceeding (over 80 comments have comment period on the proposed On October 4, 1994, the Service been filed) and to submit thorough and determination of endangered status for published a proposed rule to list well-reasoned reply comments. We four plants and threatened status for six Brodiaea pallida, Calyptridium plants from the foothills of the Sierra pulchellum, Lupinus citrinus var. 1 Further Notice of Proposed Rule Making, Nevada Mountains of California is deflexus, and Mimulus shevockii as Amendment of Part 90 of the Commission’s Rules extended. The species proposed for endangered, and list Allium to Facilitate Future Development of SMR Systems in the 800 MHz Frequency Band and endangered status are Brodiaea pallida, tuolumnense, Carpenteria californica, Implementation of Section 309(j) of the Calyptridium pulchellum, Lupinus Clarkia springvillensis, Fritillaria Communications Act—Competitive Bidding, 800 citrinus var. deflexus, and Mimulus striata, Navarretia setiloba, and Verbena MHz SMR, PR Docket No. 93–144 and PP Docket shevockii, while the species proposed californica as threatened (59 FR 50540). No. 93–253, FCC 94–271, adopted October 20, 1994, released November 4, 1994, 59 FR 60111, published for threatened status are Allium The comment period on this proposal November 22, 1994 (Further Notice). tuolumnense, Carpenteria californica, originally closed on December 5, 1994. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8343 On December 29, 1994, the Service hearing, the Service extends the 11th Avenue, Portland, Oregon 97232– reopened and extended the public comment period to allow for the 4181. comment period until February 13, collection of additional data during Authority 1995, to accommodate a public hearing 1995 field season on the status and held on January 31, 1995, in Bakersfield, distribution of the proposed plants. The authority for this action is the California (59 FR 67268). In response to Written comments may now be Endangered Species Act of 1973, as a letter dated January 25, 1995, from submitted until June 4, 1995, to the amended (16 U.S.C. 1531 et seq.) Congressmen Richard Pombo and Service in the ADDRESSES section. William M. Thomas of California Dated: February 8, 1995. requesting an extension in the public Author Mollie H. Beattie, comment period until June and several The primary author of this notice is Director, U.S. Fish and Wildlife Service. other similar requests made in writing Jim A. Bartel, U.S. Fish and Wildlife [FR Doc. 95–3620 Filed 2–13–95; 8:45 am] or given in testimony at the public Service, Ecological Services, 911 N.E. BILLING CODE 4310±55±P 8344 Notices Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 This section of the FEDERAL REGISTER CORRELATION: Textile and Apparel Category Twelve-month restraint contains documents other than rules or Categories with the Harmonized Tariff limit 1 proposed rules that are applicable to the Schedule of the United States (see public. Notices of hearings and investigations, Federal Register notice 59 FR 65531, 334/634 ...... 113,378 dozen. committee meetings, agency decisions and published on December 20, 1994). 335/635 ...... 504,757 dozen. rulings, delegations of authority, filing of The letter to the Commissioner of 336/636 ...... 695,255 dozen. petitions and applications and agency Customs and the actions taken pursuant 338/339 ...... 3,400,800 dozen. statements of organization and functions are 340/640 ...... 1,662,185 dozen. examples of documents appearing in this to it are not designed to implement all 341 ...... 3,650,191 dozen of section. of the provisions of the bilateral which not more than agreement and the MOU dated 2,190,114 dozen December 31, 1994, but are designed to shall be in Category COMMITTEE FOR THE assist only in the implementation of 341±Y 2. IMPLEMENTATION OF TEXTILE certain of their provisions. 342/642 ...... 1,022,133 dozen. AGREEMENTS Rita D. Hayes, 345 ...... 148,544 dozen. 347/348 ...... 477,913 dozen. Chairman, Committee for the Implementation 351/651 ...... 216,059 dozen. Announcement of Import Restraint of Textile Agreements. Limits for Certain Cotton, Man-Made 363 ...... 34,723,417 numbers. Committee for the Implementation of Textile 3 Fiber, Silk Blend and Other Vegetable 369±D ...... 1,057,586 kilograms. Agreements 369±S 4 ...... 576,865 kilograms. Fiber Textiles and Textile Products February 9, 1995. 641 ...... 1,190,025 dozen. Produced or Manufactured in India Commissioner of Customs, 647/648 ...... 691,037 dozen. Group II February 9, 1995. Department of the Treasury, Washington, DC 20229. 200, 201, 220±229, 90,820,800 square me- AGENCY: Committee for the 237, 239, 300, ters equivalent. Implementation of Textile Agreements Dear Commissioner: Under the terms of section 204 of the Agricultural Act of 1956, 301, 330±333, (CITA). as amended (7 U.S.C. 1854), the Uruguary 349, 350, 352, ACTION: Issuing a directive to the Round Act, and the Uruguay Round 359±362, 600± Commissioner of Customs establishing Agreement on Textiles and Clothing 607, 611±629, limits for the new agreement year. (URATC); pursuant to the Bilateral Cotton, 630±633, 638, Wool, Man-Made Fiber, Silk Blend and Other 639, 643±646, EFFECTIVE DATE: February 16, 1995. Vegetable Fiber Textile Agreement of 649, 650, 652, February 6, 1987, as amended and extended, 659, 665±O 5, FOR FURTHER INFORMATION CONTACT: 666, 669, 670, Jennifer Tallarico, International Trade and the Memorandum of Understanding (MOU) dated December 31, 1994 between the and 831±859, as Specialist, Office of Textiles and Governments of the United States and India; a group. Apparel, U.S. Department of Commerce, and in accordance with the provisions of 1 (202) 482–4212. For information on the The limits have not been adjusted to ac- Executive Order 11651 of March 3, 1972, as count for any imports exported after December quota status of these limits, refer to the amended, you are directed to prohibit, 31, 1994. Quota Status Reports posted on the effective on February 16, 1995, entry into the 2 Category 341±Y: only HTS numbers bulletin boards of each Customs port or United States for consumption and 6204.22.3060, 6206.30.3010, 6206.30.3030 call (202) 927–6705. For information on withdrawal from warehouse for consumption and 6211.42.0054. of cotton, man-made fiber, silk blend and 3 Category 369±D: only HTS numbers embargoes and quota re-openings, call other vegetable fiber textiles and textile 6302.60.0010, 6302.91.0005 and (202) 482–3715. products in the following categories, 6302.91.0045. 4 Category 369±S: only HTS number SUPPLEMENTARY INFORMATION: produced or manufactured in India and exported during the twelve-month period 6307.10.2005. Authority: Executive Order 11651 of March 5 Category 665±O: all HTS numbers except beginning on January 1, 1995 and extending 3, 1972, as amended; section 204 of the 5702.10.9030, 5702.42.2020, 5702.92.0010 through December 31, 1995, in excess of the and 5703.20.1000 (rugs exempt from the bilat- Agricultural Act of 1956, as amended (7 following levels of restraint: U.S.C. 1854). eral agreement). Imports charged to these category limits for Pursuant to the Uruguay Round Category Twelve-month restraint Agreement on Textiles and Clothing limit 1 the period January 1, 1994 through December 31, 1994 shall be charged against those levels (URATC), the Bilateral Cotton, Wool, Levels in Group I of restraint to the extent of any unfilled Man-Made Fiber, Silk Blend and Other 218 ...... 11,111,304 square me- balances. In the event the limits established Vegetable Fiber Textile Agreement of ters. for that period have been exhausted by February 6, 1987, as amended and 219 ...... 53,281,729 square me- previous entries, such goods shall be subject extended, and a Memorandum of ters. to the levels set forth in this directive. Understanding (MOU) dated December 313 ...... 29,729,737 square me- The limits set forth above are subject to 31, 1994 between the Governments of ters. adjustment in the future pursuant to the the United States and India, establish 314 ...... 6,343,063 square me- provisions of the URATC and any limits for the period beginning on ters. administrative arrangements notified to the 315 ...... 10,653,804 square me- Textiles Monitoring Body. January 1, 1995 and extending through ters. In carrying out the above directions, the December 31, 1995. 317 ...... 34,531,200 square me- Commissioner of Customs should construe A description of the textile and ters. entry into the United States for consumption apparel categories in terms of HTS 326 ...... 7,848,000 square me- to include entry for consumption into the numbers is available in the ters. Commonwealth of Puerto Rico. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8345 The Committee for the Implementation of Dated: February 3, 1995. Installation Cost comparison Textile Agreements has determined that study Lewis D. Walker, these actions fall within the foreign affairs Deputy Assistant Secretary of the Army, exception of the rulemaking provisions of 5 Hill AFB, Utah ...... Child Care Center. (Environment, Safety and Occupational U.S.C. 553(a)(1). Bolling AFB, Washing- Military Family Health) OASA (IL&E). ton, DC. Housing Mainte- Sincerely, [FR Doc. 95–3592 Filed 2–13–95; 8:45 am] nance. Rita D. Hayes, BILLING CODE 3710±08±M Chairman, Committee for the Implementation Patsy J. Conner, of Textile Agreements. Air Force Federal Register Liaison Officer. [FR Doc. 95–3625 Filed 2–13–95; 8:45 am] Department of the Navy [FR Doc. 95–3654 Filed 2–13–95; 8:45 am] BILLING CODE 3510±DR±F BILLING CODE 3910±01±M Notice of Public Hearings for the Draft Environmental Impact Statement for Disposal and Reuse of Naval Hospital Department of the Army DEPARTMENT OF DEFENSE Long Beach, Long Beach, CA. Pursuant to Council on Department of the Air Force Availability of the Record of Decision (ROD) for the Environmental Impact Environmental Quality regulations (40 CFR Parts 1500–1508) implementing Cost Comparison Studies Statement (EIS) for Closure and Disposal of Sacramento Army Depot, procedural provisions of the National Environmental Policy Act, the The Air Force is conducting the California Department of the Navy has prepared following cost comparison studies in and filed with the U.S. Environmental accordance with OMB Circular A–76, AGENCY: Department of the Army, DOD. Protection Agency a Draft Performance of Commercial Activities. ACTION: Notice of availability. Environmental Impact Statement (DEIS) Cost comparison for disposal and reuse of Naval Hospital Installation study SUMMARY: In accordance with Public Long Beach. Law 101–510, the Defense Base Closure In accordance with legislative Maxwell AFB, Alabama Fuels Management. and Realignment Act of 1990, the 1991 requirements in the 1990 Base Closure Maxwell AFB, Alabama Grounds Mainte- Defense Base Closure and Realignment and Realignment Act (Public Law 101– nance. Commission recommended the closure 510) and the results of the 1991 Defense Maxwell AFB, Alabama Refuse Collection. of Sacramento Army Depot and transfer Base Closure and Realignment process, Little Rock AFB, Arkan- Transient Aircraft of depot missions to other installations/ Naval Hospital Long Beach, California sas. Maintenance. agencies. Maintenance missions would was directed to be closed and made Davis Monthan AFB, Military Family be competed to determine location of available for reuse. Navy has analyzed Arizona. Housing Mainte- the environmental effects of reasonably nance. transfer. In accordance with the Act, the Tyndall AFB, Florida .... Grounds Mainte- Secretary of Defense must implement all forseeable reuse alternatives of existing nance. recommendations for closure or buildings and for redevelopment of the Tyndall AFB, Florida .... Multi-Function realignment. The EIS focuses on the site. Five alternatives for potential reuse Study: Base Op- environmental and socioeconomic have been identified by the City of Long erating Support & impacts and mitigations associated with Beach and through an extensive scoping Backshop Aircraft the disposal and reuse of Sacramento process: (1) The Los Angeles County Maintenance. Army Depot. Office of Education (LACOE); (2) a Moody AFB, Georgia ... Military Family Senior Health Care facility; (3) an Housing Mainte- No long-term adverse ecological or industrial park; (4) retail use; and (5) nance. environmental health effects are residential use. Alternatives (1) and (2) Andersen AFB, Guam .. Grounds Mainte- expected due to this action. The would rehabilitate existing structures nance. increase in population anticipated by and facilities; alternatives (3) (4) and (5) Andersen AFB, Guam .. Military Family the reuse and disposal activities is would require demolition of existing Housing Mainte- expected to have a net positive impact nance. structures and subsequent site on the local economy. The preferred Andersen AFB, Guam .. Mess Attendants. redevelopment. Andersen AFB, Guam .. Refuse Collection. alternative, prepared with the The DEIS has been distributed to Columbus AFB, Mis- Base Operating cooperation of the local community, is various federal, state, and local sissippi. Support. not expected to significantly impact agencies, elected officials, and special Keesler AFB, Mis- Grounds Mainte- environmental resources. interest groups. Copies of the DEIS have sissippi. nance. DATES: Written public comments and also been placed in local libraries. A Nellis AFB, Nevada ...... Military Family limited number of copies are available Housing Mainte- suggestions can be submitted on or before March 16, 1995 to the address at the address listed at the end of this nance. notice. shown below. Wright Patterson AFB, Audiovisual. No implementation of the proposed Ohio. ADDRESSES: Copies of the ROD can be action will occur until the National Altus AFB, Oklahoma ... Aircraft Mainte- nance. obtained by writing to the United States Environmental Policy Act process has Tinker AFB, Oklahoma . Grounds Mainte- Army Corps of Engineers, Sacramento been completed and the Navy releases a nance. District, ATTN: CESPK–ED–M (ISS), Record of Decision. Lackland AFB, Texas ... Trainer Fabrication. 1325 J Street, Sacramento, California The Department of the Navy will hold Laughlin AFB, Texas .... Base Operating 95814–2922. two public hearings to inform the public Support. of the DEIS findings and to solicit FOR FURTHER INFORMATION CONTACT Reese AFB, Texas ...... Base Operating : comments. The first meeting will be Support. Mr. Wandell Carlton (916) 557–7424. held on Wednesday, March 1, 1995 8346 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices beginning at 7:00 PM in the Long Beach since allowing for the normal review Frequency: Annually City College (Liberal Arts Campus) period would adversely affect the public Affected Public: State, Local or Tribal Auditorium. Long Beach City College is interest. Approval by the Office of Government located at 4901 East Carson Street in Management and Budget (OMB) has Reporting Burden: Long Beach, California. The auditorium been requested by February 15, 1995. Responses: 53 is located on Harvey Way between Clark ADDRESSES: Writeen comments should Burden Hours: 25,440 and Faculty Avenues. The second be addressed to the Office of Recordkeeping Burden: meeting will be held on Thursday, Information and Regulatory Affairs, Recordkeepers: 0 March 2, 1995 beginning at 7:00 p.m. in Attention: Dan Chenok, Desk Officer, Burden Hours: 0 the Lakewood Civic Center, Weingart Department of Education, Office of Abstract: To receive Title I, Part A Ballroom. The Civic Center is located at Management and Budget, 725 17th funds, the SEA must develop and 5000 Clark Ave, Lakewood, California. Street NW., room 3208, New Executive submit a State plan to the Department Both meetings will be bilingual with a Office Building, Washington, DC 20503. for peer review. The Department will Spanish interpreter present. Requests for copies of the proposed use the information for program The public hearings will be information collection request should be management and to update their plans conducted by the Navy. Federal, state, addressed to Patrick J. Sherrill, to reflect changes in the State’s and local agencies and interested parties Department of Education, 400 programs and strategies. are invited and urged to be present or Maryland, Avenue SW., room 5624, Additional Information: Clearance for represented at the hearing. Oral Regional Office Building 3, Washington, this information collection is statements will be heard and transcribed DC 20202–4651. requested for February 15, 1995. In by a stenographer; however, to assure FOR FURTHER INFORMATION CONTACT: order to give the States sufficient time accuracy of the record, all statements Patrick J. Sherrill, (202) 708–9915. to prepare plans/applications, the should be submitted in writing. All Individuals who use a applications need to be mailed to the statements, both oral and written, will telecommunications device for the deaf SEAs by mid-February. OMB approval become part of the public record and (TDD) may call the Federal Information is needed as soon as possible to allow equal weight will be given to both oral Relay Service (FIRS) at 1–800–877–8339 time for revisions or reproductions. and written statements. between 8 a.m. and 8 p.m., Eastern time, Office of Elementary and Secondary In the interest of available time, each Monday through Friday. speaker will be asked to limit their oral Education SUPPLEMENTARY INFORMATION: Section comments to five minutes. If longer Type of Review: Expedited 3517 of the Paperwork Reduction Act of statements are to be presented, they Title: State Plan Instructions for Title I, 1980 (44 U.S.C. chapter 3517) requires should be summarized at the public Part D Prevention and Intervention that the Director of OMB provide hearing and submitted in writing either Programs for Children and Youth interested Federal agencies and persons at the hearing or mailed to the address Who Are Neglected, Delinquent, or At an early opportunity to comment on listed at the end of this announcement. Risk of Dropping Out information collection requests. OMB All written statements must be Frequency: Annually postmarked by 20 March 1995, to may amend or waive the requirement Affected Public: State, Local or Tribal become part of the official record. for public consultation to the extent that Governments Additional information concerning public participation in the approval Reporting Burden: this notice may be obtained by process would defeat the purpose of the Responses: 52 contacting Ms. Jo Ellen Anderson (Code information collection, violate State or Burden Hours: 2,080 232.JA), Southwest Division, Naval Federal law, or substantially interfere Recordkeeping Burden: Facilities Engineering Command, 1220 with any agency’s ability to perform its Recordkeepers: 0 Pacific Highway, San Diego, California statutory obligations. Burden Hours: 0 93132–5190, telephone (619) 532–3912. The Director, Information Resources Abstract: To receive Title I, Part D Group, publishes this notice with the funds, the statute requires that State Dated: February 9, 1995. attached proposed information M.D. Schetzsle, agencies develop and submit State collection request prior to submission of plans to the Department of Education LT, JAGC, USNR, Alternate Federal Register this request to OMB. This notice Liaison Officer. for approval. contains the following information: (1) Additional Information: Clearance for [FR Doc. 95–3664 Filed 2–13–95; 8:45 am] Type of review requested, e.g., this information collection is BILLING CODE 3810±FF±P expedited; (2) Title; (3) Abstract; (4) requested for February 15, 1995. An Additional Information; (5) Frequency expedited review is requested in order of collection; (6) Affected public; and (7) to implement the program before the DEPARTMENT OF EDUCATION Reporting and/or Recordkeeping start of the new year. burden. Because an expedited review is Proposed Information Collection requested, a description attachment to [FR Doc. 95–3598 Filed 2–13–95; 8:45 am] Requests this notice. BILLING CODE 4000±01±M AGENCY: Department of Education. Dated: February 8, 1995. ACTION: Notice of Proposed Information Gloria Parker, Proposed Information Collection Collection Requests. Director, Information Resources Group. Requests SUMMARY: The Director, Information Office of Elementary and Secondary AGENCY: Department of Education. Resources Group, invites comments on Education ACTION: Notice of Proposed Information proposed information collection Type of Review: Expedited Collection Requests. requests as required by the Paperwork Title: State Plan Instructions for Title I, Reduction Act of 1980. Part A, Improving Basic Programs SUMMARY: The Director, Information DATES: An expedited review has been Operated by Local Educational Resources Group, invites comments on requested in accordance with the Act, Agencies proposed information collection Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8347 requests as required by the Paperwork Title: Guaranty Agency Financial FOR FURTHER INFORMATION CONTACT: Reduction Act of 1980. Projections Patrick J. Sherrill (202) 708–9915. DATES: An expedited review has been Frequency: Annually Individuals who use a requested in accordance with the Act, Affected Public: Not-for-profit telecommunications device for the deaf since allowing for the normal review institutions; and State, Local or Tribal (TDD) may call the Federal Information period would adversely affect the public Government Relay Service (FIRS) at 1–800–877–8339 interest. Approval by the Office of Reporting Burden: between 8 a.m. and 8 p.m., Eastern time, Management and Budget (OMB) has Responses: 45 Monday through Friday. been requested by February 20, 1995. Burden Hours: 1,350 SUPPLEMENTARY INFORMATION: Section Recordkeeping Burden: ADDRESSES: Written comments should 3517 of the Paperwork Reduction Act of Recordkeepers: 0 be addressed to the Office of 1980 (44 U.S.C. Chapter 35) requires Burden Hours: 0 Information and Regulatory Affairs, that the Office of Management and Abstract: This form will be used by Attention: Dan Chenok, Desk Officer, Budget (OMB) provide interested guaranty agencies under the Federal Department of Education, Office of Federal agencies and the public an early Family Education Loan Program. The Management and Budget, 725 17th opportunity to comment on information Department will use the information Street NW, room 3208, New Executive collection requests. OMB may amend or to evaluate the current and projected Office Building, Washington, DC 20503. waive the requirement for public financial status of guaranty agencies, Requests for copies of the proposed consultation to the extent that public to make comparisons of guaranty information collection request should be participation in the approval process agencies for determining a national addressed to Patrick J. Sherrill, would defeat the purpose of the model for guarantors and projecting Department of Education, 400 Maryland information collection, violate State or the impact of changes in revenue, and Avenue, SW, Regional Office Building Federal law, or substantially interfere to manage guaranty agency reserves. 3, Washington, DC 202–4651. with any agency’s ability to perform its Additional Information: Clearance for statutory obligations. The Director of the FOR FURTHER INFORMATION CONTACT: this information collection is Information Resources Group, publishes Patrick J. Sherrill, (202) 708–9915. requested for February 20, 1995. An this notice containing proposed Individuals who use a expedited review is requested in order information collection requests prior to telecommunications device for the deaf to obtain accurate and in-depth submission of these requests to OMB. (TDD) may call the Federal Information information regarding the financial Each proposed information collection, Relay Service (FIRS) at 1–800–877–8339 condition of guaranty agencies while grouped by office, contains the between 8 a.m. and 8 p.m., Eastern time, the Direct Loan Program is being following: (1) Type of review requested, Monday through Friday. implemented. To receive a copy of the e.g., new, revision, extension, existing SUPPLEMENTARY INFORMATION: Section instrument, please call (202) 401– or reinstatement; (2) Title; (3) Frequency 3517 of the Paperwork Reduction Act of 2280. of collection; (4) The affected public; (5) 1980 (44 U.S.C. Chapter 3517) requires Reporting burden; and/or (6) that the Director of OMB provide [FR Doc. 94–3599 Filed 2–13–94; 8:45 am] BILLING CODE 4000±01±M Recordkeeping burden; and (7) Abstract. interested Federal agencies and persons OMB invites public comment at the an early opportunity to comment on address specified above. Copies of the information collection requests. OMB Proposed Information Collection requests are available from Patrick J. may amend or waive the requirement Requests Sherrill at the address specified above. for public consultation to the extent that Dated: February 8, 1995. public participation in the approval AGENCY: Department of Education. Gloria Parker, process would defeat the purpose of the ACTION: Notice of Proposed Information information collection, violate State or Collection Requests. Director, Information Resources Group. Federal law, or substantially interfere Office of Postsecondary Education with any agency’s ability to perform its SUMMARY: The Director, Information statutory obligations Resources Group, invites comments on Type of Review: Reinstatement The Director, Information Resources the proposed information collection Title: Application for the Higher Group, publishes this notice with the requests as required by the Paperwork Education Collaboration Between the attached proposed information Reduction Act of 1980. United States and the European Community (A Special Focus collection request prior to submission of DATES: Interested persons are invited to Competition of the Fund for the this request to OMB. This notice submit comments on or before March Improvement of Postsecondary contains the following information: (1) 16, 1995. Type of review requested, e.g., Education) ADDRESSES: Written comments should Frequency: Annually expedited; (2) Title; (3) Abstract; (4) be addressed to the Office of Additional Information; (5) Frequency Affected Public: Not-for-profit Information and Regulatory Affairs, institutions; State, Local or Tribal of collection; (6) Affected public; and (7) Attention: Dan Chenok: Desk Officer, Reporting and/or Recordkeeping Government Department of Education, Office of Reporting Burden: burden. Because an expedited review is Management and Budget, 725 17th requested, a description of the Responses: 300 Street NW, room 3208, New Executive Burden Hours: 6,000 information to be collected is also Office Building, Washington, DC 20503. Recordkeeping Burden: included as an attachment to this notice. Requests for copies of the proposed Recordkeepers: 0 Dated: February 8, 1995. information collection requests should Burden Hours: 0 Gloria Parker, be addressed to Patrick J. Sherrill, Abstract: The Higher Education Director, Information Resources Group. Department of Education, 400 Maryland Collaboration Between the United Avenue SW., room 5624, Regional States and the European Community Office of Postsecondary Education Office Building 3, Washington, DC is an experimental program that will Type of Review: Expedited 20202–4651. support new types of cooperation and 8348 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices exchange between institutions of equivalent of about 22 million barrels of a recent, current or planned solicitation. higher education in the U.S. and crude oil per year. Furthermore, the Dr. Brown and his subcontractors, counterparts in the member states of process removes contaminants and is Virginia Tech and Caterpillar the European Community. Eligible nearly pollution free. The proposed Corporation, will produce and then test institutions will apply for grants project is not eligible for financial diesel engine manifold liners made from under this Special Focus Competition. assistance under a recent, current or his advanced ceramic materials in low- The Department will use the planned solicitation because the heat-rejection diesel lines. The materials information to make awards. funding program, the Energy Related have physical properties including good thermal insulation, low-coefficient of [FR Doc. 95–3600 Filed 2–13–95; 8:45 am] Invention Program (ERIP), has been structured since its beginning in 1975 to thermal expansion, good high BILLING CODE 4000±01±M operate without competitive temperature physical strength and solicitations because the authorizing extremely high melting points that make legislation directs ERIP to provide them excellent candidates for use in DEPARTMENT OF ENERGY support for worthy ideas submitted by many energy intensive systems. The the public. The program has never proposed project is not eligible for Financial Assistance Award: Mr. Kevin financial assistance under a recent, Bolin issued and has no plans to issue a competitive solicitation. current or planned solicitation because AGENCY: Department of Energy. FOR FURTHER INFORMATION CONTACT: the funding program, the Energy Related Invention Program (ERIP), has been ACTION: Notice of intent. Please write the U.S. Department of Energy, Office of Placement and structured since its beginning in 1975 to SUMMARY: The U.S. Department of Administration, ATTN: Rose Mason, operate without competitive Energy announces that pursuant to 10 HR–531.23, 1000 Independence Ave., solicitations because the authorizing CFR 600.6(a)(2) it is making a financial S.W., Washington, D.C. 20585. legislation directs ERIP to provide assistance award under Grant Number The anticipated term of the proposed support for worthy ideas submitted by DE–FG01–95EE15623 to Mr. Kevin grant is 24 months from the date of the public. The program has never Bolin of EnerTech Environmental, Inc. award. issued and has no plans to issue a The proposed grant will provide competitive solicitation. Issued in Washington, D.C. on January 30, FOR FURTHER INFORMATION CONTACT: funding in the estimated amount of 1995. $99,995 by the Department of Energy for Please write the U.S. Department of Richard G. Lewis, the purpose of saving energy through Energy, Office of Placement and development of ‘‘Clean Energy from Contracting Officer, Office of Placement and Administration, ATTN: Rose Mason, Administration. Municipal Solid Waste’’, process HR–531.23, 1000 Independence Avenue technology for environment-friendly [FR Doc. 95–3650 Filed 2–13–95; 8:45 am] SW., Washington, D.C. 20585. utilization of Municipal Solid Waste BILLING CODE 6450±01±P The anticipated term of the proposed (MSW) energy resources. grant is 18 months from the date of award. SUPPLEMENTARY INFORMATION: The Financial Assistance Award: Dr. Jesse Department of Energy has determined in J. Brown Issued in Washington, D.C. on January 30, accordance with 10 CFR 600.14(e)(1) 1995. that the unsolicited application for AGENCY: Department of Energy. Richard G. Lewis, financial assistance submitted by Kevin ACTION: Notice of intent. Contracting Officer, Office of Placement and Bolin, CPA and president of EnerTech Administration. Environmental, Inc. The application is SUMMARY: The U.S. Department of [FR Doc. 95–3652 Filed 2–13–95; 8:45 am] meritorious based on the general Energy announces that pursuant to 10 BILLING CODE 6450±01±P evaluation required by 10 CFR 600.14(d) CFR 600.6(a)(2) it is making a financial and the proposed project represents a assistance award under Grant Number unique idea that would not be eligible DE-FG01–95EE15598 to Dr. Jesse J. Financial Assistance Award: Dr. John for financial assistance under a recent, Brown of MATVA, Inc. The proposed V. Milewski grant will provide funding in the current or planned solicitation. The AGENCY: Department of Energy. estimated amount of $99,606 by the applicant, Mr. Kevin Bolin, has ACTION: Notice of intent. assembled a staff consisting of Michael Department of Energy for the purpose of Klosky, a chemical engineer, and Norm saving energy through further SUMMARY: The U.S. Department of Dickenson, the inventor. EnerTech development of the Dr. Jesse J. Brown’s Energy announces that pursuant to 10 Environmental, Inc., will supply its ‘‘Syntheses and Sintering of Fine and CFR 600.6(a)(2) it is making a financial resources to process MSW fuel Ultrafine Grain NZP Ceramics’’ process assistance award under Grant Number materials, conduct data gathering technology for the production of DE–FG01–95EE15632 to Dr. John V. combustion runs, and perform thermal shock resistant ceramics similar Milewski of Superkinetic, Inc. The engineering computer analyses and to sodium-zirconium-phosphate proposed grant will provide funding in simulations to estimate scale-up costs to materials. the estimated amount of $98,000 by the demonstrate the superior efficiency and SUPPLEMENTARY INFORMATION: The Department of Energy for the purpose of economics of this process technology. In Department of Energy has determined in saving energy through development of addition they will have the assistance of accordance with 10 CFR 600.14(e)(1) Dr. Milewski’s ‘‘Hafnium Carbide Single the University of North Dakota’s Energy that the unsolicited application for Crystal Fiber for Ceramic Cutting Tool and Environmental Research Center to financial assistance submitted by Dr. Reinforcement’’ composite material construct and test the pilot scale system. Jesse J. Brown is meritorious based on technology for the production of It is expected that if the invention the general evaluation required by 10 superior metal cutting and machining results in using 20 percent of the MSW CFR 600.14(d) and the proposed project tools through the use of reinforcing projected for landfills for fuel, the represents a unique idea that would not whiskers in the cutting component. This electricity generated would be the be eligible for financial assistance under method is superior over currently used Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8349 silicon carbide and tungsten carbide saving energy through the invention, Office of Fossil Energy reinforcement technology in that it is ‘‘Tribopolymerization as an Anti-Wear [FE Docket No. 95±06±NG] applicable for machining ferrous Mechanism’’, a method for reducing materials and it uses plentiful raw both wear and friction between ceramic- ANR Pipeline Co.; Order Granting materials with superior high ceramic and ceramic-metal surfaces in Blanket Authorization To Import temperature properties. contact under pressure. Natural Gas From Canada SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION: The Department of Energy has determined in AGENCY: Office of Fossil Energy, DOE. Department of Energy has determined in accordance with 10 CFR 600.14(e)(1) ACTION: Notice of order. that the unsolicited application for accordance with 10 CFR 600.14(e)(1) financial assistance submitted by Dr. that the unsolicited application by Dr. SUMMARY: The Office of Fossil Energy of John V. Milewski is meritorious based Michael J. Furey of the Mechanical the Department of Energy gives notice on the general evaluation required by 10 Engineering Department of the Virginia that it has issued an order granting ANR CFR 600.14(d) and the proposed project Polytechnic Institute and State Pipeline Company blanket authorization represents a unique idea that would not University is meritorious based on the to import up to 350 Bcf of natural gas be eligible for financial assistance under general evaluation required by 10 CFR from Canada over a period of two years a recent, current or planned solicitation. 600.14(d) and the proposed project beginning on the date of first delivery Estimates indicate a ten- to twenty-fold represents a unique idea that would not after January 31, 1995. This order is improvement in machining productivity be eligible for financial assistance under available for inspection and copying in can be expected from the use of this a recent, current or planned solicitation. the Office of Fuels Programs Docket technology. The proposed project is not The method is regarded as having the Room, Room 3F–056, Forrestal eligible for financial assistance under a potential to play the role of an enabling Building, 1000 Independence Avenue recent, current or planned solicitation technology in the development of SW., Washington, DC 20585, (202) 586– 9478. The docket room is open between because the funding program, the adiabatec high-temperature ceramic the hours of 8:00 a.m. and 4:30 p.m., Energy Related Invention Program engines that could improve efficiency (ERIP), has been structured since its Monday through Friday, except Federal by 50%. Laboratory tests show that this holidays. beginning in 1975 to operate without novel method is more effective at competitive solicitations because the diminishing wear and lubrication needs Issued in Washington, DC on January 30, 1995. authorizing legislation directs ERIP to of ceramic surfaces at higher provide support for worthy ideas temperatures than conventional Clifford P. Tomaszewski, submitted by the public. The program methods. Current technology methods Director, Office of Natural Gas, Office of Fuels has never issued and has no plans to Programs, Office of Fossil Energy. cannot effectively lubricate ceramic issue a competitive solicitation. materials or operate at temperatures [FR Doc. 95–3655 Filed 2–13–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: higher than 150 °C. Specifics used in BILLING CODE 6450±01±P Please write the U.S. Department of this new process have already shown Energy, Office of Placement and effectiveness at 250 °C. The proposed [FE Docket No. 95±07±NG] Administration, ATTN: Rose Mason, project is not eligible for financial HR–531.23, 1000 Independence Ave., assistance under a recent, current or 1 Source Energy Services Company; S.W., Washington, D.C. 20585. Order Granting Blanket Authorization The anticipated term of the proposed planned solicitation because the funding program, the Energy Related To Import and Export Natural Gas, grant is 18 months from the date of Including Liquefied Natural Gas award. Invention Program (ERIP), has been structured since its beginning in 1975 to AGENCY: Office of Fossil Energy, DOE. Issued in Washington, D.C. on January 30, operate without competitive 1995. ACTION: Notice of order. solicitations because the authorizing Richard G. Lewis, legislation directs ERIP to provide SUMMARY: The Office of Fossil Energy Contracting Officer, Office of Placement and support for worthy ideas submitted by (FE) of the Department of Energy (DOE) Administration. the public. The program has never gives notice that it issued DOE/FE Order [FR Doc. 95–3651 Filed 2–13–95; 8:45 am] issued and has no plans to issue a No. 1024 on January 31, 1995, granting BILLING CODE 6450±01±P competitive solicitation. 1 Source Energy Services Company (1SESC) blanket authorization to import FOR FURTHER INFORMATION CONTACT: a combined total of up to 200 Bcf of Financial Assistance Award: Virginia Please write the U.S. Department of natural gas, including LNG, from Polytechnic Institute and State Energy, Office of Placement and Canada and Mexico. In addition, 1SESC University Administration, ATTN: Rose Mason, is authorized to export a combined total HR–531.23, 1000 Independence Avenue AGENCY: Department of Energy. of up to 200 Bcf of natural gas, SW., Washington, D.C. 20585. ACTION: Notice of intent. including LNG, to Canada and Mexico. The anticipated term of the proposed This authorization to import and export SUMMARY: The U.S. Department of grant is 18 months from the date of natural gas, including LNG, from and to Energy announces that pursuant to 10 award. Canada and Mexico is for a period of CFR 600.6(a)(2) it is making a financial two years beginning on the date of the Issued in Washington, D.C. on January 30, assistance award under Grant Number initial import or export delivery, 1995. DE–FG01–95EE15584 to the Virginia whichever occurs first. Polytechnic Institute, Office of Richard G. Lewis, This order is available for inspection Sponsored Products. The proposed Contracting Officer, Office of Placement and and copying in the Office of Fuels grant will provide funding in the Administration. Programs Docket Room, 3F–056, estimated amount of $99,743 by the [FR Doc. 95–3648 Filed 2–13–95; 8:45 am] Forrestal Building, 1000 Independence Department of Energy for the purpose of BILLING CODE 6450±01±P Avenue SW., Washington, DC 20585, 8350 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices (202) 586–9478. The docket room is Programs Docket Room, 3F–056, eight-year term. The Dispatchable open between the hours of 8:00 a.m. and Forrestal Building, 1000 Independence Service Agreement between Delmarva 4:30 p.m., Monday through Friday, Avenue, S.W., Washington, D.C. 20585, and Lewes provides the terms and except Federal holidays. (202) 586–9478. The docket room is conditions under which Lewes will Issued in Washington, DC on February 6, open between the hours of 8:00 a.m. and supply a portion of its own energy 1995. 4:30 p.m., Monday through Friday, needs and implements Article V of the Clifford P. Tomaszewski, except Federal holidays. Service Agreement between Delmarva Issued in Washington, D.C., February 7, and Lewes. Director, Office of Natural Gas, Office of Fuels Delmarva states that the filing has Programs, Office of Fossil Energy. 1995. been posted and has been served upon Clifford P. Tomaszewski, [FR Doc. 95–3656 Filed 2–13–95; 8:45 am] the affected customer and the Delaware BILLING CODE 6450±01±P Director, Office of Natural Gas, Office of Fuels Public Service Commission. Programs, Office of Fossil Energy. Comment date: February 22, 1995, in [FR Doc. 95–3657 Filed 2–13–95; 8:45 am] [FE Docket No. 95±04±NG] accordance with Standard Paragraph E BILLING CODE 6450±01±P at the end of this notice. Selkirk Cogen Partners, L.P. ; Order 2. Public Service Company of Granting Blanket Authorization To Oklahoma Southwestern Electric Power Import and Export Natural Gas From Federal Energy Regulatory Company and to Canada Commission [Docket No. ER95±524±000, et al.] [Docket No. ER95–523–000] AGENCY: Office of Fossil Energy, DOE. Take notice that on January 30, 1995, ACTION: Notice of order. Delmarva Power & Light Co., et al.; Public Service Company of Oklahoma Electric Rate and Corporate Regulation (PSO) and Southwestern Electric Power SUMMARY: The Office of Fossil Energy of Filings Company (SWEPCO), tendered for filing the Department of Energy gives notice an executed service agreement with the that it has issued an order granting February 8, 1995. Oklahoma Municipal Power Authority Selkirk Cogen Partners, L.P. Take notice that the following filings for transmission service under the SPP authorization to import from and to have been made with the Commission: Interpool Transmission Service Tariff. export to Canada up to a total of 57 Bcf 1. Delmarva Power & Light Co. Companies request that the filing be of natural gas. The term of the accepted to become effective as of authorization is for a period of two [Docket No. ER95–524–000] January 1, 1995. years, beginning on the date of first Take notice that on January 31, 1995, A copy of the filing has been served import or export after January 20, 1995. Delmarva Power & Light Company on the Oklahoma Corporation Selkirk’s order is available for (Delmarva) of Wilmington, Delaware, Commission. inspection and copying in the Office of filed under the provision of § 205 of the Comment date: February 22, 1995, in Fuels Programs Docket Room, 3F–056, Federal Power Act an eight year power accordance with Standard Paragraph E Forrestal Building, 1000 Independence supply contract (the Service Agreement) at the end of this notice. Avenue, S.W., Washington, D.C. 20585, under which Delmarva will provide (202) 586–9478. The docket room is requirements service to four Delaware 3. West Texas Utilities Co. open between the hours of 8:00 a.m. and Municipal customers, Lewes, Milford, [Docket No. ER95–525–000] 4:30 p.m., Monday through Friday, Newark, and New Castle, respectively. Take notice that on January 31, 1995, except Federal holidays. Delmarva states that the Service West Texas Utilities Company (WTU), Issued in Washington, D.C., January 30, Agreement supersedes Delmarva’s Rate submitted an executed Remote Control 1995. Schedule Nos. 61, 66, 67 and 69 under Area Load Agreement (the RCAL Clifford P. Tomaszewski, which each customer previously Agreement), dated January 30, 1995, Director, Office of Natural Gas, Office of Fuels received requirements served from between WTU and Texas Utilities Programs, Office of Fossil Energy. Delmarva. In addition, Delmarva filed a Electric Company (TU Electric). WTU [FR Doc. 95–3658 Filed 2–13–95; 8:45 am] dispatchable generation agreement also submitted a service agreement, BILLING CODE 6450±01±P between Delmarva and Lewes. dated November 30, 1994, with Cap Delmarva, with the concurrence of the Rock Electric Cooperative, Inc. under its four Municipal customers, requests an Coordination Sales Tariff. [FE Docket No 95±09±NG] effective date of February 1, 1995. WTU seeks an effective date for both The Service Agreement provides for agreements of February 1, 1995, and, Transco Energy Marketing Co.; Order the continuation of the requirements accordingly, seeks waiver of the Granting Blanket Authorization To service previously furnished the Commission’s notice requirements. Import Natural Gas From Canada customer, but changes certain terms and WTU served copies of the filing on TU AGENCY: Office of Fossil Energy, DOE. conditions. The chief differences Electric, Cap Rock, the Public Utility ACTION: Notice of order. between the Service Agreement and the Commission of Texas and all parties to service currently furnished under each this docket. A copy of the filing is also SUMMARY: The Office of Fossil Energy of customers’ currently effective rate available for inspection at WTU’s offices the Department of Energy gives notice schedule, are that the Service in Abilene, Texas. that it has issued an order granting Agreement establishes a new rate for the Comment date: February 22, 1995, in Transco Energy Marketing Company customer which is below the level of the accordance with Standard Paragraph E authorization to import up to 730 Bcf of rate currently charged the customer and at the end of this notice. establish a base rate level for production natural gas from Canada over a two-year 4. PacifiCorp term beginning on the date of the first service that is to apply when the service delivery after February 6, 1995. agreement becomes effective and [Docket No. ER95–527–000] This order is available for inspection provides for annual escalations in the Take notice that on February 1, 1995, and copying in the Office of Fuels base rate. The Service Agreement has an PacifiCorp, tendered for filing in Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8351 accordance with 18 CFR 35.12 of the Ocean State Power II, 59 FERC ¶ 61,360 Supplements No. 14 to Rate Schedule FERC Commission’s Rules and Regulations, a (1992) (Ocean State II Order), the No. 2 copy of the fully executed December 8, Commission’s Order in Ocean State Supplements No. 13 to Rate Schedule FERC 1994, Storage and Integration Services Power, 63 FERC ¶ 61,072 (1993) (April No. 3 Agreement (Services Agreement) Supplements No. 15 to Rate Schedule FERC 1993 Order), and the Commission’s No. 4 between PacifiCorp and Public Utility Order in Ocean State Power, 69 FERC District No. 1 of Clark County, ¶ 61,146 (1994) (November 1994 Order). The Supplements to the rate Washington (Clark), a copy of the fully The Supplements constitute a rate schedules request approval of Ocean executed December 8, 1994, increase. State’s proposed rate of return on equity Transmission Facilities Agreement Copies of the Supplements have been for the period beginning on February 1, (Facilities Agreement) between served upon Boston Edison Company, 1995, the requested effective date of the PacifiCorp and Clark and a copy of the New England Power Company, Supplements, and ending on the fully executed Service Agreement Montaup Electric Company, Newport effective date of Ocean State’s updated between PacifiCorp and Clark dated Electric Corporation, the Massachusetts rate of return on equity to be filed in January 30, 1995, under PacifiCorp’s Department of Public Utilities, the February of 1996. Ocean State is filing FERC Electric Tariff, First Revised Rhode Island Public Utilities the Supplements pursuant to Section Volume No. 3. Commission and TransCanada Pipelines 7.5 of each of Ocean State’s unit power PacifiCorp requests that the Limited. agreements with Boston Edison Commission grant a waiver of prior Comment date: February 22, 1995, in Company, New England Power notice pursuant to 18 CFR 35.11 of the accordance with Standard Paragraph E Company, Montaup Electric Company, Commission’s Rules and Regulations at the end of this notice. and Newport Electric Corporation, and that an effective date of December respectively, the Commission’s Order in 6. Duquesne Light Co. 8, 1994 be assigned to the Services Ocean State Power II, 59 FERC ¶ 61,360 Agreement and the Facilities [Docket No. ER95–531–000] (1992) (Ocean State II Order), the Agreement. PacifiCorp requests that the Take notice that on February 21, 1995, Commission’s Order in Ocean State Service Agreement under the Tariff be Duquesne Light Company tendered Power, 63 FERC ¶ 61,072 (1993) (April accepted and that an effective date of under the Commission’s Rules of 1993 Order), and the Commission’s February 1, 1995 be assigned. Practice and Procedure (18 CFR 35.23) Order in Ocean State Power, 69 FERC Copies of this filing were supplied to six (6) copies of Appendix 90CAAA to ¶ 61,146 (1994) (November 1994 Order). the Public Utility Commission of Rate Schedule FPC Nos. 8, 9 and 15. The Supplements constitute a rate Oregon and the Washington Utilities Appendix 90CAAA was tendered to increase. and Transportation Commission. ensure compliance with the Copies of the Supplements have been Comment date: February 22, 1995, in Commission’s Policy Statement and served upon Boston Edison Company, accordance with Standard Paragraph E Interim Rate issued December 15, 1994 New England Power Company, at the end of this notice. at Docket No. PL95–1–000, regarding Montaup Electric Company, Newport 5. Ocean State Power II ratemaking treatment of the cost of Electric Corporation, the Massachusetts [Docket No. ER95–530–000] emission allowances in coordination Department of Public Utilities, the sales. Rhode Island Public Utilities Take notice that on February 1, 1995, Comment date: February 22, 1995, in Commission and TransCanada Pipelines Ocean State Power II (Ocean State II), accordance with Standard Paragraph E Limited. tendered for filing the following at the end of this notice. Comment date: February 22, 1995, in supplements (the Supplements) to its accordance with Standard Paragraph E rate schedule with the Federal Energy 7. Union Electric Co. at the end of this notice. Regulatory Commission (FERC or the [Docket No. ER95–532–000] Commission): 9. American Electric Power Service Take notice that on February 1, 1995, Corp. Supplements No. 16 to Rate Schedule FERC Union Electric Company (Union), No. 5 tendered for filing an Addendum to its [Docket No. ER95–534–000] Supplements No. 16 to Rate Schedule FERC No. 6 coordination agreements. Union asserts Take notice that on February 1, 1995, Supplements No. 15 to Rate Schedule FERC that the purpose of the Addendum is to the American Electric Power Service No. 7 explain how the cost of emission Corporation (AEPSC), tendered, an Supplements No. 16 to Rate Schedule FERC allowances are to be calculated, under initial Rate Schedule, Agreement dated No. 8 the requirements of Docket No. PL95–1– January 1, 1995, between AEPSC, an The Supplements to the rate 000. agent for the AEP System Operating schedules request approval of Ocean Comment date: February 22, 1995, in Companies and Citizens Lehman Power State II’s proposed rate of return on accordance with Standard Paragraph E Sales (Marketer). equity for the period beginning on at the end of this notice. The Agreement provides the Marketer February 1, 1995, the requested effective 8. Ocean State Power access to the AEP System for short-term date of the Supplements, and ending on transmission service. The parties the effective date of Ocean State II’s [Docket No. ER95–533–000] request an effective date of January 31, updated rate of return on equity to be Take notice that on February 1, 1995, 1995. filed in February of 1996. Ocean State Ocean State Power (Ocean State), A copy of the filing was served upon II is filing the Supplements pursuant to tendered for filing the following the affected state regulatory Section 7.5 of each of Ocean State II’s supplements (the Supplements) to its commissions of Ohio, Indiana, unit power agreements with Boston rate schedules with the Federal Energy Michigan, Virginia, West Virginia, Edison Company, New England Power Regulatory Commission (FERC or the Kentucky, Tennessee, and the Marketer. Company, Montaup Electric Company, Commission): Comment date: February 22, 1995, in and Newport Electric Corporation, Supplements No. 17 to Rate Schedule FERC accordance with Standard Paragraph E respectively, the Commission’s Order in No. 1 at the end of this notice. 8352 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 10. Portland General Electric Co. and Part 33 of the Commission’s 4. Heartland Energy Services, Inc. [Docket No. ER95–535–000] Regulations, a request for an order [Docket No. ER94–108–002] authorizing the sale to Southwestern of Take notice that on February 1, 1995, Take notice that on January 27, 1995, facilities located in TNP’s Panhandle Portland General Electric Company Heartland Energy Services, Inc. (HES), service area. The facilities include (PGE), tendered for filing a Letter tendered for filing with the Federal TNP’s transmission and distribution Agreement Between Portland General Energy Regulatory Commission Electric Company and the Bonneville systems located within Hansford, information relating to the above docket. Power Administration (BPA) changing Ochiltree, and Lipscomb counties in the Comment date: February 21, 1995, in transmission loss factors used in the Texas Panhandle area. accordance with Standard Paragraph E Intertie Agreement, BPA Contract No. As a result of the acquisition of at the end of this notice. DE-MS79–87BP92340, PGE Rate facilities, Southwestern will own and 5. CRSS Power Marketing, Inc. Schedule FERC No. 66. PGE requests operate the transmission, distribution, waiver of the notice requirement to and other facilities currently owned and [Docket No. ER94–142–004] allow the changes in the loss factors to operated by TNP in the Panhandle area. Take notice that on January 19, 1995, become effective February 1, 1995. The 7,967 customers that are presently CRSS Power Marketing, Inc. (CRSS), Copies of this filing have been served on served by TNP in the Panhandle area filed certain information as required by the parties listed in the Certificate of will be served by Southwestern. the Commission’s December 30, 1993, Service attached to the filing letter. Southwestern and TNP state that letter order in Docket No. ER94–142– Comment date: February 22, 1995, in customers in the Panhandle area will 000. Copies of CRSS’s informational accordance with Standard Paragraph E receive an immediate rate reduction. filing are on file with the Commission at the end of this notice. Resolution of the municipalities of and are available for public inspection. Standard Paragraphs Follett, Darrouzett, Booker, Spearman, 6. Direct Electric Inc. E. Any person desiring to be heard or Perryton, and Higgins supporting the [Docket No. ER94–1161–003] acquisition of facilities accompany to protest said filing should file a Take notice that on January 19, 1995, Southwestern and TNP’s filing. motion to intervene or protest with the Direct Electric Inc. (DEI) filed certain Federal Energy Regulatory Commission, Southwestern and TNP have information as required by the 825 North Capitol Street, N.E., requested that the Commission expedite Commission’s July 18, 1994, letter order Washington, D.C. 20426, in accordance consideration of their request and, if in Docket No. ER94–1161–000. Copies with Rules 211 and 214 of the possible, approve the acquisition of of DEI’s informational filing are on file Commission’s Rules of Practice and facilities in 45 days. with the Commission and are available Procedure (18 CFR 385.211 and 18 CFR Comment date: February 22, 1995, in for public inspection. 385.214). All such motions or protests accordance with Standard Paragraph E should be filed on or before the 7. Ashton Energy Corp. at the end of this notice. comment date. Protests will be [Docket No. ER94–1246–002] considered by the Commission in 2. Western Systems Power Pool Take notice that on January 23, 1995, determining the appropriate action to be [Docket No. ER91–195–019] Ashton Energy Corporation (Ashton taken, but will not serve to make Energy), filed certain information as protestants parties to the proceeding. Take notice that on January 30, 1995, required by the Commission’s August Any person wishing to become a party the Western System Power Pool (WSSP), 10, 1994, letter order in Docket No. must file a motion to intervene. Copies filed certain information as required by ER94–1246–000. Copies of Ashton of this filing are on file with the Ordering Paragraph (D) of the Energy’s informational filing are on file Commission and are available for public Commission’s June 27, 1991 order (55 with the Commission and are available inspection. FERC ¶ 61,495) and Ordering Paragraph for public inspection. Lois D. Cashell, (C) of the Commission’s June 1, 1992 Secretary. Order On Rehearing Denying Request 8. Energy Resources Marketing, Inc. [FR Doc. 95–3632 Filed 2–13–95; 8:45 am] Not To Submit Information, and [Docket No. ER94–1580–001] BILLING CODE 6717±01±D Granting In Part And Denying In Part Take notice that on February 1, 1995, Privileged Treatment. Pursuant to 18 Energy Resource Marketing, Inc. (ERM), CFR 385.211, WSPP has requested [Docket No. EC95±8±000, et al.] filed certain information as required by privileged treatment for some of the the Commission’s September 30, 1994, Southwestern Public Service & Texas information filed consistent with the letter order in Docket No. ER94–1580– New Mexico Power Company, et al.; June 1, 1992 order. Copies of WSPP’s 000. Copies of ERM’s informational Electric Rate and Corporate Regulation informational filing are on file with the filing are on file with the Commission Filings Commission, and the non-privileged and are available for public inspection. portions are available for public February 7, 1995. inspection. 9. Entergy Services, Inc. and Entergy Take notice that the following filings Power, Inc. have been made with the Commission: 3. Delmarva Power & Light Co. [Docket Nos. ER95–112–001 and EL95–17– 001] 1. Southwestern Public Service and [Docket No. ER93–96–007] Texas-New Mexico Power Co. Take notice that on January 25, 1995, Take notice that on February 3, 1995, Entergy Services, Inc. and Entergy [Docket No. EC95–8–000] Delmarva Power & Light Company Power, Inc. tendered for filing its Take notice that on February 1, 1995, tendered for filing its compliance refund compliance filing in the above- Southwestern Public Service Company report in the above-referenced docket. referenced dockets. (Southwestern), and Texas-New Mexico Comment date: February 21, 1995, in Comment date: February 21, 1995, in Power Company (TNP), filed, pursuant accordance with Standard Paragraph E accordance with Standard Paragraph E to Section 203 of the Federal Power Act at the end of this notice. at the end of this notice. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8353 10. Duke Power Co. filing an agreement with Maine Public [Docket No. CP95±191±000, et al.] [Docket No. ER95–171–001] Service Company (‘‘MPS’’), to provide for the sale of energy and capacity. For Natural Gas Pipeline Company of Take notice that on January 23, 1995, America, et al.; Natural Gas Certificate energy sold the ceiling rate is 100 Duke Power Company (Duke), tendered Filings for filing additional information in the percent of the incremental energy cost above-referenced docket. plus up to 10 percent of the SIC (where February 7, 1995. Comment date: February 21, 1995, in such 10 percent is limited to 1 mill per Take notice that the following filings accordance with Standard Paragraph E Kwhr when the SIC in the hour reflects have been made with the Commission: at the end of this notice. a purchased power resource). The 1. Natural Gas Pipeline Co. of America ceiling rate for capacity is $7.70 per 11. KCS Energy Management Services, megawatt hour. [Docket No. CP95–191–000] Inc. Take notice that on February 1, 1995, Con Edison states that a copy of this [Docket No. ER95–208–000] Natural Gas Pipeline Company of filing has been served by overnight America (Applicant), 701 East 22nd Take notice that on February 1, 1995, delivery upon MPS. KCS Energy Management Services, Inc. Street, Lombard, Illinois, 60148, filed in tendered for filing an amendment in the Comment date: February 21, 1995, in Docket No. CP95–191–000 an above-referenced docket. accordance with Standard Paragraph E application under Sections 7(b) and 7(c) Comment date: February 21, 1995, in at the end of this notice. of the Natural Gas Act for authorization to abandon facilities and construct new accordance with Standard Paragraph E 15. Entergy Services, Inc. at the end of this notice. facilities. [Docket No. ER95–537–000] Applicant requests authority for the 12. Consumers Power Co. following actions: Take notice that on February 1, 1995, [Docket No. ER95–472–000] (1) Abandon 99.93 miles of its 24-inch Entergy Services, Inc. (Entergy Take notice that on January 25, 1995, Amarillo No. 1 line located in Beaver Services), tendered for filing a Consumers Power Company County Oklahoma, and Ochiltree, (Consumers), tendered for filing a Transmission Service Agreement (TSA) Hansford and Hutchinson Counties, Service Agreement with the Michigan between Entergy Services and NorAm Texas and abandon 2.74 miles of its 30- Power Agency (MPPA) and Wolverine Energy Services, Inc. (NES). Entergy inch Amarillo No. 1 line located in Power Supply Cooperative, Inc. Services states that the TSA sets out the Hutchinson County, Texas; (2) Transfer of this abandoned pipe to (Wolverine), pursuant to Consumer’s transmission arrangements under which applicant’s affiliate MidCon Gas Open Access Transmission Service the Entergy Operating Companies’ will Products (MidCon) for use as a gathering Tariff. The filed Service Agreement provide NES non-firm transmission service under Entergy Services Non- facility; extends the availability of transmission (3) Construct and operate 17.98 miles Firm Transmission Service Tariff. service to MPPA and Wolverine in order of 30-inch pipeline loop in Hutchinson to facilitate operation of the Municipal Comment date: February 21, 1995, in County, Texas, at an estimated cost of Cooperative Coordinated Pool. A copy accordance with Standard Paragraph E $10,800,000 to of the filing was served upon the MPPA, at the end of this notice. Applicant also asks the Commission Wolverine, and the Michigan Public to specify that the abandoned pipe line Service Commission. Standard Paragraphs will be a non-jurisdictional facility Comment date: February 21, 1995, in when operated as a gathering line by accordance with Standard Paragraph E E. Any person desiring to be heard or to protest said filing should file a MidCon. at the end of this notice. Comment date: February 28, 1995, in motion to intervene or protest with the 13. Alabama Power Co. accordance with Standard Paragraph F Federal Energy Regulatory Commission, at the end of this notice. [Docket No. ER95–526–000] 825 North Capitol Street, N.E., Take notice that on February 1, 1995, Washington, D.C. 20426, in accordance 2. Northwest Pipeline Corp. Alabama Power Company filed a letter with Rules 211 and 214 of the [Docket No. CP95–195–000] agreement dated January 6, 1995, Commission’s Rules of Practice and Take notice that on February 2, 1995, revising the Contract executed by the Procedure (18 CFR 385.211 and 18 CFR Northwest Pipeline Corporation United States of America, Department of 385.214). All such motions or protests (Northwest), 295 Chipeta Way, Salt Lake Energy, acting by and through the should be filed on or before the City, Utah 84108, filed in Docket No. Southeastern Power Administration and comment date. Protests will be CP95–195–000, a request pursuant to Alabama Power Company. The letter considered by the Commission in Sections 157.205 and 157.211 of the agreement extends the term of the determining the appropriate action to be Commission’s Regulations under the existing Contract until the effective date taken, but will not serve to make Natural Gas Act (18 CFR 157.205 and of new arrangements or the filing of a protestants parties to the proceeding. 157.211) for authorization to construct notice of termination, whichever occurs Any person wishing to become a party and operate an upgrade of the existing first. must file a motion to intervene. Copies facilities at the South Vancouver Meter Comment date: February 21, 1995, in of this filing are on file with the Station located in Clark County, accordance with Standard Paragraph E Commission and are available for public Washington, as requested by an existing at the end of this notice. inspection. firm transportation shipper and marketer of natural gas, IGI Resources, 14. Consolidated Edison Company of Lois D. Cashell, New York, Inc. Inc. (IGI); all as more fully set forth in Secretary. the request which is on file with the [Docket No. ER95–536–000] [FR Doc. 95–3633 Filed 2–13–95; 8:45 am] Commission and open to public Take notice that on February 1, 1995, BILLING CODE 6717±01±P inspection. Consolidated Edison Company of New Specifically, Northwest proposes to York, Inc. (‘‘Con Edison’’), tendered for upgrade the South Vancouver Meter 8354 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Station by replacing the existing orifice intervene or a protest in accordance [Docket No. RP93-198±004] plate in the 6-inch orifice meter run with the requirements of the with a larger capacity orifice plate. Commission’s Rules of Practice and Alabama-Tennessee Natural Gas Co.; Northwest states that this change will Procedure (18 CFR 385.214 or 385.211) Proposed Change In FERC Gas Tariff increase the maximum design delivery and the Regulations under the Natural February 8, 1995. capacity of the South Vancouver Meter Gas Act (18 CFR 157.10). All protests Station from 14,167 Dths per day to filed with the Commission will be Take notice that on February 3, 1995, approximately 16,667 Dths per day at a considered by it in determining the Alabama-Tennessee Natural Gas pressure of 400 psig. Northwest states appropriate action to be taken but will Company (Alabama-Tennessee), filed to that the South Vancouver Meter Station not serve to make the protestants parties revise the filing previously submitted by originally was constructed under to the proceeding. Any person wishing Alabama-Tennessee on November 29 certificate authorization in Docket No. to become a party to a proceeding or to 1994 in Docket No. RP93–198–003 G–1429. participate as a party in any hearing (November 29 Filing). In particular, Northwest states the IGI, a marketer of therein must file a motion to intervene Alabama-Tennessee states that the natural gas, has requested that in accordance with the Commission’s instant filing is designed to reflect a Northwest expand the South Vancouver Rules. dollar-for-dollar refund of $37,631.73 Meter Station to accommodate an additional 2,500 MMBtu per day (at 400 Take further notice that, pursuant to that Alabama-Tennessee recently psig) of firm delivery capacity under an the authority contained in and subject to received from Tennessee Gas Pipeline existing firm transportation service the jurisdiction conferred upon the Company (Tennessee) relating to a agreement dated June 29, 1990, or under Federal Energy Regulatory Commission Tennessee billing error. any other duly authorized by Sections 7 and 15 of the Natural Gas According to Alabama-Tennessee its transportation agreement. Act and the Commission’s Rules of November 29 Filing provided for the Northwest states that the total cost of Practice and Procedure, a hearing will recovery by Alabama-Tennessee of the the proposed facility upgrade at the be held without further notice before the net debit balance due and payable by South Vancouver Meter Station is Commission or its designee on this shippers on Alabama-Tennessee’s estimated to be approximately $1,000 application, if no motion to intervene is system under Section 33.4(f) of the which will be reimbursed by IGI. filed within the time required herein, if General Terms and Conditions of Comment date: March 24, 1995, in the Commission on its own review of Alabama-Tennessee’s FERC Gas Tariff, accordance with Standard Paragraph G the matter finds that a grant of the Second Revised Volume No. 1, resulting at the end of this notice. certificate and/or permission and from a true-up performed by Alabama- approval for the proposed abandonment 3. Columbia Gas Transmission Corp. Tennessee following the elimination of are required by the public convenience [Docket No. CP95–196–000] and necessity. If a motion for leave to its Transportation Cost Rate Take notice that on February 2, 1995, intervene is timely filed, or if the Adjustment. As a further result of the Columbia Gas Transmission Corporation Commission on its own motion believes flow-through of the subject refund, (Columbia), 1700 MacCorkle Avenue, that a formal hearing is required, further however, those shippers which owed S.E., Charleston, West Virginia 25314– notice of such hearing will be duly Alabama-Tennessee the true-up 1599, filed request with the Commission given. amounts shown in the November 29 in Docket No. CP95–196–000 pursuant Filing will now receive a credit. Under the procedure herein provided to Sections 157.205 and 157.211 of the for, unless otherwise advised, it will be Alabama-Tennessee proposes that the Commission’s Regulations under the unnecessary for applicant to appear or November 29 Filing be deemed revised Natural Gas Act (NGA) for authorization be represented at the hearing. by the instant filing and that it be to construct and operate additional permitted to credit the amount due each G. Any person or the Commission’s points of delivery, authorized in blanket customer under this revised filing on certificate issued in Docket No. CP83– staff may, within 45 days after issuance of the instant notice by the Commission, bills Alabama-Tennessee will be 76–000, all as more fully set forth in the rendering in March 1995, for services request on file with the Commission and file pursuant to Rule 214 of the provided during February, 1995. open to public inspection. Commission’s Procedural Rules (18 CFR Columbia proposes to construct and 385.214) a motion to intervene or notice Alabama-Tennessee has requested operate new facilities that would of intervention and pursuant to Section that the Commission grant such waivers establish ten additional points of 157.205 of the Regulations under the as may be necessary to accept and delivery to existing customers that have Natural Gas Act (18 CFR 157.205) a approve the filing as submitted. asked Columbia to provide firm protest to the request. If no protest is Any person desiring to protest said transportation. Columbia states that the filed within the time allowed therefor, filing should file a protest with the estimated cost would be approximately the proposed activity shall be deemed to Federal Energy Regulatory Commission, $150 per tap which would be treated as be authorized effective the day after the 825 North Capitol Street, NE., a O&M Expense. time allowed for filing a protest. If a Washington, DC 20426, in accordance Comment date: March 24, 1995, in protest is filed and not withdrawn with Rule 211 of the Commission’s rules accordance with Standard Paragraph G within 30 days after the time allowed of Practice and Procedure (18 CFR at the end of this notice. for filing a protest, the instant request 385.211). All such protests should be Standard Paragraphs shall be treated as an application for authorization pursuant to Section 7 of filed on or before February 15, 1995. F. Any person desiring to be heard or the Natural Gas Act. Protests will be considered by the to make any protest with reference to Commission in determining the Lois D. Cashell, said application should on or before the appropriate action to be taken but will comment date, file with the Federal Secretary. not serve to make protestants parties to Energy Regulatory Commission, [FR Doc. 95–3634 Filed 2–13–95; 8:45 am] the proceeding. Copies of this filing are Washington, DC 20426, a motion to BILLING CODE 6717±01±P Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8355 on file with the Commission and are (Northern), P.O. Box 3330, Omaha, authorization pursuant to Section 7 of available for public inspection. Nebraska 68103–0330, filed in Docket the Natural Gas Act. Lois D. Cashell, No. CP95–198–000 a request pursuant to Lois D. Cashell, Secretary. §§ 157.205 and 157.212 of the Secretary. [FR Doc. 95–3572 Filed 2–13–95; 8:45 am] Commission’s Regulations under the [FR Doc. 95–3574 Filed 2–13–95; 8:45 am] BILLING CODE 6717±01±M Natural Gas Act (18 CFR 157.205 and BILLING CODE 6717±01±M 157.212) for authorization to upgrade an existing delivery point to accommodate [Docket No. RP95±7±003] [Docket No. MG95±4±000] increased natural gas deliveries to Mississippi River Transmission Corp.; Northern States Power (Minnesota) Northwest Pipeline Corp.; Filing Compliance Filing (NSP–M), under the blanket certificate issued in Docket No. CP82–401–000, February 8, 1995. February 8, 1995. pursuant to Section 7(c) of the Natural Take notice that on February 2, 1995, Take notice that on February 3, 1995, Gas Act, all as more fully set forth in the Northwest Pipeline Corporation Mississippi River Transmission request which is on file with the (‘‘Northwest’’), filed a ‘‘Petition of Northwest Pipeline Corporation For Corporation (MRT), submitted for filing Commission and open to public Waiver of Regulations.’’ Northwest the following tariff sheets listed below inspection. to its FERC Gas Tariff, Third Revised seeks waiver of the Federal Energy Volume No. 1: Northern proposes to upgrade an Regulatory Commission’s marketing existing town border station (Kandiyohi affiliate regulations described under Proposed effec- #1 Town Border Station) located in Order Nos. 497 et seq.1 and Order Nos. tive date Kandiyohi County, Minnesota, to 566 et seq.2 Northwest has entered into accommodate increased natural gas an agreement with Williams Energy Second Substitute First November 1, Systems company (‘‘WES’’) to act as Revised Sheet No. 127. 1994. deliveries to NSP-M for commercial, Second Substitute First November 1, industrial and residential end-use under administrator of WES’ ‘‘Streamline’’ Revised Sheet No. 213. 1994. Northern’s currently effective service service which facilities the engagement agreement with NSP-M. Northern of buyers and sellers of natural gas at MRT states that the purpose of the estimates increased peak day and the interface between gas production filing is to comply with the annual volumes through the upgraded areas and pipeline interconnections at Commission’s January 19, 1995, order town border station of 720 Mcf and the Rocky Mountain Market Center by revising the tariff language on Sheet 91,980 Mcf, respectively. Northern located in Opal, Wyoming. Northwest may, in the future, provide similar Nos. 127 and 224 to conform with the estimates a cost of upgrading the tariff language originally proposed by services for WES at other locations. The delivery point of $3,500 and indicates MRT in its October 7, 1994, filing in this requested waiver is limited to that the costs would be financed in proceeding. Northwest’s role, now and in the future, MRT states that a copy of the filing accordance with the General Terms and as administrator of this electronic gas has been mailed to each of its customers Conditions of Northern’s FERC Gas trading service. and the State Commissions of Arkansas, Tariff, Fifth Revised Volume No. 1. Northwest states that a copy of this Illinois and Missouri. Northern advises that the total Petition has been served to Northwest’s Any person desiring to protest said volumes to be delivered to the customer filing should file a protest with the after the request do not exceed the total 1 Order 497, 53 FR 22139 (June 14, 1988), III Federal Energy Regulatory Commission, FERC Stats. & Regs. ¶ 30,820 (1988); Order No. 497– volumes authorized prior to the request. A, order on rehearing, 54 FR 52781 (December 22, 825 North Capitol Street NE., Also, Northern indicates that the 1989), III FERC Stats. & Regs. 30,868 (1989); Order Washington, DC 20426, in accordance proposed activity is not prohibited by No. 497–B, order extending sunset date, 55 FR with Rule 211 of the Commission’s its existing tariff and that it has 53291 (December 28, 1990), III FERC Stats. & Regs. 30,908 (1990); Order No. 497–C, order extending Rules of Practice and Procedure (18 CFR sufficient capacity to accommodate the 385.211). All such protests should be sunset date, 57 FR 9 (January 2, 1992), III FERC changes proposed herein without Stats. & Regs. 30,934 (1991), rehearing denied, 57 filed on or before February 15, 1995. deteriment or disadvantage of FR 5815 (February 18, 1992), 58 FERC ¶ 61,139 Protests will be considered by the (1992); Tenneco Gas v. FERC (affirmed in part and Northern’s other customers. Commission in determining the remanded in part), 969 F.2d 1187 (D.C. Cir. 1992); Any person or the Commission’s staff Order No. 497–D, order on remand and extending appropriate action to be taken, but will sunset date, III FERC Stats. & Regs. 30,958 not serve to make protestants parties to may, within 45 days after issuance of (December 4, 1992), 57 FR 58978 (December 14, the proceeding. Copies of this filing are the instant notice by the Commission, 1992); Order No. 497–E, order on rehearing and on file with the Commission and are file pursuant to Rule 214 of the extending sunset date, 59 FR 243 (January 4, 1994), Commission’s Procedural Rules (18 CFR 65 FERC ¶ 61,381 (December 23, 1993); Order No. available for public inspection. 497–F, order denying rehearing and granting Lois D. Cashell, 385.214) a motion to intervene or notice clarification, 59 FR 15336 (April 1, 1994), 66 FERC Secretary. of intervention and pursuant to ¶ 61,347 (March 24, 1994); and Order No. 497–G, § 157.205 of the Regulations under the order extending sunset date, 59 FR 32884 (June 27, [FR Doc. 95–3571 Filed 2–13–95; 8:45 am] 1994), III FERC Stats. & Regs. ¶ 30,996 (June 17, BILLING CODE 6717±01±M Natural Gas Act (18 CFR 157.205) a 1994). protest to the request. If no protest is 2 Standard of Conduct and Reporting filed within the time allowed therefor, Requirements for Transportation and Affiliate [Docket No. CP95±198±000] the proposed activity shall be deemed to Transactions, Order No. 566, 59 FR 32885 (June 27, be authorized effective the day after the 1994), III FERC Stats. & Regs. ¶ 30,997 (June 17, Northern Natural Gas Co.; Request 1994); Order No. 566–A, order on rehearing, 59 FR Under Blanket Authorization time allowed for filing a protest. If a 52896 (October 20, 1994), 69 FERC ¶ 61,044 protest is filed and not withdrawn (October 14, 1994); Order No. 566–B, order on February 8, 1995. within 30 days after the time allowed rehearing, 59 FR 65707 (December 21, 1994); 69 FERC ¶ 61,334 (December 14, 1994); appeal Take notice that on February 3, 1995, for filing a protest, the instant request docketed, Conoco, Inc. v. FERC, D.C. Cir. No. 94– Northern Natural Gas Company shall be treated as an application for 1745 (December 13, 1994). 8356 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices jurisdictional customers and relevant In Stingray Pipeline Company,2 the power in the interstate natural gas pipeline State commissions by postage paid, U.S. Commission approved a one-year context? Mail. experimental interruptible b. Are there other approaches to evaluating Any person desiring to be heard or transportation rate based on costs market power that would be less protest said filing should file a motion burdensome? allocated to Stingray’s interruptible 3. a. Are the criteria proposed in the staff to intervene or protest with the Federal service, subject to a price cap. In KN paper reasonable, too strenuous, or not Energy Regulatory Commission, 825 Interstate Gas Transmission Company strenuous enough? North Capitol Street NE., Washington, (KN),3 the Commission addressed KN’s b. Should the Commission use a different DC 20426, in accordance with Rules 211 proposal to offer market-based rates and standard for different types of service, such or 214 of the Commission’s Rules of negotiated terms and conditions of as mainline transmission, storage, or market Practice and Procedure (18 CFR 385.211 service on its Buffalo Wallow System. hub services? or 385.214 (1994)). All such motions or Most recently, Florida Gas Transmission 4. a. Should the Commission consider protests should be filed on or before Company’s section 4 filing in Docket treating companies with a small market share February 23, 1995. Protests will be differently from larger or dominant sellers, No. RP95–103–000 included a ‘‘Market and if so, under what circumstances? considered by the Commission in Matching Program,’’ under which b. How should the Commission view cases determining the appropriate action to be shippers would have the option of in which large sellers face large buyers (that taken, but will not serve to make negotiating rates and terms of service is, where a single buyer represents a large protestants parties to the proceeding. different from the tariff rates and terms share of a transporter’s market? Any person wishing to become a party of service. Florida Gas also proposed an c. Can a buyer’s monopsony power must file a motion to intervene. Copies experimental inflation indexing mitigate a seller’s market power, and if so, of this filing are on file with the mechanism for rate changes, using cost- how should the Commission analyze such Commission and are available for public of-service rates as the starting point. cases? inspection in the Public Reference 5. Do commenters agree or disagree with The Commission is interested in staff’s analysis that capacity release does not Room. developing a framework for analyzing constitute a good alternative to firm Lois D. Cashell, proposals involving alternative pricing transportation? Secretary. methods for natural gas pipelines. There 6. What procedures should the [FR Doc. 95–3573 Filed 2–13–95; 8:45 am] are a number of different ratemaking Commission employ to evaluate market- based rate proposals; should the Commission BILLING CODE 6717±01±M methods that could be used instead of the traditional individual company change its current policy of using declaratory orders or ruling on pro forma tariff sheets? embedded cost-of-service method. In [Docket No. RM95±6±000] 7. Are there particular requirements the addition to market-based pricing, there Commission could impose that would Alternatives to Traditional Cost-of- are a number of cost-based methods that increase the availability of shippers’ service Service Ratemaking for Natural Gas vary from the individual company cost- alternatives and mitigate the market power of Pipelines; Request for Comments on of-service method traditionally used by a natural gas company that would not Alternative Pricing Methods the Commission. The Commission otherwise qualify for market-based pricing? recognizes that it may be necessary to 8. Are there regulatory policies or February 8, 1995. develop different criteria for evaluating ratemaking methods that would better serve The Federal Energy Regulatory alternative pricing proposals, depending the Commission’s regulatory goals of flexible, efficient pricing in today’s environment? For Commission (Commission) requests upon the method proposed. To this end, example, should the Commission focus on comments on criteria to evaluate rates the Commission’s staff has prepared a ‘‘backstop’’ proposals, where pipelines established through methods other than paper, which is attached, proposing would be free to negotiate rates and terms of the traditional cost-of-service criteria for the evaluation of proposals service, so long as customers could always ratemaking method. The Commission’s for market-based rates. The staff paper choose service under traditional cost-of- traditional approach to rate regulation draws from basic antitrust market power service rates and terms of service? sets an annual revenue requirement analysis, that has been used in the past In addition, the Commission also based on operating and capital costs by the Commission and in other invites comments on the criteria for occurring during a historical test period, contexts, to develop a proposed evaluating incentive rate proposals. adjusted for known and measurable analytical framework to use in While the Commission currently has a changes expected to occur by the time evaluating gas pipeline market-based policy for evaluating cost-based suspended rates take effect. Rates are rate proposals. The Commission is incentive rate proposals, to date no generally designed to recover the annual interested in receiving comments on all natural gas company has submitted a revenue requirement based on contract aspects of the staff paper, including the proposal in response to the capacity entitlements and projected following: Commission’s invitation to submit annual or seasonal volumes. 1. a. Under what circumstances are market- incentive rate proposals for an Recently, the Commission has based rates appropriate for natural gas experimental period. The Commission’s received a number of requests from pipelines and services regulated by the October 30, 1992 policy statement on natural gas pipeline companies to Commission? incentive regulation defined the approve rates based on various other b. Please identify and discuss any legal essential elements of an incentive pricing methods, some of which are issues, beyond those discussed in the staff paper, that should be considered. ratemaking policy and set guidelines for cost-based, and some of which are not. incentive rate proposals.4 The policy For example, the Commission has 2. a. Are the Department of Justice/Federal Trade Commission Horizontal Merger statement adopted two general approved a number of proposals for principles: That incentive regulation 1 Guidelines, from which the staff proposal is market-based rates for storage services. drawn, the best framework to evaluate market should encourage efficiency, and that starting rates under incentive regulation 1 Avoca Natural Gas Storage, 68 FERC ¶ 61.045 (1994); Koch Gateway Pipeline Co., 66 FERC ¶ 61,095 (1993); Richfield Gas Storage System, 59 must conform to the Commission’s ¶ 61,385 (1994); Bay Gas Storage Company, LTD. 66 FERC ¶ 61,316 (1992). FERC ¶ 61,354 (1994); Petal Gas Storage Co., 64 2 66 FERC ¶ 61,202 (1994). 4 Policy Statement on Incentive Regulation, 61 FERC ¶ 61,190 (1993); Transok, Inc., 64 FERC 3 68 FERC ¶ 61,401 (1994). FERC ¶ 61,168 (1992). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8357 traditional cost-of-service ratemaking 15. What criteria would the Commission qualify for market-based rates as well as standards. The policy statement also use to evaluate such proposals? factors the Commission may want to established five regulatory standards for The Commission is requesting written consider in monitoring market-based the evaluation of specific proposals— comments on these questions and the rates. that incentive proposals must: (1) Be attached staff paper on market-based I. The Applicable Legal Standards prospective, (2) be voluntary, (3) be rates. The Commission requests parties understandable, (4) result in quantified to identify the numbered questions in Operating under the ‘‘just and benefits to consumers, and (5) their comments to the maximum extent reasonable’’ standard of the Natural Gas demonstrate how they maintain or possible. An original and 15 copies of Act (NGA), the Federal Power Act enhance incentives to improve the written comments should be filed with (FPA), and the Interstate Commerce Act quality of service. The standard the Secretary of the Commission within (ICA), the Commission generally pertaining to the quantification of 60 days of the issuance of this notice, authorizes rates based on the cost of benefits requires the inclusion of an service. However, as the Supreme Court and should refer to Docket No. RM95– 1 absolute upper limit on the risk to 6–000. has ruled on numerous occasions, the just and reasonable standard does not consumers, with the overall cap on By direction of the Commission. incentive rate increases based on limit the Commission to any particular Lois D. Cashell, projected traditional cost-of-service ratemaking methodology; rather, the rates. In view of the lack of response to Secretary. Commission has flexibility in selecting the October 30, 1992 policy statement Table of Contents ratemaking methods. and the changes in the natural gas Courts have held that non-cost factors I. The Applicable Legal Standards can legitimate a departure from cost- market that have occurred since the II. The Commission’s Prior Experience With based rates. Departures from cost-based issuance of the policy statement Market-Based Rates rates have been found to be justified (principally the implementation of A. The Gas Inventory Charge Cases when: (1) The changing characteristics Order No. 636), the Commission B. The Storage Cases of the industry make advisable or believes it is appropriate at this time to C. The Oil Pipeline Cases necessary a new approach; 2 (2) the revisit the issue of incentive rates for D. The Electric Cases III. Proposed Criteria for Evaluating Market- deviations from costs are not pipeline services and requests Based Transportation Rate Proposals unreasonable or inconsistent with comments in response to the following A. General Framework and Criteria statutory responsibilities; 3 and (3) the questions: B. An Example of the Analysis Applied to regulatory scheme acts as a monitor to 9. Why have there not been any incentive Firm Transportation determine whether competition will proposals under the policy established in C. Application of Criteria to Other Services D. Review of Market Power Findings keep prices within a zone of Docket No. PL92–1–000? reasonableness or to check rates if it Appendix: Analysis of Other Industries 10. a. Should the Commission change its does not.4 However, in ruling that rates existing standards for incentive rate proposals? Market-Based Rates for Natural Gas need not be linked to costs in order to b. If so, what specific criteria should the Companies be just and reasonable, the court in Farmers Union II held that the Commission employ when evaluating A Staff Paper incentive rates? Commission cannot merely assume that 11. Are there models for incentive The Commission has been requested competition will ensure just and regulation that the Commission should by various companies to approve reasonable prices: ‘‘[m]oving from heavy consider, such as the California performance- market-based pricing for both firm and to lighthanded regulation within the based program? interruptible transportation, for capacity boundaries set by an unchanged 12. a. What are the benefits and drawbacks released in the secondary market, for statute,’’ can only ‘‘be justified by a of incentive rates, and the policy objectives storage and for market hub services such showing that under the current the Commission should pursue with an incentive rate method? as the ‘‘switching’’ and ‘‘parking’’ of circumstances the goals and purposes of b. Is incentive ratemaking appropriate for natural gas. Approval of any of these the statute will be accomplished the natural gas companies regulated by the proposals is contingent on the through substantially less regulatory Commission? Commission finding that the company oversight.’’ 5 c. Please identify and discuss any legal in question lacks significant market The Commission’s authority to issues that the Commission has not yet power. The purpose of this paper is to approve market-based rates under the considered with this type of rate method. propose criteria that could be used to 1 See Mobil Exploration & Producing Southeast There are other pricing methods evaluate these proposals. In developing these criteria staff has Inc. v. United Distribution Companies, 498 U.S. 211 which are neither market-based nor (1991) (affirming the Commission’s Authority to reviewed the Commission’s prior incentive-based, such as reference consolidate existing ‘‘vintage’’ price categories and experience with market-based pricing (in which the rate is determined set a single ceiling price for ‘‘old’’ gas); Duquesne ratemaking for natural gas companies, Light Co. v. Barash, 488 U.S. 299, 310 (1989); by reference, e.g., to the rates of another oil pipelines, and public utilities. In Permian Basin Area Rate Cases, 390 U.S. 508, 517 company or the price of another (1979); FPC v. Hope Natural Gas Co., 320 U.S. 591, those cases the Commission consistently product). The Commission also requests 602 (1944). used the same general framework to 2 comments on criteria for evaluating Farmers Union Central Exchange, Inc. V. FERC, evaluate requests for market-based rates. 734 F.2D 1486, 1503 (D.C. Cir. 1984) (Farmers such proposals: In addition, the experiences in three Union II), cert. denied sub nom., Williams Pipe Line 13. What other rate methods should the other industries (railroads, Co. v. Farmers Union Central Exchange, Inc., 469 Commission consider beyond the market- U.S. 1034 (1984) (citing Permian Basin Area Rate telecommunications, and airlines) also Cases, 390 U.S. 747 (1968)). based and incentive-based methods covered have been reviewed to determine 3 Farmers Union II at 1502 (citing Mobil Oil Corp. above? v. FPC, 417 U.S. 283 (1974)). 14. a. What would be the benefits and whether there are lessons that can be drawn. For illustrative purposes the 4 Id. at 1509 (citing Texaco, Inc. v. FPC, 474 F.2d drawbacks of any such methods? 416, 422 (D.C. Cir. 1972), vacated, 417 U.S. 380 b. Please identify and discuss any paper applies the proposed criteria to a (1974) (the court of appeal’s decision was vacated particular legal or procedural issues raised by hypothetical case. Finally, the paper on other grounds)). a specific method. discusses the other services that may 5 Id. 8358 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices appropriate circumstances was recently the order was remanded because the for concluding it acted and clearly affirmed in Elizabethtown Commission had not clearly shown unreasonably.’’ 16 6 Gas Co. v. FERC. There, the court how, or even whether, the just and The court’s treatment of market-based upheld the Commission’s approval of a reasonable standard would be applied to pricing policies implemented by other natural gas pipeline’s proposal, as part the small producers’ prices in this agencies offers little guidance to the 12 of a pre-Order No. 636 restructuring process. The Court admonished that Commission since much of the focus on settlement entered into with its on remand the Commission must adhere increasing competition and reducing customers, to sell gas for resale at to the principle that ‘‘the prevailing federal regulations has been through market-based prices. Noting that the price in the market cannot be the final statutory reform, rather than through Supreme Court has held on numerous measure of ’just and reasonable’ rates agency interpretation of existing occasions that the just and reasonable 13 mandated by the Act.’’ statutory authorities. The bounds of standard does not dictate any single The court in Elizabethtown reasoned agency authority to interpret existing pricing methodology,7 the court held that where there is a competitive that the point of Texaco was only that statutory procedural requirements in a market, the Commission ‘‘may rely upon if Congress has subjected an industry to manner to facilitate a move to market- market-based prices in lieu of cost-of- regulation because of anticompetitive based pricing was addressed by the service regulation to assure a ‘just and conditions in the industry, the market Supreme Court in MCI reasonable’ result.’’ 8 In sustaining the cannot be the ‘‘final’’ arbiter of the Telecommunications Corporation v. 14 Commission’s approval of market reasonableness of a price. Further, the American Telephone and Telegraph 17 pricing in this case, the court alluded to court in Elizabethtown stated, in the Company (MCI II), and by the court of the Commission’s specific finding that Texaco proceeding the Commission had appeals in Southwestern Bell the pipeline’s markets were not even mentioned the ‘‘just and Corporation v. FCC (Southwestern ‘‘sufficiently competitive to preclude reasonable’’ standard, but rather Bell).18 However, MCI II and [the pipeline] from exercising appeared to apply only the marketplace Southwestern Bell do not speak to the significant market power in its merchant standard in determining the substantive validity of market-based function* * *.’’ 9 Specifically, the reasonableness of small producers’ regulation under a just and reasonable Commission had determined—and no rates. In contrast, in the order statutory standard. Judicial precedents, record evidence to the contrary was challenged in Elizabethtown, the as explained above, uphold the use of cited on appeal—that adequate Commission had made it clear that it market-based ratemaking, or some divertible supplies of gas existed to give would exercise its section 5 authority if variation thereon, if the agency finds customers options to buy from sellers necessary to assure that a market rate is that clearly delineated non-cost factors other than the pipeline, thus assuring just and reasonable. (including the Commission’s oversight that the pipeline would have to sell its A hybrid cost/market-based pricing and remedial authorities) are sufficient own gas at competitive prices. This scheme under the FPA was approved by to protect the interests of consumers. finding, the court reasoned, justified the the court in Environmental Action v. Commission’s conclusion that the II. The Commission’s Prior Experience FERC.15 There the Commission had With Market-Based Rates pipeline would be able to charge only a approved the application of certain price that was just and reasonable regulated and non-regulated electric A. The Gas Inventory Charge Cases within the meaning of section 4 of the utilities to operate a power pool in 1. The Analysis Used NGA. which transactions would be priced In reaching this result, the court of according to the market, subject to a appeals in Elizabethtown distinguished In 1988, the Commission began its uniform ceiling price based upon a the Supreme Court’s decision in FPC v. movement towards light-handed hypothetical average utility’s costs. The Texaco, Inc. (Texaco),10 in which the regulation of some aspects of natural gas court, in rejecting challenges to the Supreme Court had remanded an FPC markets. The light-handed regulation pricing mechanism, emphasized the order exempting small gas producers first appeared with the implementation speed and administrative efficiency from direct regulation of their prices. of market-based gas inventory charges benefits of market-based pricing. In The Commission order under challenge (GIC) for pipeline sales service. In addition, the court also cited the in Texaco provided that small determining whether a pipeline could producers’ prices would be subject to Commission’s expressed intention to implement a GIC mechanism, the scrutiny only as a part of the rates of monitor transactions and invoke its Commission looked at three key factors: pipelines and large producers to whom investigatory powers under section 206 Market definition, the availability of they sold their gas, and then only (either sua sponte or upon complaint) to divertible gas supplies and measures of through review of the pipeline and large redress abuses. Thus, the court market power. Additionally, the producer rates. This indirect review concluded that ‘‘[i]n sum, FERC sought Commission considered whether the procedure was found by the Court to be to preserve the Pool’s efficiencies even transportation of alternative supplies permissible under the NGA.11 However, as it guarded against price gouging. On would be on a comparable basis to the the facts in evidence, we find no basis terms and conditions of transportation 6 10 F.3d 866, 870 (D.C. Cir. 1993) service provided for gas purchased (Elizabethtown). 12 The Commission stated that the just and under the GIC. If the supply markets 7 The court cited Mobil Oil Exploration v. U.S., reasonable standard would be applied, and were found to be competitive and 111 S. Ct. 615, 624 (1991): ‘‘* * * the just and enumerated various factors, in addition to transportation terms and conditions reasonable standard does not compel the prevailing market prices, that would be taken into Commission to use any single pricing formula account. The Court observed that these * * *.’’ 10 F.3d at 870. representations were relevant to the validity of the 16 Id. at 410. See also National Rural Telecom 8 Id. (quoting Tejas Power Corp. v. FERC, 908 order, but ruled that because they were not made Assoc. V. FCC, 988 F.2d 174 (D.C. Cir. 1993) F.2d 998, 1104 (D.C. Cir. 1990). in the order itself—only on appeal—they were (approving flexible pricing for local exchange 9 10 F.3d at 870–71 (quoting Transcontinental Gas unavailing. 417 U.S. at 397. companies, subject to a ceiling rate). Pipe Line Corp., 55 FERC ¶ 61,446 at 62,234. 13 417 U.S. at 397. 17 114 S. Ct. 2223 (1994). 10 FPC v. Texaco, Inc., 417 U.S. 380, 397 (1974). 14 Elizabethtown, 10 F.3d at 870. 18 Nos. 93–1562, 93–1568, 93–1590, and 93–1624 11 417 U.S. at 387–91 15 996 F.2d 401 (D.C. Cir. 1993). (D.C. Cir. Jan. 20, 1995). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8359 comparable, pipelines were permitted to divertible supplies existed in each of the Transwestern’s gas.23 This is an extreme implement a GIC.19 defined geographic markets, at example of a lack of market power; an In applying these standards in El competitive prices, such that El Paso attempt to get a premium above the Paso, for example, the Commission would be precluded from exercising available spot price led to virtually a found that the relevant product market market power. The Commission defined 100 percent reduction in Transwestern’s was delivered firm gas. El Paso divertible supplies as those that were sales. maintained that the product market was uncommitted, or committed under In July, 1990, in Tejas Power Corp. v. not simply natural gas, but energy contract to a buyer for no longer than FERC,24 the court of appeals generally (i.e. fuel oil, coal, propane, some short period such as one year. emphasized the importance of a market hydroelectric power, and purchased The Commission then measured each power determination in the approval of power). However, El Paso did not seller’s share of the market. To compute a GIC mechanism, even in the context provide sufficient evidence to make El Paso’s market share the Commission of a settlement. In Tejas, the court found such a case. Thus, the Commission used its sales to each customer at the the Commission’s reliance on the excluded alternative fuels from the time of peak usage. These market shares agreement of the LDCs, in approving a product market. were then used to compute the level of GIC settlement proposed by Texas The Commission established that concentration in the market using the Eastern Transmission Corp., was ‘‘firm’’ gas was a dimension of the Hirschman-Herfindahl Index (HHI).20 misplaced because there was no finding, product market since El Paso was The Commission used an initial screen supported by substantial evidence, that proposing to sell firm gas under its GIC. of .18 to determine if the market the pipeline lacked significant market The Commission also found that concentration was low enough to power. All of the Commission’s ‘‘delivered’’ gas was a second dimension indicate that the competitors in the subsequent market-based GIC cases of the relevant product market because market could not exercise market examined the market power of the firm gas supplies that could not be power.21 The Commission found that pipeline applicant. transported to the city-gate were not the market concentration was low, i.e., The series of pipeline-by-pipeline GIC substitutes for supplies under the GIC. below .18. cases allowing market-based pricing for In defining El Paso’s geographic the gas commodity was broadened to a market, the Commission acknowledged The Commission also found that the transportation service to be provided by generic finding in Order No. 636. The that it could consist of the entire United Commission allowed pipelines to have States or North America. The El Paso for the transportation of third party supplies was comparable, with market-based pricing for unbundled gas Commission stated, however, that the sales upon full compliance with the relevant geographic market was the certain modifications, to the transportation provided under the GIC. final rule.25 geographic area containing those In conclusion, the Commission’s suppliers that can affect any attempt by Therefore, based on this analysis, the Commission found that El Paso lacked experience with deregulation of the gas El Paso to exercise market power. The commodity has shown that competition Commission decided to take a cautious market power and permitted the implementation of a market-based GIC. can restrain prices. In fact, the statutory approach and considered three areas of wellhead deregulation and the gas supplies in order of the most 2. The Subsequent History of the GIC Commission’s open access policies have narrowly defined: (1) The counties in Cases led to a current price for the gas the three basins where El Paso commodity that is well below the purchases gas that are already On May 11, 1988, the Commission found that Transwestern lacked market regulated prices that prevailed several connected to El Paso’s system, (2) all years ago. counties in the three basins, and (3) all power with respect to the gas counties from which El Paso purchased commodity. Southern California Gas B. The Storage Cases gas in 1987, including counties outside Company (SoCal), the only company 1. The Analysis Used the three basins. The Commission directly affected, had sufficient reasoned that if El Paso lacked market alternative gas supply sources that Starting with the the Commission’s power in the most narrowly defined Transwestern’s prices would be order in Richfield Gas Storage System market, then it would also lack market constrained. Therefore, the Commission (Richfield) 26 in June 1992, the power in a more broadly defined approved, with some modifications, Commission has permitted companies market. Alternatively, even if El Paso Transwestern’s proposed market-based to institute market-based storage rates could exercise market power in a Gas Inventory Charge (GIC).22 subject to light-handed regulation when narrowly defined market, it might be When Transwestern attempted to put the applicants have shown that they demonstrated that El Paso nonetheless its GIC charges into effect, SoCal lack significant market power. In lacked market power when the nominated zero volumes of making these market determinations, definition was expanded. the Commission primarily looked at the The Commission found that 1.07 Bcf/ 20 An HHI is calculated by summing the squares defined markets, the availability of good d was the minimum measure of the of each seller’s market share. For example, if there alternatives, and measures of market amount of divertible, or alternative, gas are two sellers of a product having shares of total power. However, the Commission also sales of 75 percent and 25 percent, respectively, supplies needed to prevent El Paso from then the HHI will equal considered other factors, such as the fact exercising market power. The 1.07 Bcf/ (.75) 2+(.25) 2=.5625+.0625=.625. Rounding to two that the applicants were generally new day represented the gas dedicated to El significant digits, the HHI is .63. entrants, the applications were generally Paso under long-term contracts, together 21 An HHI of .18 is equivalent to having 5–6 equal unopposed, and the possibility of other sized competitors in the market. In El Paso, the with its affiliates’ volumes. The Commission indicated that it would use a case-by- Commission determined that sufficient case approach to determine the lack of market 23 Foster Natural Gas Report, No. 1741, for the power. The HHI was used as an initial screening week ended September 21, 1989, pp. 2–3. 24 19 See Transwestern Pipeline Company, 43 FERC tool only. El Paso, 49 FERC at 61,920. See also Petal 908 F.2d 998 (D.C. Cir. 1990) (Tejas). ¶ 61,240 (1988); El Paso Natural Gas Company, 49 Gas Storage Co., 64 FERC ¶ 61,190 at 62,573 (1993) 25 FERC Regulations Preambles, ¶ 30,939 at FERC ¶ 61,262 (1989 and 54 FERC ¶ 61,316 (1991); (market power determined on a case-by-case basis). 30,439. and Transcontinental Gas Pipe Line Corporation, 55 22 Transwestern Pipeline Co., 43 FERC ¶ 61,240 26 Richfield Gas Storage System, 59 FERC FERC ¶ 61,446 (1991) aff’d Elizabethtown, supra. (1988). ¶ 61,316 (1992). 8360 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices new entrants. In applying these Unutilized capacity that was committed markets for which each was allowed to standards in Koch, for example, the under contract, the Commission charge market-based rates.28 Commission agreed with Koch’s reasoned, would be available through 1. The Analysis Used definition of product and geographic capacity release. Therefore, given the markets. Koch applied a narrow and small size of Koch in relation to other In conducting its analysis of whether broad definition to both markets. Koch storage providers, the abundant storage the applicant had market power, the argued that if it did not have market alternatives available to Koch’s Commission first defined the product power in narrowly defined markets, it customers, and that the alternatives are and geographic markets. It then would not have market power when the ‘‘good’’ alternatives, the Commission evaluated whether the applicant had definitions were broadened. concluded that Koch could not exercise significant market power in those Koch defined the narrow product market power in providing storage markets by first doing an initial screen market as natural gas storage. The service. for market concentration in each market narrow geographic market was defined (using the Herfindahl-Hirschman Index) to contain those storage facilities in the 2. The Experience After Approving and then considering, weighing and states of Texas, Louisiana, and Market-Based Rates balancing a number of other factors, Mississippi that are connected to Koch. The market-based storage cases such as, the potential entry of The record showed that Koch owned approved by the Commission (Richfield, competitors into the market, available only 11.9 percent of the contract storage Petal, Transok, Bay State, Avoca, and transportation alternatives, market capacity and 6.1 percent of the contract Koch) are quite recent. The companies share, availability of excess capacity, storage deliverability in the narrow in question were not subjected to any and the presence of large buyers able to market. The market concentration was special reporting requirements. Thus, exert downward monopsonistic computed using the Hirschman- there is little information currently to pressure on transportation rates. Herfindahl Index (HHI) to be .13 for evaluate these decisions. In addition, In Buckeye, for example, the relevant capacity and .12 for deliverability the pipelines in several of these cases product market was defined as the indicating a relatively low concentration executed long term contracts at the same transportation of refined petroleum in the narrow market. time they were seeking market based products. The Commission agreed with The Commission also reviewed the rates. The contracts set the prices for the the ALJ and rejected the position fact that five new suppliers may enter advanced by ATA that the product the market by 1996 that would term of the contract. No complaints have been filed so far regarding the market should be markets in which potentially have direct connects to Buckeye transports only jet fuel. The Koch. market based storage rates. However, one would not expect to see the Commission concluded that the ease of The broader product market was product substitution among pipelines is defined to include non-storage complaints so early in the process. Complaints would be more likely to an important reason why the relevant alternatives and storage alternatives not product market should be the connected to Koch, such as, capacity occur when the parties seek to negotiate new pricing provisions at the end of the transportation of refined petroleum release of storage in new or existing products rather than the transportation storage facilities, purchase of natural gas contract term, if new capacity becomes of a specific petroleum product, such as from producers or other marketers, available, or if the circumstances which gasoline, fuel oil or jet fuel. selling gas to customers that have served as the basis of the Commission’s decision changed. The relevant geographic markets were several suppliers, access to no-notice defined as the areas that include all Earlier, however, the Commission storage, to name a few. The broader supplies of transportation from all approved an experiment wherein Koch geographic market was defined as origins to United States Department of storage was allowed to charge any price alternatives outside of Texas, Louisiana Commerce, Bureau of Economic it could negotiate up to a cap which and Mississippi. Analysis Economic Areas (BEAs).29 The The Commission gave much exceeded the cost-based rate. The Commission concluded that the consideration to whether or not the Commission did not make a finding that evidence of record supported the alternatives identified by Koch were Koch lacked significant market power. findings of the ALJ that BEAs are shown ‘‘good’’ alternatives. The Commission The results of the ‘‘Market Responsive to be appropriate geographic markets defined a good alternative as one that is Storage and Delivery Service’’ (MRSDS) since they are convenient, easily available soon enough, has a price that experiment suggest that competition identified and have been used in past is low enough, and has a quality high constrained Koch to prices actually studies of the oil pipeline industry. enough to permit customers to below the cost-based rates. All market- The Commission also concluded that substitute the alternative for Koch’s based MRSDS rates charged by Koch an analysis of market concentration service. In addition, the alternative must were below the cap. During the two full using HHIs should be the first step in be available in sufficient quantity to heating seasons of the experiment, evaluating the likelihood of market make Koch’s price increase customers fully subscribed all the power being exercised in a given unprofitable. capacity allocated to MRSDS.27 The Commission found that good market. Knowing the degree of C. The Oil Pipeline Cases alternatives were available in sufficient concentration in a market provides quantities and at competitive prices. useful information about where on the In the oil pipeline area, two competitive spectrum that market lies The Commission determined that companies have the authority to charge unutilized storage capacity was market-based rates—Buckeye Pipe Line 28 Buckeye Pipe Line Company, L.P., 53 FERC available in large quantities in Texas, Company, L.P. (Buckeye) and Williams ¶ 61,473 (1990). Williams Pipe Line Company, 69 Louisiana and Mississippi during peak Pipe Line Company (Williams). In both FERC ¶ 61,136 (1994). Both cases were litigated and periods based on statistics found in cases the Commission determined that the Commission made its findings that certain EIA’s Natural Gas Monthly. The the pipeline lacked market power in markets were competitive based on the records Commission reasoned that if this presented at the hearings. 29 BEAs are geographic regions surrounding major unutilized capacity was not under 27 Koch Gateway Pipeline Co., 66 FERC ¶ 61,385 cities that are intended to represent areas of actual contract it was available for purchase. at 62,301–302 (1994). economic activity. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8361 and what other factors will have to be transportation must compete with In the markets the Commission did weighed to enable a finding as to the suppliers of the delivered product. not find to be competitive, no rate could existence or absence of significant There were 22 markets examined in be increased by more than the volume- market power. For measuring market Opinion No. 380. The Commission weighted average rate increase in the concentration, the Commission found that in 15 Buckeye lacked competitive markets. Conversely, every concluded that a proper screening rate in the ‘‘non-competitive markets’’ 30 significant market power; in two device is an HHI. The Commission Buckeye had no tariffs on file thus no had to reflect the volume-weighted also concluded that the use of delivery finding was warranted; in one the average of rate decreases in the data, e.g., deliveries into each BEA, is record was insufficient and so competitive markets.32 the best method for calculating HHIs in continued regulation was necessary; Buckeye. No protests of rate changes or In Buckeye (Opinion No. 380), market and, in four, Buckeye was found to have complaints against existing rates were power was defined as the ability to market power. filed during the three year experiment. profitably raise the price above the 2. The Buckeye Experiment In addition, no protests were filed in competitive level for a significant time opposition to Buckeye’s filing to extend period. Significant market power was In Opinions No. 380 and 380–A, the the experiment indefinitely.33 Buckeye defined as the ability to control market Commission also authorized a three year noted that this lack of opposition to its price by sustaining at least a 15% real experimental program proposed by market-based program was ‘‘in sharp price increase, without losing sales, for Buckeye.31 During this experiment, contrast to the years of complex and a period of two years. The Commission rates in each competitive market were expensive rate litigation that preceded further concluded that the relevant price subject to two limitations: (1) Individual adoption of * * *’’ this program.34 for the purposes of making a rate increases could not exceed a ‘‘cap’’ determination of whether Buckeye can of 15% real increase over any two-year No rates were changed by more than profitably increase its transportation period, and (2) individual rate increases the GDP+2% trigger during the three prices above the competitive level is the would be allowed to become effective year period. In the competitive markets, delivered product price. Because without suspension or investigation rate increases were generally well below shippers or customers in the destination only if they did not exceed a ‘‘trigger’’ the trigger, and in the non-competitive market often have the option of of the change in the Gross Domestic markets, rate increases were below the switching away from purchasing Product (GDP) deflator plus 2%. Rate allowed volume-weighted average transportation into the market, and, decreases were presumably valid but increase in the competitive markets. The instead, purchasing the delivered could not result in rates below marginal allowable and average actual rate product itself, suppliers of costs. changes are shown in the table below. BUCKEYE RATE CHANGES Competitive markets av- Non-competitive markets Year (April 1 to March Cap (GDP+15%) (percent) Trigger (GDP+2%) (percent) erage rate change (per- average rate change 31) cent) (percent) 90±91 19.16 6.16 3.86 3.58 91±92 22.32 5.16 3.14 2.74 92±93 20.69 4.53 1.45 0.97 Since all changes in rates are based on some successful marketing in very market increased and its concentration an index not reflecting the pipeline’s competitive situations. For example, in decreased. costs, there is no danger of the raising Indianapolis, where Buckeye held less of rates in non-competitive markets than three percent of the market in D. The Electric Cases through shifting costs attributable to 1990, Buckeye raised its share to 17 Since 1986, the Commission has 35 competitive markets. This attribute is percent in 1993. ‘‘These increased approved many applications from not exclusive to the Buckeye program; volumes resulted from Buckeye’s deep public utilities to sell electricity in approaches which base rate changes on price discounts (as deep as 40%) in wholesale transactions at negotiated something other than the pipeline’s 1991 and later a volume incentive tariff market-based rates. In a recent order costs would eliminate this concern to attract new refinery business from a addressing a request for market-based about cost shifting. recently restarted independent refinery rates from an electricity marketer 36 Finally, under the market-based * * *’’ As a result of Buckeye’s affiliated with a traditional public program Buckeye was able to engage in actions, the total size of the Indianapolis 30 The Commission used an HHI of .18 as an subject to future reevaluation. Buckeye Pipe Line of revenues was higher in the competitive markets initial screen in Transcontinental Gas Pipe Line Co., L.P., 69 FERC ¶ 61,302 (1994). than in the non-competitive markets (constant Corp. (Transco), 55 FERC ¶ 61,446 at 62,393 (1991). 33 66 FERC 61,348. annual growth rates of 6.54% versus 2.78% (66 31 53 FERC 61,473 and 54 FERC 61,117. 34 October 26, 1994 Buckeye Pipeline filing in FERC 61,348)), this demonstrates that this potential 32 On March 24, 1994, the Commission accepted Docket No. OR94–6–000, et al. problem did not occur during the experiment. a tariff that extended this experiment for an 35 While there was concern that Buckeye might be 36 February 22, 1994 ‘‘Statement of James A. indefinite period (66 FERC ¶ 61,348). However, the Spicer on behalf of Buckeye Pipe Line Company, Order stated that Buckeye was subject to the able top ‘‘manipulate’’ the program by raising prices L.P.’’ requirements of Order No. 561, the simplified and in the competitive markets solely to raise prices in generally applicable ratemaking methodology for oil the non-competitive markets, the Commission In contrast to oil pipelines, natural gas pipelines pipelines, when they take effect on January 1, 1995. found this to be a very unlikely event under the are permitted to selectively discount. Thus, gas On December 6, 1994, the Commission permitted approved program. It nevertheless committed to pipelines would be able to structure such a deal Buckeye to continue its experimental program as an monitoring for this occurrence during the under the Commission’s traditional cost-based rate exception to the Commission’s oil pricing policies, experiment (53 FERC 61,473). Since the growth rate regulation. 8362 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices utility, the Commission summarized its have sought market rate approval for anticipates that a pipeline would need, position. The Commission: sales of electricity.41 However, the initially, to show that its customers have ** * allows market-based rates if the Commission has looked to Order No. four to five good alternatives to the seller (and each of its affiliates) does not 636 procedures mandating open access applicant’s firm transportation service. have, or has adequately mitigated, market transportation on jurisdictional This is the equivalent of an HHI of .18, power in generation and transmission and pipelines to preclude pipelines from which the Commission has used as an cannot erect barriers to entry. In addition, the erecting barriers to entry. initial screen in previous cases.45 Staff Commission considers whether there is As a result of Enron and other cases, suggests that only capacity that the evidence of affiliate abuse or reciprocal the Commission has developed applicant shows will be available on 37 dealing. considerable experience in analyzing other pipelines when the applicant Applicants for whom the Commission generation markets. Recently, in Kansas institutes market-based rates could be approved market-based rates are City Power and Light,42 the Commission considered as an alternative. required to file periodic reports or concluded that new generating facilities One necessary element of showing studies to demonstrate their continuing were being built by many different that customers have alternatives would lack of market power and the absence of parties and that there was no evidence be the pipeline’s agreement to give abusive affiliate practices. that any party could assert market existing firm transportation customers The first step in evaluating market power in markets being served by new the right to renominate their contract power in generation is to identify the facilities. Consequently, as did the demand levels if a pipeline is allowed relevant product and geographic Commission in its series of GIC to charge market-based rates under markets.38 In those markets, suppliers’ decisions, market power analysis is no existing contracts. Otherwise, the market shares are calculated. Low longer required when the applicant is applicant clearly has market power over market shares demonstrate that the proposing sales from new facilities. its customers if existing contracts seller is unlikely to be able to assert The Commission’s treatment of prevent its customers from freely market power in that market.39 An transmission market power does not choosing alternative service or applicant with a high market share parallel its treatment of market power in renegotiating their contracts at the time would be subject to further scrutiny. generation. The Commission has market forces are permitted to control For example, in Enron Power basically equated applicant ownership the rates for services. This situation did Enterprises Corporation,40 the or control of transmission facilities with not exist in the storage cases where the Commission looked at the market for the applicant having market power in Commission permitted market-based generating services bid to New England 43 transmission in that region. The pricing. In those cases, the applicants Power Company (NEPCO). In that Commission therefore requires were either new entrants or existing market, Enron’s market share was 4 transmission owners to file generally entities offering new services. There percent. Furthermore, there were 18 applicable open-access, comparable were no existing contracts in effect that projects out of 22 finalists that were not transmission tariffs before the the Commission needed to address. This selected. Thus, NEPCO had numerous Commission will permit them to charge condition is consistent with the additional alternatives to choose from 44 market rates. Commission’s practice in the GIC other than Enron. In addition, NEPCO proceedings where it allowed customers negotiated several favorable provisions III. Proposed Criteria for Evaluating to renominate their sales contract in its agreement with Enron suggesting Market-Based Transportation Rate demand levels if a pipeline instituted a that Enron was not a dominant supplier Proposals GIC. at the time of the solicitation. A. General Framework and Criteria There have been two additional The framework proposed would be To date, in all cases where the factors of concern to the Commission in the same for all types of services. It Commission has considered market- electricity cases: Affiliate abuse and the consists of three major steps: based rates, the applicant has been ability to erect barriers to entry. With 1. Define Relevant Markets required to show that it lacks significant respect to affiliate abuse, in recent cases, a. Product market: identify good market power in the relevant markets. the Commission has required the alternatives to the applicant’s product; Market power is defined as the ability affiliated parties to file separately for and of a pipeline to profitably maintain b. Geographic market: identify sellers of any sales or purchases of electric power prices above competitive levels for a good alternatives. between the marketer and its affiliated significant period of time. 2. Measure Firm Size and Market utility. In addition, the Commission While the Commission has not Concentration requires the affiliated marketer to adopted a mechanistic approach to a. Measure the size of the market, calculate purchase any transmission services it assessing market power, it has each seller’s market share, and evaluate applicant’s market share; may receive from its affiliated utility consistently used the same general under a generally applicable, open- b. Estimate market concentration using the framework to evaluate requests for Herfindahl-Hirschman Index (HHI); and access, comparable tariff. market-based rates. With respect to an applicant’s ability c. Evaluate market concentration by using Using this general framework, an initial HHI screen of 0.18; a finding to erect barriers to entry, only a few Commission staff proposes criteria to in that range is equivalent to finding that electric cases have raised this issue. evaluate the competitiveness of customers have at least four or five Some affiliates of natural gas pipelines transportation services. To show a lack equal-sized alternatives to the of market power over firm applicant’s service. 37 Heartland Energy Services, 69 FERC ¶ 61,223 transportation, for example, staff 3. Evaluate Other Factors (1994). a. If the applicant’s market share is large 38 See, e.g., Kansas City Power & Light, 67 FERC or the market concentration is high (i.e., 41 ¶ 61,183 (1994). See, e.g., Hartwell, 60 FERC ¶ 61,143 (1992). HHI exceeds 0.18), examine other factors 42 39 In PSI, 51 FERC ¶61,367 (1990), order on reh’g 67 FERC ¶ 61,183 (1994). that might prevent or limit the exercise 43 52 FERC ¶61,963 (1990), the Commission See Enron Power Marketing, 65 FERC ¶ 61,305 of market power; determined that a seller with a market share of less (1993), order on reh’g, 66 FERC ¶ 61,244. than 20 percent did not dominate the market. 44 The current policy was announced in 40 52 FERC ¶ 61,193 at 61,708–61,709 (1990). Hermiston Generating, 69 FERC ¶ 61,035 (1994). 45 E.g., Transco, 55 FERC at 62,393. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8363 b. These other factors might include ease Gateway, defined good alternatives as must demonstrate that the price for the of entry, excess capacity held by follows: available capacity is low enough to competing sellers, and buyer power. A good alternative is an alternative that is effectively restrain the applicant from Each of these steps is discussed available soon enough, has a price that is low increasing prices. In prior cases, the further below. In section B of this part enough, and has a quality high enough to Commission has defined such a is an example showing the application permit customers to substitute the alternative threshold price level as being at or of this analysis to a hypothetical for Koch Gateway’s service.48 below the applicant’s approved 50 interstate pipeline in a market supplied a. The Product Market maximum cost-based rate plus 15%. by a number of pipelines. The regulated price has been used as There are some services that are more The applicant’s service together with the prevailing price—a proxy for the likely to pass these criteria than others. other services that are good alternatives competitive price. This is necessary These are discussed more fully in constitute the relevant product market. because almost all prices for section IV.C. below.46 For example, IT The applicant must fully, and transportation are regulated and a and hub services have different specifically, define the product market. competitive price level would be at best characteristics than firm transportation For example, the applicant must be a guess. However, the use of prevailing and might more easily satisfy these specific in defining whether the product prices presents analytic problems. For criteria. If the capacity release program market consists of firm transportation example, three pipelines that follow is functioning well, IT service may only, or if the product market consists parallel courses may have radically compete with capacity release offered of off-peak interruptible transportation different rates because of different by all of the pipeline’s customers in the service only, etc. The applicant must historical costs, despite the fact that in relevant zones. Capacity release may be also be responsible for developing and a competitive market they would offer a good alternative for IT service. There justifying any substitutes for the almost identical services at almost are, by definition, several pipelines at relevant product that can be considered identical prices. Which of the competitive alternatives, e.g., storage each market hub.47 Each of the pipelines alternative pipelines’ prices should be delivery services, gathering services, etc. at the hub may be able to offer the same used as the ‘‘prevailing’’ price? This For example, pipelines might suggest hub services as good alternatives to each question would have to be addressed in numerous alternatives to FT in their other. deciding whether the prices of As a practical matter, it may well be applications: IT, storage services, alternatives are appropriate references. difficult for long-term firm residual fuel oil, etc. It is likely that applicants will argue iii. Quality transportation to qualify under this that the market should be defined framework. The nature of the A good alternative must provide broadly. Given the natural monopoly transportation grid ensures that service in which the quality is at least features of many transportation services, pipelines typically face few direct as high as that of the service provided staff suggests that the Commission take competitors in delivering gas from one by the applicant. In order to make this a more conservative approach and point to another. In addition, given the showing the applicant must first be define the product market narrowly as long-term contracting for firm required to describe its own services. only firm transportation. For purposes transportation service that exists, staff Then, the applicant must demonstrate of defining relevant gas transportation believes it may be difficult for pipelines that any available third party capacity markets, staff focuses here on the to show that customers have the ability must be comparable in service to the pipeline customers’ peak.49 to freely move to alternative long-term transportation service provided by the applicant. transportation. For example, if a i. Timeliness Staff believes that with Order Nos. pipeline that proposes market-based Generally, antitrust authorities have 436 and 636, all interstate pipelines rates for firm transportation has existing used one year as the time period in currently provide operationally long-term contracts for that service, the which to test whether a product can comparable firm transportation (FT) pipeline would need to allow its become a substitute. This is probably service. customers to terminate their contracts to not appropriate for long-term firm However, even if a customer can find freely move to alternative services. transportation because capacity on available capacity on an alternative 1. Market Definition competitors would typically need to be pipeline, the overall package of services available simultaneously to offer a available may not be comparable to that Market definition identifies the viable alternative to customers. If the it currently receives from the applicant. specific products or services and the pipeline applicant relies on the For instance, no-notice service may not suppliers of those products or services existence of capacity that will not be be available from other pipelines that provide good alternatives to the available immediately, it would also (though a similar service might be applicant’s product or service. In this need to show that its customers would available from third parties). Under market staff would test the applicant’s not be committed to long term contracts Order No. 636 interstate pipelines ability to exercise market power. on its system under the operation of the Naturally, the more narrowly the market right of first refusal rules, so that the 50 In Buckeye Pipe Line Company, L.P., Opinion is defined, the harder it is to show a lack alternative would not be available. No. 360, the Commission held that a 15 percent of market power. increase was an appropriate level to measure The Commission’s order approving ii. Price market power. 53 FERC 61,473 at 62,681 (1990), market-based storage rates for Koch order on reh’g, Opinion No. 360–A, 55 FERC Along with showing that alternative ¶ 61,084 (1991). However, in Williams Pipe Line capacity will be available in a Co., Opinion No. 391, the Commission declined to 46 This paper does not attempt to analyze the reasonable time frame, the applicant adopt a specific rate increase as a litmus test for capacity release market or IT service in any detail market power. 68 FERC ¶ 61,136 at 61,657. In Koch but the same general framework would apply to Gateway Pipeline Company, the Commission these. 48 Koch Gateway, 66 FERC at 62,299. suggested that potential alternatives would include 47 See ‘‘Importance of Market Centers,’’ Office of 49 During the winter peak period we would expect services that though presently not used, would be Economic Policy, FERC (Washington, D.C.), August that excess capacity would be at a minimum and economic if prevailing prices were to rise by a 21, 1992. Some pipelines have defined market hubs that customers’ alternatives would be fewer than in modest amount, e.g., five to 15 percent. 66 FERC differently. off-peak periods. ¶ 61,385. 8364 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices which offered no-notice sales service Staff proposes a two-step process of In practice, parallel route competition prior to restructuring were required to defining the geographic market. First, is most likely to occur in two situations. offer no-notice transportation service to the applicant would identify those One is the secondary market (including their existing sales customers at the time alternative sellers who offer service pipeline IT) where parties offer service of unbundling. Pipelines had the option between the same origin and destination on the same facility. The other is for of making no-notice service available to markets. Second, the applicant would transportation between well-functioning non-sales customers. Thus, while many identify those competitors that provide market centers, as illustrated in the interstate pipelines currently provide service either out of the origin market or example in part B. no-notice transportation service, they do into the destination market. This two- ii. Transportation at Origin and not and are not required to offer such step process generally follows the Destination Markets service to new customers. Thus, analytic approach developed in the comparable no-notice service probably Report of Commissioner Branko Terzic Parallel route competition is not the is not available on other pipelines. on Competition in Natural Gas only source of market discipline on gas Also, applicants may wish to Transportation (May 24, 1993). transporters. A shipper in the demonstrate that intrastate pipelines production area will typically have offer comparable firm transportation i. Transportation Between Markets alternative destination markets to which service. Transportation services offered The first stage of the analysis it could send gas. Similarly, a by intrastate pipelines under section identifies sellers offering transportation downstream shipper will typically have 311 of the NGPA are also subject to the service over the same route. Examining a choice of several producing areas from same open-access and non- different sellers serving the same which to buy gas. Pipelines that provide discriminatory access standards as transportation link simplifies the such alternative service may offer an interstate pipelines are under Order No. analysis. For instance, there is no need additional check on the market power of 436. Therefore, to the extent that to consider whether different producing a shipper. intrastate pipelines offer firm areas offer ‘‘good’’ alternatives to each Natural gas transportation typically transportation service, Staff believes other. originates in the production area. In the that such service would be offered To show that another pipeline production area (or the mainline receipt under terms and conditions that are provides a good direct alternative, the point), the applicant must identify the substantially comparable to the firm applicant must show that customers transportation alternatives available to transportation services offered by open- could purchase the relevant service customers. Customers could include access interstate pipelines. However, from the alternative supplier. Such a producers with gas supplies attached at intrastate pipelines are not required to demonstration will probably include a receipt point, LDCs, and endusers offer firm transportation services and showing that capacity would be with firm long-term supply contracts. currently only a few intrastate pipelines available on the alternative, that the To define a particular region as an offer firm transportation. Thus, firm customer can obtain any services origin market, the pipeline must transportation services may not be needed to use the competitor’s facilities identify all pipelines which compete available on intrastate pipelines. in both origin and destination markets with it to move gas out of that area. To Applicants wishing to make a over the term of the service receiving demonstrate that these other pipelines showing that interruptible market-based rates. are good alternatives (that is, are in the transportation services make good If a customer has a continuing market), the applicant must show that alternatives to the applicant’s firm obligation to take gas at a particular its producer/shippers are physically services would have to demonstrate that receipt point, or to deliver gas to a connected to these other pipeline an adequate amount of capacity is specific delivery point, beyond the term transportation alternatives.51 The unsubscribed during peak periods so of its FT contract, competition from applicant must also show that these that the quality of the IT service would parallel pipelines is particularly transportation alternatives provide a be comparable to that of the applicant’s important in evaluating market power netback 52 to producer/shippers roughly FT service. on a pipeline seeking market-based FT the same as they would receive if they rates. Then the applicant may have used the applicant’s transportation.53 b. The Geographic Market market power over the shipper even if An alternative is not a good alternative In addition, in defining the market, both the origin and destination markets to a producer seeking to move gas out one must identify all the sellers of the are otherwise competitive. While the of the origin market if the alternative is product or service. The collection of shipper will have good alternatives to alternative sellers and the applicant the applicant for getting gas to the city- 51 Alternatively, the applicant could include a constitutes the relevant geographic gate, it may not have good alternatives seller in the market if the seller can connect to the for getting gas from that particular point customer sufficiently cheaply that the customer market. Specifying the relevant product receives a netback as least as large as it would and geographic market tells us what to its city-gate. It could, of course, sell receive if it used the applicant’s transportation alternatives the customer has if it its contract gas from that particular service. attempts to avoid a price increase point on the spot market in the 52 The netback is the delivered price of gas less production area and buy an equal the transportation costs paid by the producer. That imposed by a seller. is, the netback is the net price received by the Geographic market definition is amount of spot gas in an area where it producer. particularly important in transportation had good transportation alternatives. 53 The geographic market is a region in which a markets. Gas pipelines can transport gas But the spot price at which it sells might hypothetical monopolist that is the only present or out of a producing or origin region. be lower than the spot at which it buys, future provider of the relevant product at locations causing extra expense and providing in that region would profitably impose at least a They also deliver gas into a consuming ‘‘small but significant and nontransitory’’ increase or destination region. some opportunity for the applicant in price. In the case of an origin market, the The applicant must specify both the pipeline to raise its price. Additionally, hypothetical monopsonist will impose a small but origin and destination markets for its FT the shipper may value the reliability of significant and nontransitory decrease in netbacks. service. Only in that way can the the contract gas and be concerned that Thus, a service is a good alternative if the netback using the alternative is at least as big as the netback applicant identify good alternatives to it might not be able to buy spot gas using the applicant’s facilities after the netback the pipeline’s service. when it needs it. decrease. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8365 associated with a much higher cost than service either, in the first instance, over additional analysis is needed to the applicant’s cost-based rates, i.e., it a given route or, in a second analysis, determine if the seller can exercise must give roughly the same netback. separately in origin and destination market power. In contrast, the ultimate destination markets. The applicant might have The applicant should be required to market for gas is typically a city-gate. market power in the origin market if submit calculations of the HHI for the There, the applicant must identify the producer/shippers have few good relevant markets. The HHI must be transportation alternatives available to alternatives to transport their product computed for each origin market as well endusers and LDCs who want to receive out of the origin area. In the destination as each destination market. The gas in this area. To define a destination market, pipelines might be able to Commission should require applicants market, the applicant must demonstrate exercise market power if downstream to submit information for each mainline that its customers are physically customers have few good transportation receipt point (origin market) and each connected to alternative gas alternatives that reach their city-gates. If delivery point (destination market). If transportation facilities that move gas customers have long term supply the applicant wishes to argue for a into the area.54 The applicant must also contracts, it will be particularly broader market definition it should also demonstrate that those alternatives will important for the pipeline to include calculations for its market deliver gas at a price no higher than demonstrate that it has no market power definitions. Only sales or capacity would be paid with the use of the over customers on a given route. figures associated with good alternatives applicant’s transportation service to There are two ways in which a seller should be used in calculating the HHI. deliver gas into the area.55 can exercise market power. It can In calculating the HHIs, the applicant Applicants for market-based rates attempt to raise its price acting alone or should be required to aggregate the might allege that LPG and LNG can be it can attempt to raise its price by acting capacity of affiliated companies into one good alternatives to the use of together with other sellers. estimate for those affiliates as a single applicant’s transportation service. If so, 57 i. Acting Alone seller. the applicant must show that there are In the GIC cases, the Commission sufficient quantities of these available, One of the indicators which has been established a threshold level for the HHI and the transport of LPG and LNG into examined to determine whether a seller at .18.58 In an oil pipeline case, the the destination market (e.g., by truck) could exercise market power acting Commission used .25 as an initial provides gas at an overall delivered alone is the seller’s market share. A screen.59 The Commission may wish to price no higher than the overall large market share is generally a establish a standard under which it will delivered price from pipeline transport necessary condition for the exercise of presume no potential for the exercise of with a fifteen percent transportation rate market power. If the seller has a small joint market power exists. Since the increase on the pipeline’s transportation market share it is unlikely that it can Commission has a positive obligation rate. exercise market power. But, a company under the Natural Gas Act to ‘‘protect c. Summary and Conclusion with a large market share may not be consumers against exploitation at the able to exert market power if entry into hands of natural gas companies,’’ 60 staff Thus, in order to specify a gas 56 the market is easy or there are other believes it would be appropriate to use transportation market, the applicant competitive forces at work. must first identify all products and the relatively strict initial screen of .18. The applicant must submit This would indicate that there are four services available as good alternatives to calculations (and supporting data) of its the applicant’s customers. Next, the to five good alternatives to the market share in all relevant origin and applicant’s service in each market. applicant must identify the origin and destination areas. destination of that transportation. The 3. Entry and Other Competitive Factors relevant geographic market will be ii. Acting Together with Other Sellers Even if the applicant’s market share defined in two steps: First, those A second way in which a seller can were large in a concentrated (and alternative sellers that offer service exercise market power is to act together properly identified) market, one might between the same origin and destination with other sellers to raise prices. To not conclude that the applicant would markets and second, all economically evaluate whether a seller can act be able to exercise market power. For substitutable transportation sold by together with others to exercise market pipelines (or other good alternative power, the Commission has typically 57 The capacity on pipeline systems owned or products and services) serving either the examined the market’s concentration. controlled by the applicant’s affiliates should not be origin market or the destination market. To measure market concentration, one considered among the customer’s alternatives. Rather, the capacity of its affiliates offering the 2. Firm Size and Market Concentration generally considers the summary measure of market concentration known same product should be included in the market Pipelines might be able to exercise share calculated for the applicant. Similarly, as the Herfindahl-Hirschman Index alternative pipelines must be aggregated with their market power if customers have few (HHI). If the HHI is small, less than .18, respective affiliates in order to identify meaningful good alternatives to the pipeline’s then one can generally conclude that alternatives to customers. It is not reasonable to sellers cannot exercise market power in expect a profit-maximizing firm to allow its 54 affiliates to compete with one another. The applicant could include a seller in the this market. A small HHI indicates that destination market if the seller can connect to the 58 El Paso Natural Gas Company, 49 FERC customer sufficiently cheaply that the customer customers have sufficiently diverse ¶ 61,262 (1989). See also Buckeye, 53 FERC at pays a delivered gas price no higher than that paid sources of supply in this market that no 62,667. when using the applicant’s FT service. one firm or group of firms acting 59 See Williams Pipe Line Co., Opinion No. 391, 55 The geographic market is a region in which a together could profitably raise market 68 FERC ¶ 61,136 (1994). hypothetical monopolist that is the only present or 60 FPC v. Hope Natural Gas Co., 320 U.S. 591, 610 future provider of the relevant product at locations price. If the HHI is greater than .18 then (1944). See also Elizabethtown, supra n. 6 in that region would profitably impose a least a (sustaining the Commission’s approval of market ‘‘small but significant and nontransitory’’ increase 56 Given the nature of the interstate pipeline pricing based on the Commission’s conclusion that in price. In the case of an destination market, a industry, ease of entry would be difficult to show the pipeline’s markets were sufficiently competitive service is a good alternative if the delivered gas except in cases involving minor facilities. For major to preclude it from exercising significant market price using the alternative is less than or equal to facilities, the cost of construction and the time power); Farmers Union II, supra n.2 (holding that the delivered gas price using the applicant’s needed for environmental analysis would suggest the Commission cannot merely assume that facilities after the price increase. that entry may not be easy. competition will ensure just and reasonable prices). 8366 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices example, if the applicant were to buying, and has been in business for a transportation rates, staff shows an increase its price, entry into the market lengthy period of time, the buyer may analysis of a hypothetical filing by an might be so easy that sellers attracted by have the knowledge and large-scale interstate pipeline. In that hypothetical the profit opportunity created by the purchasing power to negotiate filing, the ABC Pipeline Company seeks higher price would quickly take reasonable rates even in a concentrated Commission approval to offer firm customers away from the applicant by market. However, just because buyers transportation (FT) at market-based offering a lower price. This would make develop sophisticated purchasing rates. ABC’s primary proposal is for the applicant’s price increase systems and market knowledge as the market-based FT rates for its entire unprofitable. Thus, the applicant would result of dealing with various suppliers system (see map). As an alternative, not be able to exercise market power, in numerous markets, there still is ABC requests market-based rates for despite its large market share and reason to have some skepticism that a firm transportation between two market despite the high market concentration.61 buyer in a single destination area served Ease of entry is one of several by one or a few pipelines will have such centers, the Free Parking Hub, located in competitive factors that might lead to capabilities. the production area, and the Just the conclusion that an applicant lacks The applicant must demonstrate that Visiting Hub, located in its market area. market power. It is most likely to apply sufficient quantities of good alternatives In its alternative proposal ABC Pipeline to circumstances that do not require the are available to its customers to make a offers cost-based rates for service large sunk costs of major construction— price increase unprofitable. In other upstream of the Free Parking Hub and for instance, perhaps in offering short- words, the applicant must show that downstream of the Just Visiting Hub. haul market center services. Another customers would replace a significant Finally, as part of its alternate proposal competitive factor that might be alleged proportion of its throughput with other ABC Pipeline is proposing to add by an applicant would be the presence transportation alternatives if the facilities so that it will interconnect of buyer power. An applicant might applicant raised its price. with all the pipelines at the Free argue that if a single buyer is a large B. An Example of the Analysis Applied Parking Hub. The interconnections will customer of the pipeline, is to Firm Transportation allow ABC to provide switching service knowledgeable and sophisticated in its at the hub. ABC proposes market-based 1. Introduction rates for the switching service. 61 As stated before, entry would probably only be To illustrate the application of the relevant for gas pipelines in the case of minor BILLING CODE 6717±01±P facilities such as facilities that could be constructed market power analysis discussed above under a blanket certificate. to a request for market-based Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8367 BILLING CODE 6717±01±C 8368 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices The facts in this hypothetical are Table 1 shows the total capacity of the demonstrate that other pipelines can patterned after the facts of a large pipelines in City’s metropolitan area. provide FT that is price competitive pipeline company and one of its major The totals include capacity used to with ABC’s. customers. Facts have been added or serve another LDC within that IT service on other pipelines might be changed to better illustrate points in the metropolitan area. a good alternative for FT. Indeed, Table analysis. 1 shows that City used 0.3 Bcf of IT to In order to analyze ABC’s proposal, TABLE 1 meet its transportation needs on its 1994 staff identifies the relevant product and peak day. ABC might argue that similar geographic markets, measures the size of MDQ USE Capac- levels of IT have been available at peak the market, and calculates market shares Pipeline Rights (Bcf) ity for many years and can be expected to and the market’s concentration using (Bcf) (Bcf) be available in the future. If so, this the Herfindahl-Hirschman Index (HHI). ABC Pipeline (FT) . 1.3 1.5 1.5 suggests that, at a minimum, IT was of Where market shares and the HHI are The Short Line a sufficiently high quality (i.e., had a high, staff examines other competitive Pipeline ...... 0.3 0.2 0.3 sufficiently low probability of factors that might constrain the exercise Boardwalk Pipeline interruption) that it could substitute for of market power. (FT) ...... 0.2 0.2 0.7 FT in the past and could probably do so A two step analysis is used to All Sources of IT ...... 0.3 ...... in the future. However, ABC Pipeline examine both of ABC’s proposals. First, The Ventnor Pipe- would need to present evidence that IT one examines whether there is sufficient line ...... 0.2 0.2 0.7 was provided at a price that rendered competition along parallel routes for the The Pennsylvania Pipeline ...... 0.1 0.1 0.1 the price of delivered gas using IT at or proposed market-based services. below the price of delivered gas using Second, if there is not, one examines if Total ...... 2.1 2.5 3.3 FT. That might not be the case if City’s there is sufficient competition in the receipt of IT required payment of IT origin and destination markets to City currently purchases a portion of rates on several upstream pipelines, constrain the exercise of market power. its peak day from gas produced in the thereby making IT not price The Commission would deny ABC Baltic field. ABC Pipeline is currently competitive. City might have been Pipeline’s request if it finds that ABC the only pipeline that connects to the forced to purchase IT even if its price has market power over customers on the gathering system in the Baltic field. were much higher than that of FT. Also, relevant routes and in either origin areas Table 2 displays the nearest pipelines the IT shown in Table 1 was received or destination areas of the geographic and the estimated cost to connect these by City over several pipelines, including market. To identify relevant geographic pipelines to the Baltic field gathering ABC Pipeline. Thus, because ABC markets, one first identifies pairs of system : would be able to affect the delivered origin and destination markets. The price of gas using IT service, it cannot pipeline might identify one such pair as TABLE 2 be counted as a good product alternative the hypothetical Baltic field and City to ABC Pipeline’s own FT. Distribution Company (City).62 Pipeline* Connection Therefore, for both the primary and costs alternate proposals, staff is defining the 2. The Applicant’s Primary Proposal The Atlantic Pipeline ...... $1,000,000 product market to include ABC a. The Relevant Facts The Ventnor Pipeline ...... 2,400,000 Pipeline’s FT and FT on other pipelines. City Distribution is a large natural gas The Boardwalk Pipeline ...... 17,000,000 However, interruptible transportation is public utility that serves millions of The St. James Pipeline ...... 15,000,000 included in the product market for The Park Place Pipeline ...... 12,000,000 customers. Its service area covers a large switching service at the Free Parking metropolitan area. City’s service area is *The Atlantic and Ventnor Pipelines are af- Hub. located 100 miles downstream of the filiated, as are the Boardwalk and Park Place c. Geographic Market: Parallel Route Just Visiting Hub. Pipelines. In its application, ABC might argue City has its own storage facilities with b. Product Market that three pipelines provide service a maximum daily storage withdrawal In its filing to the Commission, ABC from the same production area as the capability of 1.0 Bcf/day and a total might allege that there are numerous Baltic field to the same metropolitan working gas capacity of approximately good alternatives to its FT service for area as City and thus are parallel routes: 30 Bcf. Its peak day system demand is City. It might start by alleging that two ABC Pipeline (with 1.5 Bcf of capacity), approximately 3.0 Bcf/day. Thus, at full other pipelines directly connect areas the Boardwalk Pipeline (with .7 Bcf of utilization of its storage, City needs at that are very close to the Baltic field and capacity) and the Ventnor Pipeline least 2.0 Bcf/day (3.0 Bcf/day—1.0 Bcf/ City’s city gate, and offer good (with .7 Bcf of capacity). ABC computes day) of transportation capacity on its alternatives to customers on both ends an HHI of .39 for these three routes— peak day to meet customer demand. of the pipeline. It might further argue City has over 30 interconnections equivalent to about three equally large that customers on each end can use FT with five interstate pipelines: ABC firms. ABC might argue that this and interruptible transportation (IT) Pipeline Company, the Short Line provides some degree of competition, service on other pipelines leading to Pipeline Company, the Boardwalk which combined with other factors, different market areas (in the case of Pipeline Company, the Ventnor Pipeline would justify a market-based rate. One Baltic field shippers) or other supply Company, and the Pennsylvania of the factors ABC mentions is that City areas (in City’s case). Pipeline Company. Table 1 shows City’s has buyer power because of its size. FT on other pipelines may be a good contract rights to, and use of, However, ABC Pipeline does not alternative to ABC Pipeline’s FT. transportation capacity on all pipeline provide sufficient factual basis to However, ABC must demonstrate that connections to its city gate for 1994. evaluate the level of City’s buyer power, its customers can actually get firm so staff is unable to consider this factor. capacity on these other pipelines and A closer examination of the example 62 Of course, the pipeline would need to provide the same information for all other origin and that the quality of such FT is would show that there are no parallel destination markets. comparable to its own. Also, ABC must route pipelines. Neither of the other Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8369 pipelines directly connect with the such as ease of entry, excess capacity, unlikely that building major new producers in the Baltic field. Each etc., that would eliminate the ability to transportation facilities to serve City would need to build significant facilities exercise market power that is not ruled would be inexpensive or timely. Rather, to reach the same origin market. Finally, out by these high market shares and in a densely-populated urban area, the applicant has not shown that high HHI. building a new pipeline would likely be capacity would be available on either of ABC Pipeline might also allege that a contentious political and the two other pipelines in the same time released capacity on its own system and environmental issue. ABC Pipeline frame for which it seeks market-based on other pipelines would provide good might, however, argue that the pricing. alternatives for City. However, in one Boardwalk Pipeline or other pipelines very important respect released d. Geographic Market: Destination Area could expand their existing capacity, especially on ABC Pipeline interconnections with City. To support The relevant geographic destination itself, will have little, if any, impact on this argument it would need to show market includes all alternative sellers the assessment of ABC Pipeline’s that the connections could be made that can provide FT to City’s city-gate underlying market power in the primary without great expense or delay. priced at or below transportation long-run FT market. An analogy might It may be that the four other pipelines services over ABC’s system, assuming a help. Suppose there were only one have significant amounts of excess 15 percent FT price increase by ABC. If manufacturer of automobiles, but robust capacity at or close to City’s city-gate. In ABC Pipeline wished to include all the used-car and leasing markets. Would the the event that ABC Pipeline were to pipelines listed in Table 1, it would manufacturer have monopoly power? attempt to exercise market power, have to demonstrate that their Yes. Even with a perfectly competitive arguably such excess capacity could be transportation services met this criteria. secondary market for automobiles, the used by City to defeat such an attempt. It would also have to demonstrate that manufacturer could ‘‘contrive’’ a However, evidence currently at hand the transportation services over those scarcity by making fewer new suggests that only the Short Line pipelines at least matched the quality of automobiles and charging a higher price Pipeline has excess capacity. transportation service over ABC than necessary to cover costs.63 Pipeline. Similarly, if a pipeline has market Finally, staff did not address ABC Consider a simple measure of market power, it would exploit it by Pipeline’s argument regarding buyer size and concentration first. Table 3 ‘‘contriving a scarcity.’’ Although a power since the destination market was displays market shares and market pipeline with a well-functioning so highly concentrated and the analysis concentration for the FT suppliers to capacity release program might not was not fully developed. withhold existing capacity, it could City in 1994. Market shares are f. The Destination Area: Caveats and choose not to expand. Customers can calculated based on capacity at City’s Conclusion city-gate. There is additional pipeline only release capacity they don’t need; capacity within the metropolitan area. they can’t build. As demand grows, a The market share and HHI ABC Pipeline, however, has not pipeline with market power could calculations in this example are based provided evidence to show that the simply enjoy higher prices and refuse to on simplifying assumptions which capacity could be easily connected to build even if its customers were willing minimize market shares and market City’s city-gate. Absent such a showing to pay the incremental cost of concentration. First, by assuming that staff has used the lower capacity rights expansion. It would build only when any of City’s customers could be figures in our calculations. the market clearing price for FT went supplied by any of the five pipelines above the monopoly price. connecting to City, staff has TABLE 3 Thus, this analysis suggests that the intentionally expanded the market and secondary market on ABC Pipeline may thereby lowered market shares and HHI. discipline market power the pipeline MDQ Market Con- Second, staff did not include no- Seller rights share tribution may have in selling IT and unsubscribed (Bcf) to HHI or ‘‘short-term’’ FT, but not in new notice service. For this higher quality primary FT. Released capacity on other service City may have very few ABC Pipeline alternatives indeed, since no-notice (FT) ...... 1.3 .62 .38 pipelines might discipline any market power ABC Pipeline may have in the service would only be available to pre- Short Line restructuring customers on the Pipeline ...... 0.3 .14 .02 long-term FT market, but the secondary Boardwalk market on ABC Pipeline can do little to alternative pipelines. Pipeline ...... 0.2 .10 .01 discipline its market power in Rather than ABC Pipeline, the Ventnor Pipe- supplying primary FT. Ventnor Pipeline or the Short Line line ...... 0.2 .10 .01 Pipeline might file for market-based Pennsylvania e. Other Competitive Factors transportation rates to serve City on the Pipeline ...... 0.1 .05 Ð ABC Pipeline might argue that entry basis that the market shares shown in Total ...... 2.1 1.01 .42 is sufficiently easy that ABC would be Table 1 document their lack of market constrained from exercising market power, despite the destination market’s In this instance, ABC has a very large power by new firms quickly entering the high HHI. If, however, City fully utilized market share, 62 percent. Also, the HHI market at relatively low cost. It seems all of its FT at peak, then the Ventnor is quite high (.42) indicating that the Pipeline or the Short Line Pipeline market is concentrated. The market’s 63 See U.S. v. Aluminum Co. of America, 148 F.2d would be able to exercise market power HHI is well above the threshold levels 416, 424 (2d Cir. 1945). The main issue in this case despite their small shares of the market. was whether secondary scrap aluminum was in the of .18–.25 commonly used by antitrust same market as primary aluminum. Judge Learned Therefore, the Ventnor Pipeline or the authorities to identify competitive Hand held that since Alcoa had produced the metal Short Line Pipeline would have to markets. Were ABC to seek Commission reappearing as reprocessed scrap, it would have demonstrate that City had alternatives at approval for market-based taken into account in its output decisions the effect peak, as well as demonstrating that they of scrap reclamation on future prices, and therefore transportation rates, it would have to secondary scrap should not be in the same market lacked market power in the origin document that there are other factors, as primary aluminum. markets. 8370 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices g. Geographic Market: The Origin Area TABLE 5 market) and the Just Visiting Hub (destination market): ABC Pipeline ABC’s pipeline is connected with the MDQ (with a .33 market share), Reading gathering system in the Baltic field in Market rights share HHI Pipeline (with a .38 market share), and Louisiana. ABC Pipeline is the only (Bcf) Oriental (with a .30 market share). This inter or intrastate pipeline that is results in an HHI of .34 for this route— connected to this gathering system. ABC Pipeline ..... 2.0 .21 .04 Oriental ...... *1.8 .29 .08 equivalent to three equal sized firms. As for good alternative suppliers in Vermont ...... *1.0 ...... ABC Pipeline might argue that the three the origin area, ABC Pipeline would Reading ...... 2.3 .24 .06 parallel route pipelines provide some have to demonstrate that the quality of Pacific ...... 8 .08 .01 degree of competition. ABC might argue FT on other pipelines is comparable to Mediterranean ... 1.7 .18 .03 that when this is combined with its own. Also, ABC would have to Total ...... 9.6 1.00 .22 additional competition at the origin and demonstrate that other pipelines can destination markets there is sufficient provide FT that is priced competitively *Since Vermont and Oriental are affiliated competition to justify market-based their capacity has been combined in comput- with ABC’s. ing market shares and HHIs. rates. To show that other pipelines could In its alternate proposal ABC has not Table 6 shows the five pipelines at the proposed market-based rates for become good FT alternatives, ABC Just Visiting Hub: Pipeline would have to show that other transportation upstream of the Free Parking Hub or downstream of the Just pipelines could easily connect with the TABLE 6 Visiting Hub. Instead, it proposes a gathering system in the Baltic field. Or, regulated rate for such services that ABC Pipeline might argue that the MDQ would recover only the (relatively producers could build gathering lines to rights Market HHI share small) costs of the facilities between the connect to these other pipelines at a (Bcf) Baltic field and the Free Parking Hub or nominal cost. In either case, ABC would ABC Pipeline ..... 2.0 .20 .04 between the Just Visiting Hub and City’s have to show that building these Short Line Pipe- city-gate. This would ensure ABC could facilities would not reduce the netback line ...... 5 .05 ...... not use market-based rates to exercise to these producers. The Pennsylva- market power over shippers at the In this example, all of the pipelines nia ...... *2.7 .54 .29 extremities of its system. However, such would have significant connection Reading ...... *2.5 ...... Oriental ...... 2.1 .21 .04 a proposal would raise serious cost costs. At most, it appears that only on allocation issues between ABC’s market- Atlantic would the cost of connecting Total ...... 9.8 1.00 .37 based and cost-based services. the Baltic field result in a price increase In the alternate proposal there is the *Since the Pennsylvania and Reading are of less than 15%. Thus, in the Baltic affiliated their capacity has been combined in possibility of parallel route competition origin area, producers seem to have at computing market shares and HHIs. because there are three pipelines that most one good pipeline alternative to serve both the origin and destination Three pipelines provide firm ABC Pipeline. The conclusion, markets. However, this is only the transportation service between the two therefore, is that staff cannot rule out beginning of the analysis. ABC Pipeline hubs. Their capacity on the route is the possibility, indeed likelihood, that must also show that: its customers can shown in Table 7. In computing market ABC Pipeline has market power over switch gas between ABC and the shares and HHIs staff has used the lower shippers transporting gas out of the alternative pipelines at a low cost; its of the pipeline’s capacity at the Just Baltic field origin area. customers can actually get firm capacity Visiting and Free Parking Hubs as our on the Reading and the Oriental h. Primary Proposal: Conclusion estimate of the maximum amount of Pipelines; and the quality and price of capacity that shippers can reserve firm service on these alternative Our conclusion from analysis of this between the two hubs. hypothetical is simple and pipelines is comparable to that provided on ABC Pipeline. straightforward. It is conceptually TABLE 7 possible to demonstrate that pipelines ABC argues that the Free Parking Hub is a header that offers firm switching lack significant market power over MDQ Market service at minimal cost and that the Just shippers buying transportation from rights share HHI supply fields to their city-gate (Bcf) Visiting Hub offers interruptible customers. However, the City example switching service among all the ABC Pipeline ..... 2.0 .33 .11 pipelines. The first may offer the suggests that such a showing would be Reading ...... 2.3 .38 .14 difficult. customers good alternatives. The second Oriental ...... 1.8 .30 .09 probably does not. Potential market 3. The Applicant’s Alternate Proposal Total ...... 6.1 *1.01 .34 power problems here might be mitigated a. The Relevant Facts if firm switching service was offered at *Total does not equal 1 due to rounding. the Just Visiting Hub. ABC Pipeline has also included a ABC Pipeline generally defines the ABC argues that capacity release more limited market based proposal in product market as firm transportation. programs can make capacity available its filing. ABC argues, at a minimum, it However, ABC argues that interruptible on the alternative pipelines. However, it should be able to charge market-based switching service at the Just Visiting has not shown that customers can rates for service between two market Hub and the Free Parking Hub is the obtain the same long-term FT service centers on its system, the Free Parking functional equivalent of firm service. through the release program. Potential Hub and the Just Visiting Hub, and for market power problems might be b. Geographic Market: Parallel Route its proposed new switching service at mitigated if ABC could show that its the Free Parking Hub. Table 5 shows the In the example, three pipelines customers could buy the same long-term six pipelines at the Free Parking Hub provide firm transportation service service through the release market and their capacity: between the Free Parking Hub (origin (perhaps if the customers had many Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8371 years remaining on their contracts) or at show additional competitive factors that of the pipelines could build additional some future time when the capacity on reduce market power, the data would interconnections at minimal cost. It all the pipelines would be available not support market-based rates. would be economic to build these simultaneously. It would also need to interconnections if ABC attempted to d. Hub Services show that such alternatives would be exercise market power by charging competitively priced. It could do this To justify market-based rates for excessive rates. either by analyzing regulated prices or service between two markets, ABC must ABC has shown that its customers by showing that all other pipelines show that both the origin and would have good alternatives to its would be able to match any likely destination markets are competitive. switching service. Therefore, market- market-based price on ABC. This would ABC has not shown that the destination based rates are appropriate for its be a difficult showing for any pipeline market, the Just Visiting Hub, is switching service at the Free Parking if it was the only pipeline in the market competitive. Therefore, it has not Hub. supported its proposal for market-based seeking market-based rates. e. Conclusion In the alternate proposal there is rates between the two hubs. However, possible parallel route competition ABC has also requested market-based Given the high level of concentration between the origin and destination rates for hub services at the Free Parking in the route and in the destination markets. However, even if all additional Hub. market, it is unlikely that ABC Pipeline market power problems were mitigated, To support its proposal for market- could justify market-based rates for the HHI of the route is still well above based rates for hub services, ABC service between the two hubs. However, the .18 screen staff is using. So, staff Pipeline might argue that currently the using the same criteria, market-based moves to the second step in the analysis Mediterranean Pipeline interconnects rates can be supported for hub services to examine the origin and destination with the five other pipelines at the Free at the Free Parking Hub. In the example, staff has assumed that markets separately. Parking Hub. When ABC builds its additional interconnections there will a pipeline might have both cost and c. Geographic Markets: Destination be two pipelines that connect with all market-based FT rates on its system. Markets the pipelines at the Free Parking Hub. Any such proposal would require a ABC Pipeline might argue four other In addition, these pipelines have several method for allocating costs between 65 pipelines serve the Just Visiting Hub other alternative points of cost-based and market-based services. and each of these pipelines would serve interconnection within a 100 mile 4. Results of Analysis of Hypothetical as a good alternative to its service. ABC radius of the hub and within the same Staff must conclude that ABC would might also argue two other pipelines, rate zone. ABC argues that its customers can get the equivalent of ABC’s find it difficult to justify market-based the Ventnor and the Boardwalk have rates for point-to-point FT on its system. facilities near the Just Visiting Hub.As switching service at these points of interconnection. ABC has provided a Based on current data ABC may be able with the parallel route analysis, these to justify market-based rates for some pipelines cannot be considered good chart which shows that in addition to its proposed new facilities a shipper on any hub services. In the future, ABC may be alternatives unless ABC Pipeline can able justify market-based rates for more demonstrate its customers can get firm one of the five other pipelines has at least three alternative interconnections services. As the transportation market transportation capacity at a price and evolves, pipelines may find it economic quality comparable to its own service. for each pipeline within the same rate zone. Some of these are direct to build connections to more hubs. This The data indicate that the Just Visiting will increase the number of alternatives Hub is highly concentrated. In interconnections and some require switching service at other nearby at each hub and thus will make it easier computing the HHI for the destination to satisfy the criteria for market-based market the two affiliates, the Reading production area hubs. Further, interruptible capacity is consistently rates for hub services or for and the Pennsylvania, are treated as one transportation between hubs. firm. Because these two pipelines available within the production area control half the capacity at the hub, the and is of a very high quality, i.e., C. Application of Criteria to Other HHI of .37 is actually higher than that curtailments are rare. Thus, each Services shipper has at least three good for the parallel route.64 Under the standards proposed above, If ABC Pipeline could show that the alternatives to ABC’s proposed switching service at the Free Parking as the example involving ABC Pipeline Ventnor and the Boardwalk Pipelines shows, it is unlikely that FT rates for could easily connect to the Just Visiting Hub. This means that the highest HHI for ABC’s switching service with any any city-gate customer would be market- Hub this would significantly reduce the based. The same is true for any rates HHI and make it easier to support pipeline is .25. The HHI of .25 for switching service paid by producers directly attached at market-based rates for ABC Pipeline. is above staff’s initial screen. However, the other end of the pipe. What role, Alternatively, ABC Pipeline might argue there are other competitive factors that then, beyond the gas commodity and that market power at the Just Visiting would reduce ABC’s ability to exercise storage services, would market-based Hub is minimal if it could show that market power. One of these factors is prices play? there are other market centers close to The answer is that market prices may the open access requirement that all the Just Visiting Hub that could be play an important role in capacity- open access pipelines must receive or accessed by pipelines serving the Free release, IT, and market-center services. deliver gas to other pipelines if capacity Parking Hub. If ABC Pipeline could not As illustrated in the ABC Pipeline is available. By scheduling receipts and example, the many new sources of FT deliveries at the alternative points of 64 This example demonstrates the effect that pipeline affiliation can have on market interconnection a shipper can get the 65 For example, it would be necessary to identify concentration. If Reading and Pennsylvania were equivalent of switching service. And, the cost of the facilities used for the market-based not affiliated, the HHI for the Just Visiting Hub when this is part of the basic point-to- services as well as any related operation and would be .22, significantly lower than the .37 HHI point transportation service, there is no maintenance costs. Also, there would need to be an calculated with affiliate market share combined. An allocation of common and joint costs, such as HHI of .22 is much closer to a level which might additional charge. Another competitive administrative costs, between the cost and market- be deemed indicative of an unconcentrated market. factor is ease of entry. In this area some based services. 8372 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices potentially available through the market-center services markets could be As discussed in the paper, the FERC has capacity release market will have little a key to their success. Hubs could play consistently used the same general or no effect on a pipeline’s long-run an important role in further perfecting framework to evaluate when the market, market power. They may, however, have the spot market for gas, but to do so is rather than cost-of-service rate regulation, could be relied upon to produce just and a strong effect on either the primary likely to require creative approaches to reasonable rates. This framework has been capacity holder’s (i.e. LDC’s) or the new services and new ways of adding evolving for over one hundred years in pipeline’s ability to exercise market value to the gas commodity. Creative, antitrust litigation and analysis and has now power in the capacity release market, economical, new services are far more been codified in the DOJ/FTC merger the short-term firm market, or the IT likely to develop under market pricing guidelines. FERC is neither the first agency market. For these services, there are than under a cost-of-service approach. to choose light-handed regulation where a very few existing long term contracts. lack of significant market power can be Moreover, a major interstate pipeline D. Review of Market Power Findings shown, nor the only one to use antitrust may have 10 to 20 different holders of standards as a framework for the showing. As discussed in part I, an important The general framework, however, is far from FT capacity within a zone. Flexible factor to the court of appeals in a set of mechanical rules; the application of (secondary) firm receipt and delivery Elizabethtown, in which the the framework to a particular industry calls point rights, in concept, give any of Commission permitted gas sales at for many specific decisions and to an these primary holders or their market prices, was the Commission’s individual case requires many judgement replacements the ability to move gas to assurance that it would exercise its calls.1 any upstream city-gate on the system. section 5 authority if necessary to assure The Interstate Commerce Commission Thus, the secondary market in FT may that the market price was just and (ICC), the first national regulatory agency and well be unconcentrated. If released FT reasonable. This means that the pioneer in cost-of-service ratemaking, was also among the first to move toward can be shown to be a good substitute for Commission must consider how it will IT or short-term FT from the pipeline, deregulation or light-handed regulation for monitor market-based rates so that it can railroads and trucks. About twenty years ago then the released FT, IT and short-term exercise its oversight responsibilities. the ICC began to lessen or eliminate FT market will be unconcentrated. In past cases the Commission regulation of railroads and trucks, the FCC Any such arguments would depend established, on a case-by-case basis allowed new entrants to compete for long on the effectiveness of the capacity some reporting requirements for distance telephone service and the CAB release program in making released companies authorized to charge market relaxed its price and entry controls over the capacity at least the equal of IT. While based rates.66 The Commission may airlines. The experience of these three it is doubtful that any such showing want to consider developing standard agencies may provide some useful guidance for the Commission in deciding whether could be made now, with further periodic reporting requirements on improvements in the capacity release certain natural gas pipeline transportation prices and quantities in market-based services should be permitted market-based program this could occur. transactions. Periodic reports would In addition, part of the showing must pricing and, if so, how those services should make it possible for the Commission to contain evidence that LDCs could not be identified. monitor market-based rates to ensure Railroads, airlines, long distance frustrate ‘‘secondary firm’’ firm that the rates are within a zone of telephones and natural gas pipelines all have deliveries made at their city-gates by reasonableness. The Commission may much in common besides being regulated. controlling the flows behind their own also want to establish a more formal They are all transportation/transmission city-gate delivery points. Flexible procedure for reporting changes in networks characterized by a high ratio of receipt and delivery points are the key fixed to variable costs, making ‘‘load factor’’ circumstances that could affect the to a competitive finding; if an LDC is, the key to unit operating costs, and, with the market power finding, i.e., aside from the pipeline, the only source possible exception of airlines, all have circumstances that reduce the number significant economies of scale (an element of of FT to its city-gate then it has market 67 power. If secondary firm is an effective of good alternatives in a market. If ‘‘natural monopoly’’). However, there are also circumstances change the Commission significant differences among all of these alternative, however, then there is a industries so analogies and policy good likelihood that these markets could either reconsider its prior market power findings or wait until a complaint conclusions based on their similar would pass the stringent tests laid out characteristics should be made cautiously. above. is filed to take action. Some market-center services, such as Appendix: Analysis of Other Industries A. Interstate Commerce Commission short-term switching and parking, may Regulation of Railroads also pass the test. Market-centers, by 66 For example, Transwestern was required to file Railroads and natural gas pipelines have their nature, are where many pipelines monthly reports of market based sales under Rate some important characteristics in common. intersect and, often, where there are Schedule ISS. 43 FERC ¶ 61,240 (1988). Buckeye Both transport using assets that are immobile was required to file annual reports showing rates, once they are constructed, though railroads multiple suppliers of storage service. In volumes, and revenues for each destination market. invest in ‘‘rolling stock’’ as well track and such cases, it is likely that the providers See 66 FERC ¶ 61,348, for a review of these reports. roadbed. Further, both exhibit the same could show that customers will have For electric utilities, the Commission has required ‘‘natural monopoly characteristic’’ that the many good alternatives at the market- power marketers selling at market based rates to file construction costs necessary for one quarterly reports showing prices and quantities for center itself or in nearby market-centers. individual transactions [e.g., Heartland, 68 FERC company to transport a given amount In conclusion, application of the ¶ 61,223 (1994)]. Among other things, the reports between two points are usually significantly standards laid out in part IV.A is likely are intended ‘‘to provide for ongoing monitoring of to mean continued cost-based regulation the marketer’s ability to exercise market power.’’ 1 Judge (now Justice) Stephen Breyer gives an of primary FT, but may permit market 67 For example, assume in the original market example of how a merger ‘‘pessimist’’ might assess power analysis the Commission found there were a proposed airline merger quite differently from a pricing for released FT, IT and short- four good alternatives in an origin market. A merger ‘‘optimist,’’ though both use the same term FT and for market-center services subsequent corporate merger of two of the pipelines antitrust framework and agree on all the facts. See such as switching and parking. and the abandonment of facilities by another would discussion of the interplay between antitrust and All-in-all, the potential for further reduce the number of good alternatives to two. deregulation of the airline and telephone industries reliance on market pricing is rather There have been no new entrants into the origin in his contribution to the ‘‘Symposium: Anticpating market. These changes probably would significantly Antitrust’s Centennial: Antitrust, Deregulation and modest. On the other hand, market affect the continuing validity of the original market the Newly Liberated Market Place,’’ 75 California pricing in the capacity release and power finding. Law Review 1005–1047 (May 1987). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8373 lower than the construction costs necessary The ICC determined that the relevant number of alternative destinations or sources for two companies to jointly transport the market in the ‘‘market share’’ presumption served by alternative carriers, (3) the same amount between those points. Finally, would be confined to direct carrier suitability of the product available at each both industries make extensive use of competition for the specific product relevant source or required at each relevant eminent domain granted from Federal and movement. The ICC explicitly rejected the destination, (4) the operational and economic state governments to acquire land to build traditional antitrust framework used to feasibility of transportation from alternative networks. evaluate competition; the ICC determined sources or to alternative destinations, (5) the One significant difference between the two, that product competition (competition by accessibility of alternative transportation, (6) however, is that pipelines carry a fungible other products), or geographic competition the capacity of alternative sources to supply product while railroads generally do not. (availability of the same product from the product or alternative destinations to That is, a pipeline customer who tenders gas alternative sources or destinations) was not absorb the product, and (7) the evidence of in Louisiana and withdraws gas in Chicago, relevant. relevant investment or long-term contracts. does not care if the gas withdrawn came from Several years of experience combined with Regarding product competition, considered Appalachia while the tendered Louisiana gas the need to implement the Staggers Rail Act important are: (1) the substitutability and went somewhere else. In contrast, a railroad of 1980,6 caused the ICC to abandon the availability of the substitute products, and (2) customer in Chicago expecting a shipment of initial presumptions and adopt new all costs of using the substitute product Louisiana shrimp will be very unhappy if guidelines which incorporate the traditional relative to using the product in question. Appalachian coal is delivered instead. economic paradigm for evaluating 3. The Effect of Reducing Railroad Regulation Another important difference is that railroads competition. The ICC ‘‘. . . concluded that The 1976 Railroad Revitalization and face major intermodal transportation the presumptions did not necessarily reflect Regulatory Reform Act and the 1980 Staggers competition (air competition and trucks the degree of railroad market power, and Act were intended to improve the financial everywhere and barges in some areas), while therefore, yielded inaccurate market health of the railroad industry. By most there is no viable intermodal competition to dominance determinations.* * * The measures, the railroads’ financial condition pipelines in transporting natural gas. quantitative measures (i.e., the market share, has improved since 1980. Return on Important characteristics are similar cost, and rail investment presumptions) were investment averaged about 4.9% from 1980 enough between railroads and pipelines that found to be poor indicators of market to 1988; this is up from the 2.5% average in the Interstate Commerce Commission’s dominance in the widely varying fact the 1970s. Debt has declined from about 36% (ICC’s) handling of market-based pricing may situations to which they were designed to of total capital in 1980 to about 24% in inform FERC’s handling of the issue. Of apply.’’ 7 1988.9 particular note are: (1) The ICC’s initial 2. Current ICC Guidelines for Evaluating While the regulatory reforms were rejection followed by the acceptance of the Market Dominance successful in improving the financial traditional economic paradigm used to condition of railroads, these reforms have not evaluate competitiveness, (2) the guidelines Some of the ICC market dominance guidelines have no apparent relevance to achieved total financial health for the now used by the ICC in evaluating industry. ‘‘[T]he railroad industry as a whole FERC because they deal with intermodal competitiveness, and (3) evaluations of the has not achieved revenue adequacy—that is, transportation competition. However, other effects of increased reliance on market forces. its return on investment has not equaled or aspects of the ICC guidelines deal with issues 2 exceeded the current cost of capital.’’ 10 1. Recent Changes in Railroad Regulation nearly identical to those important to FERC Regarding the effects on rates rather than Before 1976, all rail rates were subject to in analyzing competition. These potentially on the railroad’s financial condition, a recent regulation by the Interstate Commerce informative portions of the guidelines are journal article concludes ‘‘* * * the effect of Commission (ICC) under the statutory ‘‘just briefly summarized here.8 deregulation on prices has generally been to and reasonable’’ standard.3 The Railroad The ICC ‘‘market dominance’’ guidelines lower them. With price decreases and cost Revitalization and Regulatory Reform Act of lay out what type of evidence is considered savings from deregulation, welfare gains from 1976 was enacted to restore financial stability important. deregulation are likely to be positive.’’ 11 to the industry.4 This restoration was to be Regarding competition from other accomplished partially through reducing railroads, the number of alternatives and the B. Market-Based Rates in Long Distance regulatory restraints on railroad pricing feasibility of alternatives are important. Telecommunications decisions by limiting ICC jurisdiction over Feasibility is evidenced by (1) the physical To the extent there are similarities between maximum rates to situations where railroads characteristics of the alternative, (2) the long distance telecommunications and have ‘‘market dominance.’’ 5 direct access of both the shipper and natural gas pipeline services, lessons can be Market dominance determinations thus receiver, (3) the cost of using the alternative, learned from the FCC’s experience with became of the utmost importance when rates and (4) the evidence of relevant investment market based pricing. The FCC used a market were challenged. The ICC initially adopted or long-term contracts. power framework in its Competitive Carrier three ‘‘presumptions’’ of market dominance: Regarding geographic competition, Proceedings, when determining the the railroad handled 70% of traffic (the considered important are: (1) The number of appropriate regulation for long distance ‘‘market share’’ presumption), revenues alternative destinations for shippers or service. exceeded 160% of the variable costs (the alternative sources for receivers, (2) the 1. Comparison of the Industries ‘‘cost’’ presumption), and the shipper had a substantial investment in rail-related plant or 6 Pub. L. No. 96–448, 94 Stat. 1895 (1980). One The long distance telecommunications equipment (the ‘‘rail investment’’ part of the Act directed the ICC to make a finding market has some similarities to the natural presumption). Any one of these of no dominance if the carrier shows that a gas pipeline market. First, with the original presumptions being established and challenged rate would yield a revenue-to-variable copper and, most recently, fiber optic cable unrebutted would establish market cost percentage less than a given percentage. More methods of providing service, it has natural dominance and ICC jurisdiction. generally, the Act made it federal policy to rely on monopoly characteristics. Second, it has long competition, rather than regulation, to establish been considered a public utility and until reasonable rail rates. Additionally the Act allowed recently, was subject to standard cost-of- 2 The information provided here on the Interstate railroads to enter into confidential agreements with Commerce Commission is drawn from the Interstate shippers, cancel existing joint rates with other service regulation. Third, it provides long- Commerce Commission Decision, ‘‘Product and railroads that were not sufficiently profitable, and Geographic Competition’’ Ex Parte No. 320 (Sub-No. set time limits on the abandonment process. 9 General Accounting Office, ‘‘Railroad 3), October 24, 1985. 7 ‘‘Product and Geographic Competition,’’ supra. Regulation: Economic and Financial Impacts of the 3 Former Section 1(5) of the Interstate Commerce The adopted guidelines were listed in Appendix C. Staggers Rail Act of 1980,’’ May 1990. Act. 8 It is interesting to also note, that while 10 Id. at p. 5. 4 Pub. L. No. 94–210, 90 Stat 31, February 5, 1976. developing these guidelines, the ICC refused to 11 Wesley W. Wilson, ‘‘Market-Specific Effects of 5 Market dominance was defined in the statues as adopt specific HHI levels for reasons that are Rail Deregulation,’’ Journal of Industrial Economics, ‘‘an absence of effective competition from other similar to those stated by FERC when refusing to 62 (March, 1994), pp. 1–22. See this article’s carriers or modes of transportation for the traffic or adopt specific HHI levels in Gas Inventory Charge ‘‘References’’ for other articles evaluating the effect movement to which a rate applies.’’ and Oil Pipeline cases. of deregulation on prices. 8374 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices line service, and (since divestiture in 1984) stabilizing prices to the consumer’s eventual through the use of larger airplanes, however, inter-connects with independent local disadvantage. have been thought to be less important than networks to deliver the service. Competitive Carrier characterized carriers for gas pipelines.21 Airline companies, like There are several differences as well. First, as dominant (eventually only AT&T) or non- pipeline companies, needed a public there is no production area nor market area dominant. Initially, it defined dominant convenience & necessity certificate to serve for calls, although call concentration is firms as firms with market power.16 The FCC or abandon any interstate route; rates and higher in metropolitan areas. Second, the said that it focused on certain market features terms and conditions were strictly regulated. customer cannot determine the route that his to determine if a firm can exercise market Discounts were allowed, if at all, after a calls take on a carrier, and may not switch power: The number and size distribution of hearing at which competitors could either carriers within the path. Third, calls are not competing carriers, the nature of barriers to challenge the proposed rates or match them. fungible or interchangeable, as are gas entry and the availability of reasonably Differences were and are important. 17 Airlines generally have little substantial molecules. For example, a customer wants to substitutable services. investment in immobile assets like roadbed, talk to his or her family, friends, or business As the FCC refined its determination of track or in laying pipe. Airports, landing slots associates, not someone else’s. which carriers could be subject to lighter- handed regulation, it concluded that once a and air-traffic control are generally 2. History of Long Distance Service determination of market power was made, it government supplied. Economies of aircraft The history of telecommunications would look at the degree of power before scale, while present, are less pronounced regulation has been one of playing catch-up determining whether regulations conferred than for pipelines. Air traffic, in contrast to to technological change. Local and long- greater benefits on customers than costs.18 natural gas, is not fungible. When you go to distance services were assumed to be natural The agency reasoned that non-dominant pick up your grandparents at the airport, you monopolies, to be provided by AT&T. The carriers lacked (substantial) market power, expect unique rather than generic grandparents to deplane. Regulation was fixed plant was expensive, and subject to a and that the costs outweighed the benefits of thought necessary, not because airlines were declining average cost of service, and all regulating such firms. It held that non- a natural monopoly, but because they were customers needed to be interconnected. dominant firms: • thought to be subject to ‘‘excessive The natural monopoly disappeared with Can’t charge excessive rates; • Can’t discriminate without losing their competition.’’ Under this theory, regulation microwave technology because after a critical was necessary to prevent airlines from mass, more traffic requires a roughly customers; and • Can’t pass on the costs of inefficient bankrupting each other through overbuilding proportionate increase in towers and more 22 investments to customers. and excessive price competition. Another transmitters.12 In 1977, the FCC allowed MCI purpose was to provide direct subsidies to into the market. It also allowed general OCC Applying its definitions, the FCC determined that AT&T was a dominant encourage the growth of general aviation. The (Other Common Carrier) entry in 1977. In history of airline deregulation also differs 1979, the FCC began the Competitive Carrier carrier because of its historical market power, immense financial and technological base, greatly from that for natural gas pipelines. proceedings which ultimately effectively While the CAB itself, under Alfred Kahn, control over monopoly interconnection allowed market-based pricing for carriers initiated some important changes in 1977 facilities, and substantial cross-subsidization other than AT&T. The two largest OCCs, MCI under the Civil Aviation Act (1938), Congress potential. In addition, it is an effective price and Sprint, currently control 25% of the decided, in 1978, to phase out all CAB leader.19 Over time, the FCC found that all long-distance market.13 Local services regulation and the agency itself by 1985. The other carriers were non-dominant. remained a natural monopoly.14 change from a highly regulated environment The FCC decreased the regulations for non- designed to minimize competition to a free 3. Light-Handed Regulation of Non-Dominant dominant carriers in two phases: Firms entry environment emphasizing price streamlining and forbearance. Under both, competition occurred in a remarkably short In the Competitive Carrier proceedings,15 non-dominant carriers were required to time. the FCC minimized the regulation of OCCs. charge just and reasonable and non- 1. Problems That Led to Deregulation It based its actions on two principles: First, discriminatory rates. With streamlining, the in order to retain business with prices above FCC presumed that tariff filings were legal, The Senate held hearings on airline total costs a firm must possess market power and required no cost justification of the regulation in February 1975. The study and some firms did not. Second, regulation tariffs.20 Forbearance went further than released later that year was highly critical of imposes costs. There are the administrative streamlining, by not requiring tariff filings the CAB.23 Stephen Breyer,24 summarized costs of compiling, maintaining, and from non-dominant firms. The Supreme the study as revealing several ‘‘serious distributing information necessary to comply Court later overruled this, as discussed in defects’’ relating to rates, routes, efficiency with reporting and licensing requirements. part I above. and agency procedures, two of which were: More significant costs on society come from Rates. Regulation led to high prices and C. The Cab and Airlines overcapacity. Because the airline industry the loss of dynamism which can result. The was highly competitive and because the CAB FCC cited to the Averch-Johnson effect in Airline transportation and its regulation prevented price competition, the airlines which rate of return regulation can distort the has many similarities to gas pipeline transportation. On any given trip, the channeled their competitive energies into input choices of a regulated firm away from providing more and costlier service—more production at minimum cost. It also variable cost of flying the aircraft is essentially the cost of the fuel used, just as flights, more planes, more frills * * * Yet the discussed effective competition being limited planes themselves flew more than half by firms being required to give advance the variable cost of transporting gas is the fuel used by the compressors. Unit costs, empty. (Breyer, 1982, 200) notice of innovative marketing plans and therefore, are highly sensitive to utilization having those initiatives subject to public or load factors. Economies of scale attainable 21 Bailey et al., provide some of the evidence comment and review. The FCC said that the indicating that economies of scale are modest at pp. posting of prices and legal obligation to 50–54. Fred Kahn, however, suggests that, from 16 refrain from ‘‘unjust and unreasonable Notice of Inquiry and Proposed Rulemaking, 77 hindsight, economies of scale were underestimated. discrimination’’ may well result in artificially F.C.C. 2d at 350 (1979); and First Report and Order, The ‘‘thoroughgoing’’ movement to a hub and spoke at p. 21. system was not foreseen. See ‘‘Surprises of Airline 17 First Report and Order at p. 21. Deregulation,’’ American Economic Review, May, 12 Huber, Peter W., The Geodesic Network II: 1993 18 Further Notice of Proposed Rulemaking, 84 1985, 316–322. Report on Competition in the Telephone Industry, F.C.C. 2d at 499–500 (1981); and Second Report and 22 See Stephen Breyer, Regulation and Its Reform, p. 3.4. Order. 91 F.C.C. 2d (1982). Harvard, 1982, 197–221; and Elizabeth Bailey, 13 Wall Street Journal, July 22, 1994, p. A2. 19 Notice of Inquiry and Proposed Rulemaking, 77 David Graham and Daniel Kaplan, Deregulating the 14 Meanwhile, technology has begun to remove F.C.C. 2d at 352–353; and First Report and Order, Airlines, MIT, 1985, 11–26. the local natural monopoly for telephone service. supra. 23 Senate Comm. on the Judiciary, Subcomm. on There are a large number of potential and credible 20 Streamlining also gave (1) blanket approval for Admin. Practice and Procedure, 94th Cong., 1st providers of local service including cable television expansions, (2) reeduced the filing period Sess., Civil Aeronautics Board Practices and providers and radio-based and cellular carriers. (substantially) to 14 days, and (3) required no Procedures. (1975). 15 First Report and Order, 85 F.C.C. 2d 5 (1980). financial information. 24 Breyer was the Committee’s chief investigator. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8375 Routes. Regulation effectively closed the Breyer (1987) suggested that antitrust rules Appeal industry to newcomers and guaranteed designed to deal with industry in general relatively stable market shares to firms may not properly reflect the unique features Eric Engberg, 12/5/94, VFA–0010 already in the industry. (Id., 205) of the airline industry. For example, he The Airline Deregulation Act was signed cautioned against applying the ‘‘optimistic’’ CBS News Correspondent Eric into law in 1978. The Act phased out the merger view that is more lenient on higher Engberg (Engberg) filed an Appeal from CAB’s authority and the Board itself ceased concentration thresholds and places great a determination issued by the operations entirely by 1985. store on ‘‘potential competitors,’’ fearing that such an antitrust view would not be stringent Albuquerque Operations Office 2. The Role of Market Power Analysis in enough. On the other hand, he would be (Albuquerque). The determination Airline Deregulation and Merger Policy more lenient than the merger guidelines with denied, in part, a Request for Market power analysis was an important respect to the ‘‘failing company’’ or efficiency Information which Engberg submitted factor in the rapid deregulation of airlines defenses for merger, to reflect that fact that under the Freedom of Information Act and an even more important factor in the the airline industry is emerging from forty years of regulation. (FOIA). Engberg requested various travel merger policy that controlled consolidation documents submitted by security within and exit from the industry. An 3.The Effects of Airline Deregulation important element of the case against personnel, known as couriers, who had Virtually all observers agree that airline travelled with Secretary of Energy Hazel regulation was that but for regulation, the fares have been much lower and traffic industry would be much less concentrated at immensely larger than they would have been R. O’Leary. Albuquerque released the national level than it was under CAB absent deregulation.26 However, as Alfred responsive documents, from which regulation. The relevant market for the Kahn put it, there were some ‘‘unpleasant names, home addresses, Social Security traveler was usually defined to be the ‘‘city- surprises’’ as well.27 Although in the early numbers, home telephone numbers, pair,’’ the two cities between which the years there was much new entry, most failed credit card numbers, and expiration traveler wishes to fly.25 Advocates of and national concentration in the industry dates had been redacted pursuant to deregulation did not argue that each airline failed to decline as most proponents of would find itself battling hosts of actual deregulation had predicted. Quality of FOIA Exemption 6. Engberg appealed competitors. They claimed only that the service declined. Another unpleasant only the deletion of the names. In threat of entry into a particular market by surprise to Kahn was ‘‘the persistence- considering the Appeal, the DOE found airlines not currently serving that market indeed, intensification-of price that Albuquerque had failed to would hold prices down. An airline that discrimination * * *’’ despite which the adequately justify the withholding of airline industry has experienced severe serves city A and city B, but does not fly the couriers’ names under Exemption 6. between them, can enter the A–B market at losses and only a few carriers have been In the course of the Appeal, very low cost, and there are several such profitable. airlines serving most major routes. [FR Doc. 95–3631 Filed 02–13–95; 8:45 am] Albuquerque requested an opportunity The Board based its assessment of the BILLING CODE 6717±01±P to re-evaluate the applicability of likely effects of a merger on two related Exemption 6 and other FOIA findings: that concentration measures based exemptions to the withheld names. on city-pair markets alone are not an accurate Issuance of Decisions and Orders for Consequently, the DOE granted in part gauge of competitive performance and that the Week of December 5 Through the Appeal and remanded the matter to potential entry would have an important December 9, 1994 Albuquerque for a new determination. disciplining effect on performance. (Bailey et al, 1985, 173–202). Market definitions were During the week of December 5 Refund Applications often contested. The DOJ in the Northwest/ through December 9, 1994 the decisions Republic merger, for example, argued that the and orders summarized below were The Office of Hearings and Appeals relevant product market was ‘‘non-stop’’ issued with respect to appeals and for issued the following Decisions and flights between city- pairs. In other cases other relief filed with the Office of Orders concerning refund applications, witnesses have argued over whether the which are not summarized. Copies of appropriate definition should be airport Hearings and Appeals of the Department pairs, city pairs, or the complex of services of Energy. The following summary also the full texts of the Decisions and representative of a hub and spoke network. contains a list of submissions that were Orders are available in the Public But in all cases the same general relevant dismissed by the Office of Hearings and Reference Room of the Office of market definition framework has been used. Appeals. Hearings and Appeals. Atlantic Richfield Company/Costain Coal, Inc ...... RF304±15459 12/06/94 Empire Coal Company ...... RF304±15460 ...... Atlantic Richfield Company/Vaccaro & Son Arco et al ...... RF304±14638 12/06/94 Crystal Water Co. et al ...... RF272±85480 12/06/94 Cubby Oil Co., Inc ...... RF272±97229 12/06/94 Dalton Asphalt Corp et al ...... RF272±94139 12/06/94 Dart Container Corporation ...... RF272±66874 12/05/94 Dart Container Corporation ...... RD272±66874 ...... E & B Paving, Inc ...... RF272±67026 12/07/94 E & B Paving, Inc ...... RD272±67026 ...... Epes Transport System, Inc ...... RF272±93329 12/08/94 Farmers Cooperative Elevator et al ...... RF272±94704 12/06/94 Good Hope Refineries/Howard Oil Company ...... RF339±17 12/08/94 Gulf Oil Corporation/City of Rocky River et al ...... RF300±21325 12/07/94 Gulf Oil Corporation/Fallwood Service Center ...... RF300±18460 12/06/94 Gulf Oil Corporation/Kirk Brown's Gulf Service et al ...... RF300±18153 12/08/94 25 The analog for pipeline transportation would Why the difference? Oil and gas are fungible, airline Economic Effects of Airline Deregulation be ‘‘origin-destination’’ pairs, but both the passengers and freight are not. (Brookings, 1986). Commission and DOJ have generally analyzed 26 Elizabeth Bailey, David Graham, and Daniel 27 Alfred Kahn, ‘‘Supreses of Airline pipeline origin and destination markets separately. Kaplan, Deregulating the Airlnes (MIT, 1985), and Deregulation,’’ American Economic Review (May, Steven Morrison and Clifford Winston, The 1988). 8376 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices K.A. Baker Construction Co ...... RF272±68186 12/06/94 S.J. Groves & Sons, Inc ...... RF272±77504 12/07/94 Seashore Transportation Co ...... RF272±97223 12/07/94 Texaco Inc./Ortiz Texaco ...... RF321±21049 12/08/94 Dismissals The following submissions were dismissed: Name Case No. Alameda Texaco Station ...... RF321±20865 Antelope County Farmers Cooperative ...... RF272±92006 Bowers Asphalt Paving, Inc ...... RF272±94780 Burnup & Sims of Texas, Inc ...... RF272±89938 Cabo Roto Service Station ...... RF321±20849 Caranil Service Station ...... RF321±20720 Castro Texaco Service ...... RF321±20858 Citizen Action ...... VFA±0008 Conea Service Station Texaco ...... RF321±20854 Cortland Water Board ...... RF321±20167 David M. Diaz Monje ...... RF321±20824 Don Davo Service Station ...... RF321±20850 Garage Texaco ...... RF321±20954 Garage Texaco Altosano ...... RF321±20999 Garaje Ayala ...... RF321±20845 Gardner Industries, Inc ...... RF321±20163 Jorge David Castrodad Quiles ...... RF321±20956 Jorge Luis Agusto Agosto ...... RF321±20728 Las Mareas Service Station ...... RF321±20846 Luis R. Abraham Melendez ...... RF321±20863 Pablo R. Colon ...... RF321±20726 Ramon Anibal Russe Torres ...... RF321±20732 Raul Ignacio Colon ...... RF321±20725 Rexco Park Texaco ...... RF321±20836 Sabana Seca Service Station ...... RF321±20841 Salinas Service Station ...... RF321±20955 Savannah River Operations ...... VSO±0003 Sierra Bayamon Service Station ...... RF321±20842 Sucn. Salustiano Ortiz Acevedo ...... RF321±20959 Tom Davis Texaco ...... RF321±19794 Trenton Service Station ...... RF321±20812 Velez Service Station ...... RF321±20827 Copies of the full text of these ENVIRONMENTAL PROTECTION DATES: Comments and/or requests for a decisions and orders are available in the AGENCY public hearing must be received by EPA Public Reference Room of the Office of at the address stated below by March 16, Hearings and Appeals, Room 1E–234, [FRL±5154±2] 1995. Forrestal Building, 1000 Independence ADDRESSES: All comments and/or Avenue SW., Washington, DC 20585, Air Pollution Control; Proposed Action requests for a public hearing should be Monday through Friday, between the on Clean Air Act Grant to the South mailed to: Douglas K. McDaniel, Air hours of 1:00 p.m. and 5:00 p.m., except Coast Air Quality Management District Grants Section (A–2–3), Air and Toxics federal holidays. They are also available Division, USEPA Region IX, 75 in Energy Management: Federal Energy AGENCY: U.S. Environmental Protection Hawthorne Street, San Francisco, Guidelines, a commercially published Agency (USEPA) California 94105–3901; FAX (415)744– loose leaf reporter system. ACTION: Proposed determination with 1076. George B. Breznay, request for comments and notice of FOR FURTHER INFORMATION CONTACT: Douglas K. McDaniel, Air Grants Director, Office of Hearings and Appeals. opportunity for public hearing. Section (A–2–3), Air and Toxics [FR Doc. 95–3653 Filed 2–13–95; 8:45 am] SUMMARY: The USEPA has made a Division, U.S. EPA Region IX, 75 BILLING CODE 6450±01±P proposed determination that a reduction Hawthorne Street, San Francisco, in expenditures of non-Federal funds for California 94105–3901 at (415) 744– the South Coast Air Quality 1246. Management District (SCAQMD) in SUPPLEMENTARY INFORMATION: Under the Diamond Bar, California is a result of a authority of Section 105 of the CAA, non-selective reduction in expenditures. EPA provides financial assistance to the This determination, when final, will SCAQMD, whose jurisdiction includes permit the SCAQMD to keep the Los Angeles and Orange Counties in financial assistance awarded to it for southern California, to aid in the FY–94 by EPA under section 105(c) of operation of its air pollution control the Clean Air Act (CAA). programs. In FY–94, EPA awarded the Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8377 SCAQMD $6,670,831, which The SCAQMD’s MOE reductions determined that these sets of state represented approximately 6% of the resulted from a loss of fee revenues due program revisions are not less stringent SCAQMD’s budget. to circumstances beyond its control. The than the corresponding Federal Section 105(c)(1) of the CAA, 42 SCAQMD did not, on its own authority, regulations. U.S.C. 7405(c)(1), provides that ‘‘[n]o reduce its operating budget. EPA The U.S. EPA has determined that the agency shall receive any grant under proposes to determine that the Indiana rule revisions meet the this section during any fiscal year when SCAQMD’s lower FY–94 MOE level requirements of the Federal rule. its expenditures of non-Federal funds meets the section 105(c)(2) criteria as Therefore, the U.S. EPA is proposing to for recurrent expenditures for air resulting from a non-selective reduction approve the IDEM’s rule revisions. All pollution control programs will be less of expenditures. Pursuant to 40 CFR interested parties are invited to submit than its expenditures were for such 35.210, this determination will allow written comments on these proposed programs during the preceding fiscal the SCAQMD to keep the funds received determinations, and may request a year. In order for [EPA] to award grants from EPA for FY–94. public hearing on or before March 16, under this section in a timely manner This notice constitutes a request for 1995. If a public hearing is requested each fiscal year, [EPA] shall compare an public comment and an opportunity for and granted, the corresponding agency’s prospective expenditure level public hearing as required by the Clean determination shall not become to that of its second preceding year.’’ Air Act. All written comments received effective until such time following the EPA may still award financial assistance by March 16, 1995 on this proposal will hearing, at which the Regional to an agency not meeting this be considered. EPA will conduct a Administrator issues an order affirming requirement, however, if EPA, ‘‘after public hearing on this proposal only if or rescinding this action. Frivolous or notice and opportunity for public a written request for such is received by insubstantial requests for a hearing may hearing, determines that a reduction in EPA at the address above by March 16, be denied by the Regional expenditures is attributable to a non- 1995. If no written request for a hearing Administrator. selective reduction in the expenditures is received, EPA will proceed to a final Requests for public hearing should be in the programs of all Executive branch determination. addressed to: Miguel A. Del Toral, (WD– agencies of the applicable unit of 17J), U.S. Environmental Protection Government.’’ CAA section 105(c)(2). Dated: February 6, 1995. Agency, Region 5, 77 West Jackson These statutory requirements are Felicia Marcus, Boulevard, Chicago, Illinois 60604. repeated in EPA’s implementing Regional Administrator. Any request for a public hearing shall regulations at 40 CFR 35.210(a). [FR Doc. 95–3610 Filed 2–13–95; 8:45 am] include the following: (1) The name, In its FY–94 section 105 application, BILLING CODE 6560±0±P address, and telephone number of the which EPA reviewed in early 1994, the individual, organization, or other entity SCAQMD projected expenditures of requesting a hearing. (2) A brief [FRL±5153±8] non-Federal funds for recurrent statement of the requesting person’s expenditures (or its maintenance of Public Water System Supervision interest in the Regional Administrator’s effort (MOE)) of $92,365,069. This MOE Program Revision for the State of determinations and of information that would have been sufficient to meet the Indiana the requesting person intends to submit MOE requirements of the CAA. In at such hearing. (3) The signature of the January of 1995, however, the SCAQMD AGENCY: Environmental Protection individual making the request; or, if the submitted to EPA documentation which Agency. request is made on behalf of an shows that its actual FY–94 MOE was ACTION: Notice. organization or other entity, the $80,505,495. This amount represents a signature of a responsible official of the shortfall of $11,228,569 from the MOE SUMMARY: Notice is hereby given in organization or other entity. of $91,734,064 for the preceding fiscal accordance with the provisions of Notice of any hearing shall be given year (FY–93). In order for the SCAQMD section 1413 of the Safe Drinking Water not less than fifteen (15) days prior to to be eligible to keep its FY–94 grant, Act, as amended, 42 U.S.C. 300f et seq., the time scheduled for the hearing. Such EPA must make a determination under and 40 CFR part 142, subpart B, the notice will be made by the Regional section 105(c)(2). National Primary Drinking Water Administrator in the Federal Register The SCAQMD is a single-purpose Regulations (NPDWR), that the State of and in newspapers of general agency whose primary source of funding Indiana is revising its approved Public circulation in the State of Indiana. A is emission fee revenue. It is the ‘‘unit Water System Supervision (PWSS) notice will be sent to the person(s) of Government’’ for section 105(c)(2) primacy program. The Indiana requesting the hearing as well as to the purposes. The SCAQMD submitted Department of Environmental State of Indiana. The hearing notice will documentation to EPA which shows Management (IDEM) adopted drinking include a statement of purpose, that over the last three years emission water regulations for Lead and Copper, information regarding the time and reductions brought on by a combination 44 synthetic organic chemicals (SOCs), location, and the address and telephone of economic recession and more 12 inorganic chemicals (IOCs), and 8 number where interested persons may restrictive emission rules have reduced volatile organic chemicals (VOCs) that obtain further information. The Regional fee revenues from stationary sources correspond to the NPDWR for Lead and Administrator will issue an order from a high of $74,433,331 in 1990– Copper, SOCs, IOCs, and VOCs, affirming or rescinding his 1991 to $64,923,181 in 1993–1994. As a promulgated by the U.S. Environmental determination upon review of the result of this revenue loss, the SCAQMD Protection Agency (U.S. EPA) on June 7, hearing record. Should the has instituted hiring/salary freezes, 1991 (56 FR 26460–26564), on January determination be affirmed, it will furloughs, and layoffs, has reduced its 30, 1991 (56 FR 3526–3597), as become effective as of the date of the equipment purchases and contract amended on July 1, 1991 (56 FR 30266– order. expenditures, and has instituted new 30281), and on July 17, 1992 (57 FR Should no timely and appropriate programs to reduce costs such as permit 31776–31849). The U.S. EPA has request for a hearing be received, and streamlining, computer-assisted permit completed its review of Indiana’s PWSS should the Regional Administrator not processing, and privatization efforts. primacy program revision and has elect to hold a hearing on his own 8378 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices motion, these determinations shall K149, K150, and K151 through four SUPPLEMENTARY INFORMATION: become effective on March 16, 1995. waste disposal wells (WDWs) I. Background Please bring this notice to the attention numbered: 2, 4, 5, and 6. Wastes codes of any persons known by you to have an F037, F038, K086, K107, K108, K109, A. Authority interest in these determinations. K110, K123, K124, K125, and K126 were The Hazardous and Solid Waste All documents related to these inadvertently omitted from the list for Amendments of 1984 (HSWA), enacted determinations are available for which CWM originally requested on November 8, 1984, impose inspection between the hours of 8:30 exemptions. Waste codes K141, K142, substantial new responsibilities on a.m. and 4:30 p.m., Monday through K143, K144, K145, K147, K148, K149, those who handle hazardous waste. The Friday, at the following offices: K150 and K151 became newly listed amendments prohibit the land disposal Indiana Department of Environmental waste codes on September 19, 1994, and of untreated hazardous waste beyond Management, Drinking Water were banned from waste injection specified dates, unless the Branch,100 North Senate Avenue, effective December 19, 1994. If granted, Administrator determines that the Indianapolis, Indiana 46206 this modification would allow CWM to prohibition is not required in order to State Docket Officer: Mr. T.P. Chang, protect human health and the inject RCRA wastes with these codes (317) 232–8435 environment for as long as the waste after that ban date. The Agency has Safe Drinking Water Branch, Drinking remains hazardous (RCRA Sections Water Section, U.S. Environmental established June 30, 1995, as ban date 3004(d)(1), (e)(1), (f)(2), (g)(5)). The Protection Agency, Region 5, 77 West for waste codes K131, and K132, after statute specifically defined land Jackson Boulevard, Chicago, Illinois which, disposal by injection would be disposal to include any placement of 60604–3590 prohibited. If granted, this modification hazardous waste in an injection well FOR FURTHER INFORMATION CONTACT: would allow CWM to continue to inject (RCRA Section 3004(k)). After the Miguel A. Del Toral, Region 5, Drinking RCRA wastes with these codes beyond effective date of prohibition, hazardous Water Section at the Chicago address that ban date. On August 8, 1990, the waste can be injected only under two given above, telephone 312/886–5253. Agency issued CWM an exemption for circumstances: injection of certain hazardous wastes (1) When the waste has been treated (Sec. 1413 of the Safe Drinking Water Act, as in accordance with the requirements of amended (1986), and 40 CFR 142.10 of the after determining that there is a National Primary Drinking Water reasonable degree of certainty that Title 40 of the Code of Federal Regulations) CWM’s injected wastes will not migrate Regulations (40 CFR) Part 268 pursuant Signed this 31st day of January, 1995. out of the injection zone within the next to Section 3004(m) of RCRA, (the EPA has adopted the same treatment David A. Ullrich, 10,000 years. standards for injected wastes in 40 CFR Acting Regional Administrator, U.S. EPA, DATES: The EPA is requesting public Part 148, Subpart B); or Region 5. comments on its proposed decision to (2) When the owner/operator has [FR Doc. 95–3609 Filed 2–13–95; 8:45 am] exempt the wastes listed above. demonstrated that there will be no BILLING CODE 6560±50±P Comments will be accepted until March migration of hazardous constituents 31, 1995. Comments postmarked after from the injection zone for as long as the [FRL±5154±3] the close of the comment period will be waste remains hazardous. Applicants stamped ‘‘Late’’. A public information seeking an exemption from the ban must Notice of Intent to Grant Chemical meeting and a public hearing to allow demonstrate to a reasonable degree of Waste Management, Inc. a Modification comment on this action may be certainty that hazardous waste will not of an Exemption From the Land scheduled if significant comments are leave the injection zone until: Disposal Restrictions of the Hazardous received, and notice of these meetings (a) The waste undergoes a chemical and Solid Waste Amendments of 1984 will be given in a local paper and to all transformation within the injection zone (HSWA) Regarding Injection of people on a mailing list developed by through attenuation, transformation, or Hazardous Waste immobilization of hazardous constituents so the Agency. If you wish to request that as to no longer pose a threat to human health AGENCY: Environmental Protection a public hearing be held, or to be and the environment; or Agency. notified of the date and location of any (b) That fluid flow is such that injected fluids will not migrate vertically upward out ACTION: Notice of intent to grant public hearing held, please contact the lead petition reviewers listed below. of the injection zone to a point of discharge Chemical Waste Management, Inc. for a period of 10,000 years. (CWM), of Oak Brook, Illinois, a ADDRESSES: Submit written comments, The EPA promulgated final modification of an exemption for the by mail, to: United Sates Environmental injection of certain hazardous wastes. regulations on July 26, 1988, (53 FR Protection Agency, Region 5, 28118) which govern the submission of SUMMARY: The United States Underground Injection Control Section petitions for exemption from the Environmental Protection Agency (EPA (WD–17J), 77 West Jackson Street, disposal prohibition (40 CFR Part 148). or Agency) is today proposing to grant Chicago, Illinois 60604, Attention: Most companies seeking exemption a modification to the exemption from Richard J. Zdanowicz, Chief. have opted to demonstrate waste the ban on disposal of certain hazardous confinement (option (a) above, rather FOR FURTHER INFORMATION CONTACT: wastes through injection wells to CWM than waste transformation (option (b) Harlan Gerrish or Nathan Wiser, Lead for its site at Vickery, Ohio. If granted, above). A time frame of 10,000 years Petition Reviewers, UIC Section, Water this modification would allow CWM to was specified for the confinement inject additional Resource Conservation Division; Office Telephone Numbers: demonstration not because migration and Recovery Act (RCRA) regulated (312) 886–2939 and (312) 353–9569, after that time is of no concern, but wastes, identified by codes: F037, F038, respectively; 17th Floor Metcalfe because a demonstration which can K086, K107, K108, K109, K110, K117, Building, 77 West Jackson Street, meet a 10,000 year time frame will K118, K123, K124, K125, K126, K141, Chicago, Illinois. likely provide containment for a K142, K143, K144, K145, K147, K148, substantially longer time period, and Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8379 also to allow time for geochemical F006 K098 transformations which would render the F007 K099 waste immobile. The Agency’s F008 K101 confinement standard thus does not F009 K102 F010 K103 imply that leakage will occur at some F011 K104 time after 10,000 years, rather, it is a F012 K105 showing that leakage will not occur F019 K106 within that time frame and probably F024 K111 much longer. F039 K112 The EPA regulations at 40 CFR K001 K113 148.20(f) provide that any person who K002 K114 has been granted an exemption to the K003 K115 land disposal restrictions may request K004 K116 K005 K136 that the Agency modify the exemption K006 P001 to include additional wastes. If the EPA K007 P002 determines, to a reasonable degree of K008 P003 certainty, that the new wastes will K009 P004 behave hydraulically and chemically in K010 P005 a manner similar to previously K011 P006 exempted wastes and that injection K013 P007 thereof will not interfere with the K014 P008 K015 P009 containment capability of the injection K016 P010 zone, the modification may be granted. K017 P011 Neither the existing exemption nor K018 P012 this modification exempts CWM from K019 P013 the duty to comply with the Federal K020 P014 Insecticide Fungicide and Rodenticide K021 P015 Act (FIFRA) and the Toxic Substances K022 P016 Control Act (TSCA). K023 P017 K024 P018 B. Facility Operation K025 P020 The CWM facility accepts wastes from K026 P021 manufacturers and disposes of them as K027 P022 K028 P023 a commercial service. The wastes are K029 P024 tested to ensure that reaction products K030 P026 which might plug the injection interval K031 P027 are not formed, and mixed to ensure K032 P028 uniformity. The waste is filtered and K033 P029 injected into the four wells for K034 P030 permanent disposal. The facility has K035 P031 disposed of a total of 970,858,000 K036 P033 gallons of mostly hazardous wastes K037 P034 K038 P036 since the first well was placed in K039 P037 operation on June 7, 1976. K040 P038 C. Exemption K041 P039 K042 P040 The existing exemption allows CWM K043 P041 to dispose of wastes denoted by the K044 P042 following RCRA waste codes: K045 P043 K046 P044 D001 D002 K047 P045 D003 K048 P046 D004 K049 P047 D005 K050 P048 D006 K051 P049 D007 K052 P050 D008 K060 P051 D009 K061 P054 D010 K062 P056 D011 K069 P057 D012 K071 P058 D013 K073 P059 D014 K083 P060 D015 K084 P062 D016 K085 P063 D017 K087 P064 F001 K093 P065 F002 K094 P066 F003 K095 P067 F004 K096 P068 F005 K097 P069 8380 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices P070 U031 U112 P071 U032 U113 P072 U033 U114 P073 U034 U115 P074 U035 U116 P075 U036 U117 P076 U037 U118 P077 U038 U119 P078 U039 U120 P081 U041 U121 P082 U042 U122 P084 U043 U123 P085 U044 U124 P087 U045 U125 P088 U046 U126 P089 U047 U127 P092 U048 U128 P093 U049 U129 P094 U050 U130 P095 U051 U131 P096 U052 U132 P097 U053 U133 P098 U055 U134 P099 U056 U135 P101 U057 U136 P102 U058 U137 P103 U059 U138 P104 U060 U139 P105 U061 U140 P106 U062 U141 P107 U063 U142 P108 U064 U143 P109 U066 U144 P111 U067 U145 P112 UO68 U146 P113 U069 U147 P114 U070 U148 P115 U071 U149 P116 U072 UI50 P118 U073 U151 P119 U074 U152 P120 U075 U153 P121 U076 U154 P122 U077 U155 P123 U078 U156 U001 U079 U157 U002 U080 U158 U003 U081 U159 U003 U082 U160 U004 U083 U161 U005 U084 U162 U006 U085 U163 U007 U086 U164 U008 U087 U165 U009 U088 U166 U010 U089 U167 U011 U090 U168 U012 U091 U169 U013 U092 U170 U014 U093 U171 U015 U094 U172 U016 U095 U173 U017 U096 U174 U018 U097 U175 U019 U098 UI76 U020 U099 U177 U021 U101 UI78 U022 U102 U179 U023 U103 U180 U024 U105 U181 U025 U106 U182 U026 U107 U183 U027 U108 U184 U028 U109 U185 U029 U110 U186 U030 U111 U187 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8381 U188 under the HSWA of RCRA (40 CFR Part III. Conditions of Petition Approval U189 148). The submissions were reviewed by The existing petition was issued with U190 staff at the EPA. U191 conditions. Conditions numbered: (5), U192 II. Basis for Determination (6), (7), and (8) required CWM to U193 perform actions which might provide U194 A. Waste Description and Analysis additional confirmation that the U196 CWM reports that the wastes codes for conditions at the site were U197 which this modification has been conservatively considered in the U200 demonstration of no migration from the U201 requested have not been disposed of by U202 the Vickery facility. The actual chemical injection zone. The work required under U203 constituents found in the proposed these conditions has been completed by U204 codes are already found in previously CWM, and no additional work by CWM U205 exempted waste codes, which CWM under these conditions is anticipated, U206 does accept. CWM anticipates the except that the Knox-Kerbel ground U207 possibility that manufacturers may water monitoring well (condition 5) U208 proffer wastes containing the waste must remain active at least as long as U209 the facility is active. The remaining U210 codes for which this exemption is U211 requested. conditions, those numbered: (1), (2), (3), U213 (4), and (9) place well operation U214 B. Model Demonstration of No Migration conditions on CWM and continue in U215 The grant of an exemption from the force. No new conditions are attached to U216 land disposal restrictions imposed by this modification. U217 the HSWA of RCRA is based on a Dated: February 6, 1995. U218 demonstration that disposed wastes will U219 Edward P. Watters, U220 not migrate out of the defined waste Acting Director, Water Division, Region 5, U221 management unit for a period of 10,000 U.S. Environmental Protection Agency. U222 years. This demonstration is based on [FR Doc. 95–3611 Filed 2–13–95; 8:45 am] U223 the results of computer simulations BILLING CODE 6560±50±P U225 which use geological information U226 collected at the site or found to be U227 appropriate for the site and [FRL±5154±9] U228 mathematical models which have been U234 California State Nonroad Engine and U235 proven to be capable of simulating natural responses to injection. The Equipment Pollution Control U236 Standards; Opportunity for Public U237 simulator is calibrated by matching U238 simulator results against observations at Hearing U239 the site. In this case, CWM simulated AGENCY: Environmental Protection U240 movement of a conservatively defined Agency (EPA). U243 ion released at the top of the injection ACTION: Notice of an Opportunity for U244 interval. Using values for geological U246 Public Hearing and Public Comment. U247 parameters which have been shown to U248 be exceptionally conservative (their use SUMMARY: The California Air Resources U249 results in greater vertical movement of Board (CARB) has notified EPA that it U328 waste constituents than can reasonably has adopted regulations for exhaust U353 be expected), CWM demonstrated that emission standards and test procedures U359 injected wastes will not migrate out of for 1996 and later model heavy-duty off- This modification will add to the the defined injection zone for a period road diesel cycle engines 175 above list of approved codes in the of 10,000 years. The Agency accepted horsepower or greater. CARB has existing exemption, so that CWM may the demonstration and granted the requested that EPA authorize CARB to also dispose of wastes denoted by the existing exemption in 1990. enforce regulations pursuant to section following RCRA waste codes: F037, A modification of an existing 209(e) of the Clean Air Act (Act), as F038, F086, K107, K108, K109, K110, exemption to allow injection of amended, 42 U.S.C. 7543. This notice K123, K124, K125, K126, K141, K142, additional hazardous waste constituents announces that EPA has tentatively K143, K144, K145, K147, K148, K149, must show that the waste constituents scheduled a public hearing to consider K150, and K151 through its deep wells denoted by the codes for which the CARB’s request and to hear comments upon the effective date of this petition modification is requested must behave from interested parties regarding modification. When K131 and K132 are similarly to those constituents for which CARB’s request for EPA’s authorization banned from land disposal on June 30, the original demonstration of no and CARB’s determination that its 1995, this modification will allow migration was made. In this case, the regulations, as noted above, comply continued disposal of those wastes underlying waste constituents have with the criteria set forth in section through the deep-well system. been shown to behave similarly because 209(e). In addition, EPA is requesting each is also a constituent of wastes that interested parties submit written D. Submission denoted by codes which have already comments. Any party desiring to On September 12, 1994, and October been exempted. This approach present oral testimony for the record at 28, 1994, CWM submitted requests to eliminated the need to reconsider each the public hearing, instead of, or in modify its existing petition for waste constituent individually. addition to, written comments, must exemption from the land disposal Comments on this approach are notify EPA by February 21, 1995. If no restrictions on hazardous waste disposal solicited. party notifies EPA that it wishes to 8382 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices testify on the nonroad emission which are smaller than 175 horsepower, equipment or vehicles and which are amendments, then no hearing will be and (B) new locomotives or new engines smaller than 175 horsepower, and (b) held and EPA will consider CARB’s used in locomotives.’’ new locomotives or new engines used in request based on written submissions to For those new pieces of equipment or locomotives. The section 209(e) rule the record. new vehicles other than those a State is includes definitions for farm equipment DATES: EPA has tentatively scheduled a not permanently preempted from or vehicles and construction equipment public hearing for March 1, 1995 regulating under section 209(e)(1), the or vehicles. California’s proposed beginning at 9:00 a.m., if any party State of California may promulgate regulations would be considered notifies EPA by February 21, 1995 that standards regulating such new inconsistent with section 209 if they it wishes to present oral testimony equipment or new vehicles provided applied to these permanently preempted regarding CARB’s request. Any party California complies with Section categories. Additionally, the section may submit written comments regarding 209(e)(2). Section 209(e)(2) provides in 209(e) rule requires EPA to review CARB’s requests by March 31, 1995. part that the Administrator shall, after nonroad authorization requests under After February 21, 1995, any person notice and opportunity for public the same ‘‘consistency’’ criterion that it who plans to attend the hearing may hearing, authorize California to adopt reviews motor vehicle waiver requests. call Janice Raburn of EPA’s and enforce standards and other Under section 209(b)(1)(C), the Manufacturers Operations Division at requirements relating to the control of Administrator shall not grant California (202) 233–9294 to determine if a hearing emissions from such vehicles or engines a motor vehicle waiver if she finds that will be held. ‘‘[i]f California determines that California standards and accompanying ADDRESSES: If a request is received, EPA California standards will be, in the enforcement procedures are not will hold the public hearing announced aggregate, at least as protective of public consistent with section 202(a) of the in this notice at the Channel Inn health and welfare as applicable Federal Act. California’s nonroad standards (Captain’s Room), 650 Water Street SW., standards. No such authorization shall would not be consistent with section Washington, DC 20024. Parties wishing be granted if the Administrator finds 202(a) if there were inadequate lead to present oral testimony at the public that: (i) The determination of California time to permit the development of hearing should notify in writing, and if is arbitrary and capricious, (ii) technology necessary to meet those possible, submit ten (10) copies of the California does not need such California standards, giving appropriate planned testimony to: Charles N. Freed, standards to meet compelling and consideration to the cost of compliance Director, Manufacturers Operations extraordinary conditions, or (iii) within that time frame. Additionally, Division (6405J), U.S. Environmental California standards and accompanying California’s nonroad accompanying Protection Agency, 401 M Street, SW., enforcement procedures are not enforcement procedures would be Washington, DC 20460. In addition, any consistent with this section.’’ inconsistent with section 202(a) if the written comments regarding the waiver EPA interpreted the preceding Federal and California test procedures request should be sent, in duplicate, to criterion regarding consistency in the were inconsistent, that is, manufacturers Charles N. Freed at the same address to final regulation it issued to implement would be unable to meet both the State the attention of Docket A–94–44. Copies section 209(e) entitled ‘‘Air Pollution and Federal test requirements with one of material relevant to the waiver Control; Preemption of State Regulation test vehicle or engine. request (Docket A–94–44) will be for Nonroad Engine and Vehicle Once California has been granted an available for public inspection during Standards’’ (section 209(e) rule). This authorization, under section 209(e)(2), normal working hours of 8 a.m. to 5:30 rule sets forth several definitions and for its standards and accompanying p.m. Monday through Friday, including the authorization criteria EPA must enforcement procedures for a category consider before granting California an all non-government holidays, at the U.S. or categories of equipment, it may adopt authorization to enforce any of its Environmental Protection Agency, Air other conditions precedent to initial nonroad engine standards.1 As and Radiation Docket and Information retail sale, titling or registration of the described in the section 209(e) rule, in Center, 401 M Street SW., Washington, subject category or categories of order to be deemed ‘‘consistent with DC 20460. Telephone: (202) 260–7548. equipment without the necessity of this section’’, California standards and FAX Number: (202) 260–4400. receiving further EPA authorization. enforcement procedures must be By letter dated August 24, 1993, FOR FURTHER INFORMATION CONTACT: consistent with section 209. In order to CARB submitted to EPA a request that Janice Raburn, Attorney/Advisor, be consistent with section 209, EPA authorize California to adopt Manufacturers Operations Division California standards and enforcement regulations for 1996 and later model (6405J), U.S. Environmental Protection procedures must reflect the heavy-duty off-road diesel cycle Agency, Washington, DC 20460. requirements of sections 209(a), engines. By letter dated July 26, 1994, Telephone: (202) 233–9294. 209(e)(1), and 209(b). Section 209(a) EPA informed CARB that in light of two SUPPLEMENTARY INFORMATION: prohibits states from adopting or final rules issued by EPA, it would be enforcing emission standards for new necessary for CARB to revise its waiver I. Background motor vehicles or new motor vehicle request before EPA could begin the Section 209(e)(1) of the Act as engines. Section 209(e)(1) identifies the waiver process. First, EPA had not been amended, 42 U.S.C. 7543(e)(1), provides categories preempted from state able to process the nonroad waiver in part: ‘‘No State or any political regulation. As stated above, the request until it issued a final section subdivision thereof shall adopt or preempted categories are (a) new 209(e) rule (discussed above). In attempt to enforce any standard or other engines which are used in construction addition, EPA issued a rulemaking requirement relating to the control of equipment or vehicles or used in farm setting federal nonroad standards under emissions from either of the following section 213 of the Act.2 One of the new nonroad engines or nonroad 1 See 59 FR 36969, July 20, 1994 (to be codified waiver requirements under section 209 vehicles subject to regulation under this at 40 CFR Part 85, Subpart Q, §§ 85.1601–85.1606). is that CARB make a determination that This final rule titled ‘‘Air Pollution Control; Act: (A) New engines which are used in Preemption of State Regulation for Nonroad Engine its standards and test procedures are, in construction equipment or vehicles or and Vehicle Standards’’ was proposed at 56 FR used in farm equipment or vehicles and 45866, Sept. 6, 1991. 2 59 FR 31306 (June 17, 1994). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8383 the aggregate, at least as protective of standards for engines at or greater than pertinent information regarding the public health and welfare as applicable 130 to 560 kW (175 horsepower to 750 issues as noted above and further federal standards. At the time CARB horsepower) identical to the CARB explained in the section 209(e) rule. made the analysis for its August 23, standards and effective January 1, 1996, Any party desiring to make an oral 1993, waiver request, EPA had proposed the same date as the CARB standards. statement on the record should file ten but not finalized federal standards for Also, EPA set standards for engines (10) copies of its proposed testimony nonroad engines at or above 37kW. greater than 560 kW (750 horsepower) and other relevant material along with Thus, CARB made a determination identical to CARB standards and its request for a hearing with the based upon a comparison between its effective January 1, 2000, the same date Director of EPA’s Manufacturers as the CARB standards. EPA did not standards and the standards EPA was Operations Division at the Director’s promulgate tier 2 standards for the proposing at that time. EPA made a few address listed above not later than 175—750 horsepower category, so changes to its final rule, thus making it February 21, 1995. In addition, the party necessary for CARB to revise its finding beginning in 2001 CARB standards should submit 50 copies, if possible, of and determination so as to have would be more stringent than EPA the proposed statement to the presiding compared its standards with the final standards. federal standards. By letter dated California states in its August 17, officer at the time of the hearing. August 17, 1994, CARB submitted to 1994 letter that it has determined that In recognition that a public hearing is EPA a supplement to its request of its standards and test procedures for designed to give interested parties an August 24, 1993, with the updated 1996 and later model heavy-duty off- opportunity to participate in this comparison that EPA requested. road diesel cycle engines would not proceeding, there are no adverse parties California’s regulations apply to all cause California emission standards, in as such. Statements by participants will new heavy-duty off-road diesel cycle the aggregate, to be less protective of not be subject to cross-examination by engines, 175 horsepower or greater, public health and welfare as the other participants without special applicable Federal standards. Further, including alternate-fueled engines, approval by the presiding officer. The California references its August 24, 1993 produced on or after January 1, 1996. presiding officer is authorized to strike These regulations: letter, which explained why compelling and extraordinary conditions warrant from the record statements which he a. Establish tier 1 smoke and exhaust deems irrelevant or repetitious and to emission standards for engines 175 to the need in California for separate impose reasonable limits on the 750 horsepower produced on or after standards for heavy-duty off-road diesel duration of the statement of any January 1, 1996. cycle engines. Finally, California states b. Establish smoke and exhaust that its standards and test procedures participant. emission standards for engines greater are consistent with section 209 of the If a hearing is held, the Agency will than 750 horsepower produced on or Act. California’s request will be make a verbatim record of the after January 1, 2000. (These engines are considered according to the criteria for proceedings. Interested parties may low sales volume, so longer an authorization request as set forth in arrange with the reporter at the hearing 4 development time is allowed.) the section 209(e) regulation. Any party to obtain a copy of the transcript at their c. Establish tier 2 smoke and exhaust wishing to present testimony at the own expense. Regardless of whether a emission standards for engines 175 to hearing or by written comment should public hearing is held, EPA will keep address, as explained in the section 750 horsepower produced on or after the record open until March 31, 1995. January 1, 2001. 209(e) rule, the following issues: d. Require that crankcase emissions (1) Whether California’s Persons with comments containing be controlled for 1996 and later determination that its standards are at proprietary information must alternate-fueled engines derived from least as protective of public health and distinguish such information from other diesel cycle engines and naturally welfare as applicable Federal standards comments to the greatest extent possible aspirated diesel-fueled engines used in is arbitrary and capricious; and label it as ‘‘Confidential Business heavy-duty off-road applications. (2) Whether California needs separate Information.’’ To ensure that proprietary e. Require that commencing in the standards to meet compelling and information is not inadvertently placed year 2000, replacement engines for pre- extraordinary conditions; and, in the docket, submissions containing 1996 equipment comply with the 1996 (3) Whether California’s standards such information should be sent directly emission regulations. Replacement and accompanying enforcement to the contact person listed above and procedures are consistent with (i) engines for 1996 and later equipment not to the public docket. If a person section 209(a), which prohibits states are required to comply with the making comments wants EPA to base its emissions standards applicable to the from adopting or enforcing emission standards for new motor vehicles or final decision in part on a submission original engine. labeled as confidential business f. Establish an 8-mode steady state engines, (ii) section 209(e)(1), which identifies the categories preempted from information, then a non-confidential emissions test for certification testing. version of the document which g. Require certification compliance state regulation, and (iii) section 202(a) summarizes the key data or information testing, quality audit assembly line of the Act. should be placed in the public docket. testing, and new engine compliance II. Public Participation testing. Information covered by a claim of h. Establish a labeling requirement. If the scheduled hearing takes place, confidentiality will be disclosed by EPA i. Require manufacturers to provide a it will provide an opportunity for only to the extent allowed by the five year or 3000 hour emissions interested parties to state orally their procedures set forth in 40 CFR part 2. warranty. views or arguments or to provide If no claim of confidentiality EPA issued a final rule (referenced accompanies the submission when it is above) for nonroad engines of similar 4 ‘‘Air Pollution Control; Preemption of State received by EPA, it may be made 3 Regulation for Nonroad Engine and Vehicle horsepower on June 17, 1994. EPA set Standards’’ at 59 FR 36969, July 20, 1994 (to be available to the public without further codified at 40 CFR Part 85, Subpart Q, §§ 85.1601– notice to the person making comments. 3 59 FR 31306 (June 17, 1994). 85.1606). 8384 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Dated: February 7, 1995. Mahoney, Region 1, US EPA, (617) 565– 40 CFR part 258 to the extent the State/ Richard D. Wilson, 1155; or Dave Jones, Region 9, U.S. EPA, Tribal permit program allows such Acting Assistant Administrator for Air and (415) 744–2266. flexibility. EPA notes that regardless of Radiation. Dated: February 7, 1995. the approval status of a State/Tribe and [FR Doc. 95–3608 Filed 2–13–95; 8:45 am] Gina Bushong, the permit status of any facility, the BILLING CODE 6560±50±P federal landfill criteria shall apply to all Designated Federal Official. permitted and unpermitted MSWLF [FR Doc. 95–3607 Filed 2–13–95; 8:45 am] facilities. [FRL±5154±8] BILLING CODE 6560±50±P The State of New Hampshire applied for a determination of adequacy under Common Sense Initiative Council, [FRL±5155±1] Section 4005(c)(1)(C) of RCRA, 42 USC Electronics Sector Subcommittee § 6945(c)(1)(C). EPA Region I reviewed AGENCY: Environmental Protection New Hampshire; Final Adequacy New Hampshire’s MSWLF permit Agency (EPA). Determination of State/Tribal Municipal program adequacy application and ACTION: Common Sense Initiative Solid Waste Permit Program made a determination that all portions of New Hampshire’s MSWLF permit Council, Electronics Sector AGENCY: Environmental Protection Subcommittee, Notice of Meeting. program are adequate to assure Agency. compliance with the revised Federal SUMMARY: The Environmental Protection ACTION: Notice of Final Determination of MSWLF Criteria. After consideration of Agency established the Common Sense Full Program Adequacy for the State of all comments received, EPA is today Initiative Council (CSIC)—Electronics New Hampshire’s Municipal Solid issuing a final determination that the Sector (CSI–ES) Subcommittee on Waste Landfill Permitting Program. State’s program is adequate. October 17, 1994, to provide SUMMARY: Section 4005(c)(1)(B) of the EFFECTIVE DATE: The determination of independent advice and counsel to EPA Resource Conservation and Recovery adequacy for the State of New on policy issues associated with the Act (RCRA), as amended by the Hampshire shall be effective on electronics and computer industry. The Hazardous and Solid Waste February 14, 1995. charter was authorized through October Amendments (HSWA) of 1984, 42 USC FOR FURTHER INFORMATION CONTACT: EPA 17, 1996, under regulations established 6945(c)(1)(B), requires states to develop Region I, John F. Kennedy Federal by the Federal Advisory Committee Act and implement permit programs to Building, Boston, MA 02203, Attn: Mr. (FACA). ensure that municipal solid waste John F. Hackler, Chief, Solid Waste and OPEN MEETING NOTICE: Notice is hereby landfills (MSWLFs), which may receive Geographic Information Section, mail given that the CSI–ES Subcommittee hazardous household waste or small code HER-CAN 6, telephone (617) 573– will hold an open meeting on quantity generator hazardous waste, will 9670. Wednesday, March 8, from 8:30 a.m. to comply with the revised Federal SUPPLEMENTARY INFORMATION: 5:00 p.m., and Thursday, March 9, from MSWLF Criteria (40 CFR Part 258). 8:30 a.m. to 3:00 p.m., at the Sheraton RCRA Section 4005(c)(1)(C), 42 USC A. Background National Hotel, Commonwealth § 6945(c)(1)(C), requires the On October 9, 1991, EPA promulgated Ballroom, Columbia Pike and Environmental Protection Agency (EPA) revised criteria for MSWLFs (40 CFR Washington Boulevard, Arlington, VA to determine whether states have part 258). Subtitle D of RCRA, as 22204. Seating will be available on a adequate ‘‘permit’’ programs for amended by the Hazardous and Solid first-come, first-served basis. MSWLFs, but does not mandate Waste Amendments of 1984 (HSWA), The meeting will include a issuance of a rule for such requires states to develop permitting description of the charge to the determinations. EPA has drafted and is programs to ensure that MSWLFs subcommittee, orientation to the FACA in the process of proposing a State/ comply with the Federal Criteria under process, review and approval of Tribal Implementation Rule (STIR) that 40 CFR part 258. Subtitle D also requires operating principles, review and will provide procedures by which EPA in Section 4005(c)(1)(C), 42 USC discussion of proposed work plan items, will approve, or partially approve, § 6945(c)(1)(C), that EPA determine the and discussion of formation of work State/Tribal landfill permit programs. adequacy of state municipal solid waste groups for accepted work plan items. The Agency intends to approve landfill permit programs to ensure that Opportunity for public comment on adequate State/Tribal MSWLF permit facilities comply with the revised major issues under discussion will be programs as applications are submitted. Federal Criteria. To fulfill this provided at intervals throughout the Thus, these approvals are not dependent requirement, the Agency has drafted meeting. on final promulgation of the STIR. Prior and is in the process of proposing a INSPECTION OF COMMITTEE DOCUMENTS: to promulgation of the STIR, adequacy State/Tribal Implementation Rule Documents relating to the above noted determinations will be made based on (STIR). The rule will specify the topics will be publicly available at the the statutory authorities and requirements which State/Tribal meeting. Thereafter, these documents, requirements. In addition, States/Tribes programs must satisfy to be determined together with the CSI–ES meeting may use the draft STIR as an aid in adequate. minutes will be available for public interpreting these requirements. The EPA intends to approve State/Tribal inspection in room 2417M of EPA Agency believes that early approvals MSWLF permit programs prior to the Headquarters, 401 M Street SW., have an important benefit. Approved promulgation of the STIR. EPA Washington, DC. State/Tribal permit programs provide interprets the requirements for states or FOR FURTHER INFORMATION: Concerning for interaction between the State/Tribe tribes to develop ‘‘adequate’’ programs this meeting of the CSI–ES, please and the owner/operator regarding site- for permits, or other forms of prior contact Gina Bushong, US EPA (202) specific permit conditions. Only those approval and conditions (for example, 260–3797, FAX (202) 260–1096, or by owners/operators located in State/Tribes license to operate) to impose several mail at U.S. EPA (7405), 401 M Street with approved permit programs can use minimum requirements. First, each SW., Washington, DC 20460; Mark the site-specific flexibilities provided by State/Tribe must have enforceable Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8385 standards for new and existing MSWLFs requirements for MSWLFs. Specifically, floodplains, wetlands, fault areas, that are technically comparable to EPA’s the commenter felt there were instances seismic impact zones, unstable areas revised MSWLF criteria. Second, the in which the Guidance may prove and closure of existing MSWLF units. State/Tribe must have the authority to confusing to the regulated community 3. Compliance with the operating issue a permit or other notice of prior (due in part to typographical errors and criteria of 40 CFR 288.20, 258.21, approval and conditions to all new and cross-references to part 258). EPA 258.23, 258.24, 258.28, 258.29, which existing MSWLFs in its jurisdiction. The Region I forwarded a summary of the pertain to excluding the receipt of State/Tribe also must provide for public comments to the New Hampshire hazardous waste, cover material participation in permit issuance and Department of Environmental Services requirements, explosive gases control, enforcement as required in Section (NH DES), which agreed that clarifying air criteria, liquid restrictions, and 7004(b) of RCRA, 42 USC § 6974(b). changes to its Guidance might be record keeping requirements. Finally, the State/Tribe must show that beneficial. Without creating any 4. Compliance with the design criteria it has sufficient compliance monitoring substantive changes, the Guidance was of 40 CFR 258.40. and enforcement authorities to take revised after review and approval by 5. Compliance with the ground-water specific action against any owner or EPA Region I. The clarifying revisions monitoring and corrective action operator that fails to comply with an ensure consistency with 40 CFR part requirements of 40 CFR 258.53, 258.54, approved MSWLF program. 258, while maintaining the integrity of 258.55, 258.56, 258.57, and 258.58, EPA Regions will determine whether the State’s original Guidance. To further which pertain to groundwater sampling a State/Tribe has submitted an prevent any chance of confusion, the and analysis requirements, detection ‘‘adequate’’ program based on the State of New Hampshire will append monitoring, assessment monitoring, interpretation outlined above. EPA the part 258 regulations to its Guidance assessment of corrective measures, plans to provide more specific criteria document for direct reference. selection of remedy, and implementation of the corrective action for this evaluation when it proposes the D. Decision STIR. EPA expects States/Tribes to meet program. all of these requirements for all After evaluating the New Hampshire 6. Compliance with the closure and elements of a MSWLF program before it program, EPA Region I concludes that post-closure criteria of §§ 258.60 and gives full approval to a MSWLF the State of New Hampshire’s MSWLF 258.61. 7. Compliance with the financial program. Permitting Program meets all of the statutory and regulatory requirements assurance criteria of 40 CFR 258.70, B. State of New Hampshire established by RCRA. The New 258.71, 258.72, 258.73, and 258.74, On July 7, 1993, EPA Region I Hampshire MSWLF Permitting Program which pertain to applicability and received New Hampshire’s final is technically comparable to, no less effective date, financial assurance for MSWLF permit program application for stringent than, and equally as effective closure, financial assurance for post- adequacy determination. EPA published as the revised Federal Criteria. closure care, financial assurance for in the Federal Register a tentative Accordingly, the State of New corrective action, and allowable determination of adequacy for all Hampshire is granted a determination of mechanisms. portions of New Hampshire’s program. adequacy for all portions of its New Hampshire’s Department of Further background on the tentative municipal solid waste permit program. Environmental Services requires all determination of adequacy appears at 59 To ensure full compliance with the existing MSWLFs to have either an FR 52299 (October 17, 1994). Federal Criteria, New Hampshire has existing permit or a temporary permit, Along with the tentative revised its current MSWLF permitting both of which require compliance with determination, EPA announced the requirements by development of the the Federal Criteria in 40 CFR part 258 availability of the application for public Guidance Document for the State pursuant to state laws and regulations, comment. In addition, a public hearing Permitting of Municipal Solid Waste found at New Hampshire Revised was tentatively scheduled. However, Landfills Regulated Under Federal Rules Statutes Annotated Chapter 149–M:11 there were no requests for such, and as (40 CFR Part 258) in New Hampshire. and New Hampshire Code of a result the hearing was not held. This guidance document has Administrative Rules Env-Wm 308.03. incorporated those requirements from The State of New Hampshire is not C. Public Comment the Federal Criteria not found in the asserting jurisdiction over Indian land EPA Region I received the following State’s existing MSWLF program which recognized by the United States written comments on the tentative are applicable to all existing MSWLFs government for the purpose of this determination of adequacy for New and to all MSWLF permit applications. notice. Tribes recognized by the United Hampshire’s MSWLF permitting New Hampshire will implement its States government are also required to program, all of which have been made MSWLF permit program through comply with the terms and conditions a part of the administrative record and enforceable permit conditions. These found at 40 CFR Part 258. are available to the public for review. new requirements occur in the Region I notes that New Hampshire’s Several commenters were generally following areas: receipt of Federal financial assistance supportive of EPA’s tentative 1. The adoption of the following subjects the State to the statutory determination to provide full program definitions as required by the revised obligations of Title VI of the Civil Rights approval to New Hampshire’s MSWLF Federal Criteria, 40 CFR 258.2: Active Act of 1964. EPA Region I is committed permitting program. These commenters life, active portion, director, household to working with the State to support and encouraged EPA Region I to work waste, industrial solid waste, owner, ensure compliance with all Title VI quickly towards the final determination saturated zone, sludge, solid waste, requirements. Furthermore, the of adequacy of the State’s program. state, state director, and waste narrative portion of the State’s A response was required by only one management unit boundary. application expresses New Hampshire’s comment, in which the commenter 2. Compliance with the location voluntary support of environmental questioned the effectiveness of the restrictions of 40 CFR 258.10, 258.11. justice principles in the management of State’s Guidance Document for ensuring 258.12, 258.13, 258.14, 258.15, and the Subtitle D program. Although this is compliance with both state and federal 258.16, which pertain to airport safety, not a criterion for program approval, 8386 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Region I acknowledges New FEDERAL COMMUNICATIONS No. 21, activities of the Trans-Atlantic Hampshire’s support of environmental COMMISSION Agreement and its members, order inviting justice principles. amicus curiae filings. Public Information Collection Section 4005(a) of RCRA, 42 USC On February 2, 1995, the Trans- Requirement Submitted to Office of Atlantic Conference Agreement § 6945(a) provides that citizens may use Management and Budget for Review the citizen suit provisions of Section (‘‘TACA’’ or ‘‘Conference’’) and its 7002 of RCRA, 42 USC 6972, to enforce February 7, 1995. member lines, the Commission’s Bureau the Federal MSWLF Criteria set forth in The Federal Communications of Hearing Counsel (‘‘Hearing Counsel’’) and the Investigative Officers in Fact 40 CFR part 258 independent of any Commission has submitted the Finding Investigation No. 21 submitted State/Tribal enforcement program. As following information collection a proposed settlement of these EPA explained in the preamble to the requirement to OMB for review and clearance under the Paperwork proceedings. The settlement is now final MSWLF criteria, EPA expects that before the Commission for review. any owner or operator complying with Reduction Act of 1980 (44 U.S.C. 3507). Copies of this submission may be By this Order, the Commission is provisions in a State/Tribal program inviting any interested member of the approved by EPA should be considered purchased from the Commission’s copy contractor, International Transcription public to comment on the settlement. to be in compliance with the Federal This is being done pursuant to the Criteria. See, 56 FR 50978, 50995 Service, Inc., 2100 M Street, NW, Suite 140, Washington, DC 20037, (202) 857– Commission’s amicus curiae procedure, (October 9, 1991). 3800. For further information on this 46 CFR 502.76, whereby the Today’s action takes effect on the date submission contact Judy Boley, Federal Commission at its own initiative may of publication. EPA believes it has good Communications Commission, (202) solicit expressions of views on matters cause under Section 553(d) of the 418–0214. Persons wishing to comment of law or policy. Administrative Procedure Act, 5 USC on this information collection should Under the terms of the settlement, the § 553(d), to put this action into effect contact Timothy Fain, Office of TACA lines would agree to certain less than 30 days after the publication Management and Budget, Room 10214 undertakings, including broad rate in the Federal Register. All of the NEOB, Washington, DC 20503, (202) reductions; amendments to the TACA requirements and obligations in the 395–3561. agreement provisions on service State’s program are already in effect as OMB Number: 3060–0136. contracts, independent action (‘‘IA’’) and other matters; cancellation of other a matter of state law. EPA’s action today Title: Temporary Permit to Operate a agreements; and increased reporting to does not impose any new requirements General Mobile Radio Service System. the Commission. These undertakings are that the regulated community must Form Number: FCC Form 574–T. Action: Extension of a currently described in more detail below. In begin to comply with. Nor do these approved collection. exchange, the Commission would requirements become enforceable by Respondents: Individuals or terminate or withdraw Dockets Nos. 94– EPA as federal law. Consequently, EPA households. 29, 94–30, Fact Finding Investigation finds that it does not need to give notice Frequency of Response: No. 21 and its outstanding subpoenas, prior to making its approval effective. Recordkeeping requirement. and certain other orders issued under Compliance With Executive Order Estimated Annual Burden: 1,500 section 15 of the Shipping Act of 1984 12866 recordkeepers; .10 hours average burden (‘‘1984 Act’’). TACA and its members per recordkeeper, 150 hours total annual would not admit to any violations of The Office of Management and Budget burden. law. In addition, the settlement has exempted this notice from the Needs and Uses: Commission rules agreement would bar the Commission requirements of Section 6 of Executive state that eligible applicants for new or from commencing any new actions or Order 12866. modified radio stations in the General proceedings against the Conference or Mobile Radio Service complete FCC its members for possible violations or Certification Under the Regulatory Form 574–T for immediate actions in contravention of sections 5, 6, Flexibility Act authorization to operate the radio and 10 of the 1984 Act, Commission station. The applicant is required to regulations, or Commission orders, if Pursuant to the provisions of 5 USC retain this form during processing of the such possible violations arose from 605(b), I hereby certify that this application for license grant. activities or practices disclosed to the approval will not have a significant Federal Communications Commission. Commission through one of the economic impact on a substantial following sources: Fact Finding number of small entities. It does not William F. Caton, Secretary. Investigation No. 21; documents or impose any new burdens on small depositions furnished by TACA in [FR Doc. 95–3576 Filed 2–13–95; 8:45 am] entities. This notice, therefore, does not Dockets Nos. 94–29 or 94–30; require a regulatory flexibility analysis. BILLING CODE 6712±01±F documents furnished pursuant to the Authority: This notice is issued under the settlement agreement; minutes or conference documents provided by authority of Sections 2002, 4005 and 4010(c) FEDERAL MARITIME COMMISSION of the Solid Waste Disposal Act as amended, TACA to the Commission; additional 42 USC §§ 6912, 6945 and 6949a(c). [Docket No. 94±29 et al.] information requested by the Dated: February 4, 1995. Commission pursuant to section 6(d) of Trans-Atlantic Agreement the 1984 Act; and documents furnished John P. DeVillars, by TACA in response to the In the matter of; docket No. 94–29, Regional Administrator. Commission’s section 15 compulsory [FR Doc. 95–3660 Filed 2–13–95; 8:45 am] practices of the Trans-Atlantic Agreement and its members with respect to independent orders of March 28 and July 17, 1994. BILLING CODE 6560±50±P action; docket No. 94–30, container pool The settlement includes the following practices of the Trans-Atlantic Agreement commitments from TACA and its and its members; fact finding investigation member lines: Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8387 • Rate Reductions: TACA would charter arrangements between before we act upon it. The Commission suspend all rate increases implemented Conference lines would be covered by has already received comments under its 1995 Business Plan. separate and discrete filed agreements. opposing the settlement from the Specifically, within fifteen (15) days Also, all connecting carrier agreements National Industrial Transportation after approval of the settlement by the with NVOCCs would be cancelled, and League, Container Freight International Commission, TACA would reduce its applicable tariffs and service contracts I/S and Danish Consolidation Services, current tariff rates to those in effect on would set forth the terms by which and favorable comments from the North December 31, 1994. In addition, the containers and equipment will be made American Shippers Association, Inc., Conference would offer to amend available to shippers. Beginning in and the New York/New Jersey Foreign current service contracts to undo 1995 September 1995, representatives of Freight Forwarders and Brokers rate increases and replace them with the TACA and the Commission would meet Association, Inc. These comments will rates offered in 1994. The suspension of semi-annually to discuss TACA be considered as filed in response to the 1995 increases would remain in activities and plans. this Order, and need not be refiled. effect through December 31, 1995, for As with the proposed rate reductions, As a matter of fairness to all parties, both tariff rates and service contract the settlement agreement ties the the Commission wishes to resolve the rates. In a joint memorandum in support proposed changes to TACA to the date status of this proposed settlement as of the settlement proposal, Hearing of any settlement approval by the quickly as possible. For that reason, Counsel estimate that the value to the Commission. comments from shippers and other shipping public of the rate reductions As a matter of clarification, it should interested persons must be received by would be $60–70 million, depending on be noted that the amendments to TACA the Commission no later than February such factors as cargo volumes and trade called for by the settlement are in 21, 1995. The Commission intends to growth. addition to those which the Commission meet on the settlement on February 24, • Service Contracts: (1) TACA obtained from the Conference in 1995. agreement provisions would be revised October 1994, i.e.: Therefore, it is ordered, That pursuant • to provide that shippers may negotiate removal of the Conference’s to Rule 76 of the Commission’s Rules of with the carrier of the shippers’ choice; ‘‘capacity regulation’’ program, whereby Practice and Procedure, 46 CFR 502.76, however, the Conference Secretariat the TACA lines had withheld part of the Commission hereby grants could elect to participate in such their vessel capacity from the shippers; • permission to any interested person to negotiations. (2) NVOCC service authorization allowing Conference file comments as amicus curiae on the contracts would be amended to remove carriers not participating in a TACA proposed settlement of these volume caps and geographic limits. (3) service contract to unilaterally negotiate proceedings; TACA would offer to remove or revise different rates with the shippers during It is further ordered, That an original certain restrictions in existing service a 15-day window following filing of the and fifteen copies of such comments contracts, including 7-day booking TACA contract; must be physically lodged with the • reduction of the IA notice on rates notice requirements and requirements Secretary of the Commission on or from five to three days; that cargo must be owned by the before February 21, 1995. shipper. (4) TACA may not adopt a • reduction of the number of general policy of treating shippers who Conference carriers required to approve By the Commission. did not sign service contracts in a prior a service contract from a ‘‘majority- Joseph C. Polking, period less favorably than those who minus-two’’ formula to five favorable Secretary. did sign contracts. votes; [FR Doc. 95–3754 Filed 2–13–95; 8:45 am] • • IA: TACA agreement provisions outright elimination of the 100 TEU BILLING CODE 6730±01±M would be revised as follows: (1) When or $100,000 minimum volume or value a TACA member communicates an IA requirement for service contracts; and • the deletion of provisions rate to the Conference Secretariat, the FEDERAL RESERVE SYSTEM Secretariat would be required to publish authorizing TACA carriers to the IA rate immediately, rather than first collectively negotiate with inland City Holding Company; Notice of notifying other members. (2) The lines carriers concerning European inland Application To Engage de novo in could not agree that they must discuss segments of through transportation, and Permissible Nonbanking Activities IA with other members. (3) Each line to enter into agreements with other would be free to designate who within parties. The company listed in this notice has its company is authorized to take IA. (4) The Commission believes that this filed an application under § 225.23(a)(1) Quarterly IA reporting would be made solicitation of public comment pursuant of the Board’s Regulation Y (12 CFR to the Commission. to the agency’s amicus curiae procedure 225.23(a)(1)) for the Board’s approval • Withdrawal from Discussion is warranted by the general importance under section 4(c)(8) of the Bank Agreements: the TACA lines would of the TACA investigations, which Holding Company Act (12 U.S.C. withdraw from membership in, or require us to consider any settlement 1843(c)(8)) and § 225.21(a) of Regulation cancel, a number of rate discussion and under broad public interest Y (12 CFR 225.21(a)) to commence or to rate-setting agreements, including the considerations as well as by the usual engage de novo, either directly or Eurocorde Discussion Agreement, FMC settlement criteria such as cost savings through a subsidiary, in a nonbanking No. 202–010829, and the Gulfway and effective law enforcement. For that activity that is listed in § 225.25 of Agreement, FMC No. 203–011141, reason and because the rate reduction Regulation Y as closely related to which authorize discussions about rates and other provisions of the settlement banking and permissible for bank between TACA lines and independent could have a direct and immediate holding companies. Unless otherwise lines. effect on the economic interests of noted, such activities will be conducted Furthermore, under the settlement, shippers currently doing business with throughout the United States. the TACA lines would also eliminate TACA, the Commission wishes to allow The application is available for much of their current broad space an opportunity for any interested person immediate inspection at the Federal charter authority; instead, long-term to express its opinion on the settlement Reserve Bank indicated. Once the 8388 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices application has been accepted for notices have been accepted for include a statement of why a written processing, it will also be available for processing, they will also be available presentation would not suffice in lieu of inspection at the offices of the Board of for inspection at the offices of the Board a hearing, identifying specifically any Governors. Interested persons may of Governors. Interested persons may questions of fact that are in dispute and express their views in writing on the express their views in writing to the summarizing the evidence that would question whether consummation of the Reserve Bank indicated for that notice be presented at a hearing. proposal can ‘‘reasonably be expected to or to the offices of the Board of Comments regarding this application produce benefits to the public, such as Governors. Comments must be received must be received not later than March greater convenience, increased not later than March 10, 1995. 10, 1995. competition, or gains in efficiency, that A. Federal Reserve Bank of Kansas A. Federal Reserve Bank of Atlanta outweigh possible adverse effects, such City (John E. Yorke, Senior Vice (Zane R. Kelley, Vice President) 104 as undue concentration of resources, President) 925 Grand Avenue, Kansas Marietta Street, N.W., Atlanta, Georgia decreased or unfair competition, City, Missouri 64198: 30303: conflicts of interests, or unsound 1. Carl L. Frickey, trustee of the Carl 1. Valrico Bancorp, Inc., Valrico, banking practices.’’ Any request for a L. Frickey Revocable Trust, Oberlin, Florida; to become a bank holding hearing on this question must be Kansas; to acquire an additional 8.33 company by acquiring 100 percent of accompanied by a statement of the percent, for a total of 26.36 percent, of the voting shares of Valrico State Bank, reasons a written presentation would the voting shares of Farmers Bancshares Valrico, Florida. not suffice in lieu of a hearing, of Oberlin, Inc., Oberlin, Kansas, and Board of Governors of the Federal Reserve identifying specifically any questions of thereby indirectly acquire Farmers System, February 8, 1995. fact that are in dispute, summarizing the National Bank of Oberlin, Oberlin, William W. Wiles, evidence that would be presented at a Kansas. Secretary of the Board. B. Federal Reserve Bank of Dallas hearing, and indicating how the party [FR Doc. 95–3616 Filed 2–13–95; 8:45 am] commenting would be aggrieved by (Genie D. Short, Vice President) 2200 BILLING CODE 6210±01±F approval of the proposal. North Pearl Street, Dallas, Texas 75201- Comments regarding the application 2272: must be received at the Reserve Bank 1. Western Bank Las Cruces Employee indicated or the offices of the Board of Stock Ownership Plan, Las Cruces, New FEDERAL TRADE COMMISSION Governors not later than February 28, Mexico; to acquire an additional 13.8 percent, for a total of 16.86 percent, of Application to Office of Management 1995. and Budget for Clearance of A. Federal Reserve Bank of the voting shares of Western Bancshares Information Collection Requirements Richmond (Lloyd W. Bostian, Jr., Senior of Las Cruces, Inc., Carlsbad, New Contained in Proposed Telemarketing Vice President) 701 East Byrd Street, Mexico, and thereby indirectly acquire Sales Rule Richmond, Virginia 23261: Western Bank, Las Cruces, New Mexico. 1. City Holding Company, Charleston, Board of Governors of the Federal Reserve AGENCY: Federal Trade Commission West Virginia; to engage de novo in System, February 8, 1995. (‘‘FTC’’). providing to non-affiliated financial William W. Wiles, ACTION: Notice of application to the institutions data processing services for Secretary of the Board. Office of Management and Budget processing the user bank’s deposit and [FR Doc. 95–3615 Filed 2–13–95; 8:45 am] (‘‘OMB’’) under the Paperwork loan applications pursuant to § BILLING CODE 6210±01±F Reduction Act (44 U.S.C. 3501 et seq.) 225.25(b)(7) of the Board’s Regulation Y. for clearance of information collection These activities will take place in West requirements contained in a proposed Virginia, Ohio, Kentucky, Virginia, Valrico Bancorp, Inc.; Formation of, trade regulation rule pursuant to the Maryland, and Pennsylvania. Acquisition by, or Merger of Bank Telemarketing and Consumer Fraud and Board of Governors of the Federal Reserve Holding Companies Abuse Prevention Act. System, February 8, 1995. William W. Wiles, The company listed in this notice has SUMMARY: The FTC is seeking OMB applied for the Board’s approval under Secretary of the Board. clearance for information collection section 3 of the Bank Holding Company requirements contained in proposed [FR Doc. 95–3614 Filed 2–13–95; 8:45 am] Act (12 U.S.C. 1842) and § 225.14 of the regulations implementing the BILLING CODE 6210±01±F Board’s Regulation Y (12 CFR 225.14) to Telemarketing and Consumer Fraud and become a bank holding company or to Abuse Prevention Act, 15 U.S.C. 6101– Carl L. Frickey, et al.; Change in Bank acquire a bank or bank holding 6108 (‘‘Telemarketing Act’’ or ‘‘the Control Notices; Acquisitions of company. The factors that are Act’’). Shares of Banks or Bank Holding considered in acting on the applications The Telemarketing Act requires the Companies are set forth in section 3(c) of the Act Commission to issue a rule prohibiting (12 U.S.C. 1842(c)). deceptive and abusive telemarketing The notificants listed below have The application is available for acts and practices. Section 3(a)(1). In applied under the Change in Bank immediate inspection at the Federal accordance with the statutory directive, Control Act (12 U.S.C. 1817(j)) and § Reserve Bank indicated. Once the the Commission is proposing a rule that 225.41 of the Board’s Regulation Y (12 application has been accepted for prohibits various misrepresentations CFR 225.41) to acquire a bank or bank processing, it will also be available for and other deceptive and abusive acts holding company. The factors that are inspection at the offices of the Board of and practices and that imposes various considered in acting on the notices are Governors. Interested persons may disclosure and recordkeeping set forth in paragraph 7 of the Act (12 express their views in writing to the requirements on affected entities. U.S.C. 1817(j)(7)). Reserve Bank indicated for that Specifically, the proposed rule The notices are available for application or to the offices of the Board requires that affected entities retain immediate inspection at the Federal of Governors. Any comment on an certain records for a two-year period. Reserve Bank indicated. Once the application that requests a hearing must These records include advertising, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8389 promotional materials, and Commission, Washington, DC 20580, below, no later than 5:00 p.m. on April telemarketing scripts; information (202) 326–3140. 17, 1995. regarding prize recipients and prizes; Donald S. Clark, ADDRESSES: Mail written comments (1 sales information; information regarding Secretary. original and 3 copies) to the following employees directly involved in [FR Doc. 95–3538 Filed 2–13–95; 8:45 am] address: Health Care Financing telephone sales; and written notices, BILLING CODE 6750±01±M Administration, Department of Health disclosures and acknowledgements and Human Services, Attention: BPD– required under the proposed rule. These 793–NC, P.O. Box 7571, Baltimore records would be available for Maryland 21207–0517. inspection by Commission staff, by DEPARTMENT OF HEALTH AND HUMAN SERVICES If you prefer, you may deliver your other government law enforcement comments (1 original and 3 copies) to personnel, and by private litigants to Health Care Financing Administration one of the following addresses: Room determine compliance with the rule. 309–G, Hubert H. Humphrey Building, Absent the recordkeeping [BPD±793±NC] 200 Independence Ave., SW., Washington DC 20201, or Room 132, requirements, Commission staff believes RIN 0938±AG54 that this is the type of information that East High Rise Building, 6325 Security would be retained by these entities in Medicare Program; Schedule of Limits Boulevard, Baltimore Maryland 21207. any event during the normal course of on Home Health Agency Costs Per Because of staffing and resource business because this information Visit limitations, we cannot accept comments would be useful in resolving private, by facsimile (FAX) transmission. In non-governmental inquiries and AGENCY: Health Care Financing commenting, please refer to file code disputes. The definition of ‘‘burden’’ for Administration (HCFA), HHS. BPD–793–NC. Comments received OMB purposes excludes any effort that ACTION: Notice with comment period. timely will be available for public would be expended regardless of a inspection as they are received, regulatory requirement. 5 C.F.R. SUMMARY: This notice with comment beginning approximately 3 weeks after § 1320.7(b)(1). Thus, the only burden period sets forth a revised schedule of publication of a document, in Room would be for retaining the records for an limits on home health agency costs that 309–G of the Department’s offices at 200 additional period of time. may be paid under the Medicare Independence Avenue, SW, Washington program for cost reporting periods DC, on Monday through Friday of each Currently, staff is estimating that beginning on or after July 1, 1993. These 40,000 entities will be affected and that week from 8:30 a.m. to 5 p.m. (phone: limits replace the per-visit limits that (202) 690–7890). it will take each affected entity one hour were set forth in our July 8, 1993 notice per year to retain these documents for Copies: To order copies of the Federal with comment period (58 FR 36748). Register containing this document, send an additional period of time. Thus, the This notice also provides, in accordance total burden for the proposed rule is your request to: New Orders, with the provisions of the Omnibus Superintendent of Documents, P.O. Box estimated at 40,000 hours (1 hour per Budget Reconciliation Act of 1993 year times 40,000 industry members). 371954, Pittsburgh, PA 15250–7954. (OBRA ’93), that there will be no Specify the date of the issue requested However, staff is seeking comments, changes in the home health agency particularly quantitative estimates, and enclose a check or money order (HHA) cost limits for cost reporting payable to the Superintendent of about the amount of time it would take periods beginning on or after July 1, to comply with these requirements, and Documents, or enclose your Visa or 1994, and before July 1, 1996. In Master Card number and expiration the comments may result in a change in addition, this notice responds to public the estimated burden hours. The basis date. Credit card orders can also be comments on the July 8, 1993 notice placed by calling the order desk at (202) for this estimate is described in more with comment period, which originally detail in the Supporting Statement 783–3238 or by faxing to (202) 512– set forth the HHA cost limits for cost 2250. The cost for each copy is $8.00. submitted with the Request for OMB reporting periods beginning on or after Review. As an alternative, you can view and July 1, 1993, and on the January 6, 1994 photocopy the Federal Register DATES: Comments on this application notice with comment period (59 FR document at most libraries designated must be submitted on or before March 760), which announced the elimination as Federal Depository Libraries and at 31, 1995. of the hospital based add-on effective many other public and academic for cost reporting periods beginning on libraries throughout the country that ADDRESSES: Send comments both to or after October 1, 1993. receive the Federal Register. Office of Information and Regulatory DATES: Effective date: The revised Affairs, Office of Management and FOR FURTHER INFORMATION CONTACT: schedule of limits on HHA costs set Budget, New Executive Office Building, Michael Bussacca, (410) 966–4602. forth in this notice is effective for cost Room 3228, Washington, DC 20503, reporting periods beginning on or after SUPPLEMENTARY INFORMATION: ATN: Desk Officer for the Federal Trade July 1, 1993. Commission, and to the Office of the I. Background The OBRA ’93 provision providing Secretary, Room 159, Federal Trade that there be no changes in the HHA A. History Commission, Washington, DC 20580. cost limits for cost reporting periods Section 1861(v)(1)(A) of the Social Copies of the submission to OMB may beginning on or after July 1, 1994, and Security Act (the Act) authorizes the be obtained from the Public Reference before July 1, 1996, as set forth in this Secretary to set limits on allowable costs Section, Room 130, Federal Trade notice, is effective for cost reporting incurred by a provider of services for Commission, Washington, DC 20580. periods beginning on or after July 1, which payment may be made under the FOR FURTHER INFORMATION CONTACT: 1994. Medicare program. These limits are David M. Torok, Attorney, Bureau of Comment date: Written comments based on estimates of the costs Consumer Protection, Division of will be considered if we receive them at necessary for the efficient delivery of Marketing Practices, Federal Trade the appropriate address, as provided needed health services. Under this 8390 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices authority, we have maintained limits on On January 6, 1994, we published a using the current hospital wage index, home health agency (HHA) per-visit notice with comment period in the to account for variations in area wage costs since 1979. The limits may be Federal Register to announce the levels. We then apply a statistically applied to direct and indirect overall elimination of the A&G add-on for valid methodology for eliminating costs or to the costs incurred for specific hospital-based HHAs (59 FR 760). In outlier costs to the average per-visit items or services furnished by the that notice, we stated that in computing costs for each service. The resulting provider. Implementing regulations a hospital-based HHA’s cost limits for average per-visit costs are increased by appear at 42 CFR 413.30. Additional cost reporting periods beginning on or 112 percent, the maximum the statute statutory provisions governing the limits after October 1, 1993, the A&G add-on allows. We believe the methodology applicable to HHAs are contained at amounts that were to apply, as set forth used to calculate the cost limits section 1861(v)(1)(L) of the Act. Section in Table II of the July 8, 1993 notice (58 correctly implements the statute and 1861(v)(1)(L)(i) of the Act specifies that FR 36753), will not be used. We also results in a statistically valid national the cost limits are not to exceed 112 stated that we would publish a separate average of the costs estimated to be percent of the mean of the labor-related Federal Register notice to explain the necessary in the efficient delivery of and nonlabor per-visit costs for effects of the requirement under section needed home health services under the freestanding HHAs. For cost reporting 13564(a) of OBRA ’93 that there be no Medicare program. periods beginning before October 1, changes in the per-visit cost limits for In summary, the implementation of 1993, section 1861(v)(1)(L)(ii) of the Act home health services for cost reporting the schedule of limits set forth in our requires that the Secretary make an periods beginning on or after July 1, July 8, 1993 notice and the methodology adjustment to the cost limits for the 1994 and before July 1, 1996. for developing the limits are in full administrative and general (A&G) costs compliance with statutory directives. In of hospital-based HHAs. Section II. Discussion of Public Comments developing these limits, we have made 1861(v)(1)(L)(iii) of the Act requires that A. Response to Public Comments no changes, beyond those directly the Secretary establish HHA cost limits Received On the July 8, 1993 Notice required by OBRA ’93, in the on an annual basis for cost reporting With Comment Period methodology used in setting the limits periods beginning on or after July 1 of effective July 1, 1991 and July 1, 1992. each year. We received 28 items of timely Finally, the statute does not provide for Accordingly, we published a notice correspondence on our HHA cost limits a phase-in of the limits. with comment period that appeared in notice issued in the Federal Register on 2. Database the July 8, 1993, issue of the Federal July 8, 1993 (58 FR 36748). A discussion Register (58 FR 36748), which set forth of the comments we received on that Comment: Several commenters a schedule of limits on HHA costs for notice and our responses to those questioned the database used to develop cost reporting periods beginning on or comments is set forth below. the cost limits. Some commenters raised after July 1, 1993. The limits were 1. Cost Limits concerns about the possible omission of computed using the actual cost per-visit providers from California. Others data from cost reporting periods ending Comment: Many commenters stated suggested that the provider database on or after June 30, 1989, and before that the per-discipline cost limits for used to develop the limits was not May 31, 1991, and were adjusted by the skilled nursing and home health aides representative because HCFA relies only latest estimates in the ‘‘market basket’’ are inadequate. They believe that the on settled cost reports to compute the index to reflect changes in the price of cost limits are arbitrary and not at the HHA cost limits. goods and services furnished by HHAs. level required by law. In addition, two Response: The data used in the commenters suggested that the limits calculations of the cost limits effective B. Omnibus Budget Reconciliation Act effective July 1, 1993 should be phased July 1, 1993, were actual cost per-visit of 1993 in. data extracted from settled Medicare On August 10, 1993, the Omnibus Response: Section 1861(v)(1)(L) of the cost reports, for cost reporting periods Budget Reconciliation Act of 1993 Act governs the methodology for ending on or after June 30, 1989, and (OBRA ’93) (Public Law 103–66) was computing the HHA limits. As noted in before May 31, 1991. This resulted in a enacted. Section 13564(a) of OBRA ’93 section I.A of this notice, section database of 2602 freestanding agencies amended section 1861(v)(1)(L)(iii) of the 1861(v)(1)(L)(i) of the Act specifies that located throughout the country. Due to Act to provide that there be no changes the HHA per-visit cost limits are not to concerns with under-representation of in the HHA per-visit cost limits (except exceed 112 percent of the mean of the HHAs, we reviewed the Provider of as may be necessary to take into account labor-related and nonlabor per-visit Services (POS) file to determine the the elimination of the A&G add-on for costs for freestanding HHAs. Section number of HHAs that were Medicare- hospital-based HHAs) for cost reporting 1861(v)(1)(L)(iii) of the Act requires that certified as of November, 1992 (the cut- periods beginning on or after July 1, we establish cost limits on an annual off date of the HHA database used to 1994, and before July 1, 1996. In basis for cost reporting periods develop the HHA cost limits effective addition, section 13564(b) of OBRA ’93 beginning on or after July 1 of each year for cost reporting periods beginning on amended section 1861(v)(1)(L)(ii) of the (except for cost reporting periods or after July 1, 1993). Our review Act to require that, effective for cost beginning on or after July 1, 1994, and showed that the POS file contained all reporting periods beginning on or after before July 1, 1996) and that we use the HHA providers of service, including October 1, 1993, we no longer include current hospital wage index to calculate terminated providers, existing a payment adjustment for A&G costs of the limits. providers, and new providers. However, hospital-based HHAs in computing the Thus, in calculating the limits, we use the POS file does not indicate whether HHA limits. The A&G per-visit add-on actual cost-per-visit data from the latest a HHA needs to file a cost report, or if for hospital-based HHAs had been available settled Medicare cost reports. a cost report is due from an HHA. applied since 1980. Under this From those data, we compute an average Accordingly, we extended our review. provision, hospital-based HHAs and per-visit cost for each Medicare covered We instructed the nine regional home freestanding HHAs will be treated home health service. The labor portion health intermediaries (RHHIs) servicing identically for payment purposes. of the average per-visit cost is adjusted, the freestanding HHAs to review their Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8391 files for the time period of our data EFFECT ON PER-VISIT ADD-ON FOR whether all of an HHA’s costs are collection (before November 1992) to MSA AND NON-MSA HHAS excluded if the agency has a single determine if any providers had been outlier discipline? omitted erroneously when the Effect Effect Response: The use of settled cost intermediaries filed their cost report on hos- on hos- report data does not eliminate the need data for the HHA database. The RHHIs pital- pital- based to exclude outliers from the database. identified 309 freestanding ‘‘missing’’ Type of visit based add-on Outliers are aberrant costs; these costs providers. Our review of the original add-on for non- for MSA are not representative of industry database showed that it did not include HHAs MSA data from Blue Cross and Blue Shield of HHAs norms. As in previous schedules of HHA cost limits, the elimination of cost California. All ‘‘missing’’ providers’ cost Skilled nursing care ...... $+0.03 $+0.57 data were entered into the database and per-visit outliers continues to be Physical therapy ...... ¥0.22 +0.22 necessary in developing the limits were subject to an extensive edit process Speech pathology ...... ¥0.07 +0.51 to validate the data. In addition, we Occupational therapy .... ¥0.20 +1.03 because the per-discipline cost data in reexamined the entire database to Medical social services . ¥1.14 +0.16 our database are extracted from actual identify duplicates and as-submitted Home health aide ...... +0.03 +0.25 cost reports. Although these cost reports cost reports. This examination resulted have been settled, the settlement in elimination of 120 duplicate reports We recognize that the conversion to a process is designed to ensure that cost from freestanding HHAs and the limited number of fiscal intermediaries report data reflect actual costs elimination of 100 hospital-based as- and the lack of a internal HCFA system associated with covered visits; it does submitted cost reports. The revised to track settled cost reports for HHAs not assess whether the actual costs are database consists of 2911 freestanding resulted in missing providers. In the reasonable. future, HCFA will request that each of providers. The elimination of outliers is on a The following table shows the effects the nine regional intermediaries submit of the revised database on the per- a list of all HHAs that it is servicing at per-discipline basis. That is, we discipline cost limits for Metropolitan the time of data collection. Upon eliminate costs associated with a Statistical Area (MSA) and non-MSA collecting the data, HCFA will cross- specific discipline that are statistical HHAs published in our July 8, 1993 check the HHAs included in the outliers. Based on our longstanding notice. See section IV of this notice for database with the lists submitted by the policy, we consider outliers to be those a revised table of limits effective for cost intermediaries. costs that are two standard deviations or reporting periods beginning on or after Concerning the comment on the use more from the mean. Therefore, the high July 1, 1993, and before July 1, 1994. of settled cost reports, all of the RHHIs outliers, as well as the low outliers, are met the Contractor Performance eliminated. All other per-discipline EFFECT ON PER-VISIT COST LIMITS Evaluation (CPEP) standard for settling costs would be included in the FOR MSA AND NON-MSA HHAS cost reports timely for FY 1991/1992. computation of the per-discipline limits. For example, in FY 1992, 90 percent of In the table below we have listed the Effect Effect freestanding HHA cost reports were range of high and low per-visit costs for on limits settled timely by the RHHIs and would Type of visit on limits for non- each discipline for both the labor and for MSA MSA be available to be included in HCFA’s the nonlabor portions for both MSA HHAs HHAs database. Thus, the use of settled cost limits and non-MSA limits. Only per- reports does not affect the representative visit costs outside these ranges are Skilled nursing care ...... $+0.72 $+0.75 nature of the database. considered outliers. We believe that Physical therapy ...... ¥1.59 ¥0.02 Comment: Some commenters believe using costs beyond these ranges, that is, Speech pathology ...... ¥1.50 +0.02 that the conversion to a limited number Occupational therapy .... ¥1.20 +0.54 outliers, to develop the per-visit limits Medical social services . +0.06 ¥1.00 of intermediaries that specialize in subverts the statistical validity of the Home health aide ...... +0.54 +0.26 handling home health claims and the national average of estimated costs. exclusive use of settled cost reports in The following table shows the effects the database invalidate the rationale for of the revised database on the per-visit excluding certain outliers from the hospital-based add-on for MSA and database as a first step, before non-MSA HHAs published in our July 8, proceeding with the calculation of the 1993 notice. See section IV of this notice cost limits. One commenter raised a for a revised table of add-on amounts for series of specific questions about the hospital-based HHAs with cost outlier exclusion process, including reporting periods beginning on or after what constitutes an outlier, how many July 1, 1993, and before October 1, 1993. agencies are classified as outliers, and HOME HEALTH AGENCY COST LIMITS OUTLIERS LABOR AND NONLABOR PORTIONS HIGHS AND LOWS Urban Labor low Labor high Nonlabor low Nonlabor high Skilled nursing care ...... $33.85 $131.24 $6.08 $36.06 Physical therapy ...... 33.02 132.78 5.37 31.69 Speech pathology ...... 31.59 141.76 6.05 32.45 Occupational therapy ...... 29.85 139.01 6.19 35.88 Medical social services ...... 31.43 252.36 6.09 58.58 Home health aide ...... 16.16 75.30 2.87 19.21 Rural Skilled nursing care ...... 39.98 141.46 4.74 29.15 8392 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices HOME HEALTH AGENCY COST LIMITS OUTLIERS LABOR AND NONLABOR PORTIONS HIGHS AND LOWSÐContinued Urban Labor low Labor high Nonlabor low Nonlabor high Physical therapy ...... 41.77 147.54 6.69 28.34 Speech pathology ...... 40.28 160.19 7.36 37.65 Occupational therapy ...... 35.69 161.74 6.22 30.35 Medical social services ...... 36.42 350.59 6.85 62.15 Home health aide ...... 16.18 72.55 2.52 17.07 Comment: Two commenters HHAs submitted appeals to the PRRB. If However, if a provider believes that it recommended that we use data from an appeal was decided before we has incurred additional costs not hospital-based agencies in the develop the annual HHA per-visit cost included in the limits relating to home calculation of the limits. The limits, the final data would be entered health aide training and competency commenters believe that the calculation into the database. In those cases in evaluation programs, the provider may of the limits using only freestanding which the PRRB appeal and apply for an exception to the cost limits facilities does not reflect the higher administrative review processes are not under the exceptions process outlined costs associated with hospital-based completed until after we have in § 413.30. This situation could be HHAs. developed the annual HHA per-visit recognized as an ‘‘extraordinary Response: Section 1861(v)(1)(L)(i) of cost limits, the settled data from the cost circumstance’’ exception under the Act specifies that the Secretary is to reports in question would be entered. § 413.30(f)(2). establish a single schedule of HHA cost Including the adjusted data that may Comment: A commenter indicated limits based on the cost experience of result from PRRB appeals into the that the database from which the HHA freestanding agencies. We have no database would have no significant cost limits were developed was not discretion to include hospital-based effect on the calculation of the cost available for public use when the providers in the calculation of the HHA limits. Moreover, since the cost limits regulation was issued on July 8, 1993. limits. are set prospectively, it would be Response: It is our standard practice Comment: A commenter suggested neither necessary nor administratively to make available to the public the that the use of settled cost reports feasible to include adjusted data database used to construct the cost ignores the higher claims presented resulting from the completed appeals limits. HCFA’s Bureau of Data before the Provider Reimbursement process into the HHA database used to Management and Strategy annually Review Board (PRRB) and that these develop the annual limits. We note that publishes a ‘‘Public Use Files Catalog’’ claims should be included in the the HHA per-visit limits constitute an that identifies available Medicare/ database for calculation of the HHA cost estimated national average of costs, and Medicaid data files and gives limits. individual providers are free to pursue instructions on how to obtain them. The Response: The use of settled cost exceptions to these averages where database used to construct the cost reports in developing the HHA cost justified. limits outlined in the July 8, 1993 notice limits was established for cost reporting Comment: Several commenters stated (that is, Medicare HHA Cycle 11 Data periods beginning on or after July 1, that the limits do not reflect the costs Set, containing data for cost reporting 1992 (see 57 FR 29411). Before July 1, associated with the implementation of periods ending on June 30, 1989, and 1992, HHA databases included data the Omnibus Budget Reconciliation Act before May 31, 1991) was available from from both settled and as-submitted cost of 1987 (OBRA ’87) (Public Law 100– the Bureau of Data Management and reports. We were able to begin using 203) quality assurance provisions, Strategy, HCFA, to the public, on the settled cost report data as a result of specifically, the requirements for home date the regulation was published. The revised CPEP standards that required health aide training and competency HHA database is available on tape or Medicare fiscal intermediaries to settle evaluation programs. They asserted that diskette for $680. For further the HHA cost reports sooner than was no additional amount has been added to information on obtaining data used in required under former standards. the HHA limits to account for these calculating the HHA cost limits, see Consequently, as explained in our July costs. section VI.C of this notice. 1, 1992 notice with comment period, Response: Section 1891(a)(3) of the settled data are available much sooner Act requires HHAs to comply with the 3. Market Basket than in previous cost reporting periods, requirements relating to home health Comment: Several commenters and we believe the data accurately aide training and competency programs, believe that the market basket factors reflect current conditions in the health established by OBRA ’87. The cost-per- that have been used to update the 1990 care industry. The use of settled cost visit data used in the calculations of the cost data seemed to understate home reports allows us to eliminate misstated cost limits effective on July 1, 1993 were care market basket cost increases of data including nonallowable costs and extracted from settled Medicare cost between 5 to 7 percent for the 1992– noncovered visits that inevitably result reports for periods ending on or after 1993 period and need to be updated for from using as-submitted cost reports. June 30, 1989, and before May 31, 1991. current weights and revised wage-price (See 57 FR 29410.) We published regulations on August 14, proxies. Specifically, the commenters Providers that file an appeal before 1989 at 42 CFR § 484.36 to require that believe that the market basket factors the PRRB must have received a Notice HHAs establish a competency fail to account properly for increases in of Program Reimbursement for the fiscal evaluation program for home health the Federal minimum wage, base rates year in question, before filing the aides by February 14, 1990 (see 54 FR for workers’ compensation premiums, appeal. During the cost reporting 33357–33360 and 33372). Therefore, the reimbursement for mileage, Federal periods ending on or after June 30, 1989, costs associated with home health aide gasoline tax, computers to submit and before May 31, 1991, on an annual training and competency evaluation claims via electronic media basis, fewer than 2 percent of certified programs are included in this database. communications, additional A&G costs, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8393 and FICA taxes. They indicated that Omnibus Budget Reconciliation Act of neutrality adjustment is attributable to there is evidence that the market basket 1990 (OBRA ’90) mandates use of the the revised limits that have resulted factors now used to update the cost most recent hospital wage index for from our validation of the HHA limits are too low and that appropriate calculation of the labor portion of the database. alternatives exist and are being used to cost limits, but it also requires that Comment: A commenter stated that a make budget projections for the aggregate payments to HHAs be budget persistent problem in the application of Administration and Congress. neutral. The commenter asserted that the cost limits that is made more Response: For the last several years, the use of a lower budget neutrality difficult by the new limits are that the HHA input price index (market factor than in the previous schedule of HHAs, like hospitals, are sometimes basket) has increased at the fastest rate limits accounted in itself for a reduction assigned to the ‘‘wrong’’ geographic of all the market basket indices for the of approximately 2.5 percent in the cost area. The commenter suggested that we Medicare program. The increase in the limits. In addition, the commenter noted consider basing hospital wage indices market basket reflects the weights and that the budget neutrality factor of 2.7 on the wage levels paid by neighboring wage-price proxies in the market basket percent used in calculating the limits providers and that wage levels should to capture the special market conditions effective July 1, 1993 is a considerable be standardized according to some for HHA services (such as the shortage reduction from the 5.9 percent used in predefined occupational mix. of several categories of licensed health calculating the limits effective July 1, Response: Under section 1886(d)(3)(E) professionals providing HHA services). 1992 and fails to provide of the Act, the Secretary annually The compensation and nonlabor proxies Congressionally mandated budget establishes a wage index for the used in the market basket include the neutrality between the 1982 and the purposes of adjusting payment rates for effects of taxes on the rates of increase. 1988 hospital wage indexes. hospital inpatient services to reflect Wages and salaries include employer Response: Section 4207(d)(1) of OBRA wages in a geographic area relative to contributions (payroll taxes) for social ’90 amended section 1861(v)(1)(L)(iii) of the national average. Section insurance (old age, survivors, disability the Act to require that in establishing 1861(v)(1)(L)(iii) of the Act requires and hospital insurance). The wage and the HHA schedule of limits annually on that, in establishing the HHA schedule salary category also includes State July 1 of each year we are to use the of limits, the Secretary is to use the unemployment insurance, supplemental current hospital wage index. To lessen current hospital wage index. unemployment insurance and the effect on individual HHAs that Almost from the beginning of the workmen’s compensation. The price would have been caused by hospital prospective payment system, proxies for transportation and utilities implementing this requirement we have received comments from the include the relevant sales taxes. Further, immediately, section 4207(d)(3) of hospital industry objecting to the use of the price proxy for rental and leasing OBRA ’90 provided for a 2-year labor market areas based on costs includes the impact of all costs transition period during which we Metropolitan Statistical Areas (MSAs) including property taxes. would use a blend of 1982 and 1988 established by the Office of Management The market basket factors used to hospital wage data. As required by and Budget to construct the wage index. update the cost limits are consistent section 1861(v)(1)(L)(iii) of the Act, the The Prospective Payment Assessment with, but not identical to, the cost-per- limits effective for cost reporting Commission (ProPAC) has also visit budget projections for the periods beginning on or after July 1, recommended changes in how the labor Administration and Congress. The HHA 1993, and before July 1, 1994, use the market areas used to construct the market basket is designed to measure FY 1993 hospital wage index, that is the hospital wage index should be defined. price inflation for inputs used to hospital wage index effective for We recognize that, as currently produce HHA services. It, therefore, hospital discharges on or after October structured, there are certain does not take into account changes in 1, 1992, which is based entirely on 1988 inefficiencies inherent in the MSA- the quantity, mix or intensity of services wage survey data (see 58 FR 36750). based system. In light of these concerns, per visit. In contrast, the Thus, although the wage indices used in we have continued to examine a variety Administration’s budget projections calculating the limits effective for cost of options for revising wage index labor take into account the change in mix of reporting periods beginning on or after market areas. types of visits and the effects of July 1, 1993 are in many cases lower On May 27, 1994, we published a productivity changes on per-visit costs. than in the past, they reflect the latest proposed rule in the Federal Register Productivity changes are a major available actual wages. (59 FR 27708) that detailed changes to determinant of cost-per-visit increases Section 4207(d)(2) of OBRA ’90 the hospital prospective payment and are specifically excluded from the requires that, in updating the wage system for FY 1995. In the proposed HHA market basket. index used for establishing the HHA rule, we discussed in detail issues We believe that it would be limits, aggregate payments will remain raised by commenters concerning a appropriate to do a special study of the the same as they would have been if the ‘‘nearest neighbor’’ approach to the weighting and wage-price proxies for wage index had not been updated. To wage index, as recommended by the HHA market basket. We intend to meet this requirement, as explained in ProPAC, and our research and analysis begin such a study in the near future, detail in our July 8, 1993 notice with on alternative methodologies for and we welcome public comments on comment period, we determined that it defining labor market areas (59 FR data sources for weights and wage-price was necessary to apply a budget 27724 through 27732). These proxies. neutrality adjustment factor of 1.027 alternatives are still under review, and (that is, an increase of 2.7 percent) to the no final decision has been made at this 4. Wage Index labor-related portion of the cost limits time to use a different methodology in Comment: One commenter stated that (58 FR 36748–36749). However, for this determining future payment rates. the wage index factors used in the notice, we have recalculated the budget calculation of the cost limits effective neutrality adjustment factor and have 5. Additional Costs/Exceptions July 1, 1993 are lower than the July 1, determined that a factor of 1.067 should Comment: A commenter suggested 1992 cost limits in almost all cases. In be applied (that is, a 6.7 percent that new HHAs be exempt from the addition, the commenter stated that the increase). The change in the budget limits for the first two full year cost 8394 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices reports, citing the exemptions presently § 413.30(f)(2). The HHA cost limits available for public inspection (see 58 granted for inpatient facilities (non-PPS effective for cost reporting periods FR 36762 for file date). Under 44 U.S.C. hospitals and skilled nursing facilities). beginning on or after July 1, 1992 and section 1507, the filing of the document The commenter believes that this on or after July 1, 1993 allow a provider is sufficient to give constructive notice resulted in discrimination against the an adjustment for costs incurred for of the contents of the document to a establishment of home health care OSHA, upon presentation of person subject to or affected by it. services when the emphasis of health documentation to the intermediary to As explained in our July 8, 1993 care is away from inpatient services and substantiate the adjustment. If a notice with comment period, we used toward home care. provider exceeds the adjustment, an the same methodology to develop the Response: Prior to 1987, § 413.40(f)(7) exception to the cost limits is made only schedule of limits that was used in (formerly § 405.460(f)(7)) granted an to the extent that costs are reasonable, setting the limits published on July 1, exception to the cost limits to minimize attributable to the circumstances 1992. The cost limits were updated to financial barriers to HHAs wanting to specified, separately identified by the reflect the cost increases occurring enter Medicare markets for the first provider, and verified by the between the cost reporting periods for time, especially in underserved areas. intermediary. the data contained in the database and On June 4, 1987, we published a final Comment: Some of the commenters December 31, 1993. rule with comment period (52 FR believe that filing for a waiver to seek Because the methodology used to 21216) indicating that the exception for an exception from the limits is time develop the July 1, 1993 schedule of newly-established HHAs was consuming, expensive and impractical. limits was previously published for eliminated. As discussed in detail in Response: The purpose of establishing public comment and because we are that final rule with comment period, the per-visit limits is to cover the costs required by section 1861(v)(1)(L)(iii) of evidence acquired from FY 1980 necessary in the efficient delivery of the Act to use the current hospital wage through FY 1985 indicated a changing needed health services. However, index, which was based on 1988 wage composition of HHAs that suggested because the limits are not intended to survey data, we determined that it that financing was no longer a take into account every cost, we have would be impractical and unnecessary significant obstacle to entering the established an exceptions process for to request public comment before we market place, and therefore the situations in which providers incur implemented the cost limits effective for exception was rescinded. In fact, while additional costs in excess of the cost cost reporting periods beginning on or hospital-based and proprietary agencies limits. Providers may apply for an after July 1, 1993. Thus, we stated that had access to financial resources and exception to the cost limits under the it would be contrary to public interest, patient populations, nonprofit and free- exceptions process outlined in § 413.30. and we found good cause to waive standing agencies did not. We continue We believe that the exceptions process publication of a proposed notice. to believe that an exception for newly- is a fair and equitable method for HHAs In response to the comment on the established HHAs is not necessary to to substantiate costs exceeding the limit. waiver of the 30-day delayed effective encourage the spread of HHAs services. 6. Administrative Procedure Act date, as we explained in our July 8, 1993 Moreover, we note that the number of notice with comment period, in order HHAs servicing Medicare beneficiaries Comment: A commenter stated that for HHAs to receive timely the benefits has increased approximately 28 percent the schedule of cost limits published on of the cost limits that are based on the since 1987, from 5,857 to 7,473 as of July 8, 1993 (58 FR 36748) is void updated wage index, it was necessary March, 1994. because it is a product of retroactive that the limits be effective for cost Comment: Several commenters rulemaking, which is not authorized by reporting periods beginning on or after indicated that the recruitment and the Social Security Act and is July 1, 1993 as required by section retention of occupational therapists and prohibited by the Administrative 1861(v)(1)(L)(iii) of the Act (see 58 FR physical therapists, especially in rural Procedure Act (APA). Specifically, the 36762). areas, results in increased costs not rule had an effective date of July 1, incorporated in the HHA cost limits. 1993, but was not published in the B. Response to Public Comments In addition, one commenter indicated Federal Register until July 8, 1993. Received on the January 6, 1994 Notice that the additional amount of $.18 Further, the commenter stated that the With Comment Period allowed for the OSHA adjustment to rule is void because it was issued in We received 10 items of timely account for new standards for universal violation of the notice and comment correspondence on our notice precautions is not adequate to account requirements of the Medicare statute eliminating payment adjustments for the for the actual, necessary and reasonable and APA. The commenter believes that A&G costs of hospital-based HHAs. The cost being incurred by HHAs after May we did not have ‘‘good cause’’ to waive comments we received on that notice 31, 1991. publication of a proposed notice and to and our responses to those comments The commenters believe that the waive the 30-day delayed effective date are set forth below. failure to reflect these costs fully in the requirements of the APA. The Many of the comments we received per-visit limits will reduce access and commenter stated that HCFA failed to on that notice addressed issues that we quality of care to beneficiaries. offer any explanation as to why the rule have already addressed in section II.A of Response: If a provider can quantify could not have been published earlier. this notice, particularly, the exclusion of the costs it incurs as a result of Response: Section 1861(v)(1)(L)(iii) of hospital-based agencies from the recruiting and retaining occupational the Act requires that the Secretary database. Since we have already therapists or physical therapists, or an update the HHA cost limits on an addressed these comments, we are not OSHA add-on amount that exceeds the annual basis for cost reporting periods repeating our responses to the allowed $.18, the provider may apply beginning on or after July 1 of each year. comments here. for an exception to the cost limits under On July 1, 1993, the schedule of limits the exceptions process outlined in on HHA costs per visit, effective for cost 1. Elimination of the A&G Add-on § 413.30. These situations could be reporting periods beginning on or after Comment: One commenter agreed that recognized as an ‘‘extraordinary July 1, 1993, was filed with the Office the A&G add-on should be eliminated. circumstances’’ as defined in of the Federal Register and was made However, most commenters objected to Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8395 the elimination of the A&G add-on, desirable. HCFA’s Office of Research avoid the administrative difficulties emphasizing that the costs incurred by and Demonstrations is presently associated with implementing revised hospital-based and freestanding conducting a demonstration relating to limits retroactively for cost reporting agencies are different. One commenter prospective payment for HHAs. During periods beginning on or after July 1, stated that although section 13564 of the second phase of this demonstration, 1993, it still would not conform strictly OBRA ’93 eliminates the A&G add-on, it we intend to develop a prototype case- to the OBRA ’93 provisions prohibiting does not preclude the Secretary from mix or severity adjustment to be tested any changes in the cost limits until July making the adjustments that are under the demonstration for possible 1, 1996. In addition, this option again necessary to ensure fair payment to use in future payment methodologies. In would disadvantage HHAs by not providers. In addition, another addition, HCFA has begun the Medicare assigning accurate limits effective for commenter believes that the elimination Home Health Initiative, which will cost reporting periods beginning on or of the add-on should be phased-in. review a variety of issues related to the after July 1, 1993. Response: Section 13564(b) of OBRA home health benefit including those Our remaining option was to apply ’93 amended section 1861(v)(1)(L)(ii) of presented above. the changes to the cost limits the Act to require that, effective for cost retroactively. That is, we would publish reporting periods beginning on or after III. Provisions of This Notice With revised limits that would be effective for October 1, 1993, we no longer include Comment Period cost reporting periods beginning on or a payment adjustment for the A&G costs A. Revised Schedule of Limits after July 1, 1993, in place of the limits of hospital-based HHAs in computing set forth in our July 8, 1993 notice. The the HHA limits. Under this provision, As discussed in section II.A.2 of this statute allows us to set the cost limits at for cost reporting periods beginning on notice, we have identified problems a maximum of 112 percent of the mean or after October 1, 1993, hospital-based with the validity of the database used to of per-visit costs for freestanding HHAs and free-standing HHAs will be calculate the cost limits for cost agencies. As in the past, for the cost treated identically for payment reporting periods beginning on or after limits applicable to cost reporting purposes. The statute does not provide July 1, 1993, as set forth in our July 8, periods beginning on or after July 1, for a phase-in period. 1993 notice. Therefore, we are setting 1993, we set the limits at that Section 1861(v)(1)(L)(i)(III) of the Act forth in this notice a revised schedule of maximum. Because we have identified defines fair payment to HHAs at some limits on HHA costs that may be paid errors in the database of costs for level determined by the Secretary, but under the Medicare program for cost freestanding agencies, we believe that it not in excess of 112 percent of the cost reporting periods beginning on or after is in keeping with the intent of the experience of freestanding providers. July 1, 1993. We also are setting forth statute that these errors be rectified. Section 1861(v)(1)(L)(ii) of the Act revised add-on amounts for hospital- Therefore, we believe it is appropriate, provides the Secretary with the based HHAs for cost reporting periods and consistent with the statute, to revise authority to provide for exceptions to beginning on or after July 1, 1993, and the limits for cost reporting periods the cost limits. Accordingly, if a before October 1, 1993. beginning on or after July 1, 1993, so provider quantifies and provides an Before adopting this approach, which that they are based on 112 percent of the explanation of costs that exceed the entails the retroactive application of the mean of the more accurate database of limits, it may apply for an exception to schedule of limits set forth in this freestanding agencies’ per-visit costs. the cost limits under the exceptions notice, we considered three possible Also, despite the administrative process outlined in § 413.30. alternatives for dealing with the difficulties that may arise, we believe problems with the database used in the 2. Reimbursement Methodology this option is in the best interests of calculation of the cost limits effective HHAs. Therefore, we have determined Comment: Two commenters indicated July 1, 1993. One option was to take no that revising the limits, effective for cost that the reimbursement methodology for action to revise the limits, in accordance reporting periods beginning on or after HHAs should be assessed, including a with the provisions of section 13564(a) July 1, 1993 is the most appropriate review of the Medicare step-down cost of OBRA ’93, which explicitly prohibit course of action. methodology and the use of severity of any changes in the cost limits for HHAs Thus, the revised schedule of limits illness to determine the cost of care and for cost reporting periods beginning on set forth in Table I of section IV of this length of stay for post-acute versus or after July 1, 1994, and before July 1, notice replaces the per-visit limits set community-based referrals. One 1996. However, we believe that in forth in our July 8, 1993 notice. As commenter stated that the change in enacting these provisions, Congress required by section 13564(a) of OBRA methodology, that is, the elimination of could not have envisioned that there ’93, these limits will remain in effect for the hospital-based add-on, imposes a would be errors in the database that cost reporting periods beginning before systematic error in accurately measuring would necessitate revisions to the July 1, 1996. In addition, we are setting costs of caring for home health patients. limits. Thus, we do not believe that the forth in Table II of section IV of this Another commenter stated that HCFA revision of the limits under these notice revised A&G add-on amounts for should wait for the results of the circumstances is inconsistent with the hospital-based HHAs to replace the add- Federally funded demonstration statute. In addition, we do not believe on amounts set forth in our July 8, 1993 projects that are currently evaluating that it is appropriate to base payments notice. In accordance with section home care reimbursement before any to HHAs on limits that are known to be 1861(v)(1)(L)(ii) of the Act, as amended changes are made to the present home based on a limited database and are by section 13564 of OBRA ’93, the care reimbursement structure. The estimated to result in lower Medicare intermediaries will make an adjustment commenter stated that the information payments to HHAs. (See section V of for the A&G add-on in computing the we obtain from these studies should be this notice for a discussion of its adjusted limits for hospital-based HHAs used to develop an appropriate economic impact.) with cost reporting periods beginning industry-wide home care We also considered applying the on or after July 1, 1993, and before reimbursement system. changes to the cost limits prospectively, October 1, 1993. Response: We agree that further study that is, effective upon publication of this For the convenience of the reader, we of the HHA reimbursement system is notice. Although this option would are republishing Tables IIIa, IIIb, and IV 8396 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices that were published in our July 8, 1993 for the cost reporting period subject to number of Medicare visits for each type notice. These tables contain the wage this notice. of service furnished by the HHA by the indices for urban and rural areas and The HHA costs that are subject to the respective per-visit cost limit. The sum cost reporting year adjustment factor limits include the cost of medical of these amounts is compared to the and also are presented in section IV of supplies routinely furnished in HHA’s total allowable costs. this notice. conjunction with patient care. Durable The intermediaries will compute the medical equipment, orthotics, Example: HHA X, a free-standing agency adjusted limits using the wage index in prosthetics, and other medical supplies located in Richmond VA, furnishes 5,000 Tables IIIa and IIIb set forth in section directly identifiable as services to an covered skilled nursing visits, 2,000 covered IV of this notice, and will notify each individual patient are excluded from physical therapy visits, and 4,000 covered HHA that they service of its applicable per-visit costs and are paid without home health aide visits to Medicare cost per-visit limits for each type of regard to this schedule of limits. (See beneficiaries during its 12-month cost reporting period beginning on July 1, 1993. service. Each HHA’s aggregate limit Chapter IV of the Home Health Agency cannot be determined prospectively, but Manual (HCFA Pub. 11).) The Aggregate Cost Limit is depends on each HHA’s Medicare visits The intermediary will determine the Determined As Follows: for each type of service and actual costs limit for each HHA by multiplying the Adjusted Type of visit Visits Nonlabor labor por- Adjusted Aggregate portion tion limit limit Skilled Nursing Care ...... 5,000 $16.44 $74.72 $92.32 $461,600 Physical Therapy ...... 2,000 16.52 75.28 92.96 185,920 Home Health Aide ...... 4,000 8.33 37.65 46.57 186,280 Total Visits ...... 11,000 ...... Aggregate Cost Limit ...... $833,800 As noted in section III.A of our July as may be necessary to take into account month between June 1, 1994, and the 8, 1993 notice, in order to account for the elimination of the A&G add-on for month in which the cost reporting OSHA’s universal precaution hospital-based HHAs) for cost reporting period begins, until a new schedule of requirements, we also will allow an periods beginning on or after July 1, limits or other provision is issued (58 additional adjustment to the aggregate 1994, and before July 1, 1996. The effect FR 36760). In accordance with section cost limit of $.18 per visit for those of this provision is that a HHA’s latest 13564(a) of OBRA ’93, the inflation HHAs that incur costs in complying per-discipline cost limit for a period factor will not be used for cost reporting with these requirements (see 58 FR beginning on or after July 1, 1993, and periods beginning on or after July 1, 36749). An HHA must apply to its before July 1, 1994, as calculated under 1994, and before July 1, 1996.) The intermediary for the add-on amount. this notice, without regard to revised schedule of per-visit limits set The agency must demonstrate that it subsequent adjustments under section forth in Table I of section IV of this will exceed its cost limit in order to be 1861(v)(1)(L)(ii) of the Act for notice, which replaces the schedule of in compliance with the OSHA exceptions, will remain in effect until limits set forth in our July 8, 1993 mandated requirements. The HHA must its cost reporting period beginning on or notice, will be used to compute the provide the intermediary with adequate after July 1, 1996. As explained in our limits. Revised Table II will be used to documentation to support the add-on January 6, 1994 notice with comment calculate the A&G add-on, when amount. period, section 13564(b) of OBRA ’93 applicable. The wage indices in Tables Before the limits are applied during eliminated the A&G add-on for hospital- IIIa and IIIb that were originally settlement of the cost report, the HHA’s based HHAs. Accordingly, there will be published in our July 8, 1993 notice and actual costs are reduced by the amount no changes, besides those due to the are republished in section IV of this of individual items of cost (for example, elimination of the A&G add-on, to a notice will continue to be used to administrative compensation and HHA’s cost limit for cost reporting compute the limits. contract services) that are found to be periods beginning on or after July 1, excessive under the Medicare In the example below, a freestanding 1994, and before July 1, 1996, to account reasonable cost principles of provider HHA in Dallas, Texas has a cost payment. That is, the intermediary for inflation, changes to the wage index reporting period beginning date of reviews the various reported costs, or to MSA designations. Thus, in January 1, 1994. As calculated under taking into account all Medicare computing a provider’s cost limit for this notice, its cost limit for the 12- payment principles (for example, the cost reporting periods beginning on or month period beginning January 1, cost guidelines for physical therapy after July 1, 1994, and before July 1, 1994, for occupational therapy is furnished under arrangement (see 1996, the cost reporting period $96.13. Under the provisions of this § 413.106) and the limitation on costs adjustment factors that were to apply for notice, the cost limit of $96.13 will that are substantially out of line with cost reporting periods beginning on or remain in effect for its 12-month cost those of comparable HHAs (see after July 1, 1994, will not be used. (In reporting periods beginning January 1, § 413.9)). our July 8, 1993 notice with comment 1995, and January 1, 1996. As explained period, we specified that if we did not above, the cost reporting period B. No Changes in the Cost Limits publish new limits to be effective on adjustment factors that would have been As discussed in section I.B of this July 1, 1994, the limits effective July 1, used under the July 8, 1993 notice with notice, section 13564(a) of OBRA ’93 1993 would continue in effect, but the comment period for calculating the amended section 1861(v)(1)(L)(iii) of the last cost reporting year adjustment limits for the HHA’s new cost reporting Act to provide that there be no changes factor in Table IV would be multiplied periods beginning January 1, 1995, and in the HHA per-visit cost limits (except by an inflation factor once for each January 1, 1996, are not used. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8397 Accordingly, the provider in this cost limit until its cost reporting period Example: Calculation of Adjusted Limit for example will not have any change in its beginning January 1, 1997. Occupational Therapy for a Freestanding HHA Located in Dallas, Texas: Computation of Revised Limit for Occupational Therapy: Labor Related Component ...... $74.97 (Table I) Wage Index ...... ×0.9599 (Table IIIa) Labor Portion ...... 71.96 Special Labor Adjustment for Budget Neutrality ...... ×1.067 Adjusted Labor Component ...... 76.79 Nonlabor-Related Component ...... +16.78 (Table I) OSHA Per Diem Add-On ...... +.18 Adjusted Occupational Therapy Limit ...... 93.75 Cost Reporting Period Adjustment Factor (January 1, 1994) ...... ×1.0254 (Table IV) Inflation Adjusted Limit (Limit in Effect for January 1, 1994, January 1, 1995, and January 1, 1996) ...... 96.13 As noted above, for cost reporting this adjustment factor from HCFA cost reporting period beginning on or periods beginning on or after July 1, central office. This methodology results after July 1, 1996. 1994, but before July 1, 1996, a in a different cost limit than if a 12- E. Next Update of Limits freestanding HHA’s cost limit will be its month adjustment factor were used. latest per-discipline cost limit for the However, since the provisions of OBRA Before the enactment of OBRA ’93, period beginning on or after July 1, ’93 require no changes in the cost limit section 1861(v)(1)(L)(iii) of the Act 1993, and before July 1, 1994, as on or after July 1, 1994, the limit required that the HHA per-discipline cost limits be updated on July 1, 1994, calculated under this notice and calculated with the special adjustment and every year thereafter. Section without regard to any subsequent factor will remain in place for 13564(a)(2) of OBRA ’93 amended that adjustments, such as an exception to the subsequent cost reporting periods section of the Act to delay the next limit. Thus, if the HHA in the above beginning before July 1, 1996. example received an exception to its update until July 1, 1996, and every year cost limit for its cost reporting period D. Providers Entering the Medicare thereafter. Accordingly, there will be no beginning January 1, 1993, its cost limit Program changes to the HHA per-discipline cost for the cost reporting period beginning limits effective under this notice for cost January 1, 1994, would not include the For providers entering the Medicare reporting periods beginning on or after exception amount for the previous program on or after July 1, 1994, and July 1, 1993 for inflation, changes in the period. To receive an exception or other before July 1, 1996, the applicable cost wage index, or geographic designation adjustment to its cost limit, the HHA limit will be the cost limit for the until July 1, 1996. would need to submit a request to its identical period beginning on or after F. Adjustments to the Per-Visit Cost fiscal intermediary in accordance with July 1, 1993, through June 30, 1994. Limits the procedures set forth in § 413.30 of (The only exception to this policy is our regulations. that, as a result of the elimination of the Section 1861(v)(1)(L)(ii) of the Act As explained in detail in our January A&G add-on for hospital-based HHAs provides for appropriate adjustments to 6, 1994 notice with comment period, a effective for cost reporting periods the HHA per-discipline cost limits. These adjustments are set forth at hospital-based HHA’s cost limit is beginning on or after October 1, 1993, § 413.30(f) and include: exceptions to computed in an identical manner (59 FR the A&G add-on amount is not included the limits for atypical services and 761) to the example above, since the in the cost limit calculation for hospital- extraordinary circumstances; and other A&G add-on for hospital-based HHAs is based HHAs that enter the program.) For no longer applicable for cost reporting provisions. Section 13564(a)(1) of OBRA example, if a provider enters the ’93 mandates that the effect of allowing periods beginning on or after October 1, Medicare program on October 1, 1994, 1993. no changes in the HHA per-visit cost with a 12-month cost reporting period, limits for cost reporting periods C. Periods Other Than 12 Months its cost limit will be determined in the beginning on or after July 1, 1994, and The above methodology applies to same manner as a cost limit for a period before July 1, 1996, not be considered in providers with cost reporting periods of beginning October 1, 1993, and ending making adjustments to the per-visit cost 12 months in duration. If a HHA’s cost September 30, 1994. If the provider’s limits under the exceptions process. reporting period is not 12 months in cost reporting period is a short period, Therefore, effective for cost reporting duration, a special adjustment factor is for example, a period beginning October periods beginning on or after July 1, calculated. This is necessary because 1, 1994, and ending December 31, 1994, 1994, and before July 1, 1996, a provider inflation projections are computed to the provider’s cost limit will be may request an exception only for costs the midpoint of a cost reporting period, determined in the same manner as a incurred above the amount that the limit and the adjustment factors in Table IV cost limit for a period beginning October would have been had the OBRA ’93 (58 FR 36760) are based on 12-month 1, 1993, and ending December 31, 1993. provisions set forth in this notice reporting periods. For cost reporting In addition, whether the first period is regarding no changes in the cost limits periods of other than 12 months, the a full 12-month period or a period other not been enacted. Accordingly, for the calculation must be made based on the than 12 months, the cost limit purpose of determining the amount of midpoint of the specific cost reporting determined for the first period will an exception to the HHA per-discipline period. The HHA’s intermediary obtains remain in effect until the provider’s first cost limits under the regulations at 8398 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices § 413.30(f), the difference between the be used in computing the amount that period beginning January 1, 1996. In the amount of a provider’s cost limit as the hospital-based cost limit would have example, the provider has requested an determined by the provisions set forth been had the OBRA ’93 provisions exception to its limit for the period in this notice, and the amount that a requiring no changes in the limits not beginning January 1, 1995. Again, we provider’s cost limit would have been been enacted. calculate what the limit would have under this notice had the OBRA ’93 The example below demonstrates the been had the OBRA ’93 provisions provisions requiring no changes in the computation to determine the amount requiring no changes in the limits not cost limits not been enacted, is not not subject to an exception under the been enacted. The difference between subject to an exception to the per- provisions set forth in this notice. The the actual limit and the amount the discipline cost limits. We note that this provider’s cost limit for occupational limit would have been ($5.14) is the provision does not apply to the A&G therapy is computed for the cost amount not subject to an exception. add-on for hospital-based HHAs. That reporting period beginning January 1, Example: Calculation of Amount Not is, for cost reporting periods beginning 1994, in accordance with the provisions Subject to an Exception to the Limits for on or after October 1, 1993, the A&G set forth in this notice, and this limit Occupational Therapy for a Freestanding add-on for hospital-based HHAs will not remains in effect until the cost reporting HHA Located in Dallas, Texas Labor Related Component ...... $74.97 (Table I) Wage Index ...... ×0.9599 (Table IIIa) Labor Portion ...... $71.96 Special Labor Adjustment for Budget Neutrality ...... ×1.067 Adjusted Labor Component ...... $76.79 Nonlabor-Related Component ...... +16.78 (Table I) OSHA Per Diem Add-On ...... +.18 Limit Prior to Inflation Adjustment ...... $93.75 Cost Reporting Period Adjustment Factor ...... ×1.0254 (Table IV) (January 1, 1994) Inflation Adjusted Limit (Limit in Effect for January 1, 1994, January 1, 1995, and January 1, 1996) ...... $96.13 Cost Reporting Period Adjustment Factor (January 1, 1995 for Exception Purposes Only) ...... ×1.0803 (Table IV) (Using the calculation procedures in Table IV for cost reporting periods beginning on January 1, 1995, 1.0475 is multiplied by 1.00442 seven times and the resulting factor equals 1.0803.) (1.0475× (1.00442)7=1.0803). Inflation Adjusted Limit (January 1, 1994 for Exception Purposes Only) ...... $101.27 Amount Not Subject to Exception ($101.27¥$96.13=$5.14) IV. Tables TABLE I.ÐPER VISIT LIMITS FOR HOME HEALTH AGENCIES Type of visit Limit Labor por- Non-labor tion portion 1 MSA (NECMA) Location: Skilled Nursing Care ...... $91.16 $74.72 $16.44 Physical Therapy ...... 91.80 75.28 16.52 Speech Pathology ...... 93.18 76.30 16.88 Occupational Therapy ...... 91.75 74.97 16.78 Medical Social Services ...... 129.62 105.99 23.63 Home Health Aide ...... 45.98 37.65 8.33 Non-MSA Location: Skilled Nursing Care ...... $99.83 $84.88 $14.95 Physical Therapy ...... 105.55 89.71 15.84 Speech Pathology ...... 110.45 93.74 16.71 Occupational Therapy ...... 107.02 90.55 16.47 Medical Social Services ...... 164.60 139.56 25.04 Home Health Aide ...... 46.30 39.36 6.94 1 Non-labor portion of limits for HHAs located in Alaska, Hawaii, Puerto Rico, and the Virgin Islands are increased by multiplying them by the following cost-of-living adjustment factors: Location Adjustment Adjustment Adjustment factor Location factor Location factor Alaska ...... 1.250 Kauai ...... 1.175 Puerto Rico ...... 1.100 Hawaii: Maui, Lanai, and Molokai .. 1.200 Virgin Islands ...... 1.125 Oahu ...... 1.225 Hawaii (Island) ...... 1.150 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8399 TABLE II.ÐADD-ON AMOUNTS FOR HOSPITAL-BASED HOME HEALTH AGENCIES A&G Add- Labor por- Non-labor Type of visit on tion portion MSA (NECMA) Location: Skilled Nursing Care ...... $12.20 $9.99 $2.21 Physical Therapy ...... 11.30 9.25 2.05 Speech Pathology ...... 11.48 9.39 2.09 Occupational Therapy ...... 11.48 9.35 2.12 Medical Social Services ...... 17.73 14.42 3.32 Home Health Aide ...... 5.50 4.50 1.00 Non-MSA Location: Skilled Nursing Care ...... $14.99 $12.74 $2.25 Physical Therapy ...... 16.14 13.73 2.41 Speech Pathology ...... 16.09 13.67 2.42 Occupational Therapy ...... 17.00 14.36 2.64 Medical Social Services ...... 24.20 20.41 3.80 Home Health Aide ...... 6.01 5.11 0.90 TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREAS AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Abilene TX ...... 0.9183 Winnebago, WI Baltimore, MD ...... 1.0115 Taylor, TX Arecibo, PR ...... 0.3938 Anne Arundel, MD Aguadilla, PR ...... 0.4549 Arecibo, PR Baltimore, MD Aguada, PR Camuy, PR Baltimore City, MD Aguadilla, PR Hatillo, PR Carroll, MD Isabella, PR Quebradillas, PR Harford, MD Moca, PR Asheville, NC ...... 0.8760 Howard, MD Akron, OH ...... 0.9455 Buncombe, NC Queen Annes, MD Portage, OH Athens, GA ...... 0.8518 Bangor, ME ...... 0.9027 Summit, OH Clarke, GA Penobscot, ME Albany, GA ...... 0.8017 Jackson, GA Baton Rouge, LA ...... 0.9052 Dougherty, GA Madison, GA Ascension, LA Lee, GA Oconee, GA East Baton Rouge, LA Albany-Schenectady-Troy, NY ...... 0.8887 Atlanta, GA ...... 0.9557 Livingston, LA Albany, NY Barrow, GA West Baton Rouge, LA Greene, NY Butts, GA Battle Creek, MI ...... 0.9480 Montgomery, NY Cherokee, GA Calhoun, MI Rensselaer, NY Clayton, GA Beaumont-Port Arthur, TX ...... 0.9599 Saratoga, NY Cobb, GA Hardin, TX Schenectady, NY Coweta, GA Jefferson, TX Albuquerque, NM ...... 1.0083 De Kalb, GA Orange, TX Bernalillo, NM Douglas, GA Beaver County, PA ...... 1.0124 Alexandria, LA ...... 0.8242 Fayette, GA Beaver, PA Rapides, LA Forsyth, GA Bellingham, WA ...... 1.0454 Allentown-Bethlehem, PA-NJ ...... 0.9957 Fulton, GA Whatcom, WA Warren, NJ Gwinnett, GA Benton Harbor, MI ...... 0.8421 Carbon, PA Henry, GA Berrien, MI Lehigh, PA Newton, GA Bergen-Passaic, NJ ...... 1.0733 Northampton, PA Paulding, GA Bergen, NJ Altoona, PA ...... 0.9201 Rockdale, GA Passaic, NJ Blair, PA Spalding, GA Billings, MT ...... 0.9287 Amarillo, TX ...... 0.8703 Walton, GA Yellowstone, MT Potter, TX Atlantic City, NJ ...... 1.0464 Biloxi-Gulfport, MS ...... 0.8030 Randall, TX Atlantic , NJ Hancock, MS Anaheim-Santa Ana, CA ...... 1.2217 Cape May, NJ Harrison, MS Orange, CA Augusta, GA-SC ...... 0.9363 Binghamton, NY ...... 0.9223 Anchorage, AK ...... 1.4119 Columbia, GA Broome, NY Anchorage, AK McDuffie, GA Tioga, NY Anderson, IN ...... 0.9544 Richmond, GA Birmingham, AL ...... 0.8734 Madison, IN Aiken, SC Blount, AL Anderson, SC ...... 0.7229 Aurora-Elgin, IL ...... 0.9626 Jefferson, AL Anderson, SC Kane, IL Saint Clair, AL Ann Arbor, MI ...... 1.1815 Kendall, IL Shelby, AL Washtenaw, MI Austin, TX ...... 0.9560 Walker, AL Anniston, AL ...... 0.7899 Hays, TX Bismarck, ND ...... 0.8845 Calhoun, AL Travis, TX Burleigh, ND Appleton-Oshkosh-Neenah, WI ...... 0.9142 Williamson, TX Morton, ND Calumet, WI Bakersfield, CA ...... 1.0824 Bloomington, IN ...... 0.8604 Outagamie, WI Kern, CA Monroe, IN 8400 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREASÐContinued AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Bloomington-Normal, IL ...... 0.8723 Catoosa, GA Clark, OH McLean, IL Dade, GA Greene, OH Boise City, ID ...... 0.9718 Walker, GA Miami, OH Ada, ID Hamilton, TN Montgomery, OH Boston-Lawrence-Salem-Lowell- Marion, TN Daytona Beach, FL ...... 0.8907 Brockton, MA ...... 1.1762 Sequatchie, TN Volusia, FL Essex, MA Cheyenne, WY ...... 0.7876 Decatur, AL ...... 0.7457 Middlesex, MA Laramie, WY Lawrence, AL Norfolk, MA Chicago, IL ...... 1.0475 Morgan, AL Plymouth, MA Cook, IL Decatur, IL ...... 0.8253 Suffolk, MA Du Page, IL Macon, IL Boulder-Longmont, CO ...... 1.0155 McHenry, IL Denver, CO ...... 1.0714 Boulder, CO Chico, CA ...... 1.0937 Adams, CO Bradenton, FL ...... 0.9225 Butte, CA Arapahoe, CO Manatee, FL Cincinnati, OH-KY-IN ...... 0.9972 Denver, CO Brazoria, TX ...... 0.9276 Dearborn, IN Douglas, CO Brazoria, TX Boone, KY Jefferson, CO Bremerton, WA ...... 0.9495 Campbell, KY Des Moines, IA ...... 0.9225 Kitsap, WA Kenton, KY Dallas, IA Bridgeport-Stamford-Norwalk-Dan- Clermont, OH Polk, IA bury ...... 1.1984 Hamilton, OH Warren, IA Fairfield, CT Warren, OH Detroit, MI ...... 1.0924 Brownsville-Harlingen, TX ...... 0.8592 Clarksville-Hopkinsville, TN-KY ...... 0.7352 Lapeer, MI Cameron, TX Christian, KY Livingston, MI Bryan-College Station, TX ...... 0.9451 Montgomery, TN Macomb, MI Brazos, TX Cleveland, OH ...... 1.0695 Monroe, MI Buffalo, NY ...... 0.8873 Cuyahoga, OH Oakland, MI Erie, NY Geauga, OH Saint Clair, MI Burlington, NC ...... 0.7954 Lake, OH Wayne, MI Alamance, NC Medina, OH Dothan, AL ...... 0.7524 Burlington, VT ...... 0.9320 Colorado Springs, CO ...... 0.9777 Dale, AL Chittenden, VT El Paso, CO Houston, AL Grand Isle, VT Columbia, MO ...... 0.9468 Dubuque, IA ...... 0.8341 Caguas, PR ...... 0.4461 Boone, MO Dubuque, IA Caguas, PR Columbia, SC ...... 0.8904 Duluth, MN-WI ...... 0.9479 Gurabo, PR Lexington, SC St. Louis, MN San Lorenz, PR Richland, SC Douglas, WI Aguas Buenas, PR Columbus, GA-AL ...... 0.7452 Eau Claire, WI ...... 0.8444 Cayey, PR Russell, AL Chippewa, WI Cidra, PR Chattanoochee, GA Eau Claire, WI Canton, OH ...... 0.8776 Muscogee, GA El Paso, TX ...... 0.8679 Carroll, OH Columbus, OH ...... 0.9634 El Paso, TX Stark, OH Delaware, OH Elkhart-Goshen, IN ...... 0.8913 Casper, WY ...... 0.8855 Fairfield, OH Elkhart, IN Natrona, WY Franklin, OH Elmira, NY ...... 0.8775 Cedar Rapids, IA ...... 0.8938 Licking, OH Chemung, NY Linn, IA Madison, OH Enid, OK ...... 0.8877 Champaign-Urbana-Rantoul, IL ...... 0.8710 Pickaway, OH Garfield, OK Champaign, IL Union, OH Erie, PA ...... 0.9118 Charleston, SC ...... 0.8298 Corpus Christi, TX ...... 0.8559 Erie, PA Berkeley, SC Nueces, TX Eugene-Springfield, OR ...... 1.0123 Charleston, SC San Patricio, TX Lane, OR Dorchester, SC Cumberland, MD-WV ...... 0.8155 Evansville, IN-KY ...... 0.9422 Charleston, WV ...... 0.9653 Allegany, MD Posey, IN Kanawha, WV Mineral, WV Vanderburgh, IN Putnam, WV Dallas, TX ...... 0.9599 Warrick, IN Charlotte-Gastonia-Rock Hill, NC-SC 0.9432 Collin, TX Henderson, KY Cabarrus, NC Dallas, TX Fargo-Moorhead, ND-MN ...... 0.9668 Gaston, NC Denton, TX Clay, MN Lincoln, NC Ellis, TX Cass, ND Mecklenburg, NC Kaufman, TX Fayetteville, NC ...... 0.8262 Rowan, NC Rockwall, TX Cumberland, NC Union, NC Danville, VA ...... 0.7476 Fayetteville-Springdale, AR ...... 0.7958 York, SC Danville City, VA Washington, AR Charlottesville, VA ...... 0.9576 Pittsylvania, VA Flint, MI ...... 1.1506 Albermarle, VA Davenport-Rock Island-Moline, IA-IL 0.8640 Genesee, MI Charlottesville City, VA Scott, IA Florence, AL ...... 0.7648 Fluvanna, VA Henry, IL Colbert, AL Greene, VA Rock Island, IL Lauderdale, AL Chattanooga, TN-GA ...... 0.9161 Dayton-Springfield, OH ...... 0.9686 Florence, SC ...... 0.8395 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8401 TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREASÐContinued AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Florence, SC Dauphin, PA Unicoi, TN Fort Collins-Loveland, CO ...... 1.0197 Lebanon, PA Washington, TN Larimor, CO Perry, PA Bristol City, VA Ft Lauderdale-Hollywood-Pompano Hartford-Middletown-New Britain- Scott, VA Beach, FL ...... 1.0314 Bristol, CT ...... 1.1868 Washington, VA Broward, FL Hartford, CT Johnstown, PA ...... 0.8827 Fort Myers-Cape Coral, FL ...... 0.9759 Middlesex, CT Cambria, PA Lee, FL Tolland, CT Somerset, PA Fort Pierce, FL ...... 1.0996 Litchfield, CT Joliet, IL ...... 1.0237 Martin, FL Hickory, NC ...... 0.8735 Grundy, IL St. Lucie, FL Alexander, NC Will, IL Fort Smith, AR-OK ...... 0.7900 Burke, NC Joplin, MO ...... 0.7925 Crawford, AR Catawba, NC Jasper, MO Sebastian, AR Honolulu, HI ...... 1.1534 Newton, MO Sequoyah, OK Honolulu, HI Kalamazoo, MI ...... 1.1765 Fort Walton Beach, FL ...... 0.8881 Houma-Thibodaux, LA ...... 0.7315 Kalamazoo, MI Okaloosa, FL Lafourche, LA Kankakee, IL ...... 0.8454 Fort Wayne, IN ...... 0.8967 Terrebonne, LA Kankakee, IL Allen, IN Houston, TX ...... 1.0022 Kansas City, KS-MO ...... 0.9550 De Kalb, IN Fort Bend, TX Johnson, KS Whitley, IN Harris, TX Leavenworth, KS Forth Worth-Arlington, TX ...... 0.9708 Liberty, TX Miami, KS Johnson, TX Montgomery, TX Wyandotte, KS Parker, TX Waller, TX Cass, MO Tarrant, TX Huntington-Ashland, WV-KY-OH ...... 0.9400 Clay, MO Fresno, CA ...... 1.0694 Boyd, KY Jackson, MO Fresno, CA Carter, KY Lafayette, MO Gadsden, AL ...... 0.8166 Greenup, KY Platte, MO Etowah, AL Lawrence, OH Ray, MO Gainesville, FL ...... 0.8763 Cabell, WV Kenosha, WI ...... 0.8934 Alachua, FL Wayne, WV Kenosha, WI Bradford, FL Huntsville, AL ...... 0.8799 Killeen-Temple, TX ...... 1.1250 Galveston-Texas City, TX ...... 1.0129 Madison, AL Bell, TX Galveston, TX Indianapolis, IN ...... 0.9665 Coryell, TX Gary-Hammond, IN ...... 0.9853 Boone, IN Knoxville, TN ...... 0.8658 Lake, IN Hamilton, IN Anderson, TN Porter, IN Hancock, IN Blount, TN Glens Falls, NY ...... 0.9193 Hendricks, IN Grainger, TN Warren, NY Johnson, IN Jefferson, TN Washington, NY Marion, IN Knox, TN Grand Forks, ND ...... 0.9539 Morgan, IN Sevier, TN Grand Forks, ND Shelby, IN Union, TN Grand Rapids, MI ...... 0.9813 Iowa City, IA ...... 0.9489 Kokomo, IN ...... 0.9452 Kent, MI Johnson, IA Howard, IN Ottawa, MI Jackson, MI ...... 0.9625 Tipton, IN Great Falls, MT ...... 0.9951 Jackson, MI LaCrosse, WI ...... 0.8920 Cascade, MT Jackson, MS ...... 0.7702 LaCrosse, WI Greeley, CO ...... 0.9320 Hinds, MS Lafayette, LA ...... 0.8194 Weld, CO Madison, MS Lafayette, LA Green Bay, WI ...... 0.9547 Rankin, MS St. Martin, LA Brown, WI Jackson, TN ...... 0.7878 Lafayette, IN ...... 0.8588 Greensboro-Winston-Salem-High Madison, TN Tippecanoe, IN Point, NC ...... 0.9128 Jacksonville, FL ...... 0.9122 Lake Charles, LA ...... 0.8341 Davidson, NC Clay, FL Calcasieu, LA Davie, NC Duval, FL Lake County, IL ...... 0.9953 Forsyth, NC Nassau, FL Lake, IL Guilford, NC St. Johns, FL Lakeland-Winter Haven, FL ...... 0.8409 Randolph, NC Jacksonville, NC ...... 0.7125 Polk, FL Stokes, NC Onslow, NC Lancaster, PA ...... 0.9221 Yadkin, NC Jamestown-Dunkirk, NY ...... 0.7746 Lancaster, PA Greenville-Spartanburg, SC ...... 0.8887 Chautaqua, NY Lansing-East Lansing, MI ...... 1.0242 Greenville, SC Janesville-Beloit, WI ...... 0.8432 Clinton, MI Pickens, SC Rock, WI Eaton, MI Spartanburg, SC Jersey City, NJ ...... 1.0728 Ingham, MI Hagerstown, MD ...... 0.9121 Hudson, NJ Laredo, TX ...... 0.7248 Washington, MD Johnson City-Kingsport-Bristol, TN- Webb, TX Hamilton-Middletown, OH ...... 0.9347 VA ...... 0.8633 Las Cruces, NM ...... 0.7877 Butler, OH Carter, TN Dona Ana, NM Harrisburg-Lebanon-Carlisle, PA ...... 0.9879 Hawkins, TN Las Vegas, NV ...... 1.0588 Cumberland, PA Sullivan, TN Clark, NV 8402 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREASÐContinued AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Lawrence, KS ...... 0.8901 De Soto, MS Jefferson, LA Douglas, KS Shelby, TN Orleans, LA Lawton, OK ...... 0.8354 Tipton, TN St. Bernard, LA Comanche, OK Merced, CA ...... 1.0270 St. Charles, LA Lewiston-Auburn, ME ...... 0.9021 Merced, CA St. John The Baptist, LA Androscoggin, ME Miami-Hialeah, FL ...... 1.0147 St. Tammany, LA Lexington-Fayette, KY ...... 0.8565 Dade, FL New York, NY ...... 1.3431 Bourbon, KY Middlesex-Somerset-Hunterdon, NJ 1.0903 Bronx, NY Clark, KY Hunterdon, NJ Kings, NY Fayette, KY Middlesex, NJ New York City, NY Jessamine, KY Somerset, NJ Putnam, NY Scott, KY Midland, TX ...... 1.0335 Queens, NY Woodford, KY Midland, TX Richmond, NY Lima, OH ...... 0.8030 Milwaukee, WI ...... 0.9680 Rockland, NY Allen, OH Milwaukee, WI Westchester, NY Auglaize, OH Ozaukee, WI Newark, NJ ...... 1.1350 Lincoln, NE ...... 0.8920 Washington, WI Essex, NJ Lancaster, NE Waukesha, WI Morris, NJ Little Rock-North Little Rock, AR ..... 0.8373 Minneapolis-St Paul, MN±WI ...... 1.0774 Sussex, NJ Faulkner, AR Anoka, MN Union, NJ Lonoke, AR Carver, MN Niagara Falls, NY ...... 0.8350 Pulaski, AR Chisago, MN Niagara, NY Saline, AR Dakota, MN Norfolk-Virginia Beach-Newport Longview-Marshall, TX ...... 0.8656 Hennepin, MN News, VA ...... 0.8481 Gregg, TX Isanti, MN Chesapeake City, VA Harrison, TX Ramsey, MN Gloucester, VA Lorain-Elyria, OH ...... 0.8933 Scott, MN Hampton City, VA Lorain, OH Washington, MN James City Co., VA Los Angeles-Long Beach, CA ...... 1.2308 Wright, MN Newport News City, VA Los Angeles, CA St. Croix, WI Norfolk City, VA Louisville, KY±IN ...... 0.9291 Mobile, AL ...... 0.8454 Poquoson, VA Clark, IN Baldwin, AL Portsmouth City, VA Floyd, IN Mobile, AL Suffolk City, VA Harrison, IN Modesto, CA ...... 1.1530 Virginia Beach City, VA Bullitt, KY Stanislaus, CA Williamsburg City, VA Jefferson, KY Monmouth-Ocean, NJ ...... 1.0058 York, VA Oldham, KY Monmouth, NJ Oakland, CA ...... 1.4225 Shelby, KY Ocean, NJ Alameda, CA Lubbock, TX ...... 0.8766 Monroe, LA ...... 0.7832 Contra Costa, CA Lubbock, TX Ouachita, LA Ocala, FL ...... 0.8580 Lynchburg, VA ...... 0.8509 Montgomery, AL ...... 0.7823 Marion, FL Amherst, VA Autauga, AL Odessa, TX ...... 1.0835 Campbell, VA Elmore, AL Ector, TX Lynchburg City, VA Montgomery, AL Oklahoma City, OK ...... 0.9195 Macon-Warner Robins, GA ...... 0.8768 Muncie, IN ...... 0.8397 Canadian, OK Bibb, GA Delaware, IN Cleveland, OK Huston, GA Muskegon, MI ...... 0.9680 Logan, OK Jones, GA Muskegon, MI McClain, OK Peach, GA Naples, FL ...... 1.0282 Oklahoma, OK Madison, WI ...... 1.0270 Collier, FL Pottawatomie, OK Dane, WI Nashville, TN ...... 0.9360 Olympia, WA ...... 1.0957 Manchester-Nashua, NH ...... 1.0219 Cheatham, TN Thurston, WA Hillsborough, NH Davidson, TN Omaha, NE-IA ...... 0.8953 Merrimack, NH Dickson, TN Pottawattamie, IA Mansfield, OH ...... 0.8358 Robertson, TN Douglas, NE Richland, OH Rutherford TN Sarpy, NE Mayaguez, PR ...... 0.4752 Sumner, TN Washington, NE Anasco, PR Williamson, TN Orange County, NY ...... 0.9815 Cabo Rojo, PR Wilson, TN Orange, NY Hormigueros, PR Nassau-Suffolk, NY ...... 1.3167 Orlando, FL ...... 0.9582 Mayaguez, PR Nassau, NY Orange, FL San German, PR Suffolk, NY Osceola, FL McAllen-Edinburg-Mission, TX ...... 0.7684 New Bedford-Fall River-Attleboro, Seminole, FL Hidalgo, TX MA ...... 0.9962 Owensboro, KY ...... 0.8082 Medford, OR ...... 1.0005 Bristol, MA Daviess, KY Jackson, OR New Haven-Waterbury-Meriden, CT 1.2046 Oxnard-Ventura, CA ...... 1.2259 Melbourne-Titusville, FL ...... 0.9162 New Haven, CT Ventura, CA Brevard, FL New London, London-Norwich ...... 1.1525 Panama City, FL ...... 0.8598 Memphis, TN±AR±MS ...... 0.9023 New London, CT Bay, FL Crittenden, AR New Orleans, LA ...... 0.8967 Parkersburg-Marietta, WV-OH ...... 0.8505 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8403 TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREASÐContinued AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Washington, OH Redding, CA ...... 1.0507 Salinas-Seaside-Monterey, CA ...... 1.2988 Wood, WV Shasta, CA Monterey, CA Pascagoula, MS ...... 0.8720 Reno, NV ...... 1.1571 Salt Lake City-Ogden, UT ...... 0.9892 Jackson, MS Washoe, NV Davis, UT Pensacola, FL ...... 0.8589 Richland-Kennewick, WA ...... 0.9364 Salt Lake, UT Escambia, FL Benton, WA Weber, UT Santa Rosa, FL Franklin, WA San Angelo, TX ...... 0.8107 Peoria, IL ...... 0.8704 Richmond-Petersburg, VA ...... 0.9379 Tom Green, TX Peoria, IL Charles City Co., VA San Antonio, TX ...... 0.8418 Tazewell, IL Chesterfield, VA Bexar, TX Woodford, IL Colonial Heights City, VA Comal, TX Philadelphia, PA-NJ ...... 1.0908 Dinwiddie, VA Guadalupe, TX Burlington, NJ Goochland, VA San Diego, CA ...... 1.2095 Camden, NJ Hanover, VA San Diego, CA Gloucester, NJ Henrico, VA San Francisco, CA ...... 1.4480 Bucks, PA Hopewell City, VA Marin, CA Chester, PA New Kent, VA San Francisco, CA Delaware, PA Petersburg City, VA San Mateo, CA Montgomery, PA Powhatan, VA San Jose, CA ...... 1.4840 Philadelphia, PA Prince George, VA Santa Clara, CA Phoenix, AZ ...... 1.0387 Richmond City, VA San Juan, PR ...... 0.4967 Maricopa, AZ Riverside-San Bernardino, CA ...... 1.1391 Barcelona, PR Pine Bluff, AR ...... 0.7840 Riverside, CA Bayoman, PR Jefferson, AR San Bernardino, CA Canovanas, PR Pittsburgh, PA ...... 1.0087 Roanoke, VA ...... 0.8251 Carolina, PR Allegheny, PA Botetourt, VA Catano, PR Fayette, PA Roanoke, VA Corozal, PR Washington, PA Roanoke City, VA Dorado, PR Westmoreland, PA Salem City, VA Fajardo, PR Pittsfield, MA ...... 1.0739 Rochester, MN ...... 1.0985 Florida, PR Berkshire, MA Olmsted, MN Guaynabo, PR Ponce, PR ...... 0.4583 Rochester, NY ...... 0.9671 Humacao, PR Juana Diaz, PR Livingston, NY Juncos, PR Ponce, PR Monroe, NY Los Piedras, PR Portland, ME ...... 0.9254 Ontario, NY Loiza, PR Cumberland, ME Orleans, NY Luguillo, PR Sagadahoc, ME Wayne, NY Manati, PR York, ME Rockford, IL ...... 0.9245 Naranjito, PR Portland, OR ...... 1.1529 Boone, IL Rio Grande, PR Clackamas, OR Winnebago, IL San Juan, PR Multnomah, OR Sacramento, CA ...... 1.2280 Toa Alta, PR Washington, OR Eldorado, CA Toa Baja, PR Yamhill, OR Placer, CA Trojillo Alto, PR Portsmouth-Dover-Rochester, NH .... 1.0039 Sacramento, CA Vega Alta, PR Rockingham, NH Yolo, CA Vega Baja, PR Strafford, NH Saginaw-Bay City-Midland, MI ...... 1.0452 Santa Barbara-Santa Maria-Lompoc, Poughkeepsie, NY ...... 1.0639 Bay, MI CA ...... 1.1721 Dutchess, NY Midland, MI Santa Barbara, CA Providence-Pawtucket-Woonsocket, Saginaw, MI Santa Cruz, CA ...... 1.2733 RI ...... 1.0590 St. Cloud, MN ...... 0.9382 Santa Cruz, CA Bristol, RI Benton, MN Santa Fe, NM ...... 0.9102 Kent, RI Sherburne, MN Los Alamos, NM Newport, RI Stearns, MN Santa Fe, NM Providence, RI St. Joseph, MO ...... 0.9376 Santa Rosa-Petaluma, CA ...... 1.2926 Washington, RI Buchanan, MO Sonoma, CA Provo-Orem, UT ...... 1.0189 St. Louis, MO-IL ...... 0.9351 Sarasota, FL ...... 0.9741 Utah, UT Clinton, IL Sarasota, FL Pueblo, CO ...... 0.8687 Jersey, IL Savannah, GA ...... 0.8294 Pueblo, CO Madison, IL Chatham, GA Racine, WI ...... 0.8814 Monroe, IL Effingham, GA Racine, WI St. Clair, IL Scranton, Wilkes Barre, PA ...... 0.8916 Raleigh-Durham, NC ...... 0.9448 Franklin, MO Columbia, PA Durham, NC Jefferson, MO Lackawanna, PA Franklin, NC St. Charles, MO Luzerne, PA Orange, NC St. Louis, MO Monroe, PA Wake, NC St. Louis City, MO Wyoming, PA Rapid City, SD ...... 0.8366 Sullivan City, MO Seattle, WA ...... 1.0827 Pennington, SD Salem, OR ...... 1.0403 King, WA Reading, PA ...... 0.8778 Marion, OR Snohomish, WA Berks, PA Polk, OR Sharon, PA ...... 0.9024 8404 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN TABLE IIIa.ÐWAGE INDEX FOR URBAN AREASÐContinued AREASÐContinued AREASÐContinued Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage Urban areas (constituent counties or Wage county equivalents) index county equivalents) index county equivalents) index Mercer, PA Wagoner, OK York, PA Sheboygan, WI ...... 0.8836 Tuscaloosa, AL ...... 0.8487 Youngstown-Warren, OH ...... 0.9826 Sheboygan, WI Tuscaloosa, AL Mahoning, OH Sherman-Denison, TX ...... 0.9052 Tyler, TX ...... 0.9798 Trumbull, OH Grayson, TX Smith, TX Yuba City, CA ...... 1.0220 Shreveport, LA ...... 0.9262 Utica-Rome, NY ...... 0.8652 Sutter, CA Bossier, LA Herkimer, NY Yuba, CA Caddo, LA Oneida, NY Yuma, AZ ...... 0.8850 Sioux City, IA-NE ...... 0.8470 Vallejo-Fairfield-Napa, CA ...... 1.3150 Yuma, AZ Woodbury, IA Napa, CA Dakota, NE Solano, CA Sioux Falls, SD ...... 0.8797 Vancouver, WA ...... 1.0755 TABLE IIIB.ÐWAGE INDEX FOR RURAL Minnehaha, SD Clark, WA AREAS South Bend-Mishawaka, IN ...... 1.0142 Victoria, TX ...... 0.8958 St. Joseph, IN Victoria, TX Non-urban areas Wage index Spokane, WA ...... 1.0648 Vineland-Millville-Bridgeton, NJ ...... 0.9720 Spokane, WA Cumberland, NJ ALABAMA ...... 0.7121 Springfield, IL ...... 0.9258 Visalia-Tulare-Porterville, CA ...... 1.0351 ALASKA ...... 1.3372 Menard, IL Tulare, CA ARIZONA ...... 0.8724 Sangamon, IL Waco, TX ...... 0.7783 ARKANSAS ...... 0.6979 Springfield, MO ...... 0.8050 McLennan, TX CALIFORNIA ...... 1.0122 Christian, MO Washington, DC-MD-VA ...... 1.0928 COLORADO ...... 0.8382 Greene, MO District of Columbia, DC CONNECTICUT ...... 1.1857 Springfield, MA ...... 1.0290 Calvert, MD DELAWARE ...... 0.8537 Hampden, MA Charles, MD FLORIDA ...... 0.8704 Hampshire, MA Frederick, MD GEORGIA ...... 0.7769 State College, PA ...... 0.9861 Montgomery, MD HAWAII ...... 0.9579 Centre, PA Prince Georges, MD IDAHO ...... 0.8917 Steubenville-Weirton, OH-WV ...... 0.8756 Alexandria City, VA ILLINOIS ...... 0.7696 Jefferson, OH Arlington, VA INDIANA ...... 0.7830 Brooke, WV Fairfax, VA IOWA ...... 0.7517 Hancock, WV Fairfax City, VA KANSAS ...... 0.7426 Stockton, CA ...... 1.1566 Falls Church City, VA KENTUCKY ...... 0.7781 San Joaquin, CA Loudoun, VA LOUISIANA ...... 0.7355 Syracuse, NY ...... 0.9905 Manassas City, VA MAINE ...... 0.8294 Madison, NY Manassas Park City, VA MARYLAND ...... 0.8029 Onondaga, NY Prince William, VA MASSACHUSETTS ...... 1.1607 Oswego, NY Stafford, VA MICHIGAN ...... 0.8893 Tacoma, WA ...... 1.0276 Waterloo-Cedar Falls, IA ...... 0.8884 MINNESOTA ...... 0.8288 Pierce, WA Black Hawk, IA MISSISSIPPI ...... 0.6935 Tallahassee, FL ...... 0.9183 Bremer, IA MISSOURI ...... 0.7240 Gadsden, FL Wausau, WI ...... 0.9709 MONTANA ...... 0.8226 Leon, FL Marathon, WI NEBRASKA ...... 0.6967 Tampa-St. Petersburg-Clearwater, West Palm Beach-Boca Raton-Del- NEVADA ...... 0.9663 NEW HAMPSHIRE ...... 0.9508 FL ...... 0.9225 ray Beach, FL ...... 1.0095 NEW JERSEY ...... 1 Hernando, FL Palm Beach, FL NEW MEXICO ...... 0.8289 Hillsborough, FL Wheeling, WV-OH ...... 0.8035 NEW YORK ...... 0.8371 Pasco, FL Belmont, OH NORTH CAROLINA ...... 0.7992 Pinellas, FL Marshall, WV NORTH DAKOTA ...... 0.7688 Terre Haute, IN ...... 0.8791 Ohio, WV OHIO ...... 0.8438 Clay, IN Wichita, KS ...... 0.9770 OKLAHOMA ...... 0.7384 Vigo, IN Butler, KS OREGON ...... 0.9643 Texarkana-TX-AR ...... 0.7860 Harvey, KS PENNSYLVANIA ...... 0.8620 Miller, AR Sedgwick, KS PUERTO RICO ...... 2 0.4316 Bowie, TX Wichita Falls, TX ...... 0.8139 RHODE ISLAND ...... 1 Toledo, OH ...... 1.0160 Wichita, TX SOUTH CAROLINA ...... 0.7678 Fulton, OH Williamsport, PA ...... 0.8829 SOUTH DAKOTA ...... 0.7179 Lucas, OH Lycoming, PA TENNESSEE ...... 0.7316 Wood, OH Wilmington, DE-NJ-MD ...... 1.0825 TEXAS ...... 0.7578 Topeka, KS ...... 0.9265 New Castle, DE UTAH ...... 0.8977 Shawnee, KS Cecil, MD VERMONT ...... 0.8997 Trenton, NJ ...... 1.0094 Salem, NJ VIRGINIA ...... 0.7784 Mercer, NJ Wilmington, NC ...... 0.8677 VIRGIN ISLANDS ...... 2 1.0000 Tucson, AZ ...... 0.9552 New Hanover, NC WASHINGTON ...... 0.9597 Pima, AZ Worcester-Fitchburg-Leominster, MA 1.0782 WEST VIRGINIA ...... 0.8482 Tulsa, OK ...... 0.8542 Worcester, MA WISCONSIN ...... 0.8459 Creeks, OK Yakima, WA ...... 1.0070 WYOMING ...... 0.8423 Osage, OK Yakima, WA Rogers, OK York, PA ...... 0.9008 1 All counties within State are classified Tulsa, OK Adams, PA urban. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8405 2 Approximate value for area. substantial number of small entities. We are unable to estimate the effects Therefore, we have determined and the of these changes on individual HHAs. In TABLE IV.ÐCOST REPORTING YEAR Secretary certifies that a regulatory general, we believe that most HHAs will ADJUSTMENT FACTOR 1 flexibility analysis under the RFA is not experience small revenue increases required. under the revised limits; the degree of The adjust- that increase will vary depending on the If the HHA cost reporting period ment factor However, to the extent that a begins is legislative provision being announced proportion of the HHA’s revenues that by a notice such as this may have a come from the Medicare program, the August 1, 1993 ...... 1.0042 significant effect on beneficiaries or distribution of services provided by the September 1, 1993 ...... 1.0085 providers or may be viewed as HHA, and the HHA’s ability to operate October 1, 1993 ...... 1.0126 controversial, we believe that we should with the cost limits. November 1, 1993 ...... 1.0169 address any potential concerns. In this December 1, 1993 ...... 1.0211 instance, we believe it is desirable to B. Effect of Cost Limits On Cost January 1, 1994 ...... 1.0254 Reporting Periods Beginning On or After February 1, 1994 ...... 1.0299 inform the public of our estimate of the March 1, 1994 ...... 1.0340 substantial budgetary effect of the July 1, 1994 and Before July 1, 1996 statutory requirement that there be no April 1, 1994 ...... 1.0385 In accordance with section 13564(a) May 1, 1994 ...... 1.0430 update in the HHA per-visit cost limits of OBRA ’93, this notice with comment June 1, 1994 ...... 1.0475 until cost reporting periods beginning on or after July 1, 1996. period specifies that there will be no 1 Based on compounded projected market changes in the per-visit cost limits for basket inflation rates of 5.10 percent for 1994 A. Effects of Revised Cost Limits for Cost and 5.30 percent for 1995. home health services for cost reporting Reporting Periods Beginning On or After periods beginning on or after July 1, V. Impact Statement July 1, 1993 and Before July 1, 1994 1994, and before July 1, 1996, except as For notices such as this, we generally In response to comments on the may be necessary to take into account prepare a regulatory flexibility analysis schedule of limits set forth in our July the elimination of the A&G add-on for that is consistent with the Regulatory 8, 1993 notice with comment period, we hospital-based HHAs. We estimate that Flexibility Act (RFA) (5 U.S.C. 601 decided to validate the database used in this statutory provision will result in the through 612) unless the Secretary calculating the limits. As discussed in following savings to the Medicare certifies that this notice will not have a section II.A.2 of this notice, we program: significant economic impact on a determined that data were missing from substantial number of small entities. For a large number of HHAs and that TABLE 2.ÐIMPACT OF DELAY IN THE purposes of the RFA, all HHAs are duplicate cost reports were used in the UPDATE OF HHA LIMITS 1 treated as small entities. calculation of the hospital-based add- This notice with comment period sets on. Consequently, it was necessary to Fiscal year Savings forth a revised schedule of HHA per- recalculate the limits and add-on visit cost limits and A&G add-on amounts effective for cost reporting 1994 ...... $ 0 amounts for hospital-based HHAs for periods beginning on or after July 1, 1995 ...... 130 cost reporting periods beginning on or 1993. This notice sets forth revised per- 1996 ...... 330 after July 1, 1993. (We note that, in visit cost limits and add-on amounts for 1997 ...... 100 accordance with section 13564(b) of hospital-based HHAs for cost reporting 1 All figures are rounded to the nearest $10 OBRA ’93, the A&G add-on for hospital- periods beginning on or after July 1, million. based HHAs is eliminated effective for 1993. Section II.A.2 of this notice cost reporting periods beginning on or contains tables that illustrate the effects As illustrated in Table 3 below, the after October 1, 1993.) In addition, this of using the revised database to delay in updating the cost limits until notice announces the provisions of calculate the limits and the A&G add-on July 1, 1996, will result in an increase section 13564(a) of OBRA ’93, which amounts. As the tables illustrate, the in the number of HHAs exceeding the provides for a delay in the updates of per-visit cost limits and A&G add-on HHA cost limits in all categories. Table the HHA per-visit cost limits until cost amounts change for each discipline. 3 below shows the impact of these reporting periods beginning on or after Most notable is the increase in the limits changes. July 1, 1996. and add-on amounts for skilled nursing As discussed below, the aggregate care and home health aide visits, since TABLE 3.ÐAGENCIES EXCEEDING THE impact of revising the schedule of limits these visits constitute the great majority COST LIMITS 1 effective for cost reporting periods of covered HHA visits. We estimate that beginning on or after July 1, 1993 is not the aggregate impact of these changes on Exceed- Exceed- significant. In contrast, the requirement Medicare spending for HHA care will be HHAs in ing the ing the under section 13564(a) of OBRA ’93 that as follows: Model limits as limits as these limits remain in place for cost of 7/1/93 of 7/1/95 reporting periods beginning before July TABLE 1.ÐIMPACT OF REVISED Free- 1, 1996 will result in significant Federal LIMITS 1 cost savings. The impact of this OBRA stand- ing ’93 provision also is discussed further Fiscal year Costs HHAs . 2992 763 1329 below. This notice explains the revised Urban . 2001 510 911 methodology for calculating the HHA 1994 ...... 10 Rural .. 991 253 418 per-visit cost limits that result from the 1995 ...... 10 Hospital- provisions of OBRA ’93. We do not 1996 ...... 10 based believe that merely explaining the 1997 ...... 10 HHAs . 1053 408 856 results of these provisions in this notice 1 All figures are rounded to the nearest 10 Urban . 447 173 383 will have a significant effect on a million. 8406 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices TABLE 3.ÐAGENCIES EXCEEDING THE in the effective date for documents such notice. Therefore, we find good cause to COST LIMITS 1ÐContinued as this. However, we may waive these waive publication of a proposed notice procedures if we find good cause that and the 30-day delay in effective date. Exceed- Exceed- prior notice and comment or a delay in However, we are providing a 60-day HHAs in ing the ing the the effective date are impracticable, period for public comment, as indicated Model limits as limits as unnecessary, or contrary to the public of 7/1/93 of 7/1/95 at the beginning of this notice. interest. B. Paperwork Reduction Act Rural .. 606 235 473 This notice revises the per-visit limits effective for cost reporting periods 1 All figures are based on revised cost limits This notice with comment period beginning on or after July 1, 1993. We does not impose information collection as published in this notice for cost reporting believe the revised limits will be periods beginning on or before July 1, 1993 requirements. Consequently, it need not beneficial to HHAs. Moreover, we have and before July 1, 1994. be reviewed by the Office of revised the limits based on public Management and Budget under the Again, we are unable to identify the comments on our July 8, 1993 notice authority of the Paperwork Reduction effects of these provisions on individual with comment period. HHAs. However, we anticipate that In addition, as discussed above, Act of 1980 (44 U.S.C. 3501 et seq.). overall HHA payments for FY 1995 before the enactment of OBRA ’93, C. Requests for Data From the Public through FY 1997 will be approximately section 1861(v)(1)(L)(iii) of the Act 0.9 percent, 2.0 percent, and 0.5 percent required that the HHA per-discipline In order to respond promptly to less, respectively, than they would have cost limits be updated annually no later public requests for data used in been in those years if the OBRA ’93 than July 1 of each year. However, calculating the HHA cost limits, we provisions were not in effect. The effects section 13564(a)(1) of OBRA ’93 have set up a process under which of this reduction on the total revenues specifies that there be no changes in the commenters can gain access to the raw of individual HHAs will depend on the HHA cost limits (except as may be data on an expedited basis. The HHA HHA’s ability to operate within the cost necessary to take into account the database is available on computer tape limits and on the proportion of the elimination of the A&G add-on for format or diskette for $680. Anyone HHA’s revenues that come from the hospital-based HHAs) for cost reporting wishing to purchase data tapes or Medicare program. We estimate that the periods beginning on or after July 1, diskettes should submit a written delay in updating the limits will not 1994, and before July 1, 1996. Section request along with a company check or result in a significant number of 13564(a)(2) of OBRA ’93 amended money order (payable to HCFA-PUF) to facilities’ total revenues being increased section 1861(v)(1)(L)(iii) of the Act to cover the cost, to the following address: or reduced by 3 percent or more from delay the next required update of the Health Care Financing Administration, the revised limits effective for cost HHA limits until July 1, 1996. Public Use Files, Accounting Division, reporting periods beginning on July 1, Thus, in conformance with the clear P.O. Box 7520, Baltimore, Maryland 1993, as set forth in this notice, adjusted direction of section 13564(a) of OBRA 21207–0520, (410) 597–5151. for inflation. ’93, this notice announces the new HHA Section 1102(b) of the Act requires the provisions and explains the effects of D. Public Comments Secretary to prepare a regulatory impact these provisions on the methodology Because of the large number of items analysis if a notice such as this may used in calculating the HHA cost limits. of correspondence we normally receive have a significant impact on the We have made no changes in this on Federal Register documents operations of a substantial number of methodology beyond those directly published for comment, we are not able small rural hospitals. Such an analysis required by OBRA ’93. Moreover, to acknowledge or respond to them must conform to the provisions of section 13564(a) of OBRA ’93 mandates individually. We will consider all section 604 of the RFA. For purposes of that these provisions are effective comments we receive by the date and section 1102(b) of the Act, we define a beginning with cost reporting periods time specified in the DATES section of small rural hospital as a hospital with beginning on or after July 1, 1994. this notice, and, if we proceed with a fewer than 100 beds located outside of Because many of the provisions in this a Metropolitan Statistical Area. notice announce, and explain the subsequent document, we will respond We have not prepared a rural impact impact of, changes made by statute that to the comments in that document. statement since we have determined are already effective, we believe it is Authority: (Sections 1102, 1814(b), and the Secretary certifies that this final unnecessary to publish a proposed 1861(v)(1)(A) and (v)(1)(L), 1866(a), and 1871 notice will not have a significant notice or delay the effective date. of the Social Security Act (42 U.S.C. 1302, economic impact on the operations of a In summary, the only discretionary 1395f(b), 1395x(v)(1)(A) and (v)(1)(L), substantial number of small rural aspect of this notice is the revision of 1395cc(a), and 1395hh); section 13564(a) of hospitals. the schedule of HHA cost limits Public Law 103–66 (42 U.S.C. 1395x(note)) In accordance with the provisions of effective for cost reporting periods and 42 CFR 413.30.) Executive Order 12866, this notice was beginning on or after July 1, 1993. As (Catalog of Federal Domestic Assistance reviewed by the Office of Management noted above, this change is being made Program No. 93.773, Medicare—Hospital and Budget. in response to public comment and is Insurance) VI. Other Required Information clearly beneficial to HHAs. Publishing a Dated: October 11, 1994. proposed rule or delaying the effective Bruce C. Vladeck, A. Waiver of Proposed Notice and 30- date would postpone the correction of Day Delay in the Effective Date Administrator, Health Care Financing errors in the database used to compute Administration. In adopting notices such as this, we the HHA cost limits. Thus, we have Dated: November 4, 1994. ordinarily publish a proposed notice in concluded that in this instance, it would the Federal Register with a 60-day be impracticable, unnecessary, and Donna E. Shalala, period for public comment as required contrary to the public interest to publish Secretary. under section 1871(b)(1) of the Act. We a proposed notice or to provide for a 30- [FR Doc. 95–3526 Filed 2–13–95; 8:45 am] also normally provide a delay of 30 days day delay in the effective date of this BILLING CODE 4120±01±P Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8407 Indian Health Service Twinbrook Building, Suite 100, 12300 B. Eligibility and Preference Twinbrook Parkway, Rockville, The following organizations are Health Professions Recruitment Maryland 20852, by close of business eligible with preference given in the Program for Indians May 15, 1995. order of priority to: Applications shall be considered as AGENCY: Indian Health Service, HHS. 1. Indian tribes, meeting the deadline if they are either: 2. Indian tribal organizations, ACTION: Notice of Competitive Grant (1) Received on or before the deadline 3. urban Indian organizations and Applications for the Health Professions with hand carried applications received other Indian health organizations; and Recruitment Program for Indians. by close of business 5 p.m.; or (2) 4. public and other nonprofit private SUMMARY: The Indian Health Service postmarked on or before the deadline health or educational entities. (IHS) announces that competitive grant and received in time to be reviewed C. Program Objectives applications are now being accepted for along with all other timely applications. Each proposal must address the the Health Professions Recruitment A legibly dated receipt from a following four objectives to be Program for Indians established by sec. commercial carrier or the U.S. Postal Service will be accepted in lieu of a considered for funding: 102 of the Indian Health Care 1. To identify Indians with a potential Improvement Act of 1976 (25 U.S.C. postmark. Private metered postmarks will not be accepted as proof of timely for education or training in Public 1612), as amended by Pub. L. 102–573. Health (Masters level) and other health There will be only one funding cycle mailing. Late applications not accepted for processing will be returned to the professions (excluding nursing), and to during fiscal year (FY) 1995. This encourage and assist them to enroll in program is described at § 93.970 in the applicant and will not be considered for funding. such programs. The Nursing profession Catalog of Federal Domestic Assistance is excluded because the IHS Nursing and is governed by regulations at 42 B. Additional Dates Recruitment Grant Program provides CFR 36.310 et seq. Costs will be 1. Application Review: June 29, 1995. funding to increase the number of determined in accordance with OMB nurses who deliver health care services Circulars A–21, A–87, and A–122 (cost 2. Applicants Notified of Results: On or about August 1, 1995 (approved, to Indians. principles for different types of 2. To deliver the necessary student applicant organizations); and 45 CFR recommended for approval but not funded, or disapproved. support systems to help to ensure that part 74 or 45 CFR part 92 (as students who are recruited successfully applicable). Executive Order 12372 3. Anticipated Start Date: September 30, 1995. complete their academic training. requiring intergovernmental review is Support services may include providing FOR FURTHER INFORMATION CONTACT: For not applicable to this program. This career counseling and academic advice; program information, contact Ronald L. program is not subject to the Public assisting students to identify academic Hernandez, Division of Health Health System Reporting requirements. deficiencies and to develop plans to Professions Recruitment and Training, The Public Health Service (PHS) is correct those deficiencies; assisting Indian Health Service, Twinbrook committed to achieving the health students to locate financial aid; Building, Suite 100A, 12300 Twinbrook promotion and disease prevention monitoring students to identify possible Parkway, Rockville, Maryland 20852, objectives of Healthy People 2000, a problems; assisting with the (301) 443–6197. For grants application PHS-led activity for setting priority determination of need for and location and business management information, areas. This program announcement is of tutorial services; and other related contact M. Kay Carpentier, Grants related to the priority area of activities which will help to retain Management Officer, Grants Educational and Community-based students in school. programs. Potential applicant may Management Branch, Division of 3. To publicize existing sources of obtain a copy of Healthy People 2000 Acquisition and Grants Operations, financial aid available to Indian (Full Report; Stock No. 017–001–00474– Indian Health Service, Twinbrook students interested in enrolling in or 0) or Healthy People 2000 (Summary Building, Suite 100, 12300 Twinbrook enrolled in an accredited Masters of Report; Stock No. 017–001–00473–1) Parkway, Rockville, Maryland (301) Public Health program or accredited through the Superintendent of 443–5204. (The telephone numbers are health professions program (excluding Documents, Government Printing not toll-free numbers). nursing). Office, Washington, DC 20402–9325 SUPPLEMENTARY INFORMATION: This 4. To work in close cooperation with (Telephone 202–783–3238). announcement provides information on the IHS, tribes, tribal organizations and Smoke Free Workplace: The PHS the general program purpose, eligibility urban Indian organizations, in locating strongly encourage our grant recipients and preference, program objectives, and identifying non-academic period to provide a smoke-free workplace and required affiliation, fund availability placement opportunities and practicum promote the non-use of all tobacco and period of support, type of program experiences, i.e., the IHS Extern products, and Pub. L. 103–227, the Pro- activities considered for support, and Program authorized under section 105 Children Act of 1994, prohibits smoking application procedures for FY 1995. of Pub. L. 94–437, as amended; assisting in certain facilities that receive Federal A. General Program Purpose students with individual development funds in which education, library, day plans in conjunction with identified care, health care, and early childhood The purpose of the Health Professions placement opportunities; monitoring development services are provided to Recruitment program is to increase the students to identify and evaluate children. number of American Indians and Alaska possible problems; and monitoring and DATES: A. Application Receipt Date—An Natives entering the health professions evaluating all placement and practicum original and two copies of the and to ensure an adequate supply of experiences within the IHS to further completed grant application must be health professionals to the IHS, Indian develop and modify the program. submitted with all required tribes, tribal organizations, and urban documentation to the Grants Indian organizations involved in the D. Required Affiliation Management Branch, Division of provision of health care to Indian If the applicant is an Indian tribe, Acquisition and Grants Operations, people. tribal organization, urban organization 8408 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices or other Indian health organization, or a pages as described above. All expected results, benefits, and outcomes public or nonprofit private health applications must include the following or products to be derived from each organization, the applicant must submit in the order presented: objective of the project. a letter of support from at least one —Standard Form 424, Application for d. Provide a project specific work accredited school of public health or Federal Assistance plan (milestone chart) which lists each health professions program (excluding —Standard Form 424A, Budget objective, the tasks to be conducted in nursing), depending on the type of Information—Non-Construction order to reach the objective, and the program for which it proposes to recruit. Programs (Pages 1 and 2) timeframe needed to accomplish each This letter must document linkage with —Standard Form 424B, Assurances— task. Timeframes should be projected in that educational organization. Non-Construction Programs (front and a realistic manner to ensure that the When the target population of a back) scope of work can be completed within proposed project includes a particular —Certifications, PHS 5161–1 (pages 17– the budget period. (A work plan format Indian tribe or tribes, an official 18) is provided.) document, i.e., a letter of support or —Checklist, PHS 5161–1 (pages 23–24) tribal resolution, must be submitted —Project Abstract (one page) e. In the case of proposed projects for indicating that the tribe or tribes will —Table of Contents identification of Indians with a potential cooperate with the applicant. —Program Narrative to include: for education or training in the health —Introduction and Potential professions (excluding nursing), include E. Fund Availability and Period of a method for assessing the potential of Support Effectiveness of Project —Project Administration interested Indians for undertaking It is anticipated that approximately —Accessibility to Target Population necessary education or training in such $250,000 will be available for —Relationship of Objectives to health professions. approximately 3 new grants. The Manpower Deficiencies f. State clearly the criteria by which average funding level for projects in FY —Project Budget the project’s progress will be evaluated 1994 was $98,000. The anticipated start —Appendix to include: and by which the success of the project date for selected projects will be —Tribal Resolution(s) or Letters of will be determined. September 30, 1995. Projects will be Support g. Explain the methodology that will awarded for a budget term of 12 months. —Resumes (Curriculum Vitae) of key be used to determine if the needs, goals, Grant funding levels include both direct staff and objectives identified and discussed and indirect costs. —Position descriptions for key staff in the application are being met and if —Organizational chart F. Type of Program Activities the results and benefits identified are Considered for Support —Workplan Format —Completed IHS Application Checklist being achieved. Funds are available to develop grant —Application Receipt Care, PHS 3038– h. Identify who will perform the programs to locate and recruit students 1 Rev. 5–90. evaluation and when. with potential for (1) Masters of Public Health or (2) other health professions I. Application Instructions 2. Project Administration (20 pts.) degree programs (excluding nursing), The following instructions for a. Provide an organizational chart and and to provide support services to preparing the application narrative also Indian students who are recruited. describe the administrative, managerial constitute the standards (criteria or basis and organizational arrangements and G. Application Process for evaluation) for reviewing and the facilities and resources to be utilized scoring the application. Weights An IHS Recruitment Grant to conduct the proposed project assigned each section are noted in Application Kit, including the required (include in appendix). parenthesis. PHS 5161–1 (Rev. 7/92) (OMB Approval Abstract—An abstract may not exceed b. Provide the name and No. 0937–0189) and the U.S. one typewritten page. The abstract qualifications of the project director or Government Standard forms (SF–424, should clearly present the application in other individuals responsible for the SF–424A and SF–424B), may be summary form, from a ‘‘who-what- conduct of the project; the qualifications obtained from the Grants Management when-where-how-cost’’ point of view so of the principal staff carrying out the Branch, Division of Acquisition and that reviewers see how the multiple project; and a description of the manner Grants Operations, Indian Health parts of the application fit together to in which the application’s staff is or will Service, 12300 Twinbrook Parkway, form a coherent whole. be organized and supervised to carry out Suite 100, Rockville, Maryland 20852, Table of Contents—Provide a one the proposed project. Include telephone (301) 443–5204. (This is not page typewritten table of contents. biographical sketches of key personnel a toll free number.) (or job descriptions if the position is Narrative H. Grant Application Requirements vacant) (include in appendix). All applications must be single- 1. Introduction and Potential c. Describe any prior experience in spaced, typewritten, and consecutively Effectiveness (30 pts.) administering similar projects. numbered pages using black type not a. Describe your legal status and d. Discuss the commitment of the smaller than 12 characters per one inch, organization. organization, i.e., although not required, with conventional one inch border b. State specific objectives of the the level of non-Federal support. List margins, on only one side of standard project, which are measurable in terms the intended financial participation, if size 81⁄2 × 11 paper that can be of being quantified, significant to the any, of the applicant in the proposed photocopied. The application narrative needs of Indian people, logical, project specifying the type of (not including abstract, tribal complete and consistent with the contributions such as cash or services, resolutions or letters of support, purpose of sec. 102. loans of full or part-time staff, standard forms, table of contents or the c. Describe briefly what the project equipment, space, materials or facilities appendix) must not exceed 15 typed intends to accomplish. Identify the or other contributions. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8409 3. Accessibility to Target Population (20 and Cooperative Agreements to State National Institute of Dental Research pts.) and Local Governments, or 45 CFR part Special Emphasis Panel (SEP) meetings: a. Describe the current and proposed 74, Administration of Grants. Name of SEP: National Institute of Dental participation of Indians (if any) in your 2. PHS Grants Policy Statement, and Research Special Emphasis Panel-Geriatric organization. 3. Appropriate Cost Principles: OMB Dental Program Project. b. Identify the target Indian Circular A–21, Educational Institutions, Dates: February 14, 1995. OMB Circular A–87, State and Local Time: 1:00 p.m. population to be served by your Place: Natcher Building, NIH, Conf. Rm. proposed project and the relationship of Governments, and OMB Circular A–122, 4AS–10. your organization to that population. Non-profit Organizations. Contact Person: Dr. Philip Washko, c. Describe the methodology to be L. Objective Review Process Scientist Review Administrator, 4500 Center used to access the target population. Drive, Natcher Building, Room 4AN–38J, Applications meeting eligibility Bethesda, MD 20892, (301) 594–2372. 4. Relationship of Objectives to requirements that are complete, Purpose/Agenda: To evaluate and review Manpower Deficiencies (20 pts.) responsive, and conform to this program grant applications and/or contract proposals. a. Provide data and supporting announcement will be reviewed by an Name of SEP: National Institute of Dental documentation to address the Objective Review Committee (ORC) in Research Special Emphasis Panel-Oral Health relationship of objectives to manpower Survey. accordance with IHS objective review Dates: February 14–15, 1995. deficiencies. procedures. The objective review Time: 9:00 a.m. b. Indicate the number of potential process ensures a nationwide Place: Ramada Inn, Bethesda, MD 20814. Indian students to be contacted and competition for limited funding. The Contact Person: Dr. Philip Washko, recruited as well as potential cost per ORC will be comprised of IHS (40% or Scientist Review Administrator, 4500 Center student recruited. Those projects that less) and other Federal or non-Federal Drive, Natcher Building, Room 4AN–38J, have the potential to serve a greater individuals (60% or more) with Bethesda, MD 20892, (301) 594–2372. number of Indians will be given first appropriate expertise. The ORC will Purpose/Agenda: To evaluate and review grant applications and/or contract proposals. consideration. review each application against Name of SEP: National Institute of Dental 5. Soundness of Fiscal Plan (10 pts.) established criteria. Based upon the Research Special Emphasis Panel- evaluation criteria, the reviewers will a. Clearly define the budget. Provide Temporomandibular Joint Implants. assign a numerical score to each Dates: April 5, 1995. a justification and detailed breakdown application, which will be used in Time: 1:00 p.m. of the funding by category for the making the final funding decision. Place: Natcher Building, NIH, Conf. Rm. project. Information on the project Approved applications scoring less than 4AS–10. director and project staff should include 60 points will not be considered for Contact Person: Dr. H. George Hausch, salaries and percentage of time assigned funding. Chief, Review Section, 4500 Center Drive, to the grant. List equipment purchases Natcher Building, Room 4AN–38J, Bethesda, necessary for the conduct of the project. M. Results of the Review MD 20892, (301) 594–2372. Appendix—to include: Purpose/Agenda: To evaluate and review The results of the objective review are grant applications and/or contract proposals. a. Resumes and job descriptions for forwarded to the Director, Division of key staff. The meetings will be closed in accordance Health Professions Recruitment and with the provision set forth in secs. b. Current approved organizational Training (DHPRT), for final review and 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. chart. approval. The Director, DHPRT, will Applications and/or proposals and the c. Workplan. discussions could reveal confidential trade d. Application receipt card, PHS also consider the recommendations from the Grants Management Branch. secrets or commercial property such as 3038–1 Rev. 5–90. patentable material and personal information Applicants are notified in writing on or concerning individuals associated with the J. Reporting about August 1, 1995. A Notice of Grant applications and/or proposals, the disclosure 1. Progress Report—Program progress Award will be issued to successful of which would constitute a clearly reports may be required quarterly or applicants. Unsuccessful applicants are unwarranted invasion of personal privacy. semiannually. These reports will notified in writing of disapproval. A This notice is being published less than brief explanation of the reasons the fifteen days prior to the meetings due to the include a brief description of a urgent need to meet timing limitations comparison of actual accomplishments application was not approved is provided along with the name of an IHS imposed by the grant review cycle. to the goals established for the period, (Catalog of Federal Domestic Assistance reasons for slippage and other pertinent official to contact if more information is desired. Program No. 93.121, Oral Diseases and information as required. A final report Disorders Research) is due 90 days after expiration of the Dated: February 7, 1995. Dated: February 7, 1995. budget/project period. Michael H. Trujillo, Susan K. Feldman, 2. Financial Status Report—Quarterly Assistant Surgeon General, Director. Committee Management Officer, NIH. or semi-annually financial status reports [FR Doc. 95–3667 Filed 2–13–95; 8:45 am] will be submitted 30 days after the end [FR Doc. 95–3588 Filed 2–13–95; 8:45 am] BILLING CODE 4160±16±M of the quarter or half year. A final BILLING CODE 4140±01±M financial status report is due 90 days after expiration of the budget/project National Institutes of Health Public Health Service period. Standard Form 269 (long form) will be used for financial reporting. National Institute of Dental Research; Delegation of Authority Notice of Closed Meetings K. Grant Administration Requirements Notice is hereby given that I have Grants are administered in accordance Pursuant to Section 10(d) of the delegated to the Assistant Secretary for with the following documents: Federal Advisory Committee Act, as Health, with authority to redelegate, 1. 45 CFR part 92, HHS, Uniform amended (5 U.S.C. Appendix 2), notice certain authorities vested in the Administrative Requirements for Grants is hereby given of the following Secretary of Health and Human Services 8410 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices under Section 1892 of the Social AIDS Program Office (HAA), and National Institutes of Health; Statement Security Act, as amended hereafter, following item 4. Office of Research of Organization, Functions, and pertaining to Offset of Medicare Integrity (HAG), add a new item 4. Delegations of Authority Payments to Individuals to Collect Past- Office of HIV/AIDS Policy (HAH), and Part H, Chapter HN (National Due Obligations Arising from Breach of renumber items 2 through 4 as 1 Institutes of Health) of the Statement of Scholarship or Loan Contract. through 3. The authorities hereby delegated are Organization, Functions, and (1) the authority to negotiate, approve, Under Section H–20, Office of the Delegations of Authority for the and sign Medicare Offset Agreements, Assistant Secretary for Health (HA)— Department of Health and Human and (2) the authority to inform the Functions, delete the title and statement Services (40 FR 22859, May 27, 1975, as Attorney General and the Inspector for the National AIDS Programs Office amended most recently at 59 FR 60997– General of the Department of Health and (HAA). 8, November 29, 1994) is amended to Human Services when a scholarship or Following the statement for the Office reflect the reorganization of the John E. loan obligor has refused to enter into, or of Research Integrity (HAG), add the Fogarty International Center for has breached, a Medicare Offset following title and statement: Advanced Study in the Health Sciences (FIC) (HNF) as follows: (1) Establish the Agreement. All other authorities under Office of HIV/AIDS Policy (HAH). Section 1892 have been delegated to, Office of International Science Policy Under the direction of the Assistant and remain with, the Administrator, and Analysis (HNF12); Office of Secretary for Health, the Director of the Health Care Financing Administration. Administrative Management and I hereby ratify all actions, with respect Office of HIV/AIDS Policy: (1) Serves as International Services (HNF13); to Medicare offsets, taken by the the principal HIV/AIDS staff to the Division of International relations Assistant Secretary for Health or by any Assistant Secretary for Health; (2) (HNF2); Division of International Public Health Service Official prior to facilitates and/or coordinates HIV/AIDS Training and Research (HNF3); and the the effective date of this delegation that, policy planning processes across the Division of International Advanced in effect, involved the exercise of either DHHS and the PHS and monitors Studies (HNF4). authority delegated herein. progress toward achieving established Section HN–B, Organization and This delegation became effective upon goals; (3) provides PHS liaison with the Functions is amended as follows: (1) the date of signature. Office of the National AIDS Policy Under the heading John E. Fogarty Coordinator, Executive Office of the Dated: January 31, 1995. International Center for Advanced President; (4) identifies critical HIV/ Study in the Health Sciences (HNF), Donna E. Shalala, AIDS national, DHHS, and PHS policy insert the following: Secretary. issues, including inter-and intra-agency [FR Doc. 95–3560 Filed 2–13–95; 8:45 am] Office of International Science Policy coordination needs, and advises on how and Analysis (HNF12) BILLING CODE 4160±15±M to resolve the issues; (5) provides liaison with other Federal organizations, State (1) Advises the Director on the and local entities, and non- development, analysis, and evaluation Office of the Assistant Secretary for of the Center’s programs; (2) advises the Health governmental organizations involved in HIV/AIDS policy; (6) assists in the Director on the development of strategic and operational plans and provides staff Statement of Organization, Functions preparation of responses to inquiries support to and liaison with program and Delegations of Authority related to HIV/AIDS activities as appropriate; (7) provides analytic and staff in coordinating, integrating, and Part H, Public Health Service (PHS), administrative support to DHHS and articulating these plans; (3) advises the Chapter HA, Office of the Assistant PHS HIV/AIDS advisory bodies, cross- Director on international science policy Secretary for Health, of the Statement of Departmental; coordinating groups, and issues; (4) develops the Center’s plan for evaluating the focus and impact of Organization, Functions, and other subsidiary or independent task Delegations of Authority for the ongoing programs and providing forces, work groups, or subgroups; (8) Department of Health and Human analytical reports of program trends and provides guidance on the cooperative Services (DHHS) (42 FR 61318, future forecasts; (5) maintain legislative dissemination and exchange of accurate December 2, 1977, as amended most liaison with the Office of Science Policy scientific, prevention, and educational recently at 59 FR 52553–4, October 18, and Technology Transfer, NIH; (6) information and clinical guidelines with 1994) is further amended to abolish the disseminates information on scientific National AIDS Program Office (HAA), and between public health interest and policy developments related to Office of the Assistant Secretary for groups and professional and private international research; and (7) plans and Health, and to establish a new Office of sector organizations; (9) guides and implements the Center’s public affairs HIV/AIDS Policy (HAH) within the promotes methods of dissemination and and publications activities. Office of Assistant Secretary for Health. exchange of information to and among Office of Administrative Management These changes are being made to reflect the public and, (10) reviews and makes and International Services (HNF13) the major responsibilities in AIDS recommendations on PHS agency policy and planning and a heightened budget requests and on departmental (1) Advises the Director, Deputy role in collaborative coordination across research, prevention, services, training, Director, and Division/Office Directors the DHHS and with other Federal, information, and infrastructure on administrative matters affecting the Tribal, State, local and private priorities as incorporated in planning planning and execution of Center organizations. documents or budget proposals. programs; (2) plans, directs and Dated: February 6, 1995. conducts administrative management Office of the Assistant Secretary for functions of the Center including Health Donna M. Shalala, financial management, human resources Under Section HA–10. Office of the Secretary. management, procurement, Assistant Secretary for Health— [FR Doc. 95–3561 Filed 2–13–95; 8:45 am] international travel, office services, and Organization, delete item 1. National BILLING CODE 4160±17±M information resources management; (3) Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8411 interprets, analyzes, and implements organizations in identifying research Department’s enforcement of the Fair administrative policies and directives and research training needs and Housing Act and to further fair housing. affecting the Center and the NIH; (4) developing programs to meet those FOR FURTHER INFORMATION CONTACT: provides visa/passport services to the needs; (5) maintains an awareness of Jacquelyn J. Shelton, Director, Office of NIH and PHS; (5) plans and directs the related national and international Fair Housing Initiatives and Voluntary provision of visa, technical, and logistic research and research training efforts in Programs, Room 5234, 451 Seventh services in support of NIH programs for program areas; and (6) supervises grants Street, S.W., Washington, D.C. 20410– visiting foreign scientists; (6) provides management, processing, and award 2000. Telephone number (202) 708– policy and technical guidance on activities. 0800. A telecommunications device immigration regulations and legislation; (TDD) for hearing and speech impaired and (7) maintains liaison with other Division of International Advanced Studies (HNF4) persons is available at (202) 708–3216. government agencies involved in (These are not toll-free numbers.) international activities. (1) Plans and conducts advanced SUPPLEMENTARY INFORMATION: Title VIII studies of national and international Division of International Relations of the Civil Rights Act of 1968, as importance that are relevant to the (HNF2) amended, 42 U.S.C. 3601–19 (Fair programmatic and policy directions of (1) Fosters and facilitates Housing Act), charges the Secretary of the Center and that complement the Housing and Urban Development with international cooperation in biomedical research activities of the categorical research by: (a) Providing advice on the responsibility to accept and investigate institutes of the NIH; (2) plans, directs, complaints alleging discrimination development of policies and procedures and administers the Center’s Scholars- pertaining to international activities; (b) based on race, color, religion, sex, in-Residence Program designed to foster handicap, familial status or national initiating and maintaining liaison with collaborative research between scholars other U.S. agencies and embassies, origin in the sale, rental, or financing of and intramural NIH scientists; (3) most housing. In addition, the Fair foreign health ministries and embassies, provides planning, management and and multilateral organizations; and (c) Housing Act directs the Secretary to program support for international coordinate with State and local agencies developing, coordinating, and conferences and workshops sponsored administering international agreements administering fair housing laws and to by the Center; and (4) provides cooperate with and render technical in which NIH participates; (2) collects, information and advice on Division- analyzes, and disseminates information assistance to public or private entities supported activities to the Center’s carrying out programs to prevent and on the structure and conduct of Director. biomedical research and related eliminate discriminatory housing scientific programs and policies in Dated: January 24, 1995. practices. foreign countries; (3) plans, directs, and Harold Varmus, Section 561 of the Housing and administers the programs of the FIC– Director, NIH. Community Development Act of 1987, WHO Collaborating Center for Research [FR Doc. 95–3587 Filed 2–13–95; 8:45 am] 42 U.S.C. 3616 note, established the and Training in Biomedicine, Special BILLING CODE 4140±01±M FHIP to strengthen the Department’s Foreign Currency and Joint Fund enforcement of the Fair Housing Act Programs, and health scientist exchange and to further fair housing. This programs on behalf of the NIH; and (4) program assists projects and activities serves as the NIH focal point for the DEPARTMENT OF HOUSING AND designed to enhance compliance with Department of State, and international URBAN DEVELOPMENT the Fair Housing Act and substantially components of Federal agencies, equivalent State and local fair housing Office of the Assistant Secretary for international organizations and foreign laws. Implementing regulations are Fair Housing and Equal Opportunity governments. found at 24 CFR Part 125. The FHIP has four funding categories: Division of International Training and [Docket No. N±95±3797; FR±3742±N±02] the Administrative Enforcement Research (HNF3) Announcement of Funding Awards for Initiative, the Education and Outreach (1) Plans, directs, and administers a Fair Housing Initiatives Program, Initiative, the Private Enforcement program of research grants, cooperative Private Enforcement Initiative Special Initiative, and the Fair Housing agreements, fellowships, and research ProjectÐFiscal Year 1994 Organizations Initiative. contracts designed to support research A Notice of Funding Availability and research training that: (a) Respond AGENCY: Office of the Assistant (NOFA) announcing the availability of to known or anticipated global health Secretary for Fair Housing and Equal up to $2 million of FY 1994 and threats; (b) advance science through Opportunity, HUD. $500,000 of FY 1995 Fair Housing international cooperation; and (c) ACTION: Announcement of Funding Initiatives Program funding for the develop human resources to meet global Awards. Private Enforcement Initiative Special research challenges; (2) maintains an Project was published on August 9, overview of the scientific and financial SUMMARY: In accordance with section 1994 (59 FR 40756). status of the Center’s extramural 102(a)(4)(C) of the Department of The Department reviewed, evaluated programs; (3) provides advice on Housing and Urban Development and scored the applications received extramural research program Reform Act of 1989, this document based on the criteria in the NOFA. As administration and science in general to notifies the public of FY 1994 funding a result, HUD has funded the the Center Director, staff, and advisory awards made under the Fair Housing applications announced below, and in groups; (4) collaborates and serves as Initiatives Program (FHIP), Private accordance with section 102(a)(4)(C) of liaison with other NIH extramural Enforcement Initiative Special Project. the Department of Housing and Urban research and training programs, Federal The purpose of this document is to Development Reform Act of 1989 (Pub. and public agencies, universities, other announce the names and addresses of L. 101–235, approved December 15, centers of medical research, professional the award winners and the amount of 1989), the Department is publishing and lay organizations, and international the awards to strengthen the details concerning the recipients of 8412 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices funding awards. This information is provided in Appendix A to this document. Dated: February 6, 1995. Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity. APPENDIX A.ÐSUCCESSFUL APPLICANTS FY 94 FHIP PRIVATE ENFORCEMENT INITIATIVEÐSPECIAL PROJECT Project focus Applicant name and address Contact name & phone no. (insurance or Region Amount awarded lending) Open Housing Center, Inc., 594 Broadway, Suite 608 Sylvia Kramer, Executive Director, (212) Insurance ...... 2 $208,798. New York, New York 10012. 941±6101. National Fair Housing Alliance, 927 15th Street, NW, Shanna L. Smith, Executive Director, Insurance ...... 3 299,981. Suite 600, Washington, DC 20005. (202) 898±1661. Housing Opportunities Made Equal of Richmond, Inc., Constance Chamberlin, Executive Direc- Insurance ...... 3 200,234. 1218 West Cary Street, Richmond, Virginia 23220. tor, (804) 354±0641. National Fair Housing Alliance, 927 15th Street, NW, Shanna L. Smith, Executive Director, Lending ...... 3 127,133. Suite 600, Washington, DC 2005. (202) 898±1661. The Housing Advocates, Inc., 3214 Prospect Avenue, Edward G. Kramer, Executive Director, Insurance ...... 5 62,027 (ap- East, Cleveland, Ohio 55114. (216) 391±5444. proved for 297,052 if ad- ditional funds are available). Housing Opportunities Made Equal, Committee of Cin- Karla Irvine, Executive Director, (513) Insurance ...... 5 240,117. cinnati, Ohio, 2400 Reading Road, Room 109, Cin- 721±4663. cinnati, Ohio 45202. Lawyers' Committee for Better Housing, Inc., 1263 W. Julie J. Ansel, Executive Director, (312) Insurance ...... 5 155,830. Loyola, Chicago, Illinois 60626. 274±1111. Toledo Fair Housing Center, 2116 Madison Avenue, Lisa Rice-Coleman, Executive Director, Insurance ...... 5 299,997. Toledo, Ohio 43624±1131. (419) 243±6163. Fair Housing Center of Metropolitan Detroit, 1249 Clifford C. Schrupp, FHC Executive Di- Insurance ...... 5 151,400. Washington Blvd., Room 1312, Detroit, Michigan rector, (313) 963±1274. 48226. Metropolitan Milwaukee Fair Housing Council, 600 William R. Tisdale, Executive Director, Insurance ...... 5 283,044. East Mason Street, Suite 200, Milwaukee, Wiscon- (414) 278±1240. sin 53202. Leadership Council for Metropolitan Open Commu- Aurie A. Pennick, President, (312) 341± Insurance ...... 5 192,733. nities, 401 South State Street, Suite 860, Chicago, 5678. Illinois 60605. South Suburban Housing Center, 2057 Ridge Road, Cynthia A. McMurtrey, Director/Auditing Lending ...... 5 35,000. Homewood, Illinois 60430. & Compliance (708) 957±4674. Housing For All-Metro Denver Fair Housing Center, Kathryn Cheever, President, (303) 296± Insurance ...... 8 94,000. 2855 Tremont Place, Suite 205, Denver, Colorado 6949. 80205. The Fair Housing Council of San Diego, 1744 Euclid Joyce James, President, (619) 363± Insurance ...... 9 149,706. Avenue, San Diego, California 92105. 3555. [FR Doc. 95–3563 Filed 2–13–95; 8:45 am] related forms may be obtained by Bureau form number: None. BILLING CODE 4210±28±P contacting the Bureau’s clearance officer Frequency: Annual. at the phone number listed below. Description of respondents: Tribal, Comments and suggestions on the tribal organization or Bureau program proposal should be made directly to the administrators responsible for collection DEPARTMENT OF THE INTERIOR bureau clearance officer and to the of data used in measuring program Office of Management and Budget, effectiveness. Bureau of Indian Affairs Paperwork Reduction Project (1076– 0106), Washington, DC 20503, Estimated completion time: 3.0 hours. Information Collection Submitted to telephone 202–395–7340. Annual Responses: 300. the Office of Management and Budget for Review Under the Paperwork Title: Higher Education Grant Annual Annual burden hours: 900. Report Form. Reduction Act Bureau clearance officer: Gail OMB approval number: 1076–0106. Sheridan 202–208–2685. The proposal for the collection of Abstract: Information is collected to information listed below has been obtain facts on measurable program Dated: October 19, 1994. submitted to the Office of Management performance results with categorical Reginald Rodriquez, and Budget for approval under the data and ratios of program performance Chief, Branch of Post Secondary Education provisions of the Paperwork Reduction results with categorical data and ratios Programs. Act (44 U.S.C. Chapter 35). Copies of the of supplementary funding programs [FR Doc. 95–3623 Filed 2–13–95; 8:45 am] proposed collection of information and consistent to stated goals and objectives. BILLING CODE 4310±02±M Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8413 Information Collection Submitted to issued to Chugach Alaska Corporation executed with CCEDC and pursuant to the Office of Management and Budget for 0.18 acre. The land involved are in the exemption in Caldwell County for Review Under the Paperwork the vicinity of Esther Bay, Alaska. Railroad Company—Lease, Operation, and Acquisition Exemption—Norfolk Reduction Act U.S. Survey No. 6918, Alaska Southern Railway Company, Finance The proposal for the collection of A notice of the decision will be Docket No. 32584 (ICC served Oct. 19, information listed below has been published once a week, for four (4) 1994). submitted to the Office of Management consecutive weeks, in the ANCHORAGE CCEDC simultaneously filed in and Budget for approval under the DAILY NEWS. Copies of the decision Finance Docket No. 32659, a petition for provisions of the Paperwork Reduction may be obtained by contacting the exemption pursuant to 49 U.S.C. 10505 Act (44 U.S.C. Chapter 35). Copies of the Alaska State Office of the Bureau of to exempt it from the provisions of proposed collection of information and Land Management, 222 West Seventh Subtitle IV of Title 49 of the United # related forms may be obtained by Avenue, 13, Anchorage, Alaska 99513– States Code (the Interstate Commerce contacting the Bureau’s clearance officer 7599 ((907) 271–5960). Act). at the phone number listed below. Any party claiming a property interest CCEDC expected to consummate Comments and suggestions on the which is adversely affected by the acquisition of this rail line on January proposal should be made directly to the decision, an agency of the Federal 26, 1995, at which time CCEDC’s bureau clearance officer and to the government or regional corporation, previously executed lease and operating Office of Management and Budget, shall have until March 16, 1995 to file agreement with CCRC would also Paperwork Reduction Project (1076– an appeal. However, parties receiving become effective. 0101), Washington, DC 20503, service by certified mail shall have 30 Any comments must be filed with the telephone 202–395–7340. days from the date of receipt to file an Commission and served on: Robert A. Title: Higher Education Grant Program appeal. Appeals must be filed in the Wimbish, Rea, Cross & Auchincloss, Application Form Bureau of Land Management at the Suite 420, 1920 N St., N.W., OMB approval number: 1076–0101 address identified above, where the Washington, DC 20036. Abstract: Respondents supply requirements for filing an appeal may be This notice is filed under 49 CFR identifying information and data for obtained. Parties who do not file an 1150.31. If the notice contains false or appeal in accordance with the use in determining applicant misleading information, the exemption requirements of 43 CFR Part 4, Subpart eligibility, evidence of college is void ab initio. Petitions to revoke the E, shall be deemed to have waived their admission and evidence of financial exemption under 49 U.S.C. 10505(d) rights. need as prepared by the college may be filed at any time. The filing of financial aid officer. Funds are Terry R. Hassett, a petition to revoke will not stay the provided to assist eligible Indian Chief, Branch of Gulf Rim Adjudication. transaction. [FR Doc. 95–3628 Filed 2–13–95; 8:45 am] students pursuing their undergraduate Decided: February 6, 1995. baccalaureate degree at accrediated BILLING CODE 4310±JA±P By the Commission, David M. Konschnik, institutions of higher education. Director, Office of Proceedings. Bureau form number: BIA 6237 Vernon A. Williams, Frequency: Annual INTERSTATE COMMERCE Description of respondents: Eligible COMMISSION Secretary. [FR Doc. 95–3630 Filed 2–13–95; 8:45 am] Indian students pursuing an [Finance Docket No. 32658] undergraduate baccalaureate degree. BILLING CODE 7035±01±P Estimated completion time: 0:45 Caldwell County Economic minutes Development CommissionÐ Annual responses: 33,250 Acquisition ExemptionÐNorfolk DEPARTMENT OF JUSTICE Annual burden hours: 14,962 Southern Railway Company Bureau clearance officer: Gail Sheridan Drug Enforcement Administration 202–208–2685. Caldwell County Economic Development Commission (CCEDC), a Manufacturer of Controlled Dated: October 18, 1994. noncarrier, has filed a verified notice of Substances; Notice of Registration Reginald Rodriquez, exemption to acquire approximately By Notice dated July 19, 1994, and Chief, Branch of Post Secondary Education 22.1 miles of railroad known as ‘‘the HG Programs. published in the Federal Register on Line’’ owned by Norfolk Southern July 28, 1994 (59 FR 38492), Dupont [FR Doc. 95–3624 Filed 2–13–95; 8:45 am] 1 Railway Company (NS) and currently Pharmaceuticals, The Dupont Merck BILLING CODE 4310±02±M operated by the Caldwell County Pharmaceutical Company, 1000 Stewart Railroad Company (CCRC). The line Avenue, Garden City, New York 11530, extends from milepost HG–90.6 2 at Bureau of Land Management made application to the Drug Hickory, NC, to milepost HG–112.7 at Enforcement Administration (DEA) to [AK±962±1410±00±P] Valmead (Lenoir), NC. CCRC will be registered as a bulk manufacturer of continue to serve as exclusive freight the basic classes of controlled Alaska; Notice for Publication AA± operator on the subject line, pursuant to substances listed below: 10988; Alaska Native Claims Selection a lease and operating agreement Drug Schedule In accordance with Departmental 1 The acquisition will be pursuant to a donation regulation 43 CFR 2650.7(d), notice is and sale agreement, whereby NS will donate and Oxycodone (9143) ...... II hereby given that a decision to issue sell the subject line to CCEDC. Hydrocodone (9193) ...... II 2 conveyance under the provisions of CCEDC’s initially filed notice erroneously Oxymorphone (9652) ...... II reported the Hickory, NC milepost as 90.0. By letter Section 14(h)(1) of the Alaska Native dated January 19, 1995, CCEDC’s counsel corrected Claims Settlement Act of December 18, the milepost to read 90.6, for a total of 22.1 miles No comments or objections have been 1971, 43 U.S.C. 1601, 1613(h)(1), will be to be acquired from NS. received. Therefore, pursuant to Section 8414 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 303 of the Comprehensive Drug Abuse of the procedures described in 21 CFR has not been met. A survey of customers Prevention and Control Act of 1970 and 1311.42 (b), (c), (d), (e), and (f). As noted indicated that increased imports did not Title 21, Code of Federal Regulations, in a previous notice at 40 FR 43745–46 contribute importantly to worker Section 1301.54(e), the Deputy Assistant (September 23, 1975), all applicants for separations at the firm. Administrator, Office of Diversion registration to import a basic class of TA–W–30,581; Arthur Frisch Co., Inc., Control, hereby orders that the any controlled substance in Schedule I Bronx, NY application submitted by the above firm or II are and will continue to be required TA–W–30,561; Nalleys’ Fine Foods, A for registration as a bulk manufacturer to demonstrate to the Deputy Assistant Div. of Curtice Burns Foods, Inc., of the basic classes of controlled Administrator, Office of Diversion Tacoma, WA substances listed above is granted. Control, Drug Enforcement TA–W–30,511; Lockheed Fort Worth Co., Dated: February 6, 1995. Administration that the requirements Kingsley Field—Air Defense Site, Gene R. Haislip, for such registration pursuant to 21 Klamath, OR TA–W–30,514; Somerville Paperboard Deputy Assistant Administrator, Office of U.S.C. 958(a), 21 U.S.C. 823(a), and 21 Diversion Control, Drug Enforcement CFR 1311.42 (a), (b), (c), (d), (e), and (f) Industries, Rochester, NY Administration. are satisfied. TA–W–30,527; Esselte Pendaflex Corp., Oxford Furniture Div., Moonachie, [FR Doc. 95–3626 Filed 2–13–95; 8:45 am] Dated: February 6, 1995. NJ BILLING CODE 4410±09±M Gene R. Haislip, TA–W–30,588; A.B. Chance Co., Deputy Assistant Administrator, Office of Parkersburg, WV Diversion Control, Drug Enforcement TA–W–30,531; Rexon Technology, Importation of Controlled Substances; Administration. Notice of Application Wayne, NJ [FR Doc. 95–3627 Filed 2–13–95; 8:45 am] TA–W–30,562; Lockheed Corp., Abilene, Pursuant to Section 1008 of the BILLING CODE 4410±09±M TX Controlled Substances Import and In the following cases, the Export Act (21 U.S.C. 958(i)), the investigation revealed that the criteria Attorney General shall, prior to issuing DEPARTMENT OF LABOR for eligibility have not been met for the a registration under this Section to a reasons specified. Employment and Training bulk manufacturer of a controlled TA–W–30,644; Energizer Power Systems, Administration substance in Schedule I or II and prior El Paso, TX to issuing a regulation under Section Increased imports did not contribute 1002(a) authorizing the importation of Notice of Determinations Regarding Eligibility To Apply for Worker importantly to worker separations at the such a substance, provide firm. manufacturers holding registrations for Adjustment Assistance and NAFTA TA–W–30,516; Phillips Petroleum Co., the bulk manufacture of the substance Transitional Adjustment Assistance CT, IT, Formerly CIT Bartlesville, an opportunity for a hearing. In accordance with Section 223 of the OK Therefore, in accordance with Section Trade Act of 1974, as amended, the The workers’ firm does not produce 1311.42 of Title 21, Code of Federal Department of Labor herein presents an article as required for certification Regulations (CFR), notice is hereby summaries of determinations regarding under Section 222 of the Trade Act of given that on November 2, 1994, eligibility to apply for trade adjustment 1974. Nycomed Inc., 33 Riverside Avenue, assistance for workers (TA–W) issued Rensselaer, New York 12144, made during the period of January and TA–W–30,536; Digital Equipment Corp., application to the Drug Enforcement February, 1995. Metairie, LA Administration to be registered as an In order for an affirmative The workers’ firm does not produce importer of Meperidine (9230), a basic determination to be made and a an article as required for certification class of controlled substance in certification of eligibility to apply for under Section 222 of the Trade Act of Schedule II. worker adjustment assistance to be 1974. Any manufacturer holding, or issued, each of the group eligibility TA–W–30,572; American Airlines, Inc., applying for, registration as a bulk requirements of Section 222 of the Act Maintenance & Engineering Center, manufacturer of this basic class of must be met. Tulsa, OK controlled substance may file written (1) That a significant number or The workers’ firm does not produce comments on or objections to the proportion of the workers in the an article as required for certification application described above and may, at workers’ firm, or an appropriate under Section 222 of the Trade Act of the same time, file a written request for subdivision thereof, have become totally 1974. a hearing on such application in or partially separated, TA–W–30,521; Xerox Corp., accordance with 21 CFR 1301.54 in (2) That sales or production, or both, Manufacturing & Resource Team of such form as prescribed by 21 CFR of the firm or subdivision have Office Document Products, Office 1316.47. decreased absolutely, and Document System Div., Cross Keys Any such comments, objections, or (3) That increases of imports of Office Park, Fairport, NY requests for a hearing may be addressed articles like or directly competitive with to the Deputy Assistant Administrator, articles produced by the firm or The workers’ firm does not produce Office of Diversion Control, Drug appropriate subdivision have an article as required for certification Enforcement Administration, United contributed importantly to the under Section 222 of the Trade Act of States Department of Justice, separations, or threat thereof, and to the 1974. Washington, DC 20537, Attention: DEA absolute decline in sales or production. TA–W–30,566; Woods Geophysical, Inc., Federal Register Representative (CCR), Mt. Pleasant, MI and must be filed no later than March Negative Determinations For Worker The workers’ firm does not produce 16, 1995. Adjustment Assistance an article as required for certification This procedure is to be conducted In each of the following cases the under Section 222 of the Trade Act of simultaneously with and independent investigation revealed that criterion (3) 1974. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8415 TA–W–30,528; Container Tooling Corp., A certification was issued covering all A certification was issued covering all Neptune, NJ workers separated on or after December workers separated on or after November Container Tooling Corp. is 2, 1993. 16, 1993. transferring production of can tooling TA–W–30,599; Acme United Corp., TA–W–30,515; Quadrum from the subject plant in Neptune, NJ to Bridgeport, CT Telecommunications, Inc., Arab, AL an affiliated domestic facility. A certification was issued covering all A certification was issued covering all TA–W–30,556; Dana Corp., Victor workers separated on or after December workers separated on or after November Division, Chicago, IL 9, 1993. 17, 1993. The investigation revealed that TA–W–30544; Wirekraft Industries, Inc., TA–W–30,557; Red Kap Industries, production at the subject plant is being Mishawaka, IN Piedmont, AL transferred domestically. A certification was issued covering all A certification was issued covering all TA–W–30,529; BRC, A division of Bryce workers separated on or after November workers separated on or after November Corp (Formerly TBC Packing Corp.), 21, 1993. 29, 1993. Buffalo, NY TA–W–30,636; Goebel Miniatures, TA–W–30,573; Dynatech Camarillo, CA U.S. imports of polyethylene sacks Communications, Inc., Woodbridge, and bags declined in the twelve month A certification was issued covering all VA period of October 1993–September 1994 workers separated on or after December A certification was issued covering all compared to the same period one year 31, 1993. workers separated on or after December earlier. TA–W–30,545; Nacona Boot Co., 7, 1993. Nacona, TX TA–W–30,502; General Motors Corp., TA–W–30,676; Hasbro, Inc., Pawtucket, Delco Chassis Div., Bristol, CT A certification was issued covering all RI workers separated on or after November TA–W–30,676A & B; Hasbro Toy Group, Sales and production of the subject 29, 1993. Pawtucket RI & Cincinnati, OH plant increased in 1994 compared with TA–W–30,596; Ansell Pacific, Inc., TA–W–30,676C & D; Parker Brothers, 1993. Production of automobile bearings Salem, OR Beverly & Salem, MA was transferred to other General Motors A certification was issued covering all TA–W–30,676E & F; Playskool Baby, plants or outsourcing from other Northvale, NJ & Easley, SC domestic plants. workers separated on or after December 14, 1993. TA–W–30,676G, H, I; Rhode Island Mfg, TA–W–30,354; Xerox Corp., American TA–W–30,549; Franca Fashions, Inc., Pawtucket, RI, Central Falls, RI & Customer Operations, Rochester, Hoboken, NJ West Warwick, RI NY TA–W–30,676J, K; Milton Bradley, East A certification was issued covering all The workers’ firm does not produce Longmeadow, MA workers separated on or after November TA–W–30,676L; Milton Bradley Wood an article as required for certification 28, 1993. under Section 222 of the Trade Act of Products, Fairfax, VT 1974. TA–W–30,682; BASF Corp., Polyester A certification was issued covering all Filament Dept., Lowland, TN workers separated on or after October Affirmative Determinations for Worker A certification was issued covering all 24, 1993. Adjustment Assistance workers separated on or after January TA–W–30,550; Grace Energy Corp., TA–W–30,645; Mitchell Energy Corp. 10, 1994. Dallas, TX TA–W–30,533; Texaco, Inc., Tulsa (Columbus District), Columbus, OH A certification was issued covering all Office Building, Tulsa, OK A certification was issued covering all workers separated on or after December workers separated on or after January 3, A certification was issued covering all 18, 1994. workers separated on or after November 1994. TA–W–30,550A & G; Grace Petroleum 17, 1993. TA–W–30,518; Hope Mfg., Inc., Sparta, Corp., Oklahoma City, OK, Jackson, TN TA–W–30,579; McCord Winn Textron, MS and Operating in the Following Winchester, MA A certification was issued covering all Other Locations: B; TX, C; AL, D; workers separated on or after November A certification was issued covering all CO, E; MI, F; MT, H; NM, I; WY 17, 1993. workers separated on or after January 8, A certification was issued covering all 1993. TA–W–30,537; GEO E. Keith Co., workers separated on or after August 21, TA–W–30,546; Arcadia Fashions, Bridgewater, MA 1994. Paterson, NJ A certification was issued covering all TA–W–30,554A, B & C; Private Line A certification was issued covering all workers separated on or after November Group, Inc., Lyndhurst, NJ, workers separated on or after November 23, 1993. Dadeville, AL, Franklin, GA and 22, 1993. Bowman, GA TA–W–30,463; AT&T Network Systems, TA–W–30,558; Chronos Richardson, Columbus Works, Columbus, OH A certification was issued covering all Inc., Wayne, NJ workers separated on or after December A certification was issued covering all A certification was issued covering all 1, 1993. workers separated on or after November workers separated on or after November 1, 1993. Also, pursuant to Title V of the North 21, 1993. American Free Trade Agreement TA–W–30,623; Marilena Fashions, TA–W–30,576; David Stevens II, Penns Implementation Act (Pub. L. 103–182) Jersey City, NJ Grove, NJ concerning transitional adjustment A certification was issued covering all A certification was issued covering all assistance hereinafter called (NAFTA– workers separated on or after December workers separated on or after December TAA) and in accordance with Section 16, 1993. 9, 1993. 250(a) Subchapter D, Chapter 2, Title II, TA–W–30,571; Brand S Corp., DBA TA–W–30,543; Tultex Corp., Screenprint of the Trade Act as amended, the Brand S Corp., Livingston, MT Operations, Martinsville, VA Department of Labor presents 8416 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices summaries of determinations regarding increase imports of steel products from Dated: February 7, 1995. eligibility to apply for NAFTA–TAA Canada or Mexico during the periods Victor J. Trunzo, issued during the months of January and under investigation. Program Manager, Policy and Reemployment February, 1995. NAFTA–TAA–00311; Indiana Services, Office of Trade Adjustment In order for an affirmative Sportswear, Clinton, IN Assistance. determination to be made and a NAFTA–TAA–00311A; Columbus [FR Doc. 95–3645 Filed 2–13–95; 8:45 am] certification of eligibility to apply for Sportswear, Columbus, IN BILLING CODE 4510±30±M NAFTA–TAA the following group The investigation revealed that eligibility requirements of Section 250 criteria (3) and criteria (4) were not met. of the Trade Act must be met: Survey results revealed that customers [TA±W±30,216] (1) That a significant number or did not import ladies jackets from proportion of the workers in the Mexico or Canada during the periods AEG Transportation Systems; workers’ firm, or an appropriate under investigation. There was no shift Pittsburgh, Pennsylvania; Revised subdivision thereof (including workers in production from the subject facility to Determination on Reconsideration in any agricultural firm or appropriate Mexico or Canada during the period subdivision thereof), have become under investigation, nor did the On January 24, 1995, the Department totally or partially separated from company import ladies jackets from issued an Affirmative Determination employment and either— Mexico or Canada. Regarding Application for (A) That sales or production, or both, Reconsideration for workers and former of such firm or subdivision have Affirmative Determinations NAFTA– workers of the subject firm. The notice decreased absolutely, TAA will soon be published in the Federal (B) That imports from Mexico or NAFTA–TAA–00318; Dover/ Register. Canada of articles like or directly Parkersburg, Falls River, MA New findings on reconsideration competitive with articles produced by A certification was issued covering all show that the subject firm lost a major such firm or subdivision have increased. workers at Dover/Parkersburg located in bid for the construction of a rapid (c) That the increase in imports Falls River, MA separated on or after transit project to a Japanese firm. The contributed importantly to such December 8, 1993. loss of this contract contributed workers’ separations or threat of NAFTA–TAA–00319; Woodward importantly to the layoff of personnel in separation and to the decline in sales or 1993 and 1994 and to decreased sales production of such firm or subdivision; Governor Co., Aircraft Controls Group, Stevens Point, WI and production in 1994. or Other findings show decreased (2) That there has been a shift in A certification was issued covering all production in 1993 compared to 1992 production by such workers’ firm or workers of Woodward Governor Co., and decreased sales in the first six subdivision to Mexico or Canada of Aircraft Group, Aircraft Parts Mfg, months of 1994 compared to the same articles like or directly competitive with Stevens Point, WI separated on or after period in 1993. Average employment articles which are produced by the firm December 8, 1993. declined in 1993 compared to 1992 and or subdivision. NAFTA–TAA–00321; General Imaging in the first six months of 1994 compared Technology (USA), Inc., Denver to the same period in 1993. Negative Determinations NAFTA–TAA Plant, Arvada, CO NAFTA–TAA–00320; Fenestra Corp., A certification was issued covering all Conclusion Erie, PA workers of the Slitting Division of After careful consideration of the new The investigation revealed that General Imaging Technology (USA), facts obtained on reconsideration, it is criteria (3) and criteria (4) were not met. Inc., Denver, CO separated on or after concluded that workers and former There was no shift in production from December 8, 1993. workers of AEG Transportation Systems, the subject facility to Mexico or Canada NAFTA–TAA–00315; Mobil Chemical Inc., Pittsburgh, Pennsylvania were during the period under investigation, Co., Films Div., Macedon, NY adversely affected by increased imports nor did the company import steel door A certification was issued covering all of articles that are like or directly and frames from Mexico or Canada. workers of Mobil Chemical Co’s Films competitive with transit vehicle systems NAFTA–TAA–00317; Nelson Yacht Division plant, located in Macedon, NY and related equipment. Corp., Snohomish, WA separated on or after December 8, 1993. In accordance with the provisions of The investigation revealed that NAFTA–TAA–00316; Ansell Pacific, the Act, I make the following revised criteria (1) was not met in conjection Inc., Pacific Dunlop, Inc., Salem, determination for workers of AEG with the requirements of Section OR Transportation Systems, Inc., in 506(b)(2) of the Act. The firm closed in A certification was issued covering all Pittsburgh, Pennsylvania. March 1993 and all worker separations workers of Ansell Pacific, Inc., Salem, from the subject firm occurred prior to All workers of AEG Transportation OR separated on or after December 20, Systems, Inc., in Pittsburgh, Pennsylvania December 8, 1993, the earliest possible 1993. who became totally or partially separated reachback date. I hereby certify that the from employment on or after August 4, 1993 NAFTA–TAA–00310; Tennessee Valley aforementioned determinations were are eligible to apply for adjustment assistance Steel Corp., Harriman/Rockwood, issued during the months of January and under Section 223 of the Trade Act of 1974. TN February, 1995. Copies of these Signed at Washington, D.C., this 2nd day The investigation revealed that determinations are available for of February 1995. criteria (3) and criteria (4) were not met. inspection in Room C–4318, U.S. Victor J. Trunzo, There was no shift in production from Department of Labor, 200 Constitution Program Director, Policy and Reemployment the subject facility to Mexico or Canada Avenue, NW., Washington, DC 20210 Services, Office of Trade Adjustment during the period under investigation, during normal business hours or will be Assistance. nor did the company import steel from mailed to persons who write to the [FR Doc. 95–3642 Filed 2–13–95; 8:45 am] Mexico or Canada. Customers did not above address. BILLING CODE 4510±30±M Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8417 [TA±W±30,682] [TA±W±30, 354; TA±W±30, 354A; Texas et which ‘‘contributed importantly’’ to al.; TA±W±30, 354B] declines in sales or production and BASF Corporation; Polyester Filament employment. Department, Lowland, Tennessee; Delhi Gas Pipeline Company; Revocation of Certification Headquartered in Dallas, Texas and Conclusion Operating in the Following States, After review of the application and In accordance with Section 223 of the Texas et al.; Negative Determination investigative findings, I conclude that Trade Act of 1974 (19 USC 2273) the Regarding Application of there has been no error or Department of Labor issued a Reconsideration misinterpretation of the law or of the Certification for workers of the Polyester After being granted a filing extension, facts which would justify Filament Department of the subject firm one of the workers with congressional reconsideration of the Department of on January 26, 1995. The Notice has not support, requested administrative Labor’s prior decision. Accordingly, the as yet been published in the Federal reconsideration of the subject petition application is denied. Register. for trade adjustment assistance. The Signed at Washington, D.C., this 3rd day of The Department amended an earlier denial notice was signed on November February 1995. certification for BASF Corporation (TA– 14, 1994 and published in the Federal Victor J. Trunzo, W–30,360) to include the workers of the Register on December 9, 1994 (59 FR Program Manager, Policy and Reemployment polyester filament department because 63822). Services, Office of Trade Adjustment Pursuant to 29 CFR 90.18(c) they met all the worker group Assistance reconsideration may be granted under [FR Doc. 95–3639 Filed 2–13–95; 8:45 am] requirements for certification under the the following circumstances: Trade Act. BILLING CODE 4510±30±M (1) If it appears on the basis of facts not Accordingly, the Department is previously considered that the determination revoking its certification under petition complained of was erroneous; [TA±W±30,332] TA–W–30,682 effective this date (2) If it appears that the determination because the polyester filament workers complained of was based on a mistake in the INTERA Information Technologies, are covered under TA–W–30,360. determination of facts not previously Inc., Denver, Colorado; Revised considered; or Determination on Reconsideration Signed at Washington, D.C., this 3rd day of (3) If in the opinion of the Certifying February 1995. Officer, a mis-interpretation of facts or of the On January 13, 1995, the Department law justified reconsideration of the decision. Victor J. Trunzo, issued an Affirmative Determination Regarding Application for Program Manager, Policy and Reemployment Investigation findings show that the Reconsideration for the workers and Services, Office of Trade Adjustment workers are engaged in natural gas Assistance. transportation services via pipeline. former workers of the subject firm. The notice was published in the Federal [FR Doc. 95–3638 Filed 2–13–95; 8:45 am] The findings show that the Delhi Gas Pipeline Company was established as a Register on January 27, 1995 (60 FR BILLING CODE 4510±30±M common carrier (pipeline) engaged in 5438). the transportation of natural gas for its New findings on reconsideration affiliates; and as a common carrier, the show that the subject firm is engaged in [TA±W±30,652] subject firm does not own the natural operations related to the exploration gas shipped through its pipeline. and drilling for crude oil. Workers are The Coach Factory, Carlstadt, New Access to Delhi’s pipelines are open engaged in exploration activities in the Jersey; Termination of Investigation to all shippers on a nondiscriminatory field for unaffiliated firms in the oil basis. No single shipper can be granted industry. Pursuant to Section 221 of the Trade unduly preferential treatment, and as The findings show decreased Act of 1974, an investigation was such, Delhi has an ‘‘arm’s length’’ revenues in 1994 compared to 1993 and initiated on January 17, 1995, in relationship with its customers. substantial worker separations in 1994. response to a worker petition which was Numerous other unaffiliated companies U.S. imports of crude oil and natural filed on January 17, 1995, on behalf of and individuals are shippers on this gas increased absolutely and relative to workers at The Coach Factory, Carlstadt, common carrier pipeline. Accordingly, domestic shipments in the first eight New Jersey. Delhi provides a service. Other findings months of 1994 compared to the same The petitioner has requested that the also show that sales increased in 1993 period in 1993. petition be withdrawn. Consequently, compared to 1992. Conclusion The findings show that some natural further investigation in this case would gas liquids are produced by Delhi; After careful consideration of the new serve no purpose, and the investigation however, the amount of natural gas facts obtained on reconsideration, it is has been terminated. liquid revenue generated to total concluded that the workers and former Signed in Washington, DC this 3rd day of pipeline revenue is small. workers of Intera Information February, 1995. Prices and profits are not worker Technologies, Inc., in Denver, Colorado Victor J. Trunzo, group eligibility requirements for were adversely affected by increased Program Manager, Policy and Reemployment certification under the Trade Act. The imports of articles like or directly Services, Office of Trade Adjustment Trade Act was not intended to provide competitive with crude oil. Assistance. TAA benefits to everyone who is in Accordingly, in accordance with the [FR Doc. 95–3640 Filed 2–13–95; 8:45 am] some way affected by foreign provisions of the Act, I make the competition but only to those who following certification: BILLING CODE 4510±30±M produce an article and experienced a All workers of Intera Information decline in sales or production and Technologies, Inc., in Denver, Colorado who employment and an increase in imports became totally or partially separated from of like or directly competitive products employment on or after September 2, 1993 8418 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices are eligible to apply for adjustment assistance Job Training Partnership Act funds in the amount of $184,788,000 under Section 223 of the Trade Act of 1974. Allotments; Wagner-Peyser Act provided by Congress in the FY 1995 Signed at Washington, DC., this 2nd day of Preliminary Planning Estimates; appropriation act. These fund were February 1995. Program Year (PY) 1995 made available for obligation on July 1, 1995. The FY 1994 and FY 1995 funds Victor J. Trunzo, AGENCY: Employment and Training available for the CY 1995 Summer Program Manager, Policy and Reemployment Administration, Labor. Services, Office of Trade Adjustment Program will be issued separately ACTION: Notice. Assistance. through a Notice of Obligation (NOO). [FR Doc. 95–3641 Filed 2–13–95; 8:45 am] SUMMARY: This notice announces States’ These JTPA allotments will not be updated for subsequent unemployment BILLING CODE 4510±30±M Job Training Partnership Act (JTPA) allotments for Program Year (PY) 1995 data. The Employment Service (July 1, 1995-June 30, 1966) for JTPA preliminary estimates will be updated BASF Corporation Lowland, TN; TA± Titles II–A, II–C, and III, and for the as final allotments to reflect CY 1994 W±30,360 Nylon Hosiery Department JTPA Title II–B Summer Youth data and published in the Federal TA±W±30,360A Polyester Filament Employment and Training Program in Register at a later date. Department; Amended Certification Calendar Year (CY) 1995; and Title II–A Allotments Regarding Eligibility To Apply for preliminary planning estimates for Attachment I shows the PY 1995 JTPA Worker Adjustment Assistance public employment service activities under the Wagner-Peyser Act for PY Title II–A Adult Training Program allotments by State. For all States, In accordance with Section 223 of the 1995. Puerto Rico and the District of Trade Act of 1974 (19 USC 2273) the FOR FURTHER INFORMATION CONTACT: Columbia, the following data were used Department of Labor issued a For JTPA allotments, contact, Mr. in computing the allotments: Certification of Eligibility to Apply for Donald Kulick, Deputy Administrator, Worker Adjustment Assistance on Office of Job Training Programs, Room —Data for areas of substantial December 7, 1994, applicable to all N4459, 200 Constitution Avenue, NW., unemployment (ASU) are averages for workers of the nylon hosiery Washington, DC 20210; Telephone: the 12-month period, July 1993 department. The certification notice was 202–219–6236. For Employment Service through June 1994. published in the Federal Register on planning levels contact Mr. John —The number of excess unemployed January 3, 1995 (60 FR 148). Robinson, Director, U.S. Employment individuals or the ASU excess Service, Room N–4666, 200 Constitution (depending on which is higher) are The Department on its own motion, Avenue, NW., Washington, DC 20210; averages for this same 12-month reviewed the certification for workers of Telephone: 202–219–5257. (These are period. the subject firm. The Department is not toll-free numbers.) —The economically disadvantaged amending the certification to include adult data (age 22 to 72, excluding the workers of the polyester filament SUPPLEMENTARY INFORMATION: The Department of Labor (DOL or college students and military) are department of BASF Corporation in from the 1990 Census. Lowland, Tennessee. The polyester Department) is announcing Job Training The allotments for the Insular Areas, filament workers met all the criteria for Partnership Act (JTPA) allotments for including the Freely Associated States, worker group certification under the Program Year (PY) 1995 (July 1, 1995- are based on unemployment data from Trade Act and were issued a June 30, 1996) for JTPA Titles II–A, II– 1990 Census or, if not available, the certification (TA–W–30,682) on January C, and III, and for the Summer Youth most recent data available. A 90 percent 26, 1995 which has not as yet been Employment and Training Program in relative share ‘‘hold-harmless’’ of the PY published in the Federal Register. Calendar Year (CY) 1995 for JTPA Title II–B; and, in accord with Section 6 of 1994 Title II–A allotments for these Accordingly, the Department is the Wagner-Peyser Act, preliminary areas and a minimum allotment of revoking its certification (TA–W– planning estimates for public $75,000 were also applied in 30,682) for the polyester filament employment service (ES) activities determining the allotments. workers of BASF Corporation in under the Wagner-Peyser Act for PY Title II–A funds are to be distributed Lowland, Tennessee. 1995. The allotments and estimates are among designated service delivery areas The amended notice applicable to based on the appropriations for DOL for (SDAs) according to the statutory TA–W–30,360 is hereby issued as Fiscal Year (FY) 1995. formula contained in Section 202(b) of follows: Attached are lists of the allotments for JTPA, as amended by Title VII, PY 1995 for programs under JTPA Titles Miscellaneous Provisions, of the Job ‘‘All workers of BASF Corporation, II–A, II–C, and III; a list of the Training Reform Amendments of 1992. Polyester Filament Department and the (This Title VII provides an interim Nylon Hosiery Department, Lowland, allotments for the CY 1995 Summer allocation methodology which applies Tennessee who became totally or partially Youth Employment and Training to the PY 1995 allotments.) This is the separated from employment on or after Program under Title II–B of JTPA; and same formula that has been used in September 19, 1993, are eligible to apply for a list of preliminary planning estimates adjustment assistance under Section 223 of for public employment service activities previous program years; however, prior the Trade Act of 1974.’’ under the Wagner-Peyser Act. The PY to PY 1993 a different definition of 1995 allotments for Titles II–A, II–C, ‘‘economically disadvantaged’’ was Signed at Washington, D.C., this 3rd day of and III and the ES preliminary planning used. February 1995. estimates, are based on the funds In determining any necessary hold- Victor J. Trunzo, appropriated by the Department of harmless levels for SDAs, the States of Program Director, Policy, and Reemployment Labor Appropriations Act, 1995, Public Kentucky, Minnesota, Montana, and Services, Office of Trade Adjustment Law 103–333, for FY 1995. Wisconsin shall not include any Assistance. The base allotments for Title II–B total additional funds provided for Rural [FR Doc. 95–3647 Filed 2–13–95; 8:45 am] $867,070,000. Included in these Concentrated Employment Programs BILLING CODE 4510±30±M allotments are additional 1995 summer (RCEPs). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8419 JTPA Title II–B Allotments relative share ‘‘hold-harmless’’ of the PY State’s share of the civilian labor force Attachment II shows the CY 1995 1994 Title II–C allotments for those (CLF) and unemployment. Final JTPA Title II–B Summer Youth areas and a minimum allotment of planning estimates will be issued based Employment and Training Program $50,000 were also applied in on CY 1994 data, as required by the allotments by State based on total determining the allotments. Wagner-Peyser Act. available appropriations for CY 1995 of JTPA Title III Allotments The total planning estimate includes $867,070,000. The data used for these $22,019,700, or 2.603 percent of the Attachment IV shows the PY 1995 total amount available, which is being allotments are the same unemployment JTPA Title III Dislocated Worker data as were used for Title II–A except withheld from distribution to States to Program allotments by State, for a total finance postage costs associated with that the data for the number for of $1,296,000,000. The total includes 80 economically disadvantaged youth (age the conduct of Employment Service percent allotted by formula to the States business of 1995. 16 to 21, excluding college students and ($1,036,800,000), and 20 percent military) from the 1990 Census was ($259,200,000) for the National Reserve, The Secretary of Labor has set aside used. including funds allotted to the Insular 3 percent of the total available funds to For the Insular Areas and Native Areas. assure that each State will have Americans, the allotments are based on Title III formulas funds are to be sufficient resources to maintain the percentage of Title II–B funds each distributed to State and substate statewide employment services, as received during the previous summer. grantees in accordance with the required under Section 6(b)(4) of the Title II–B funds for the 1995 Summer provisions in Section 302 (c) and (d) of Wagner-Peyser Act. In accordance with Program are to be distributed among JTPA, as amended. this provision, $24,716,769 is set aside designated SDAs in accordance with the Except for the Insular Areas, the for administrative formula allocation. statutory formula contained in Section unemployment data used for computing These setaside funds are included in the 252(b) of JTPA, as amended by Title VII, these allotments, relative numbers of total planning estimate. Setaside funds Miscellaneous Provisions, of the Job unemployed and relative numbers of are distributed in two steps to States Training Reform Amendments of 1992. excess unemployed, are averages for the which have lost in their relative share This Title VII provides an interim October 1993 through September 1994 of resources from the prior year. In step allocation methodology which applies period. Long-term unemployed data one, States which have a CLF below one to the PY 1995 allotments. The Title II– used were for CY 1993. million and are below the median CLF B formula is the same as for Title II–C. Allotments for the Insular Areas are density are maintained at 100 percent of This is the same formula which was based on the PY 1995 Title II–A their relative share of prior year used in the previous program year. allotments for these areas. resources. All remaining set-aside funds In determining any necessary hold- A reallotment of these published Title are distributed on a pro rata basis in harmless levels for SDAs, the State of III formula amounts, as provided for by step two to all other States losing in Kentucky, Minnesota, Montana, and Section 303 of JTPA, as amended, will relative share from the prior year, but Wisconsin shall not include any be based on completed program year which do not meet the size and density additional funds provided for RCEPs. expenditure reports submitted by the criteria for step one. JTPA Title II–C Allotments States and received by October 1, 1995. Ten percent of the total sums allotted The Title III allotment for each State to each State shall be reserved for use Attachment III shows the PY 1995 will be adjusted upward or downward, by the Governor to provide performance JTPA Title II–C Youth Training Program based on whether the State is eligible to incentives for public employment allotments by State for a total share in reallotted funds or is subject to service offices, services for groups with appropriation of $598,682,000. The recapture of funds. special needs, and for the extra costs of amount is composed entirely of PY 1995 Wagner-Peyser Act Employment exemplary models for delivering job formula funds. For all States, the Insular services. Areas, Puerto Rico, and the District of Service Preliminary Planning Estimates Columbia, the data used in computing Attachment V shows planning Signed at Washington, D.C., this 7th day of February, 1995. the allotments are the same data as were estimates which have been produced used for Title II–B allotments. using the formula set forth at Section 6 Doug Ross, The allotments for the Insular Areas of the Wagner-Peyser Act, 29 U.S.C. 49e. Assistant Secretary of Labor for Employment are based on unemployment data from These preliminary estimates are based and Training. the 1990 census or, if not available, the on averages for the most current 12 Attachments most recent data available. A 90 percent months ending September 1994 for each BILLING CODE 4510±30±M 8420 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8421 8422 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8423 BILLING CODE 4510±30±C 8424 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Attachment V U.S. DEPARTMENT OF LABOR EMPLOYMENT AND TRAINING ADMINISTRATION PRELIMINARY PY 1995 WAGNER-PEYSER ALLOTMENTS TO STATES 3% Distribution State Basic formula Total allotment Step 1* Step 2** Total Alabama ...... 11,665,318 0 186,693 186,693 11,852,011 Alaska ...... 7,818,086 1,138,016 0 1,138,016 8,956,102 Arizona ...... 10,962,428 0 0 0 10,962,428 Arkansas ...... 6,585,108 0 224,468 224,468 6,809,576 California ...... 100,509,042 0 0 0 100,509,042 Colorado ...... 10,544,711 0 0 0 10,544,711 Connecticut ...... 9,715,024 0 541,197 541,197 10,256,221 Delaware ...... 2,232,068 0 69,207 69,207 2,301,275 District of Columbia ...... 4,063,968 0 424,662 424,662 4,488,630 Florida ...... 39,304,326 0 132,803 132,803 39,437,129 Georgia ...... 19,950,543 0 0 0 19,950,543 Hawaii ...... 3,190,448 0 0 0 3,190,448 Idaho ...... 6,513,857 948,170 0 948,170 7,462,027 Illinois ...... 33,911,766 0 1,835,084 1,835,084 35,746,850 Indiana ...... 16,065,017 0 74,437 74,437 16,139,454 Iowa ...... 7,698,247 0 386,124 386,124 8,084,371 Kansas ...... 7,263,953 0 0 0 7,263,953 Kentucky ...... 9,736,987 0 517,573 517,573 10,254,560 Louisiana ...... 11,889,765 0 174,435 174,435 12,064,200 Maine ...... 3,873,730 563,868 0 563,868 4,437,598 Maryland ...... 14,835,112 0 141,556 141,556 14,976,668 Massachusetts ...... 18,009,455 0 1,122,149 1,122,149 19,131,604 Michigan ...... 27,543,280 0 1,135,703 1,135,703 28,678,983 Minnesota ...... 12,897,151 0 266,746 266,746 13,163,897 Mississippi ...... 7,142,550 0 203,927 203,927 7,346,477 Missouri ...... 14,482,951 0 622,357 622,357 15,105,308 Montana ...... 5,323,158 774,849 0 774,849 6,098,007 Nebraska ...... 6,397,389 931,217 0 931,217 7,328,606 Nevada ...... 5,174,670 753,235 0 753,235 5,927,905 New Hampshire ...... 3,350,553 0 274,927 274,927 3,625,480 New Jersey ...... 23,789,340 0 370,650 370,650 24,159,990 New Mexico ...... 5,973,519 869,517 0 869,517 6,843,036 New York ...... 52,000,890 0 815,469 815,469 52,816,359 North Carolina ...... 18,488,752 0 489,652 489,652 18,978,404 North Dakota ...... 5,420,567 789,028 0 789,028 6,209,595 Ohio ...... 31,170,198 0 601,116 601,116 31,771,314 Oklahoma ...... 9,574,365 0 1,000,468 1,000,468 10,574,833 Oregon ...... 9,290,917 0 60,694 60,694 9,351,611 Pennsylvania ...... 33,842,741 0 994,023 994,023 34,836,764 Puerto Rico ...... 10,083,046 0 282,584 282,584 10,365,630 Rhode Island ...... 3,090,997 0 114,522 114,522 3,205,519 South Carolina ...... 10,630,355 0 241,416 241,416 10,871,771 South Dakota ...... 5,009,850 729,244 0 729,244 5,739,094 Tennessee ...... 13,907,340 0 51,315 51,315 13,958,655 Texas ...... 54,787,361 0 0 0 54,787,361 Utah ...... 10,957,150 1,594,944 0 1,594,944 12,552,094 Vermont ...... 2,346,901 341,619 0 341,619 2,688,520 Virginia ...... 18,190,693 0 216,196 216,196 18,406,889 Washington ...... 15,743,889 0 310,434 310,434 16,054,323 West Virginia ...... 5,734,268 834,692 0 834,692 6,568,960 Wisconsin ...... 14,596,482 0 0 0 14,596,482 Wyoming ...... 3,886,885 565,783 0 565,783 4,452,668 Formula Total ...... 797,167,167 10,834,182 13,882,587 24,716,769 821,883,936 Guam ...... 385,518 0 0 0 385,518 Virgin Islands ...... 1,622,846 0 0 0 1,622,846 Indicia Postage ...... 22,019,700 0 0 0 22,019,700 National Total ...... 821,195,231 10,834,182 13,882,587 24,716,769 845,912,000 * Funds are allocated to the 13 States whose relative share decreased from PY 1994 to the PY 1995 basic formula amount and which have a Civilian Labor Force (CLF) below one million and are below the median CLF density. These States are held harmless at 100% of their PY 1994 relative share. ** The balance of the 3% funds are distributed to the remaining 31 States losing in relative share from PY 1994 to their PY 1995 total allotment amount. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8425 [FR Doc. 95–3544 Filed 2–13–95; 8:45 am] Signed in Washington, D.C., this 6th day of committee to advise the Assistant BILLING CODE 4510±30±M February, 1995. Secretary for the Occupational Safety Victor J. Trunzo, and Health Administration (OSHA) on Program Manager, Policy and Reemployment issues relating to the delivery of Footwear Management Company; Services, Office of Trade Adjustment occupational safety and health Amended Certification Regarding Assistance. programs, policies, and standards in the Eligibility To Apply for NAFTA [FR Doc. 95–3646 Filed 2–13–95; 8:45 am] maritime industries of the United States. Transitional Adjustment Assistance BILLING CODE 4510±30±M The committee will provide a collective expertise not otherwise available to the In the matter of NAFTA—00252 Tony Secretary to address the complex and Lama Division, El Paso, TX; NAFTA— [NAFTA±00325] 00252A Justin Boot Company, Fort Worth, sensitive issues involved. TX; NAFTA—00252B Justin Boot Company, Regency Vegetable House Naples, DATE: Comments must be received on or Cassville, MO; NAFTA—00252C Nacona Florida; Termination of Investigation before March 1, 1995. Boot Company, Nacona, TX; NAFTA— ADDRESSES: Any written comments in 00252D Justin Boot Company, Sarcoxie, MO; Pursuant to Title V of the North response to this notice should be sent, NAFTA—00252E Justin Boot Company, American Free Trade Agreement in quadruplicate, to the following Carthage, MO Implementation Act (P.L. 103–182) address: OSHA, Office of Maritime concerning transitional adjustment In accordance with Section 250(a), Standards, Room N–3621, U.S. assistance, hereinafter called (NAFTA– Department of Labor, 200 Constitution Subchapter D, Chapter 2, Title II, of the TAA), and in accordance with Section Trade Act of 1974, as amended (19 USC Avenue, NW., Washington, DC 20210 250(a), Subchapter D, Chapter 2, Title II, (202) 219–7234, fax (202) 219–7477. 2273), the Department of Labor issued a of the Trade Act of 1974, as amended FOR FURTHER INFORMATION CONTACT: Mr. Certification for NAFTA Transitional (19 USC (2273), an investigation was Larry Liberatore, Director, OSHA Office Adjustment Assistance on November 14, initiated on January 9, 1995 in response of Maritime Standards, Room N–3621, 1994, applicable to all workers of the to a petition filed on behalf of workers U.S. Department of Labor, 200 subject firm in El Paso, Texas. at Regency Vegetable House in Naples, Constitution Avenue, N.W., At the request of the company, the Florida. The investigation revealed that Washington, D.C. 20210 (202) 219–7234, Department reviewed the certification workers of Regency Vegetable House FAX (202) 219–7477. for workers of the subject firm. New were separated in June 1994 when SUPPLEMENTARY INFORMATION: investigation findings show that the production ceased and that the firm MACOSH production at Justin Boot Company in packaged and sold vegetables to is intended to address the concerns of Sarcoxie, Missouri and Carthage, substantially the same customers as the entire maritime community, Missouri is integrated with the Regency Packing Company (NAFTA– focusing on the shipyard and marine production at Justin Boot Company’s TAA–00227). On January 31, 1995 an cargo (longshoring) handling industries. plants in Fort Worth, Texas and amendment was made to NAFTA–TAA– This committee will continue the efforts Cassville, Missouri whose workers are 00227 to include all workers of Regency of the previously chartered Shipyard certified by an amendment dated Vegetable House in Naples, Florida. Employment Standards Advisory December 21, 1994 to the subject Because the subject workers have been Committee (SESAC) as well as provide certification. The amendment was included in the amendment certification a more focused forum of ongoing published in the Federal Register on of NAFTA–TAA–00227, further discussions with the marine cargo January 4, 1995 (60 FR 482). information in this case would serve no handling community. The specific objectives of this committee will be to New findings show that sales, purpose, and the investigation has been terminated. make recommendations on issues production and employment declined related to: (1) reducing injuries and sharply at the Justin Boot Company’s Signed at Washington, D.C., this 1st day of illnesses in the maritime industries, (2) plants in Sarcoxie, Missouri and February 1995. improving OSHA outreach and training Carthage, Missouri in 1993 and 1994. Victor J. Trunzo, programs through the use of innovative The intent of the Department’s Program Manager, Policy and Reemployment partnerships, and (3) expediting the certification is to include all workers Services, Office of Trade Adjustment development and promulgation of who were adversely affected by Assistance. OSHA standards. increased imports. [FR Doc. 95–3643 Filed 2–13–95; 8:45 am] Background Accordingly, the Department is BILLING CODE 4510±30±M Establishment of this advisory amending the certification to properly committee will enable OSHA to be reflect this matter. Occupational Safety and Health responsive to the uniquenesss of The amended notice applicable to Administration industries that have suffered NAFTA—00252 is hereby issued as economically as a result of any changes follows: Advisory Committee; Establishment in the global market. This action is All workers of the Tony Lama Division of AGENCY: Occupational Safety and Health consistent with the President’s initiative Footwear Management Company, located in Administration (OSHA), Department of to make the U.S. shipyard and cargo El Paso, Texas and all workers of the Justin Labor. handling industries competitive in the Boot Company of Footwear Management worldwide community. Furthermore, Company in Fort Worth, Texas; Cassville, ACTION: Notice of establishment of Maritime Advisory Committee for this committee will be able to focus on Missouri; Sarcoxie, Missouri and Carthage, the resolution of those controversial Missouri and the Nacona Boot Company in Occupational Safety and Health Nacona, Texas who became totally or (MACOSH). issues, particularly those with partially separated from employment on or international implications, that have after December 8, 1993 are eligible to apply SUMMARY: The Secretary of Labor has impact in the shipyard and cargo for NAFTA–TAA under Section 250 of the determined that it is in the public handling communities. This committee Trade Act of 1974. interest to establish an advisory will address the maritime community’s 8426 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices concerns that will result in: streamlined Section 7(b) of the OSH Act and the SECURITIES AND EXCHANGE standards promulgation, better focused FACA to address occupational safety COMMISSION enforcement efforts, and extended and and health issues unique to maritime improved outreach and training employment. [Release No. 34±35341; File Nos. SR± initiatives. AMEX±94±59; SR±CBOE±94±49; SR±CHX± In accordance with the provisions of Signed at Washington, D.C. this 8th day of 94±27; SR±MSRB±94±17; SR±NASD±94±72; February 1995. SR±NYSE±94±43; SR±PSE±94±35; and SR± the Occupational Safety and Health Act PHLX±94±52] of 1970 (OSH Act) and the Federal Robert B. Reich, Advisory Committee Act (FACA), and Secretary of Labor. Self-Regulatory Organizations; Order after consultation with the General [FR Doc. 95–3644 Filed 2–13–95; 8:45 am] Approving Proposed Rule Changes by Services Administration, the Secretary BILLING CODE 4510±26±M the American Stock Exchange, Inc., of Labor has determined that the Chicago Board Options Exchange, establishment of a short-term advisory Inc., Chicago Stock Exchange, Inc., committee to address the complexities Municipal Securities Rulemaking of the maritime—shipyard and NATIONAL FOUNDATION ON THE Board, National Association of longshoring—community is essential to ARTS AND THE HUMANITIES Securities Dealers, Inc., New York the conduct of Agency business and in Stock Exchange, Inc., Pacific Stock the public interest. Notice of Meeting Exchange Inc., and Philadelphia Stock The committee will be composed of Exchange, Inc., Relating to a approximately 15 members who will be Pursuant to Section 10(a)(2) of the Continuing Education Requirement for selected to represent the divergent Federal Advisory Committee Act (Public Registered Persons interests of the maritime community. Law 92–463), as amended, notice is The makeup of the membership shall hereby given that a meeting of the February 8, 1995. comply with Section 7(b) of the OSH Public Partnership Advisory Panel Act which requires the following: at I. Introduction (Local Arts Agencies Section) to the least one member who is a designee of Pursuant to Section 19(b)(1) of the the Secretary of Health and Human National Council on the Arts will be Securities Exchange Act of 1934 Services; at least one designee of a State held on March 16–17, 1995. The panel (‘‘Act’’),1 and Rule 19b–4 thereunder,2 safety and health agency; and equal will meet from 8:30 a.m. to 6:00 p.m. on on November 30 and December 1, 5, 7, numbers of representatives of March 16 and from 9:00 a.m. to 12:00 12, 13, and 14, 1994, the Chicago Stock employees and employers, respectively. p.m. on March 17 in Room M–14, at the Exchange, Incorporated (‘‘CHX’’), the Other members will be selected based Nancy Hanks Center, 1100 Pennsylvania Chicago Board Options Exchange, on their knowledge and experience to Avenue, NW., Washington, DC 20506. Incorporated (‘‘CBOE’’), the New York include representatives from The entire meeting will be open to the Stock Exchange, Inc. (‘‘NYSE’’), the professional and other governmental public on a space available basis for National Association of Securities organizations with specific maritime application review. Dealers, Inc. (‘‘NASD’’), the Municipal responsibilities. In accordance with Securities Rulemaking Board (‘‘MSRB’’) Any interested person may observe Section 2(c) of FACA, the committee and the Pacific Stock Exchange will be ‘‘balanced in membership and in meetings or portions thereof, which are Incorporated (‘‘PSE’’), the American terms of point of view and open to the public, and may be Stock Exchange, Inc. (‘‘AMEX’’), and the functions * * *’’ The Agency intends permitted to participate in the Philadelphia Stock Exchange, Inc. that this committee provide a discussions at the discretion of the (‘‘PHLX’’), respectively (‘‘Self- comprehensive representation of the meeting chairman and with the Regulatory Organizations’’ or ‘‘SROs’’), maritime community and have the approval of the full-time Federal submitted to the Securities and opportunity to offer recommendations employee in attendance. Exchange Commission (‘‘Commission’’ on safety and health initiatives that If you need special accommodations or ‘‘SEC’’) proposed rule changes to would be considered as part of a due to a disability, please contact the establish a formal, two-part continuing integrated U.S. maritime policy. Office of Special Constituencies, education program for securities MACOSH will function solely as an National Endowment for the Arts, 1100 industry professionals. This program advisory body and in compliance with Pennsylvania Avenue, NW, Washington, includes a Regulatory Element requiring the provisions of the FACA. In DC 20506, 202/682–5532, TYY 202/ uniform, periodic training in regulatory accordance with FACA, its charter will 682–5496, at least (7) days prior to the matters, and a Firm Element requiring be filed with the appropriate 3 meeting. members to maintain ongoing committees of Congress. programs to keep their registered Meetings of the committee will be Further information with reference to persons 4 up-to-date on job and product announced in the Federal Register and this meeting can be obtained from Ms. related subjects. are open to the public. Yvonne M. Sabine, Committee Interested persons are invited to Management Officer, National 1 15 U.S.C. § 78s(b)(1) (1988). submit comments regarding the Endowment for the Arts, Washington, 2 17 CFR 240.19b–4 (1994). establishment of the committee to Larry DC 20506, or call 202/682–5433. 3 As used herein, the term ‘‘members’’ refers to: Liberatore, Director, Office of Maritime members and member organizations when used Standards, U.S. Department of Labor, Dated: February 8, 1995. with reference to the AMEX, CBOE, CHX, NYSE, Yvonne M. Sabine, and PSE; members, member organizations, Room N–2625, 200 Constitution Ave., participants, and participant organizations when NW, Washington, D.C. 20210; Office of Panel Operations, National used with reference to the PHLX; brokers, dealers, Telephone (202) 219–7234, fax (202) Endowment for the Arts. and municipal securities dealers when used with 219–7477. [FR Doc. 95–3564 Filed 2–13–95; 8:45 am] reference to the MSRB; and members when used With this notice I am establishing the with reference to the NASD. BILLING CODE 7537±01±M 4 For purposes of the proposed rules, the term Maritime Advisory Committee for ‘‘registered person’’ means any person required to Occupational Safety and Health under be registered under the rules of the applicable SRO, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8427 The SROs’ proposals were published also included 12 representatives from a Regulatory Element also will not apply for comment in the Federal Register on wide range of broker-dealer firms, to to persons registered for more than ten December 20, 1994.5 Two comments study the continuing education needs of years as of the effective date of the rule, were received, and are discussed below. the securities industry. In September unless such persons become subject to On January 30, and 31 and February 1, 1993, the Task Force issued a report the re-entry provisions described below. and 2, 1995, the NASD, CHX, CBOE, recommending a formal two-part Persons registered for ten years or less MSRB, PSE, AMEX, NYSE, and PHLX continuing education program that as of the effective date of the rule will each filed Amendment No. 1 to their would require uniform, industry-wide, be required to satisfy the Regulatory respective proposals.6 These periodic training for registered persons Element and complete the computer- amendments made a variety of non- in regulatory matters and ongoing based training program after the substantive, clarifying changes to the training programs conducted by firms to occurrence of the next relevant proposals and are incorporated into the keep their employees updated on job registration anniversary date and on any discussion below.7 This order approves and product-related subjects. The Task applicable registration anniversary the SROs’ proposals, including all Force also recommended that a date(s) thereafter.10 amendments made thereto. permanent Council on Continuing The Regulatory Element will be Education, composed of broker-dealer II. Description of Proposals administered using computer-based and SRO representatives, be formed to interactive training techniques and will The proposed rule changes adopt develop the content and provide consist of standardized subject matters uniform enabling rules for the ongoing maintenance of the continuing covering compliance, ethics, and sales implementation of a continuing education program. Pursuant to this practice issues, among other subjects. education program for the securities recommendation, the Securities Failure to complete the program within industry. Industry/Regulatory Council on prescribed time-frames (i.e., within 120 A. Background Continuing Education (‘‘Council’’) was days after the occurrence of the formed in September 1993, with applicable registration anniversary date, In May 1993, a self-regulatory representatives from six SROs and organization task force (‘‘Task Force’’) or as otherwise determined by the thirteen broker-dealers. SROs) will result in a person’s was formed by the AMEX, CBOE, After studying the recommendations MSRB, NASD, NYSE, and PHLX, which registration being deemed inactive and of the Council, the SROs participating in that person being prohibited from the Council submitted proposed rule performing the functions of a registered including members and registered representatives, changes with the Commission to adopt but does not include any person whose activities person until such time as the person has are limited solely to the transaction of business on continuing education requirements. The completed the program. The applicable the floor of a national securities exchange with proposed rule changes could codify the SRO will terminate administratively the members or registered broker-dealers. When used Task Force’s recommendations, allow registration of anyone who is inactive with reference to the MSRB, however, the term uniform implementation of the ‘‘registered person’’ means any person registered for two years, provided that upon with the appropriate enforcement authority as a continuing education program, and application and a showing of good municipal securities representative, municipal provide a means for the SROs to cause, the SRO may allow a registered securities principal, municipal securities sales monitor and enforce the program’s person additional time to satisfy the principal, or financial and operations principal requirements. pursuant to MSRB rule G–3. program requirements.11 5 Securities Exchange Act Release No. 35102 B. The Regulatory Element Unless otherwise determined by a (December 15, 1994), 59 FR 65563 (December 20, self-regulatory organization, a registered 1994). The Regulatory Element requires person, including anyone who has 6 See letters from Craig L. Landauer, Associate uniform, periodic training in a variety of General Counsel, NASD, to Mark P. Barraccca, regulatory subjects. It provides that completed all or part of the Regulatory Branch Chief, Division of Market Regulation registered persons, unless exempt, must Element of the program or who meets (‘‘Division’’), SEC, dated January 19, 1995, and the exemption for persons registered Francois Mazur, Attorney, Division, SEC, dated complete a prescribed training program January 30, 1995 (‘‘NASD Amendment No. 1’’); after their second, fifth, and tenth more than ten years, will be required to letter from David T. Rusoff, Foley & Lardner, to registration anniversary dates.8 The re-enter the Regulatory Element and Francois Mazur, Attorney, Division, SEC, dated Regulatory Element will not apply to satisfy all of its requirements in the January 30, 1995 (‘‘CHX Amendment No. 1’’); letter event such person: from Arthur B. Reinstein, Senior Attorney, CBOE, registered persons whose activities are to Holly Smith, Associate Director, Division, SEC, limited solely to the transaction of dated January 31, 1995 (‘‘CBOE Amendment No. business on the floor of a national exemption covers non-member registered persons 1’’); letter from Ronald W. Smith, Legal Associate, as well as registered persons who are members. See securities exchange with members or supra note 6. MSRB, to Francois Mazur, Attorney, Division, SEC, 9 dated February 1, 1995 (‘‘MSRB Amendment No. registered broker-dealers. The 10 As a result, a person whose tenth year 1’’); letter from Michael D. Pierson, Senior Attorney, anniversary date falls on the implementation date PSE, to Francois Mazur, Attorney, Division, SEC, 8 Any registered person who has terminated his of the continuing education requirement would dated February 1, 1995 (‘‘PSE Amendment No. 1’’); or her association with a member and who, within have to participate in the Regulatory Element letter from Claire P. McGrath, Managing Director two years of the date of termination, becomes within 120 days of that date. Alternatively, a person and Special Counsel, Derivative Securities, reassociated in a registered capacity with a member, registered more than ten years on the AMEX,to Glen Barrentine, Team Leader, Division, would be required to complete the training program implementation date, and not subject to a SEC, dated February 1, 1995 (‘‘AMEX Amendment at such intervals (two, five, and ten years) as would disciplinary action within the last ten years, would No. 1’’); letter from James E. Buck, Senior Vice apply based upon the individuals’ initial not have to participate in the Regulatory Element. President and Secretary, NYSE, to Francois Mazur, registration anniversary date rather than the date of 11 Anyone administratively terminated must Attorney, Division, SEC, dated February 1, 1995 reassociation in a registered capacity. In the event requalify by taking the appropriate exam (e.g., the (‘‘NYSE Amendment No. 1’’); and letter from Gerald a non-associated person’s second, fifth, or tenth General Securities Registered Representative D. O’Connell, First Vice President, Market anniversary date passes without such individual Examination or ‘‘Series 7’’) before such person’s Regulation and Trading Operations, PHLX, to Glen completing the appropriate phase of the training registration could be reactivated. The Commission Barrentine, Team Leader, Division, SEC, dated program on a timely basis, that person would be recently approved the use of a revised Series 7 February 2, 1995 (‘‘PHLX Amendment No. 1’’). required to complete such phase prior to becoming examination. See Securities Exchange Act Release 7 Among other things, the SROs’ Amendments reassociated in a registered capacity. Nos. 35021 (November 29, 1994), 59 FR 62768 No. 1 made conforming changes to clarify the 9 Amendments No. 1 as filed by the NYSE, (December 6, 1994) (approving PHLX proposal), and wording of the re-entry provisions of the rule AMEX, CBOE, CHX, PSE, and PHLX revised the 34853 (October 18, 1994), 59 FR 53694 (October 25, proposals. language of the proposal to clarify that the foregoing 1994) (approving NYSE proposal). 8428 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 1. because subject to any statutory advantage of the feedback that will be supports the SROs’ proposals and disqualification as defined in Section generated from the Regulatory Element believes that implementation of the 3(a)(39) of the Act; 12 regarding the performance of covered continuing education program will 2. becomes subject to suspension or to persons. At a minimum, programs used elevate the quality of the securities the imposition of a fine of $5,000 or to implement a member’s training plan markets and increase the level of service more for violation of any provision of must be appropriate for the business and protection afforded investors. any securities law or regulation; or any and associated risk factors, suitability The CFPBS is concerned that certain agreement with, or rule or standard of and sales practice considerations, and requirements of the Firm Element could conduct of, any securities governmental applicable regulatory requirements, of impose continuing education agency, securities self-regulatory the securities products offered by the requirements beyond those currently organization, or as imposed by any such member. imposed by the CFPBS upon its regulatory or self-regulatory Members will be required to review licensees. The CFPBS would like the organization in connection with a and, if necessary, update their training continuing education requirements disciplinary proceeding; or plans annually. The SROs may require proposed by the SROs to be completely 3. is ordered as a sanction in a their members, either individually or as reciprocal with those of the CFPBS. disciplinary action to re-enter the part of a group, to provide specific continuing education program by any training in any areas the SROs deem While the Commission is sympathetic securities governmental agency or necessary. Persons subject to the to the concerns of the CFPBS, it believes securities self-regulatory organization.13 training plan will have an affirmative that the specialized knowledge expected Re-entry begins with initial obligation to participate in the programs of individuals who are licensed to sell participation within 120 days of the identified by the member. Accordingly, securities warrant the imposition by the registered person become subject to the members will be required to maintain SROs of educational requirements that statutory disqualification, or the records documenting the content of exceed those required by the CFPBS of disciplinary action becoming final, and their training programs and the its licensees. on three additional occasions thereafter, completion of the program by registered IV. Comments Solicited By the SROs at intervals of two, five, and ten years persons covered under the plan. after re-entry.14 Although the re-entry The SROs will not pre-approve On August 15, 1994, the NASD provision applies notwithstanding that a training materials and programs published Special Notice to Members registered person has completed all or developed by members or providers. (‘‘NTM’’) 94–59 to request comment part of the program requirements based The SROs will, however, communicate regarding the NASD’s draft rules to on length of time as a registered person regularly with members regarding their create a mandated continuing education or completion of ten years of expectations for the content of training program for the securities industry. participation in the program, it does not programs. As the program evolves, it is thirty-three comment letters were apply any registered person whose expected that educational standards will received in response, of which five activities are limited solely to the be defined by the SROs for products and opposed the proposal, and the transaction of business on the floor with services where heightened regulatory remaining commenters either expressed 15 the registered persons. concerns exist. support for, or were not opposed to, the C. The Firm Element D. Effective Date proposal. In addition, on August 15, 1994, the MSRB published its proposed To satisfy the Firm Element of the The effective date for the Regulatory program, SRO members are required to Continuing Education Requirement, Element portion of the program is July Rule G–3, and subsequently received develop and administer training 1, 1995. Any person registered ten years 18 programs to enhance the knowledge, five comment letters. The NYSE or less as of the effective date shall received one comment letter. skills, and professionalism of their participate initially within 120 days registered sales, trading, and investment after the occurrence of such person’s A. Comments Regarding the Regulatory banking personnel who have direct second, fifth, or tenth registration Element contact with customers, and for the anniversary date, whichever anniversary immediate supervisors of such persons. date first applies. The SROs intend that Several commenters expressed Members must prepare training plans the requirements of the Firm Element be concern about certain provisions of the that take into consideration the implemented in two steps under which draft rules. These concerns include a organization’s size, organizational members will be required to have perceived ambiguity regarding when structure, scope of business activities, completed their Firm Element plans by registered persons must participate in and regulatory developments. In July 1995, with actual implementation the Regulatory Element; the effects of addition, training plans should take of the plans no later than January, 1996. inactive status and how to reactivate registration; and the apparent ability of 12 15 U.S.C. § 78c(a)(39) (1988 & Supp. 1993). III. Comments Received by the the SEC and the SROs arbitrarily to 13 Amendment No. 1 as filed by the SROs revised Commission mandate re-entry into the Regulatory the language of the proposal to provide that an Element. The SROs subsequently order to re-enter the continuing education program The Commission received two may be made by any securities governmental comment letters regarding the SROs’ addressed these concerns in the agency or securities self-regulatory organization. proposals, one from the Boston Stock Previously, the proposal provided that such an Exchange (‘‘BSE’’),16 and the other from 4, 1995. The CFPBS establishes qualifications for order was to be made only by the ‘‘Commission, any initial professional certification that include securities self-regulatory organization or any state the Certified Financial Planner Board of 17 education, examination, experience, and ethics securities agency.’’ See supra note 6. Standards, Inc. (‘‘CFPBS’’). The BSE requirements. In addition, it develops and 14 Amendment No. 1 as filed by the SROs revised administers continuing post-certification the language of the proposal to clarify that the 120 16 See letter from John I. Fitzgerald, Executive requirements and disciplinary procedures for its day period would start to run upon a registered Vice President, Legal Affairs and Trading Services, licensees. The CFPBS licenses nearly 30,000 person becoming subject to a statutory BSE, to Jonathan G. Katz, Secretary, SEC, dated persons in the United States, of whom disqualification as well as within 120 days of a January 25, 1995. approximately 18,000 are licensed to sell securities. disciplinary action being final. Id. 17 See letter from Robert P. Goss, CFP, Executive 18 MSRB Reports, Vol. 14, No. 4 (August 15, 15 Id. Director, CFPBS, to Secretary, SEC, dated January 1994). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8429 proposals they filed with the pre-approval be provided regarding the 15B(b)(2)(C) of the Act.21 Sections Commission.19 contents of a firm’s program. Another 6(b)(5), 15A(b)(6), and 15B(b)(2)(C) Other concerns were raised with commenter questioned the usefulness of require, among other things, that the respect to the Regulatory Element, feedback from the Regulatory Element rules of an exchange, an association, or including its cost and focus (some found in developing an appropriate Firm the MSRB, respectively, be designed to its scope too broad, others too narrow). Element. Concern also was expressed promote just and equitable principles of Concern also was expressed that the re- regarding the apparent authority of an trade, remove impediments to and entry provision’s disciplinary fine SRO arbitrarily to prescribe specific perfect the mechanism of a free and threshold was ambiguous as written and training for a member firm. Finally, open market and a national market could be unfair in application. Other there was uncertainty regarding those system, and, in general, protect commenters focused on the statistics to who would be deemed ‘‘covered investors and the public interest. The be generated by the Regulatory Element. persons.’’ Commission further believes that the Specifically, they were concerned about C. Response to Comments proposed rule changes also are the types of statistics that would be consistent with the respective available, and the intended and In their filings with the Commission, provisions of Sections 6(c)(3)(B), acceptable uses of such statistics. the SROs addressed certain of the 15A(g)(3)(A), and 15B(b)(2)(A) of the Several commenters were concerned commenters’ concerns by making three Act,22 each of which makes it the that the Regulatory Element would only technical changes to the Regulatory responsibility of an exchange, an be administered at NASD operated Element portion of the rules as association, or the MSRB to prescribe testing centers. Suggested alternatives originally drafted. First, the SROs standards of training, experience and included administering the Regulatory revised the rules to state clearly that competence for persons associated with Element at firms, subject to appropriate registered persons must participate in SRO members. controls, and reliance on third party the Regulatory Element on three The Commission also believes that the interactive programs similar to those occasions: after the occurrence of their proposed rule change is consistent with provided to the futures industry. second, fifth, and tenth registration the purposes underlying Section One commenter suggested that the anniversary dates. Second, the SROs 15(b)(7) of the Act,23 which generally securities industry model the Regulatory expanded the provision concerning prohibits a registered broker-dealer from Element after state insurance continuing failure to complete the Regulatory effecting any transaction in, or inducing education programs, in which the Element to state that a registration that the purchase or sale of, any security licensing authority imposes the is inactive for a period of two calendar unless such broker-dealer meets the regulatory requirement directly on the years would be terminated standards of training experience, individual, rather than on the firm. administratively, and that a person competence, and other qualifications as Another suggestion was that the Central whose registration is so terminated must the Commission finds necessary or Registration Depository (‘‘CRD’’) 20 help requalify by taking the appropriate appropriate in the public interest or for firms comply with the Regulatory examination, before such person’s the protection of investors.24 The Element. Specifically, CRD could be registration could be reactivated. Third, Commission believes that the SROs’ the SROs revised the re-entry provision used by firms to determine the length of proposals to impose affirmative of the Regulatory Element to clarify that service of their registered persons and to obligations on registered persons on a a securities governmental agency or identify those that would be subject to continuing basis are an appropriate securities SRO could only require re- the Regulatory Element in each of the means of maintaining and reinforcing entry into the program in connection next few years. the qualification standards applicable with a sanction in a disciplinary action. when a person first is registered. B. Comments Regarding the Firm This change is meant to address the Moreover, it is Commission policy to Element concerns of those commenting on the rely principally on the SROs for the A concern expressed by several due process issues that could arise if formulation and administration of commenters regarding the Firm Element regulatory authorities were able to qualification standards, subject to was the cost it will impose on smaller mandate re-entry arbitrarily. 25 In response to comments received, the Commission review and oversight. firms. To mitigate this effect, it was The SROs’ proposals convey broadly suggested that the SROs prepare and Council has stated that the CRD system will be used to track and communicate applicable information relating to administer training programs; provide compliance, regulatory, ethical, and subsidies to smaller firms to help them anniversary dates and evidence of completion of the Regulatory Element. general sales practice standards, as well comply with the Firm Element; or that as job related material for specific a video satellite program be created that The Regulatory Element’s computer based systems will also capture, store, professional areas and products. The would enable firms to secure qualified SROs have divided the continuing speakers, and include material that and analyze data that will indicate who took the training, when, and where, as would comply with the Firm Element. 21 15 U.S.C. §§ 78f(b)(5), 78o–3(b)(6), and 78o– Several commenters stated that the well as other information. 4(b)(2)(C) (1988). standards for the Firm Element are too V. Discussion 22 15 U.S.C. §§ 78f(c)(3)(B), 78o–3(g)(3)(A), and vague to allow firms to ensure proper 78o–4(b)(2)(A) (1988). compliance. Some commenters The Commission believes that the 23 15 U.S.C. § 78o(b)(7) (1988). suggested that the Firm Element focus SROs’ proposed rule changes are 24 Id. on suitability, and that some form of consistent with the requirements of the 25See Rule 15b7–1 under the Act, 17 CFR Act and the rules and regulations 240.15b7–1 (1994), and Securities Exchange Act thereunder applicable to national Release No. 32261 (May 4, 1993), 58 FR 27656 (May 19 See infra, Part IV, Section C. 11, 1993) (in adopting Rule 15b7–1 to require 20 CRD is a computerized filing and data securities exchanges, national securities broker-dealers to comply with SRO qualification processing system operated by the NASD that associations, and the MSRB and, in standards, the Commission stated that it has been maintains registration information regarding particular, the respective requirements longstanding Commission policy to rely principally registered broker-dealers and their registered of Sections 6(b)(5), 15A(b)(6), and on the SROs in the formulation and administration personnel for access by state regulators, SROs, and of qualification standards, subject to Commission the Commission. review and oversight). 8430 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices education program into two parts: The alternatives to the NASD’s testing Securities and Exchange Commission Regulatory Element, which emphasizes centers can be developed.26 (‘‘SEC’’ or ‘‘Commission’’) the proposed subjects regarding legal and ethical The Commission notes with approval rule change as described in Items I and standards, and the Firm Element, which that the Firm Element Committee of the II below, which Items have been contemplates the timely transmission of Council is developing guidelines for prepared by the self-regulatory product related information to maintain dealers’ use in devising and carrying out organization. The Commission is and expand individuals’ professional training programs to meet the publishing this notice to solicit knowledge. Taken together, the requirements of the Firm Element, comments on the proposed rule change Elements form the basis for an including providing guidance as to how from interested persons. educational program that should ensure different firms might approach the that registered persons have the training requirements (e.g., firms that deal with I. Self-Regulatory Organization’s and knowledge necessary to conduct one product, small firms, and firms with Statement of the Terms of Substance of themselves in an appropriate large numbers of very small offices or the Proposed Rule Change professional manner, over the course of solo representatives). their careers. The Commission also These guidelines will offer The Amex proposes that the notes that the re-entry provision of the suggestions intended to help firms Commission extend for twelve months Regulatory Element, which is triggered devise appropriate and reasonable the Exchange’s existing pilot program by disciplinary action, will ensure that programs consistent with their own under Rule 205 requiring execution of those individuals who have not unique characteristics and businesses. odd-lot market orders at the prevailing complied with all applicable regulatory The Commission believes that such Amex quote with no differential requirements, receive further training as guidance will particularly benefit charged.1 The text of the proposed rule a condition to their re-entry into smaller firms and should lessen their change is available at the Office of the business. costs of compliance with the Firm Secretary, Amex, and at the The Commission believes that a Element. The Commission encourages Commission. continuing education requirement for the SROs, as they gain experience with persons in the securities industry, the continuing education program, to II. Self-Regulatory Organization’s administered pursuant to industry continue such efforts. Statement of the Purpose of, and Statutory Basis for, the Proposed Rule developed standards, will benefit public VI. Conclusion investors as a result of the increased Change knowledge and enhanced understanding It Is Therefore Ordered, pursuant to In its filing with the Commission, the of regulatory and ethical standards by Section 19(b)(2) of the Act,27 that the self-regulatory organization included industry members. SRO qualification of proposed rule changes (File Nos. SR– statements concerning the purpose of, registered persons of broker-dealers is of AMEX–94–59, SR–CBOE–94–49, SR– critical importance in promoting CHX–94–27, SR–MSRB–94–17, SR– and basis for, the proposed rule change compliance with the requirements of the NASD–94–72, SR–NYSE–94–43, SR– and discussed any comments it received federal securities laws. Increasing the PSE–94–35, and SR–PHLX–94–52) are on the proposed rule change. The text sensitivity of registered persons to approved. of these statements may be examined at the places specified in Item III below. regulatory and ethical matters also By the Commission. The self-regulatory organization has should enhance investor confidence in Margaret H. McFarland, the securities industry. Moreover, the prepared summaries, set forth in Deputy Secretary. Sections (A), (B), and (C) below, of the recent attention that has been devoted to [FR Doc. 95–3569 Filed 2–13–95; 8:45 am] derivatives underscores the need for most significant aspects of such securities industry personnel to receive BILLING CODE 8010±01±M statements. thorough training in the products in A. Self-Regulatory Organization’s [Release No. 34±35344; File No. SR±Amex± which they deal. Statement of the Purpose of, and The SROs have noted that the 95±03] Statutory Basis for, the Proposed rule Regulatory Element of the program Change initially will be administered only in Self-Regulatory Organizations; Notice the NASD’s testing centers, stating that of Filing and Order Granting 1. Purpose this is necessary to allow the NASD to Accelerated Approval to Proposed manage the introduction of the program Rule Change by American Stock The Commission has approved, on a in a reasonable manner. Nevertheless, Exchange, Inc. Relating to a Pilot pilot basis extending to February 8, interest has been expressed in Program for Execution of Odd-lot 1995, amendments to Exchange Rule permitting member firms either to Market Orders 205 to require the execution of odd-lot administer the Regulatory Element in- February 8, 1995. market orders at the prevailing Amex 2 house, or to solicit the services of Pursuant to Section 19(b)(1) of the quote with no odd-lot differential. outside vendors. While recognizing the Securities Exchange Act of 1934 These procedures initially were concerns of the Council and the SROs (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is approved by the commission on a pilot regarding the technological and hereby given that on February 2, 1995, administrative issues that arise in the American Stock Exchange, Inc. 1 The Exchange seeks accelerated approval of the connection with the in-house (‘‘Amex’’ or ‘‘Exchange’’) filed with the proposed rule change in order to allow the pilot administration of the Regulatory program, which expires on February 8, 1995, to continue without interruption. The Commission Element, the Commission encourages 26 Specifically, delivery of the Regulatory Element notes that, under current Rule 205, no differential the Council and the SROs to continue to other than through the NASD’s testing centers may be charged on odd-lot order transactions, study whether practical and reasonable would require that appropriate safeguards be except for non-regular way trades. See infra, note developed to ensure the integrity of the program 5. and the ability to capture the necessary information 2 See Securities Exchange Act Release No. 34949 for feedback. (November 8, 1994), 59 FR 58863 (November 15, 27 15 U.S.C. § 78s(b)(2) (1988). 1994) (approving File No. SR–AMEX–94–47). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8431 basis,3 and subsequently were extended Section 6(b)(5) and 11A(a)(1) in rule change is consistent with the ten times.4 particular in that it facilitates the requirements of the Act and the rules Under the pilot procedures, odd-lot economically efficient execution of odd- and regulations thereunder applicable to market orders with no qualifying lot transactions, and is intended to a national securities exchange and, in notations are executed at the Amex result in improved execution of particular, with the requirements of quotation at the time the order is customer orders. Section 6(b) 6 and 11A(a)(1) 7 of the Act represented in the market, either by B. Self-Regulatory Organization’s and the rules and regulations being received at the trading post or Statement on Burden on Competition thereunder. The Commission believes through the Exchange’s Post Execution that the revised procedures, under Reporting (‘‘PER’’) system. The proposed rule change will impose which odd-lot market orders are Enhancements to the PER system have no burden on competition. executed at the prevailing Amex quote been implemented to provided for the C. Self-Regulatory Organization’s rather than at the price of a subsequent automatic execution of odd-lot market statements on Comments on the round-lot transaction, should provide orders entered through PER. For Proposed Rule Change Received From investors with more timely execution of purposes of the pilot program, odd-lot Members, Participants, or Others their orders. The Exchange has limit orders that are immediately implemented enhancements to its PER No written comments were solicited executable based on the Amex quote at system to provide for the automatic or received with respect to the proposed the time the order is received, at the execution of odd-lot market orders. rule change. trading post or through PER, are Based on the data in the Amex’s executed in the same manner as odd-lot III. Solicitation of Comments monitoring reports, the Rule 205 market orders. Interested persons are invited to amendments have resulted in a superior The Exchange proposes that the pilot submit written data, views and execution for a significant percentage of program applicable to odd-lot execution arguments concerning the foregoing. such orders. procedures be extended for twelve Persons making written submissions The Commission, however, is not months. The exchange notes that, in should file six copies thereof with the satisfied that all customers received the approving previous extensions to the Secretary, Securities and Exchange best execution, in terms of time and Rule 205 pilot procedures, the Commission, 450 Fifth Street, N.W., price, under the pilot procedures. Commission has expressed interest in Washington, D.C. 20549. Copies of the Specifically, the Commission remains the feasibility of the Exchange utilizing submission, all subsequent concerned that some odd-lot orders may the Intermarket Trading System (‘‘ITS’’) amendments, all written statements not receive the best available price, best bid or offer, rather than the Amex with respect to the proposed rule because the Exchange’s pricing formula bid or offer, for purposes of the change that are filed with the does not include quotations from other Exchange’s odd-lot pricing system. The Commission, and all written markets.8 In its previous orders,9 the Exchange has determined to proceed communications relating to the Commission has requested that the with system modifications, anticipated proposed rule change between the Exchange analyze the difference in odd- to be completed within a twelve month Commission and any person, other than lot executions between using the period, to provide for execution of odd- those that may be withheld from the Intermarket Trading System (‘‘ITS’’) lot market orders at the ITS best bid or public in accordance with the consolidated best bid or offer and using offer. The Exchange will file appropriate provisions of 5 U.S.C. § 552, will be the Amex quote. The Commission also amendments to Rule 205, prior to available for inspection and copying at has encouraged the Amex to evaluate expiration of the extended pilot the Commission’s Public Reference the feasibility of implementing an odd- program, to accommodate the revised Section, 450 Fifth Street, N.W., lot pricing system based on the ITS best odd-lot pricing procedures. Washington, D.C. 20549. Copies of such bid or offer.10 At this time, the Amex has 2. Basis filing will also be available for inspection and copying at the principal determined to proceed with the The proposed rule change is office of the Amex. All submissions necessary system modifications to consistent with Section 6(b) of the Act should refer to File No. SR-Amex-95-03 provide for the execution of odd-lot in general and furthers the objectives of and should be submitted by March 7, orders at the ITS best bid or offer. The 1995. Exchange anticipates that the system 3 See Securities Exchange Act Release No. 26445 modifications will be completed within (January 10, 1989), 54 FR 2248 (January 19, 1989) IV. Commission’s Findings and Order a twelve month period. As noted above, (approving File No. SR–Amex–88–23). Granting Accelerated Approval of the Commission has encouraged the 4 See Securities Exchange Act Release Nos. 34949 Proposed Rule Change (November 8, 1994), 59 FR 58863 (November 15, Amex to implement a pricing formula 1994) (approving File No. SR–Amex–94–47); 34496 For the same rational discussed in its that includes quotations from other (August 8, 1994), 59 FR 41807 (August 15, 1994) previous orders regarding the Amex’s markets and believes that such action (approving File No. SR–Amex–94–28); 33584 odd-lot execution pilot program,5 the (February 7, 1994), 59 FR 6983 (February 14, 1994) would substantially alleviate the (approving File No. SR–Amex–93–45); 32726 Commission finds that the proposed Commission’s best execution concerns. (August 9, 1993), 58 FR 43394 (August 16, 1993) In the interim, due to the relatively low (approving File No. SR–Amex–93–24); 31828 5 See e.g., Securities Exchange Act Release No. (February 5, 1993) 58 FR 8434 (February 12, 1993) 26445, supra note 3, for a description of the 6 15 U.S.C. 78f (1988). (approving File No. SR–Amex–93–06); 30305 Commission’s rationale for approving the Amex’s 7 15 U.S.C. 78k–1(a)(1) (1988). (January 30, 1992), 57 FR 4653 (February 6, 1992) odd-lot procedures on a pilot basis. The discussion 8 (approving File No. SR–Amex–92–04); 29922 in the aforementioned order is incorporated by The Commission has approved amendments to (November 8, 1991), 56 FR 58409 (November 19, reference into this order. Since initial approval of the New York Stock Exchange’s (‘‘NYSE’’) rules 1991) (approving File No. SR–Amex–91–30); 29186 the pilot program, however, the Exchange has which incorporate the ITS quotation into the NYSE (May 19, 1991), 56 FR 22488 (May 15, 1991) amended Rule 205 to provide that no differential odd-lot pricing procedures through the use of the (approving File No. SR–Amex–91–09); 28758 may be charged on odd-lot order transactions, Best Pricing Quote (‘‘BPQ’’). See Securities (January 10, 1991), 56 FR 1656 (January 16, 1991) except for non-regular way trades. See Securities Exchange Act Release No. 27981 (May 2, 1990), 55 (approving File No. SR–Amex–90–39); and 27590 Exchange Act Release No. 34591 (August 24, 1994), FR 19409 (May 9, 1990) (File No. SR–SYSE–90–06). (January 5, 1990), 55 FR 1123 (January 11, 1990) 59 FR 44783 (August 30, 1994) (approving File No. 9 See supra, note 4. (approving File No. SR–Amex–89–31). SR-Amex-94–15). 10 See supra, note 8. 8432 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices number of odd-lot market orders on the by the self-regulatory organization. The trading in sixteenths will improve the Amex 11 and the benefits to customers Commission is publishing this notice to market for securities trading under $10 under the pilot procedures as compared solicit comments on the proposed rule by promoting greater liquidity and to the former pricing procedures, which change from interested persons. providing for superior executions of priced odd-lot orders based on retail and professional orders. In I. Self-Regulatory Organization’s subsequent round-lot transactions and addition, the proposal is responsible to Statement of the Terms of Substance of which raised concerns regarding the recommendations of the Division of the Proposed Rule Change timeliness of execution, the Commission Market Regulation, in its Market 2000 finds that it is appropriate to extend the The Amex proposes to amend Amex Study,3 that the exchanges and Nasdaq pilot program for an additional twelve Rule 127 to increase from $5 to $10 the convert to a minimum variation of one- months. This will enable the pilot price level below which equity sixteenth as soon as possible. program to continue without securities are traded in sixteenths. The proposed amendments to Rule interruption during the system II. Self-Regulatory Organization’s 127 do not pertain to bond issues, modifications. Statement of the Purpose of, and which will continue to be dealt in at The Commission finds good cause for Statutory Basis for, the Proposed Rule one-eighth of $1. In addition, the granting approval of the proposed rule Change Exchange will retain its authority to fix change prior to the thirtieth day after different minimum fractional changes the date of publication of notice of filing In its filing with the Commission, the where appropriate. thereof. This will permit the pilot self-regulatory organization included Prior to implementing expanded program to continue on an statements concerning the purpose of sixteenths trading in 1992, the Amex uninterrupted basis. In addition, the and basis for the proposed rule change discussed the need for systems procedures the Exchange proposes to and discussed any comments it received enhancements to the Intermarket continue using are substantially on the proposed rule change. The text Trading System (‘‘ITS’’) 4 with all ITS identical to the procedures that were of these statements may be examined at participants 5 in order to permit the published in the Federal Register for the places specified in Item IV below. transmittal of commitments to trade the full comment period and were The self-regulatory organization has Amex securities priced under $5 via ITS approved by the Commission.12 prepared summaries, set forth in in fractions of one-sixteenth, which It is therefore ordered, pursuant to Sections A, B, and C below, of the most enhancements were implemented by the Section 19(b)(2) 13 of the Act, that the significant aspects of such statements. Securities Industry Automation proposed rule change (SR–Amex–95– A. Self-Regulatory Organization’s Corporation (‘‘SIAC’’).6 Prior to the 03) is approved for a twelve month Statement of the Purpose of, and proposed expansion of trading in period ending on February 8, 1996. Statutory Basis for, the Proposed Rule sixteenths, the Amex will consult with For the Commission, by the Division of Change all ITS participants to permit them to Market Regulation, pursuant to delegated make any required modifications to authority.14 1. Purpose their individual systems to Margaret H. McFarland, In August 1992, the Commission accommodate trading through ITS in Deputy Secretary. approved amendments to Amex Rule Amex securities priced under $10. [FR Doc. 95–3617 Filed 2–13–95; 8:45 am] 127 to provide that securities selling 2. Statutory Basis BILLING CODE 8010±01±M under $5 and above $.25 may be traded in fractions of 1⁄16 of $1.00 per share.1 Thr proposed rule change is Prior to the amendment, Rule 127 consistent with Section 6(b) of the Act [Release No. 34±35338; File No. SR±Amex± provided for trading in sixteenths for in general and furthers the objectives of 95±02] securities selling under $1 and above Section 6(b) in particular in that it is $.25, whereas trading in securities intended to promote just and equitable Self-Regulatory Organizations; Notice principles of trade, to facilitate of Filing of Proposed Rule Change by selling above $1 were subject to a minimum trading fraction of one-eighth American Stock Exchange, Inc. of Amex-listed securities) to 589 securities Relating to Minimum Fractional of $1. In expanding the number of securities eligible for trading in (approximately 60% of Amex-listed securities). Changes These estimates were made by the Exchange as of sixteenths, the Exchange intended to February 3, 1995. February 7, 1995. promote greater liquidity in lower 3 Division of Market Regulation, SEC, Market Pursuant to Section 19(b)(1) of the priced stocks by allowing quotations 2000: An Examination of Current Equity Market between the then-current one-eighth Developments (January 1994), at 18 (‘‘Market 2000 Securities Exchange Act of 1934 Study’’). minimum trading fraction, thereby (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is 4 ITS is a subsystem of the National Market hereby given that on January 31, 1994, providing possible improved pricing of System approved by the Commission pursuant to the American Stock Exchange, Inc. orders to the benefit of both public Section 11A of the Act, 15 U.S.C. 78k–1 (1988). ITS (‘‘Amex’’ or ‘‘Exchange’’) filed with the customers and market professionals. facilitates intermarket trading in exchange-listed equity securities based on the current quotation Securities and Exchange Commission The Exchange proposes to increase information emanating from the linked markets. For (‘‘Commission’’) the proposed rule significantly the number of Amex-listed a discussion of ITS, see Market 2000 Study, supra change as described in Items I, II and III securities traded in sixteenths by note 3, at Appendix II. below, which Items have been prepared amending Rule 127 to provide for 5 Participants to the ITS Plan include the Amex, sixteenths trading in securities selling the Boston Stock Exchange, the Chicago Board 2 Options Exchange, the Chicago Stock Exchange, the 11 See footnote 9 of Securities Exchange Act under $10. The Exchange believes that Cincinnati Stock Exchange, the New York Stock Release No. 29922 (November 8, 1991), 56 FR Exchange, the Pacific Stock Exchange, the 58409. 1 See Securities Exchange Act Release No. 31118 Philadelphia Stock Exchange, and the National 12 No comments were received in connection with (August 28, 1992), 57 FR 40484 (September 3, Association of Securities Dealers. the proposed rule changes that implemented these 1992). 6 SIAC is a jointly owned subsidiary of the New procedures. See supra, notes 3–4. 2 The Amex estimates that the rule change will York Stock Exchange and the Amex, which does, 13 15 U.S.C. 78s(b)(2) (1988). increase the number of securities traded in among other things, the automated processing for 14 17 CFR 200.30–3(a)(12) (1991). sixteenths from 362 securities (approximately 37% ITS. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8433 transactions in securities, and to protect For the Commission, by the Division of Rule 8.51 to certain two part equity investors and the public. Market Regulation, pursuant to delegated orders and thus, to attempt to ensure the authority. ability of public customers to execute B. Self-Regulatory Organization’s Margaret H. McFarland, defined risk strategies, such as spreads Statement on Burden on Competition Deputy Secretary. and straddles, at the disseminated The proposed rule change will [FR Doc. 95–3568 Filed 2–13–95; 8:45 am] market quotes. remove or lessen existing burdens on BILLING CODE 8010±01±M CBOE Rule 8.51 places the competition in that it will enhance the responsibility on the trading crowd to liquidity of and provide for greater price ensure that non-broker-dealer customer [Release No. 34±35345; File No. SR±CBOE± orders are sold or bought, up to ten competition in Amex securities trading 94±54] under $10. contracts, at the quoted offer or bid, Self-Regulatory Organizations; Notice respectively. This ‘‘firm quote’’ or ‘‘ten- C. Self-Regulatory Organization’s up’’ requirement is meant to provide Statement on Comments on the of Filing of Proposed Rule Change by the Chicago Board Options Exchange confidence that the displayed quotes Proposed Rule Change Received From may be relied upon by the investing Members, Participants or Others Relating to Firm Quote Responsibilities public and to ensure that public No written comments were solicited customer orders will be executed at or received with respect to the proposed February 8, 1995. those quotes. rule change. Pursuant to Section 19(b)(1) of the From its inception the rule was Securities Exchange Act of 1934, 15 intended to apply to, and has been III. Date of Effectiveness of the U.S.C. 78(b)(1), notice is hereby given interpreted to apply only to, single part Proposed Rule Change and Timing for that on January 4, 1995, the Chicago orders, i.e., either a buy order or a sell Commission Action Board Options Exchange, Incorporated order for a particular option series. The Within 35 days of the publication of (‘‘CBOE’’ or ‘‘Exchange’’) filed with the Exchange has determined, however, that this notice in the Federal Register or Securities and Exchange Commission public customers would be served better within such other period (i) as the (‘‘Commission’’) the proposed rule if the interpretation were expanded to Commission may designate up to 90 change as described in Items I, II, and included a requirement to provide a ten- days of such date if it finds such longer III below, which Items have been up market in two-part equity option period to be appropriate and publishes prepared by the CBOE. The Commission orders in which the components of the its reasons for so finding or (ii) as to is publishing this notice to solicit order are on opposite sides of the which the self-regulatory organization comments on the proposed rule change market and in a one-to-one ration to each other. The expansion in the consents, the Commission will: from interested persons. interpretation of this rule would make it (A) By order approve the proposed I. Self-Regulatory Organization’s possible for public customers to execute rule change, or Statement of the Terms of Substance of both sides of a defined risk strategy, (B) Institute proceedings to determine the Proposed Rule Change such as a spread or a straddle, at the whether the proposed rule change The Exchange proposes to expand the disseminated prices. This rule change, should be disapproved. applicability of the firm quote rule to then, should help the Exchange compete IV. Solicitation of Comments include two-part orders in equity more effectively for public customer options, in which the component series order flow and trading activity. Interested persons are invited to are on opposite sides of the market and The Exchange does not believe this submit written data, views and in a one-to-one ratio. The text of the rule change would be burdensome to arguments concerning the foregoing. proposed rule change is available at the market-makers because, under the Persons making written submissions Office of the Secretary, CBOE and at the current interpretation, the market- should file six copies thereof with the Commission. makers would be required to satisfy the Secretary, Securities and Exchange ten-up requirement as to each leg of a Commission, 450 Fifth Street, NW., II. Self-Regulatory Organization’s spread or straddle if each was placed as Washington, DC 20549. Copies of the Statement of the purpose of, and a separate order. This rule change submission, all subsequent Statutory Basis for, the Proposed Rule would merely ensure that these two amendments, all written statements Change components may be done at the same with respect to the proposed rule In its filing with the Commission, the time, as one order, and at the same change that are filed with the Exchange included statements prevailing market quotes. The Exchange Commission, and all written concerning the purpose of and basis for believes, however, that it is communications relating to the the proposed rule change and discussed inappropriate, under any circumstances, proposed rule change between the any comments it received on the to extend the firm-quote treatment to Commission and any person, other than proposed rule change. The text of these multi-part orders with all parts on the those that may be withheld from the statements may be examined at the same side of the market as this would public in accordance with the places specified in Item IV below. The effectively impose the burden on provisions of 5 U.S.C. 552, will be Exchange has prepared summaries, set options market-makers of making available for inspection and copying at forth in sections (A), (B), and (C) below, markets in the underlying security. For the Commission’s Public Reference of the most significant parts of such example, a position in a long call and Section, 450 Fifth Street, NW., statements. a short put is economically equivalent Washington, DC 20549. Copies of such to being long the underlying stock; and filing will also be available for A. Self-Regulatory Organization’s thus, requiring a trading crowd to inspection and copying at the principal Statement of the Purpose of, and provide firm quote treatment to an order office of the Amex. All submissions Statutory Basis for, the Proposed Rule for this position would essentially be should refer to File No. SR–Amex–95– Change requiring the option market-makers to 02 and should be submitted by March The purpose of the proposed rule act as market-makers in the underlying 7, 1995. change is to expand the applicability of security. 8434 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Under Rule 8.51, the firm quote size communications relating to the services. Specifically, the rule change minimum will not apply whenever a proposed rule change between the calls for changes to the processing of ‘‘fast market’’ is declared under rule 6.6, Commission and any person, other than principal and income distributions in a and may be suspended for any class or those that may be withheld from the same-day funds environment.3 series on a case by case basis as public in accordance with the II. Self-Regulatory Organization’s determined by the Market Performance provisions of 5 U.S.C. 552, will be Statement of the Purpose of, and Committee. available for inspection and copying in CBOE believes the proposed rule the Commission’s Public Reference Statutory Basis for, the Proposed Rule change will contribute to a market that Section, 450 Fifth Street, N.W., Change will instill an increasing customer Washington, D.C. 20549. Copies of such In its filing with the Commission, confidence and ability to transact filing will also be available for DTC included statements concerning business in an increasingly efficient inspection and copying at the principal the purpose of and basis for the manner. CBOE believes the proposed office of CBOE. All submissions should proposed rule change and discussed any rule change is consistent with Section refer to the file number in the caption comments it received on the proposed 6(b) of the Securities Exchange Act of above and should be submitted by rule change. The text of these statements 1934 (the ‘‘Exchange Act’’) in general March 7, 1995. may be examined at the places specified and furthers the objectives of Section For the Commission, by the Division of in Item IV below. DTC has prepared 6(b)(5) in particular by providing rules Market Regulation, pursuant to the delegated summaries, set forth in sections (A), (B), that perfect the mechanisms of a free authority.1 and (C) below, of the most significant and open market and that protect Margaret H. McFarland, aspects of such statements. investors and the public interest. Deputy Secretary. (A) Self-Regulatory Organization’s B. Self-Regulatory Organization’s [FR Doc. 95–3618 Filed 2–13–95; 8:45 am] Statement of the Purpose of, and Statement on Burden on Competition BILLING CODE 8010±01±M Statutory Basis for the Proposed Rule Change CBOE does not believe that the proposed rule change will impose any [Release No. 34±35342; File No. SR±DTC± DTC’s operational arrangements are inappropriate burden on competition. 94±19] designed to maximize the number of issues that can be made depository C. Self-Regulatory Organization’s Self-Regulatory Organizations; The eligible while ensuring orderly Statement on Comments on the Depository Trust Company; Notice of processing and timely payments to Proposed Rule Change Received From Filing of Proposed Rule Change participants. DTC’s experience Members, Participants or Others Regarding Implementation of New demonstrates that when issuers, No written comments were solicited Guidelines Regarding Principal and underwriters, and their counsel are or received with respect to the proposed Income Payments in a Same-Day aware of DTC’s requirements those rule change. Funds Environment requirements can be met almost without exception.4 The purpose of the III. Date of Effectiveness of the February 8, 1995. proposed rule change is to incorporate Proposed Rule Change and Timing for Pursuant to Section 19(b)(1) of the in DTC’s operational arrangements Commission Action Securities Exchange Act of 1934 1 memorandum principles for the Within 35 days of the date of (‘‘Act’’), notice is hereby given that on December 5, 1994, The Depository Trust processing of principal and income publication of this notice in the Federal 5 Company (‘‘DTC’’) filed with the payments in same-day funds. Towards Register or within such longer period (i) this end, the operational arrangements as the Commission may designate up to Securities and Exchange Commission (‘‘Commission’’) the proposed rule memorandum will incorporate the 90 days of such date if it finds such relevant provisions of the ‘‘Standards longer period to be appropriate and change as described in Items I, II, and III below, which Items have been publishes its reasons for so finding or 3 prepared primarily by DTC. On January Same-day funds, which are also known as ‘‘Fed (ii) as to which the self-regulatory funds’’, are immediately available for redelivery on organization consents, the Commission 24, 1995, DTC amended the proposed the day of receipt. will: rule change to include a statement that 4 During 1993, a total of 392,000 new issues were made eligible for DTC’s services. This was 99.94% (A) By order approve such proposed the proposed rule change did not impose any burden on competition not of all new issues submitted to DTC’s Underwriting rule change, or Department for eligibility determinations. These (B) Institute proceedings to determine necessary or appropriate in furtherance figures include equity, corporate debt, municipal whether the proposed rule change of the purposes of the Act.2 The debt, and U.S. Government and Agency securities. should be disapproved. Commission is publishing this notice to In the unusual circumstance where the processing solicit comments on the proposed rule characteristics of a new issue that is being IV. Solicitation of Comments structured would not meet DTC’s operational change from interested persons. arrangements, if contacted early enough in the Interested persons are invited to planning process DTC staff often is able to assist in I. Self-Regulatory Organization’s suggesting restructuring alternatives that would submit written data, views and Statement of the Terms of Substance of arguments concerning the foregoing. permit the issue to be made depository eligible. the Proposed Rule Change 5 DTC’s operational arrangements memorandum Persons making written submissions was published in June 1987 and was updated in should file six copies thereof with the The proposed rule change consists of both June 1988 and February 1992. For a complete Secretary, Securities and Exchange modifications to the existing operational description of the operational arrangements Commission, 450 Fifth Street, NW., arrangements necessary for a securities memorandum, refer to Securities Exchange Act issue to become eligible for DTC’s Release No. 24818 (August 19, 1987), 52 FR 31833 Washington, D.C. 20549. Copies of the [File No. SR–DTC–87–10] (order approving the submission, all subsequent implementation of DTC’s operational arrangements 1 amendments, all written statements 17 CFR 200.30–3(a)(12) (1994). for the eligibility of security issues), and Securities 1 15 U.S.C. 78s(b)(1) (1988). with respect to the proposed rule Exchange Act Release No. 30625 (April 30, 1992), 2 Letter from Piku Thakkar, Assistant Counsel, 57 FR 18534 [File No SR–DTC–92–06] (order change that are filed with the DTC, to Peter R. Geraghty, Division of Market approving modifications to DTC’s operational Commission, and all written Regulation, Commission (January 24, 1995). arrangements). Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8435 for Principal and Income Payments Standard time on the payment date. (‘‘MSRB’’),6 the Public Securities Guidelines’’ established by the U.S. Notification of payment details should Association, and the Reorganization Working Committee of the Group of be made using automated Division, Dividend Division, Securities Thirty. These principles will become a communications. Operations Division, and the Operations part of DTC’s income and Finally, if an issuer or agent Committee of the Securities Industry reorganization/redemption payments continually fails to make payment as Association. standards. called for in the guidelines, DTC may First, DTC proposes that all new decide to systematically prevent the III. Date of Effectiveness of the issues be required to meet depository- allocation of such payments to Proposed Rule Change and Timing for eligibility requirements and must be participants on the payable date. Commission Action structured so that all payments to Eventually, DTC may also elect to deny Within thirty-five days of the date of depositories of principal and income are depository eligibility to issues brought publication of this notice in the Federal made in same-day funds on payment to market by non-complying issuers or date by 2:30 p.m. Eastern Standard time. agents. Register or within such longer period (i) Second, for all depository-eligible The proposal also seeks to amend the As the Commission may designate up to issues already outstanding, paying operational arrangements memorandum ninety days of such date if it finds such agents must remit to DTC all principal to introduce the use of a ‘‘Blanket Letter longer period to be appropriate and and income payments in same-day of Representations.’’ This document will publishes its reasons for so finding or funds on payment date by 2:30 p.m. be submitted by an issuer to DTC only (ii) as to which the self-regulatory Eastern Standard time according to once for all issues thus eliminating the organization consents, the Commission existing arrangements between the need for individual letters of will: paying agent and DTC. Recognizing that representations for book-entry-only (A) By order approve such proposed paying agents for certain issues may issues under certain circumstances. rule change or need to modify their current business DTC believes that the proposed rule (B) Institute proceedings to determine arrangements to account for this change, change is consistent with the whether the proposed rule change DTC will continue to pay through July requirements of Section 17A of the Act should be disapproved. 31, 1996, the same rebates as paid now and the rules and regulations to paying agents that result from paying thereunder applicable to DTC because IV. Solicitation of Comments agents municipal interest and municipal the proposal will facilitate the prompt and corporate redemptions to DTC in and accurate clearance and settlement of Interested persons are invited to same-day funds on payment date. securities transactions by promoting the submit written data, views, and However, once DTC converts to same- immobilization of securities. arguments concerning the foregoing. day funds settlement for all security Persons making written submissions transactions, DTC will not have (B) Self-Regulatory Organization’s should file six copies thereof with the investment funds available to rebate to Statement on Burden on Competition Secretary, Securities and Exchange paying agents because DTC intends to DTC indicated that it did not believe Commission, 450 Fifth Street, NW., make all payments to its participants on that the proposed rule change would Washington, DC 20549. Copies of the payment date in same-day funds. impose any burden on competition not submission, all subsequent Recognizing that participants will necessary or appropriate in the amendments, all written statements benefit by receiving all their expected furtherance of the purposes of the Act. with respect to the proposed rule payments in same-day funds on change that are filed with the (C) Self-Regulatory Organization’s payment date, from the date of the Commission, and all written Statement on Comments on the conversion to same-day funds communications relating to the Proposed Rule Change Received From settlement for all security transactions proposed rule change between the Members, Participants or Others until July 31, 1996, DTC will charge Commission and any person, other than participants in proportion to their DTC’s operational arrangements were those that may be withheld from the holdings in each issue for which a developed in close consultation with public in accordance with the rebate applies the funds needed to pay many bond trustees, issuers’ agents, provisions of 5 U.S.C. 552, will be the rebate. With respect to payments participants, and industry groups available for inspection and copying in made on or after August 1, 1996, these throughout the country in order to the Commission’s Public Reference charges to participants will no longer be assure that these processing standards Section, 450 Fifth Street, NW., required. The rebate will not be applied can be met. DTC has disseminated these Washington, DC. Copies of such filing to payments of corporate interest, memoranda widely to corporate and will also be available for inspection and dividends, and reorganizations in which public finance professionals, copying at the principal office of DTC. the paying agent already pays DTC in underwriters, bond counsel, and issuers All submissions should refer to the File same-day funds on payment date. These so that they may consider whether No. SR–DTC–94–19 and should be payments currently are not subject to documentation relating to issues sought submitted by March 7, 1995. interest earnings rebates. However, DTC to be made depository-eligible For the Commission, by the Division of will require that 100% of corporate adequately accommodates these Market Regulation, pursuant to the delegated interest, dividend, and reorganization requirements. authority.7 payments be paid to DTC in same-day In addition, both industry funds on payment date by 2:30 p.m. organizations and self-regulatory Margaret H. McFarland, Eastern Standard time. organizations have endorsed the four Deputy Secretary. Third, DTC will require paying agents principles discussed above. These [FR Doc. 95–3566 Filed 2–13–95; 8:45 am] to provide DTC with the CUSIP organizations include the American BILLING CODE 8010±01±M numbers for each issue for which Bankers Association, the Bank payment is being sent as well as the Depository User Group, the Government 6 The MSRB has, however, raised questions about dollar amount of the payment for each Finance Officers Association, the how these guidelines would be enforced. issue no later than noon Eastern Municipal Securities Rulemaking Board 7 17 CFR 200.30–3(a)(12) (1994). 8436 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices [Release No. 34±35340; File No. SR±NASD± permanently or indefinitely disabled adjustment of open orders, relating to 94±77] from the performance of the duties and the applicability of this section to orders functions of the Director, the rule marked ‘‘do not reduce’’ (‘‘DNR’’) and Self-Regulatory Organizations; Order change permits the NASD President or ‘‘do not increase (‘‘DNI’’). The Approving Proposed Rule Change by an NASD Executive Vice President to provisions of Section 46 deal with the National Association of Securities appoint an interim Director to perform adjustment of open orders in the event Dealers, Inc. Relating to Granting the the functions and responsibilities of the of a payment or distribution. As Director of Arbitration the Authority to Director. amended, the rule will neither apply to Delegate Duties Under the Code of The Commission finds that the orders marked DNR where the dividend Arbitration Procedure proposed rule change is consistent with is payable in cash, nor to orders marked February 8, 1995. the provisions of Section 15A(b)(6) of DNI where the dividend is payable in On December 20, 1994, the National the Act 4 because the rule change will stock, provided that the price of such Association of Securities Dealers, Inc. protect investors and the public interest DNI orders shall be adjusted as required (‘‘NASD’’ or ‘‘Association’’) filed with by avoiding uncertainty and possible by the rule. the Securities and Exchange litigation about the authority of a Notice of the proposed rule change, Commission (‘‘SEC ’’ or ‘‘Commission’’) Department staff member to act under together with its terms of substance was a proposed rule change pursuant to the Code by permitting the Director to provided by issuance of a Commission Section 19(b)(1) of the Securities delegate duties and functions vested by release 4 and by publication in the Exchange Act of 1934 (‘‘Act’’),1 and the Code with the Director. The Federal Register.5 No comments were Rule 19b–4 thereunder.2 The proposed Commission further believes that by received in response to the notice. This rule change amends Section 3 of the permitting certain other NASD officers order approves the proposed rule Code of Arbitration Procedure to appoint an interim Director if change. (‘‘Code’’) 3 to expressly provide that the circumstances render the Director Article III, Section 46 of the Rules of Director of Arbitration (‘‘Director’’) may unable to discharge the duties vested Fair Practice, which became effective delegate decisionmaking authority as with the Director, the proposal will help September 15, 1994, requires a member appropriate. protect investors and is in the public to adjust the price and size of an open Notice of the proposed rule change, interest. order in proportion to the dividend or together with the substance of the It Is Therefore Ordered, pursuant to other distribution on the day the proposal, was provided by issuance of a Section 19(b)(2) of the Act, that file No. security is quoted ‘‘ex’’,6 before the Commission release (Securities SR–NASD–94–77 be, and hereby is, member may permit the order to be Exchange Act Release No. 35168, approved. executed. The amendment has been December 29, 1994) and by publication For the Commission, by the Division of proposed in response to an in the Federal Register (60 FR 1822, Market Regulation, pursuant to delegated inconsistency in the definition of the January 5, 1995). No comment letters authority, 17 CFR 200.30–3(a)(12). terms DNR and DNI between the were received. This order approves the Margaret H. McFarland, NASD’s Section 46 and New York Stock proposed rule change. Deputy Secretary. Exchange (‘‘NYSE’’) Rule 118,7 on The current provisions of Section 3 of [FR Doc. 95–3570 Filed 2–13–95; 8:45 am] which Section 46 was patterned. the Code provide for the NASD Board of BILLING CODE 8010±01±M Because Section 46 was intended to Governors to appoint a Director to operate in the same manner as NYSE perform all administrative duties and Rule 118, the NASD filed the proposed functions in connection with matters [Release No. 34±35339; File No. SR±NASD rule change to amend the definitions of submitted for arbitration pursuant to the 94±71] DNR and DNI to conform to the Code. The Director has found it definitions in Rule 118. Self-Regulatory Organizations; Under NYSE Rule 118, a DNR necessary to delegate certain duties and National Association of Securities functions of the Director to other senior instruction applies only with respect to Dealers, Inc.; Order Approving cash dividends. An order with a DNR management employees of the NASD’s Proposed Rule Change Relating to the Arbitration Department (‘‘Department’’), instruction will not be reduced in price Application of ``Do Not Reduce'' and in the event of a cash dividend. Such an especially as a result of the significant ``Do Not Increase'' Instructions With growth in the Department’s staff and order will, however, be reduced in price Respect to the Repricing of Open and increased in size in the event of a workload. The NASD believes that the Orders authority of the Director to manage the stock dividend or split. In addition, functions of the NASD’s Arbitration February 7, 1995. under NYSE Rule 118, a DNI instruction Department inherently includes the On December 7, 1994, the National applies only with respect to order size power to delegate duties and functions Association of Securities Dealers, Inc. adjustments in the event of stock as appropriate. Nevertheless, the rule (‘‘NASD’’ or ‘‘Association’’) filed with dividends. While an order with a DNI change amends Section 3 of the Code to the Securities and Exchange instruction will not increased in size, it expressly permit the Director to delegate Commission (‘‘SEC’’ or ‘‘Commission’’) will be reduced in price in the event of duties and functions of the Director as a proposed rule change to Section a stock dividend or split. An order with appropriate. 19(b)(1) of the Securities Exchange Act a DNI instruction is inapplicable in the The rule change provides that the of 1934 (‘‘Act’’) 1 and Rule 19b–4 event of a cash distribution because the Director may delegate duties and thereunder.2 The rule change amends functions of the Director as appropriate. Article III, Section 46 of the Rules of 4 Securities Exchange Act Release No. 35169 Further, in the event that the Director is 3 (December 28, 1994). Fair Practice, which governs 5 incapacitated, resigns, is removed or is 60 FR 2169 (January 6, 1995). 6 The ‘‘ex-date’’ represents the day on which the 4 15 U.S. C. Section 70o–3. underlying security is traded without a specific 1 15 U.S.C. Section 78s(b)(1). 1 15 U.S.C. 78s(b)(1). dividend or distribution. NASD Manual, Uniform 2 17 CFR 240.19b–4. 2 17 CFR 240.19b–4. Practice Code, Section 3(e), (CCH) ¶ 3503. 3 NASD Manual, Code of Arbitration Procedure, 3 NASD Manual, of Fair Practice, Article III, 7 NYSE Guide, Handling of Orders and Reports, Part I, Sec. 3 (CCH) ¶ 3703. Section 46, (CCH) ¶ 2200F. Rule 118, (CCH) ¶ 2118. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8437 number of shares is not affected by a For the Commission, by the Division of specialist combinations that raise cash distribution and, therefore, no Market Regulation, pursuant to delegated concentration-related issues. The Policy order size adjustment is necessary. authority.9 calls for review of a potential Margaret H. McFarland, Currently, under Section 46, a DNR combination where the combination instruction applies to both cash and Deputy Secretary. will result in a specialist unit stock distributions. For example, the [FR Doc. 95–3567 Filed 1–13–95; 8:45 am] accounting for more than 5% of any one price of an order marked DNR would BILLING CODE 8010±01±M of four specified concentration not be adjusted under the current measures: Allocation for all listed definition in Section 46 even in the common stocks; allocation for the 250 [Release No. 34±35343; File No. SR±NYSE± most active listed common stocks; total event of a 2 for 1 or similar stock 94±46] dividend. Such a dividend would halve share volume of stock trading on the the quotes for the security, but the order Self-Regulatory Organizations; New Exchange; and total dollar value of stock would remain at the original price, far York Stock Exchange, Inc.; Order trading on the Exchange. Once a review out of line with the adjusted market for Granting Approval to Proposed Rule is triggered under the Policy, the that security. Similarly, all orders Change Amending Specialist primary factors taken into consideration marked DNI would not be subject to the Combination Review Policy to Require by the QOMC depend upon whether the current adjustment provisions of Proponents of Certain Specialist Unit proposed combination warrants a Tier I Section 46. While an order marked DNI Combinations to Address Issues review (exceeding a concentration would not be increased in size in the Related to the Capitalization, Risk measure by more than 5%), Tier II event of stock dividend, it also would Management, and Operational review (exceeding a concentration not be reduced in price pursuant to the Efficiency of Large Sized Specialized measure by more than 10%, up to and provisions of Section 46. Units including 15%), or a Tier III review (exceeding a concentration measure by For customers who understand the February 8, 1995. 15%). The level of the burden of proof operation of Section 46 to be the same I. Introduction placed upon the proposed combining as NYSE Rule 118, leaving the current units also may vary depending on the definitions in place could result in On December 9, 1994 the New York Tier of review. unexpected executions of certain open Stock Exchange, Inc. (‘‘NYSE’’ or orders. To address this concern, the ‘‘Exchange’’) submitted to the Securities III. Description NASD has proposed to amend the and Exchange Commission (‘‘SEC’’ or The proposal will add several applicability of Section 46 to orders ‘‘Commission’’), pursuant to Section requirements that address issues related marked DNR and DNI. Pursuant to the 19(b)(1) of the Securities Exchange Act to the capitalization, risk management, amendment, the provisions of the rule of 1934 (‘‘Act’’) 1 and Rule 19b–4 and operational efficiency of large-sized will not apply to orders marked DNI thereunder,2 a proposed rule change to specialist units.5 The proposal requires where the distribution is payable in adopt amendments to the NYSE’s proponents of a combination that would cash, nor to orders marked DNI where Specialist Combination Review Policy exceed 10% of a concentration measure the distribution is payable in stock, (‘‘Policy’’). Specifically, the proposal to: provide, however, that the price of such would require proponents of certain • Submit an acceptable risk management DNI orders will be adjusted as required specialist unit combinations to address plan with respect to any line of business in by the rule. issues related to the capitalization, risk which they engage; • The Commission has determined to management, and operational efficiency Submit an operational certification approve the NASD’s proposal. The of large sized specialist units. prepared by an independent, nationally recognized management consulting Commission finds that the rule change The proposed rule change was published for comment in Securities organization with respect to all aspects of the is consistent with the requirements of firm’s management and operations; the Act and the rules and regulations Exchange Act Release No. 35171 • Agree to maintain a minimum of 1.5 thereunder applicable to the NASD, (December 28, 1994), 60 FR 1818 times (2 times, in the case of a 15% including the requirements of Section (January 5, 1995). No comments were combination) the total capital requirement 15A(b)(6) of the Act.8 Section 15A(b)(6) received on the proposal. specified in Rule 104.20 6 with respect to the combined entity’s stocks; requires, in part, that the rules of a II. Background national securities association be designed to promote just and equitable The Exchange’s Policy was first 5 Once the proponents agree that they will abide by the requirements listed below, the Exchange will principles of trade; to remove approved by the Commission on a six- 3 verify the ability of the units to make such impediments to and perfect the month pilot basis in 1987. The commitments by reviewing their individual mechanism of a free and open market Commission subsequently granted capitalization information. If such a review shows and a national market system, and, in permanent approval following an that the units do not have the requisite capacity, 4 then the combination will not be approved. Once general, to protect investors and the interim extension. The Policy is a three-tier system of the combination has been approved, the Exchange public interest. The proposed rule will monitor the combined unit to ensure that it change acts to remedy an unintentional review, primarily conducted by the continues to meet the additional requirements. In inconsistency between Section 46 and Quality of Markets Committee the event the combined unit fails to meet the (‘‘QOMC’’), to review proposed additional requirements, the Exchange will address NYSE Rule 118. The rule change also the issue as it would any other capital requirements protects against the unexpected and violation. In such circumstances, the Exchange, 9 unintended execution of open orders. 17 CFR 200.30–3(a)(12). through its Rule 476, has several courses of action 1 15 U.S.C. 78s(b)(1) (1988). available to it including stock reallocation. It is therefore ordered, pursuant to 2 17 CFR 240.19b–4 (1994). Conversations between Don Seimer, NYSE, and Section 19(b)(2) of the Act, that the 3 See Securities Exchange Act Release No. 24411 Amy Bilbija, Attorney, SEC, on January 27, 1995 proposed rule change SR–NASD–94–71 (April 29, 1987), 52 FR 17870 (May 12, 1987). and February 6, 1995. be, and hereby is, approved. 4 See Securities Exchange Act Release Nos. 25481 6 Pursuant to NYSE Rule 104.20, a specialist unit (March 17, 1988), 53 FR 9554 (March 23, 1988) at an active post is required to be able to assume (interim extension); 34167 (June 6, 1994), 59 FR a position of 150 trading units in each common 8 15 U.S.C. 78o–3(b)(6). 30625 (June 14, 1994) (permanent approval). Continued 8438 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices • Agree to maintain 2 times (2.5 times, in degree. The potential impact of the Area 2 Office, One Baltimore Place, the case of a 15% combination) the capital financial failure of a large-sized Suite 300, Atlanta, GA 30308, or other requirement specified in Rule 104.20 with specialist unit upon the NYSE would be locally announced locations. respect to each of the combined entity’s proportionately greater in comparison to stocks that are component stocks of the The interest rates are: Standard and Poor’s 500 Stock Price Index; either original unit. Thus, imposing and more stringent capitalization Percent • Agree that all capital required to be requirements upon the new unit should dedicated to specialist operations be decrease the probability of any such For physical damage: accounted for separate and apart from any failure, and minimize any subsequent Homeowners With Credit Avail- other capital of the combined entity, and that detrimental impact upon the market able Elsewhere ...... 8.000 such specialist capital may not be used for Homeowners Without Credit place. Available Elsewhere ...... 4.000 any other aspect of the combined entity’s The Commission also believes that the operations. Businesses With Credit Available proposal does not impose any Elsewhere ...... 8.000 The proposal also requires that unnecessary or inappropriate burden on Businesses and Non-Profit Orga- proponents of a proposed combination competition under Section 6(b)(8) of the nizations Without Credit Avail- that would result in a specialist unit Act in that it establishes review able Elsewhere ...... 4.000 accounting for more than 5%, but less procedures to prevent potential under- Others (Including Non-Profit Or- than or equal to 10%, of a concentration capitalization of specialist units that ganizations) With Credit Avail- measure, maintain 1.5 times the capital could hinder market quality. The able Elsewhere ...... 7.125 requirement specified in Rule 104.20 Commission recognizes that the revised For Economic Injury: with respect to each of the combined Policy can prevent certain combinations Businesses and Small Agricul- entity’s stocks that are components tural Cooperatives Without from occurring by placing additional Credit Available Elsewhere ..... 4.000 stocks of the Standard and Poor’s 500 requirements for such combinations to Stock Price Index. take place. Nonetheless, the The number assigned to this disaster IV. Discussion and Conclusion Commission believes that the additional for physical damage is 276412 and for requirements will help to ensure that economic injury the number is 844400. The Commission finds that the combinations potentially detrimental to proposed rule change is consistent with the market place will not be permitted. (Catalog of Federal Domestic Assistance the requirements of the Act and the Accordingly, any potential burden on Program Nos. 59002 and 59008) rules and regulations thereunder competition resulting from the proposal Dated: February 8, 1995. applicable to a national securities is, in the Commission’s view, justified Philip Lader, exchange, and, in particular, with the as necessary and appropriate under the Administrator. 7 requirements of Sections 6(b). In Act. [FR Doc. 95–3593 Filed 2–13–95; 8:45 am] particular, the Commission believes the It is therefore ordered, pursuant to BILLING CODE 8025±01±M proposal is consistent with the Section Section 19(b)(2) of the Act,8 that the 6(b)(5) requirements that the rules of an proposed rule change (SR–NYSE–94– exchange be designated to promote just 46) is approved. Commonwealth of the Northern and equitable principles of trade, to Mariana Islands; Declaration of prevent fraudulent and manipulative For the Commission, by the Division of Market Regulations, pursuant to delegated Disaster Loan Area acts, and, in general, to protect investors authority.9 and the public, in that it addresses Margaret H. McFarland, The Islands of Antahan, Saipan, and concerns about capitalization, Tinian in the Commonwealth of the Deputy Secretary. operational efficiency, and risk Northern Mariana Islands are hereby management where proposed [FR Doc. 95–3619 Filed 2–13–95; 8:45 am] declared a disaster area as a result of combinations would result in large BILLING CODE 8010±01±M damages caused by Typhoon Zelda sized specialist units. which occurred on November 3, 1994. The Commission agrees with the Applications for loans for physical NYSE that these new requirements are SMALL BUSINESS ADMINISTRATION damage as a result of this disaster may appropriate in that they should be filed until the close of business on Declaration of Disaster Loan Area, minimize the risk of financial and/or April 7, 1995 and for economic injury North Carolina operational failure of larger-sized units, until the close of business on November and ensure that such units have Duplin, Lenoir, and Sampson 6, 1995 at the address listed below: U.S. sufficient, separately dedicated capital Counties and the contiguous Counties of Small Business Administration, Disaster with which to meet their market making Bladen, Crave, Cumberland, Greene, Area 1 Office, 360 Rainbow Blvd. South, responsibilities. The Commission Harnett, Johnston, Jones, Onslow, 3rd Floor, Niagara Falls, NY 14303, or believes that it is appropriate to modify Pender, Pitt, and Wayne in the State of other locally announced locations. the Policy to place additional North Carolina constitute a disaster area The interest rates are: capitalization requirements when as a result of damages caused by severe specialist units are combining. The storms and tornadoes which occurred Percent combined entity will be larger than on January 6 and 7, 1995. Applications either of the two (or more) original for loans for physical damage may be For physical damage: entities, responsible for more securities, filed until the close of business on April Homeowners with credit avail- and financially exposed to a larger able elsewhere ...... 8.000 10, 1995 and for economic injury until Homeowners without credit avail- the close of business on November 8, able elsewhere ...... 4.000 stock in which he is registered and must be able to 1994 at the address listed below: U.S. Businesses with credit available establish that he can meet, with his own net liquid assets, the greater of, a minimum capital Small Business Administration, Disaster elsewhere ...... 8.000 requirement of $1,000,000 or 25% of the foregoing Businesses and non-profit orga- position requirement. 8 15 U.S.C. 78s(b)(2) (1988). nizations without credit avail- 7 15 U.S.C. 78f(b) (1988). 9 17 CFR 200.30–3(a)(12) (1994). able elsewhere ...... 4.000 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8439 Percent of the license was accepted on January ADDRESSES: Questions for the March 29, 26, 1995, and accordingly, all rights, NHTSA Technical Industry Meeting, Others (including non-profit orga- privileges, and franchises derived relating to the agency’s safety nizations) with credit available therefrom have been terminated. performance standards and safety elsewhere ...... 7.125 (Catalog of Federal Domestic Assistance assurance programs should be For economic injury: submitted to Barry Felrice, Associate Businesses and small agricul- Program No. 59.011, Small Business tural cooperatives without Investment Companies) Administrator for Safety Performance credit available elsewhere ...... 4.000 Dated: February 7, 1995. Standards, NPS–01, National Highway Robert D. Stillman, Traffic Safety Administration, Room The number assigned to this disaster Associate Administrator for Investment. 5401, 400 Seventh Street SW., for physical damage is 276306 and for [FR Doc. 95–3595 Filed 2–13–95; 8:45 am] Washington, DC 20590. Questions for the Research and Development Program economic injury the number is 844300. BILLING CODE 8025±01±M (Catalog of Federal Domestic Assistance Meeting to be held on March 28, should Program Nos. 59002 and 59008) be submitted to George L. Parker, Associate Administrator for Research Dated: February 6, 1995. DEPARTMENT OF TRANSPORTATION Philip Lader, and Development, NRD–01, National Highway Traffic Safety Administration, Administrator. National Highway Traffic Safety Administration Room 6206, 400 Seventh Street SW., [FR Doc. 95–3594 Filed 2–13–95; 8:45 am] Washington, DC 20590. Both meetings BILLING CODE 8025±01±M Safety Performance Standards, will be held at the Ramada Inn, near the Research and Safety Assurance Detroit Metro Airport, 8270 Wickham Programs Meetings Jiffy Lube Capital Corporation (License Road, Romulus, MI 48174. No. 06/03±0182); Notice of Surrender of AGENCY: National Highway Traffic SUPPLEMENTARY INFORMATION: NHTSA Licensee Safety Administration, Transportation. will hold this regular, quarterly meeting to answer questions from the public and Notice is hereby given that Jiffy Lube ACTION: Notice of NHTSA industry meetings. the regulated industries regarding the Capital Corporation, 700 Milam Street, agency’s safety performance standards, Houston, Texas 77252 has surrendered SUMMARY: This notice announces a safety assurance and other programs. its License to operate as a small public meeting at which NHTSA will Since the agency is holding a separate business investment company under the answer questions from the public and meeting on its research and Small Business Investment Act of 1958, the automobile industry regarding the development programs, any questions as amended (Act). Jiffy Lube Capital was agency’s safety performance standards, on those issues will only be answered licensed by the Small Business safety assurance and other programs. In at the afternoon meeting to be held on Administration on December 9, 1987. addition, NHTSA will hold a separate March 28, 1995, and should be Under the authority vested by the Act public meeting to describe and discuss submitted to the Research and and Pursuant to the Regulations specific research and development Development Office. However, promulgated thereunder, the surrender projects. questions on aspects of the agency’s of the license was accepted on DATES: The Agency’s regular, quarterly research and development activities that December 21, 1994, and accordingly, all public meeting relating to the agency’s relate to ongoing safety performance rights, privileges, and franchises derived safety performance standards, safety standards should be submitted, as in the therefrom have been terminated. assurance and other programs will be past, to the agency’s Safety Performance (Catalog of Federal Domestic Assistance held on March 29, 1995, beginning at Standards Office. The March 28th and Program No. 59.011, Small Business 9:45 a.m. and ending at approximately the March 29th meetings will be held at Investment Companies) 12:30 p.m. Questions relating to the the Ramada Inn near the Detroit Metro Dated February 8, 1995. agency’s safety performance standards, Airport, 8270 Wickham road, Romulus, Robert D. Stillman, safety assurance and other programs MI 48174. The purpose of these Associated Administrator for Investment. must be submitted in writing by March meetings is to focus on those phases of [FR Doc. 95–3649 Filed 2–13–95; 8:45 am] 20, 1995, to the address shown below. NHTSA activities which are technical, BILLING CODE 8025±01±M If sufficient time is available, questions interpretative or procedural in nature. received after the March 20 date may be Transcripts of these meetings will be answered at the meeting. The available for public inspection in the [License No. 02/02±5379] individual, group or company NHTSA Technical Reference Section in Washington, DC, within four weeks after New Oasis Capital Corporation; Notice submitting a question(s) does not have the meeting. Copies of the transcript of License Surrender to be present for the question(s) to be answered. A consolidated list of the will then be available at ten cents a Notice is hereby given that New Oasis questions submitted by March 20, 1995, page, (length has varied from 100 to 150 Capital Corporation (‘‘NOCC’’), 135–38 and the issues to be discussed will be pages) upon request to NHTSA 39th Avenue, Flushing, NY 11354, has mailed to interested persons by March Technical Reference Section, Room surrendered its license to operate as a 23, 1995, and will be available at the 5108, 400 Seventh Street SW., small business investment company meeting. Washington, DC 20590. The Technical under the Small Business Investment Also, the agency will hold a second Reference Section is open to the public Act of 1958, as amended (‘‘the Act’’). public meeting on March 28, devoted from 9:30 a.m. to 4:00 p.m. NOCC was licensed by the Small exclusively to a presentation of research NHTSA will provide auxiliary aids to Business Administration on February 6, and development programs. participants as necessary, during the 1980. The meeting will begin at 1:30 p.m. NHTSA Technical Industry Meeting and Under the authority vested by the Act and end at approximately 5:00 p.m. This the NHTSA Industry Research and and pursuant to the regulations meeting is described more fully in a Development Meeting. Any person promulgated thereunder, the surrender separate announcement. desiring assistance of ‘‘auxiliary aids’’ 8440 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices (e.g., sign-language interpreter, By the Office of Thrift Supervision, [AC±07; OTS No. 03294] telecommunications devices for deaf Nadine Y. Washington, First Federal Savings & Loan persons (TDDs), readers, taped texts, Corporate Secretary. Brailled materials, or large print Association of Florence, Florence, [FR Doc. 95–3579 Filed 2–13–95; 8:45 am] Alabama; Approval of Conversion materials and/or a magnifying device), BILLING CODE 6720±01±M please contact Barbara Carnes on (202) Application 366–1810, by COB March 20, 1995 for Notice if hereby given that on the 9:45 a.m. to 12:30 p.m. portion of [AC±02; OTS No. 03052] February 6, 1995, the Deputy Assistant meeting or Barbara Coleman (202) 366– Director, Corporate Activities, Office of 1537 by COB March 20, 1995 for the Community Federal Savings and Loan Thrift Supervision, or her designee, 1:30 p.m. to 5:00 p.m. portion. Association of Little Falls, Little Falls, acting pursuant to delegated authority, Barry Felrice, Minnesota; Approval of Conversion approved the application of First Application Associate Administrator for Safety Federal Savings and Loan Association of Performance Standards. Notice is hereby given that on January Florence, Florence, Alabama, to convert [FR Doc. 95–3558 Filed 2–13–95; 8:45 am] 19, 1995, the Deputy Assistant Director, to the stock form of organization. Copies BILLING CODE 4910±59±M Corporate Activities, Office of Thrift of the application are available for Supervision, or her designee, acting inspection at the Information Services pursuant to delegated authority, Division, Office of Thrift Supervision, approved the application of Community 1700 G Street NW., Washington, DC DEPARTMENT OF THE TREASURY Federal Savings and Loan Association of 20552, and the Southeast Regional Little Falls, Little Falls, Minnesota, to Office, Office of Thrift Supervision, Office of Thrift Supervision convert to the stock form of 1475 Peachtree Street NE., Atlanta, organization. Copies of the application Georgia 30309. Carteret Federal Savings Bank of New are available for inspection at the Jersey; Notice of Appointment of Dated: February 8, 1995. Information Services Division, Office of Receiver By the Office of Thrift Supervision. Thrift Supervision, 1700 G Street NW., Nadine Y. Washington, Washington, D.C. 20552, and the Notice is hereby given that, pursuant Corporate Secretary. Midwest Regional Office, Office of to the authority contained in Section 5 [FR Doc. 95–3582 Filed 2–13–95; 8:45 am] Thrift Supervision, 122 W. John (d)(2) of the Home Owners’ Loan Act, BILLING CODE 6720±01±M Carpenter Freeway, Suite 600, Irving, the Office of Thrift Supervision has duly Texas 75039. appointed the Resolution Trust [AC±08; OTS No. 03512] Corporation as sole Receiver for Carteret Dated: February 8, 1995. Federal Savings Bank of New Jersey, By the Office of Thrift Supervision. Home Loan Bank fsb, Fort Wayne, Newark, New Jersey, on January 20, Nadine Y. Washington, Indiana; Approval of Conversion 1995. Corporate Secretary. Application [FR Doc. 95–3580 Filed 2–13–95; 8:45 am] Dated: February 8, 1995. Notice is hereby given that on By the Office of Thrift Supervision. BILLING CODE 6720±01±M February 8, 1995, the Deputy Assistant Nadine Y. Washington, Director, Corporate Activities, Office of Corporate Secretary. [AC±05; OTS No. 00566] Thrift Supervision, or her designee, [FR Doc. 95–3578 Filed 2–13–95; 8:45 am] acting pursuant to delegated authority, BILLING CODE 6720±01±M First Federal Banking & Savings, FSB approved the application of Home Loan Bemidji, Minnesota; Approval of Bank fsb, Fort Wayne, Indiana, to Conversion Application convert to the stock form of [AC±03; OTS Nos. H±1792 and 02611] organization. Copies of the application Notice is hereby given that on are available for inspection at the February 2, 1995, the Deputy Assistant Community Bank Shares, M.H.C., New Information Services Division, Office of Director, Corporate Activities, Office of Albany, Indiana; Approval of Thrift Supervision, 1700 G Street NW., Thrift Supervision, or her designee, Conversion Application Washington, DC 20552, and the Central acting pursuant to delegated authority, Regional Office, Office of Thrift approved the application of First Notice is hereby given that on January Supervision, 111 East Wacker Drive, Federal Banking & Savings, FSB, 25, 1995, the Deputy Assistant Director, Suite 800, Chicago, Illinois 60601–4360. Bemidji, Minnesota, to convert to the Corporate Activities, Office of Thrift stock form of organization. Copies of the Dated: February 8, 1995. Supervision, or her designee, acting application are available for inspection By the Office of Thrift Supervision. pursuant to delegated authority, at the Information Services Division, Nadine Y. Washington, approved the application of Community Office of Thrift Supervision, 1700 G Corporate Secretary. Bank Shares, M.H.C., New Albany, Street NW., Washington, DC 20552, and [FR Doc. 95–3583 Filed 2–13–95; 8:45 am] Indiana, to convert to the stock form of the Midwest Office, Office of Thrift BILLING CODE 6720±01±M organization. Copies of the application Supervision, 122 W. John Carpenter are available for inspection at the Freeway, Suite 600, Irving, Texas 75039. Information Services Division, Office of [AC±04; OTS No. 06998] Thrift Supervision, 1700 G Street NW., Dated: February 8, 1995. Washington, D.C. 20552, and the Central By the Office of Thrift Supervision. Pendleton Federal Savings and Loan Regional Office, Office of Thrift Nadine Y. Washington, Association, Falmouth, Kentucky; Supervision, 111 East Wacker Drive, Corporate Secretary. Approval of Conversion Application Suite 800, Chicago, Illinois 60601–4360. [FR Doc. 95–3581 Filed 2–13–95; 8:45 am] Notice is hereby given that on January Dated: February 8, 1995. BILLING CODE 6720±01±M 26, 1995, the Deputy Assistant Director, Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8441 Corporate Activities, Office of Thrift [AC±01; OTS No. 07098] [AC±06; OTS No. 02984] Supervision, or her designee, acting pursuant to delegated authority, Security Federal Bank, a Federal Wells Federal Bank, fsb, Wells, Saving Bank, Tuscaloosa, Alabama; approved the application of Pendleton Minnesota; Approval of Conversion Approval of Conversion Application Application Federal Savings and Loan Association, Falmouth, Kentucky, to convert to the Notice is hereby give that on January Notice is hereby given that on 16, 1995, the Deputy Assistant Director, stock form of organization. Copies of the February 2, 1995, the Deputy Assistant Corporate Activities, Office of Thrift application are available for inspection Director, Corporate Activities, Office of Supervision, or her designee, acting at the Information Services Division, Thrift Supervision, or her designee, pursuant to delegated authority, Office of Thrift Supervision, 1700 G acting pursuant to delegated authority, approved the application of Security Street NW., Washington, D.C. 20552, approved the application of Wells and the Central Regional Office, Office Federal Bank, a Federal Savings Bank, Tuscaloosa, Alabama, to convert to the Federal Bank, fsb, Wells, Minnesota, to of Thrift Supervision, 111 East Wacker convert to the stock form of Drive, Suite 800, Chicago, Illinois stock form of organization. Copies of the application are available for inspection organization. Copies of the application 60601–4360. at the Information Services Division, are available for inspection at the Dated: February 8, 1995. Office of Thrift Supervision, 1700 G Information Services Division, Office of Thrift Supervision, 1700 G Street NW., By the Office of Thrift Supervision. Street NW., Washington, D.C. 20552, Washington, DC 20552, and the Nadine Y. Washington, and the Southeast Regional Office, Office of Thrift Supervision, 1475 Midwest Office, Office of Thrift Corporate Secretary. Peachtree Street NE., Atlanta, Georgia Supervision, 122 W. John Carpenter [FR Doc. 95–3584 Filed 2–13–95; 8:45 am] 30309. Freeway, Suite 600, Irving, Texas 75039. BILLING CODE 6720±01±M Dated: February 8, 1995. Dated: February 8, 1995. By the Office of Thrift Supervision, By the Office of Thrift Supervision. Nadine Y. Washington, Nadine Y. Washington, Corporate Secretary. Corporate Secretary. [FR Doc. 95–3585 Filed 2–13–95; 8:45 am] [FR Doc. 95–3586 Filed 2–13–95; 8:45 am] BILLING CODE 6720±01±M BILLING CODE 6720±01±M 8442 Sunshine Act Meetings Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 This section of the FEDERAL REGISTER PREVIOUSLY ANNOUNCED TIME AND DATE OF ‘‘Pension and Welfare Benefits contains notices of meetings published under MEETING: February 8, 1995, 10:00 a.m. Administration Review of Thrift Savings Plan C and F Fund Investment Management the ``Government in the Sunshine Act'' (Pub. CHANGE IN THE MEETING: The following L. 94-409) 5 U.S.C. 552b(e)(3). Operations at Wells Fargo Institutional Trust Docket Number has been added on the Company and Wells Fargo Nikko Investment Agenda scheduled for February 8, 1995: Advisors.’’ DEFENSE NUCLEAR FACILITIES SAFETY Item No., Docket No. and Company ‘‘Pension and Welfare Benefits Administration Review of Project BOARD CAH–2—P–10615–008, Wolverine Power Management Practices for the Thrift Savings Supply Corporation Pursuant to the provisions of the Plan System.’’ ‘‘Government in the Sunshine Act’’ (5 Lois D. Cashell, ‘‘Pension and Welfare Benefits U.S.C. 552b), notice is hereby given of Secretary. Administration Review of the Thrift Savings the following Board meeting and staff [FR Doc. 95–3827 Filed 2–10–95; 3:57 pm] Plan Participant Support Process at the briefing: BILLING CODE 6717±01±M United States Department of Agriculture, Office of Finance and Management, National TIME AND DATE: 2:00 p.m., February 21, Finance System.’’ 1995. BOARD OF GOVERNORS OF THE FEDERAL 4. Labor Department briefing. PLACE: Board Conference Room, Suite RESERVE SYSTEM 5. Quarterly review of investment policy. 700, 625 Indiana Ave., NW, Washington, DC 20004. TIME AND DATE: 11:00 a.m., Tuesday, CONTACT PERSON FOR MORE INFORMATION: STATUS: Open. February 21, 1995. Tom Trabucco, Director, Office of PLACE: External Affairs, (202) 942–1640. MATTERS TO BE CONSIDERED: The Board Marriner S. Eccles Federal will reconvene and continue the open Reserve Board Building, C Street Dated: February 8, 1995. meeting conducted on January 19, 1995, entrance between 20th and 2lst Streets, Roger W. Mehle, to deliberate upon the Secretary of N.W., Washington, D.C. 20551. Executive Director, Federal Retirement Thrift Energy’s response to Board STATUS: Closed. Investment Board. Recommendation 94–1. MATTERS TO BE CONSIDERED: [FR Doc. 95–3689 Filed 2–10–95; 9:31 am] FOR FURTHER INFORMATION CONTACT: 1. Personnel actions (appointments, BILLING CODE 6760±01±M Robert M. Andersen, General Counsel, promotions, assignments, reassignments, and Defense Nuclear Facilities Safety Board, salary actions) involving individual Federal NATIONAL TRANSPORTATION SAFETY BOARD 625 Indiana Avenue, NW, Suite 700, Reserve System employees. 2. Any items carried forward from a Washington, DC 20004, (202) 208–6387. TIME AND PLACE: 9:30 a.m., Wednesday, previously announced meeting. SUPPLEMENTARY INFORMATION: The Staff February 22, 1995. CONTACT PERSON FOR MORE INFORMATION: will continue to brief the Board on the PLACE: The Board Room, 5th Floor, 490 Secretary’s response to Board Mr. Joseph R. Coyne, Assistant to the Board; (202) 452–3204. You may call L’Enfant Plaza, SW., Washington, DC Recommendation 94–1 and related 20594. topics, including, but not limited to, (202) 452–3207, beginning at DOE’s studies on vulnerabilities approximately 5 p.m. two business days STATUS: Open. associated with the DOE’s storage of before this meeting, for a recorded MATTERS TO BE CONSIDERED: spent nuclear fuel, and the current announcement of bank and bank 6527—Aviation Accident Report: Controlled status of DOE remediation of conditions holding company applications scheduled for the meeting. Collision with Terrain, Transportes Aereos identified in Board Recommendation Ejectivos, S.A. (TAESA), Learjet 25D, XA– 94–1. Dated: February 10, 1995. BBA, Dulles International Airport, The Board specifically reserves its Jennifer J. Johnson, Chantilly, Virginia, June 18, 1994. right to further schedule and otherwise Deputy Secretary of the Board. 6522— Hazardous Materials Accident Report: regulate the course of this public Tank Car Failure and Release of Arsenic [FR Doc. 95–3812 Filed 2–10–95; 3:55 pm] meeting, to recess, reconvene, postpone Acid, Chattanooga, Tennessee, June 6, or adjourn the meeting, conduct further BILLING CODE 6210±01±P 1994. reviews, and otherwise exercise its NEWS MEDIA CONTACT: Telephone: (202) power under the Atomic Energy Act of FEDERAL RETIREMENT THRIFT INVESTMENT 382–0660. 1954, as amended. BOARD FOR MORE INFORMATION CONTACT: Bea Dated: February 9, 1995. TIME AND DATE: 9:00 a.m., February 21, Hardesty, (202) 382–6525. Kenneth M. Pusateri, 1995. Dated: February 10, 1995. General Manager. PLACE: 4th Floor, Conference Room, Bea Hardesty, [FR Doc. 95–3690 Filed 2–10–95; 9:32 am] 1250 H Street, NW., Washington, DC Federal Register Liaison Officer. BILLING CODE 3670±01±M STATUS: Open. [FR Doc. 95–3733 Filed 2–10–95; 10:33 am] MATTERS TO BE CONSIDERED: BILLING CODE 7533±01±P FEDERAL ENERGY REGULATORY 1. Approval of the minutes of the January COMMISSION 17, 1995, Board meeting. 2. Thrift Savings Plan activity report by the NUCLEAR REGULATORY COMMISSION ``FEDERAL REGISTER'' CITATION OF Executive Director. PREVIOUS ANNOUNCEMENT: February 6, 3. Review of KPMG Peat Marwick audit DATE: Weeks of February 13, 20, 27, and 1995, 60 FR 7096. reports: March 6, 1995. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Sunshine Act Meetings 8443 PLACE: Commissioners’ Conference Affirmation/Discussion and Vote (Public Dated: February 10, 1995. Room, 11555 Rockville Pike, Rockville, Meeting) (if needed) William M. Hill, Jr., Maryland. Friday, March 10 SECY Tracking Officer, Office of the Secretary. STATUS: Public and Closed. 10:00 a.m. [FR Doc. 95–3813 Filed 2–10–95; 3:56 pm] MATTERS TO BE CONSIDERED: Meeting with Advisory Committee on Reactor Safeguards (ACRS) (Public BILLING CODE 7590±01±M Week of February 13 Meeting) There are no meetings scheduled for the (Contact: John Larkins, 301–415–7360) Week of February 13. Note: Affirmation sessions are initially STATE JUSTICE INSTITUTE scheduled and announced to the public on a Week of February 20—Tentative TIME AND DATE: time-reserved basis. Supplementary notice is There are no meetings scheduled for the provided in accordance with the Sunshine Tuesday, February 28, 1995, 9 a.m.–5 Week of February 20. Act as specific items are identified and added p.m. Week of February 27—Tentative to the meeting agenda. If there is no specific subject listed for affirmation, this means that Wednesday, March 1, 1995, 9 a.m.–5 Tuesday, February 28 no items has as yet been identified as p.m. 10:00 a.m. requiring any Commission vote on this date. PLACE: Hyatt Regency Albuquerque, 330 Briefing by OIG on Special Evaluation Tijeras, N.W., Albuquerque, NM 87102. (Public Meeting) The schedule for Commission (Contact: Robert Shideler, 301–415–5972) meetings is subject to change on short MATTERS TO BE CONSIDERED: FY 1995 2:00 p.m. notice. To verify the status of meetings grant proposals and internal Institute Discussion of Management Issues call (Recording)—(301) 415–1292. business. (Closed—Ex. 2 and 6) CONTACT PERSON FOR MORE INFORMATION: PORTIONS OPEN TO THE PUBLIC: FY 1995 Wednesday, March 1 William Hill (301) 415–1661. grant proposals and non-personnel- 10:00 a.m. This notice is distributed by mail to related internal business matters. Briefing by Electricity Committee of NARUC (Public Meeting) several hundred subscribers; if you no PORTIONS CLOSED TO THE PUBLIC: Internal (Contact: Spiros Droggitis, 301–504–2367) longer wish to receive it, or would like personnel matters; Board committee 11:30 a.m. to be added to it, please contact the meetings. Affirmation/Discussion and Vote (Public Office of the Secretary, Attn: Operations Meeting) (if needed—) Branch, Washington, DC 20555 (301– CONTACT PERSON FOR MORE INFORMATION: Week of March 6—Tentative 415–1963). David I. Tevelin, Executive Director, State Justice Institute, 1650 King Street, Thursday, March 9 In addition, distribution of this meeting notice over the internet system Suite 600, Alexandria, Virginia 22314, 2:00 p.m. will also become available in the near (703) 684–6100. Briefing on Performance Indicators in David I. Tevelin, Materials Performance Evaluation future. If you are interested in receiving Executive Director. Program (Public Meeting) this Commission meeting schedule (Contact: George Pangburn, 301–415–7266) electronically, please send an electronic [FR Doc. 95–3732 Filed 2–10–95; 10:33 am] 3:30 p.m. message to [email protected] or [email protected]. BILLING CODE 6820±SC±M federal register February 14,1995 Tuesday Rules ofPractice;FinalRule 9 CFRChapterIIetal. 7 CFRPart47,etal. 7 CFRParts0and1 Office oftheSecretary Administration Grain Inspection,PackersandStockyards Agricultural MarketingService Agriculture Department of Part II 8445 8446 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations DEPARTMENT OF AGRICULTURE FOR FURTHER INFORMATION CONTACT: (referred to as the ‘‘PACA Reparation William Jenson, Senior Counsel, Rules’’ below), the Rules of Practice Office of the Secretary of Agriculture Regulatory Division, Office of the Under the Perishable Agricultural General Counsel, USDA, room 2422, Commodities Act Applicable to 7 CFR Parts 0 and 1 South Building, 14th Street and Determinations as to Whether a Person Independence Avenue SW., is Responsibly Connected With A Agricultural Marketing Service Washington, DC 20250, (202) 720–2453. Licensee Under the Perishable Agricultural Commodities Act (7 CFR SUPPLEMENTARY INFORMATION: 7 CFR Parts 47, 50, 51, 52, 53, 54, and 47.1, 47.2(a) through 47.2(h), and 47.47 97 Background through 47.68) (referred to as the The Department conducts a number of ‘‘PACA Responsibly Connected Rules’’ Grain Inspection, Packers and below), and the Rules of Practice Stockyards Administration adjudicatory proceedings in which conferences, depositions, and hearings Applicable to Reparation Proceedings Under the Packers and Stockyards Act 9 CFR Chapter II and Part 202 are held. Many of these conferences, depositions, and hearings are conducted (9 CFR 202.101 through 202.123) (referred to as the ‘‘P&S Reparation by personal attendance which Rules of Practice Rules’’ below). Specifically, we necessitates travel by those who proposed to provide that: (1) AGENCY: Office of the Secretary of participate in the conferences, Conferences may be conducted by Agriculture, USDA. depositions, and hearings. telephone, correspondence, audio-visual ACTION: Final rule. Generally, conferences at which telecommunication, or by personal personal attendance is required are attendance of the participants; (2) SUMMARY: We are amending the Rules of attended by the person conducting the depositions and hearings may be Practice Governing Formal Adjudicatory proceeding (an administrative law conducted by telephone, audio-visual Proceedings Instituted by the Secretary judge, hearing officer, examiner, or Under Various Statutes, the Rules of telecommunication, or personal presiding officer), the parties to the attendance of the participants; (3) Practice Governing Cease and Desist proceeding, and counsel for the parties Proceedings Under Section 2 of the hearings and depositions may be to the proceeding. Depositions are recorded rather than transcribed; and (4) Capper-Volstead Act, the Rules of attended by an officer authorized to Practice Under the Perishable prior to a hearing, parties exchange administer oaths, a court reporter, the written narrative statements of the Agricultural Commodities Act, and the parties, counsel for the parties, and the Rules of Practice Applicable to direct testimony they intend to deponent. Hearings are attended by the introduce at the hearing. Reparation Proceedings Under the person conducting the proceeding, the Packers and Stockyards Act. This final parties to the proceeding, counsel for Comments on the Proposed Rule rule provides that conferences shall be the parties to the proceeding, a court We solicited comments concerning conducted by telephone or reporter, and witnesses called by the the proposal for a 60-day comment correspondence, hearings shall be parties. period ending April 26, 1994. We conducted by audio-visual The costs associated with travel to received 12 comments by that date. One telecommunication, and depositions conferences, depositions, and hearings of the commenters requested that we shall be conducted either in the manner (meals, lodging, and actual travel reopen and extend the comment period. agreed to by the parties or by telephone, expense) are often substantial. These In response to that request, on June 22, unless the person conducting the travel costs burden all taxpayers and 1994, we published a document in the proceeding determines that the particularly burden the individuals who Federal Register (59 FR 32138) conference, hearing, or deposition may attend these proceedings. In addition to reopening and extending the comment be conducted by some other means. The expenditure of money, individuals period until July 22, 1994. We received final rule also provides for the use of personally attending the proceedings two additional comments by the close of recordings of hearings and depositions often must spend valuable time the reopening and extension of the and the exchange of written narrative traveling to and from these conferences, comment period. The fourteen statements of the direct testimony prior depositions, and hearings. comments were from the following to hearings to be conducted by organizations and individual: (1) The Proposed Rule telephone. These amendments will save Administrative Law Section of the the government and those who Therefore, on February 25, 1994, we American Bar Association; (2) the participate in the proceedings time and published a document in the Federal Agriculture Law Committee, money. Register (59 FR 9114–9136) proposing Administrative Law Section of the In addition, this rule amends 9 CFR to amend the Rules of Practice American Bar Association; (3) the chapter II to reflect the abolishment of Governing Formal Adjudicatory American Meat Institute; (4) the Eastern the Packers and Stockyards Proceedings Instituted by the Secretary Meat Packers Association; (5) the Administration and the establishment of Under Various Statutes (7 CFR 1.130 Federal Administrative Law Judges the Grain Inspection, Packers and through 1.151) (referred to as the Conference; (6) the Forum of United Stockyards Administration in the recent ‘‘Uniform Rules’’ below), the Rules of States Administrative Law Judges; (7) Department of Agriculture Practice Governing Cease and Desist Janet L. Heins; (8) Holland & Knight; (9) reorganization. Proceedings Under Section 2 of the the Livestock Marketing Association; EFFECTIVE DATE: This final rule is Capper-Volstead Act (7 CFR 1.160 (10) the National Association of effective March 16, 1995, except for the through 1.175) (referred to as the Perishable Agricultural Receivers; (11) amendments to the chapter heading of ‘‘Capper-Volstead Rules’’ below), the Olsson, Frank and Weeda, P.C.; (12) the 9 CFR chapter II and the references to Rules of Practice Under the Perishable Society for Animal Protective the agency name in the chapter which Agricultural Commodities Act Legislation; (13) the United Fresh Fruit are effective upon publication in the Applicable to Reparation Proceedings (7 & Vegetable Association; and (14) the Federal Register. CFR 47.1 through 47.25 and 47.46) Western States Meat Association. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8447 All of the commenters generally instance based, in part, on the need to telecommunication would deprive the opposed the proposed rule. However, conduct the hearing in a manner that parties of the right to participate in the many of these commenters supported would not prejudice any of the parties hearing in violation of 5 U.S.C. 554(c) some aspects of the proposal. Seven of to the proceeding. (See proposed 7 CFR and the right to present oral or the commenters stated that the 1.141(b) (3) and (4), 1.168(b) (3) and (4), documentary evidence in violation of 5 Department should experiment with 47.15(c) (3) and (4), and 47.49(f) (2) and U.S.C. 556(d). adjudicatory proceedings conducted by (3) and 9 CFR 202.112(a) (3) and (4).) We disagree with these comments. telecommunication, two commenters Despite our view that the proposal Prior to drafting the proposed rule, we praised the Department’s effort to save provides the person conducting the carefully examined whether hearings money expended on adjudicatory proceeding with sufficient flexibility to conducted by telecommunication would proceedings, and two of the commenters tailor the manner in which a hearing is violate the Administrative Procedure supported the elimination of gender conducted so that due process is Act. We concluded that the specific references. provided, we have made changes that Administrative Procedure Act does not The comments and our responses to address the due process concerns raised preclude the use of telecommunication those comments are as follows. by the commenters. in adjudicatory proceedings. The Specifically, the final rule provides memorandum containing our analysis 1. Constitutional Due Process that the hearings held under the and findings was placed in the Ten commenters stated that a hearing Uniform Rules, the Capper-Volstead rulemaking record upon publication of conducted by telecommunication would Rules, the PACA Reparation Rules, the the proposed rule. violate the constitutional right to due PACA Responsibly Connected Rules, There is no provision in the process. and the P&S Reparation Rules shall be Administrative Procedure Act that We disagree with these comments. conducted by audio-visual explicitly requires face-to-face Prior to drafting the proposed rule, we telecommunication unless the person adjudicatory hearings and we found carefully examined whether hearings conducting the proceeding determines nothing to indicate that Congress conducted by telecommunication that conducting the hearing by personal intended to exclude the use of provide a full and fair evidentiary attendance of any individual who is telecommunication in adjudicatory hearing that comports with due process. expected to participate in the hearing: proceedings conducted pursuant to the We concluded that the due process (1) Is necessary to prevent prejudice to Administrative Procedure Act. As clause does not preclude the use of a party; (2) is necessary because of a previously discussed in this rulemaking telecommunication in adjudicatory disability of any individual expected to document, this final rule amends the proceedings. participate in the hearing; or (3) would Uniform Rules, the Capper-Volstead The memorandum containing our cost less than conducting the hearing by Rules, the PACA Reparation Rules, the analysis and findings was placed in the audio-visual telecommunication. PACA Responsibly Connected Rules, rulemaking record upon publication of The person conducting the and the P&S Reparation Rules to the proposed rule. As we stated in that proceeding may, in his or her sole provide that the hearings shall be memorandum, due process is flexible discretion or in response to a motion by conducted by audio-visual and calls for such procedural a party to the proceeding, conduct the telecommunication unless the person protections as the particular situation hearing by telephone only if the person conducting the proceeding determines demands. Morrissey v. Brewer, 408 U.S. conducting the proceeding finds that a that conducting the hearing by personal 471 (1972). The courts have applied a hearing conducted by telephone: (1) attendance of any individual who is balancing test that examines: (1) The Would provide a full and fair expected to participate in the hearing: private interest that will be affected by evidentiary hearing; (2) would not (1) Is necessary to prevent prejudice to the official action; (2) the risk of an prejudice any party; and (3) would cost a party; (2) is necessary because of a erroneous deprivation of such interest less than conducting the hearing by disability of any individual expected to through the procedures used, and the audio-visual telecommunication or participate in the hearing; or (3) would probable value, if any, of additional or personal attendance of any individual cost less than conducting the hearing by substitute procedural safeguards; and (3) who is expected to participate in the audio-visual telecommunication. A the government’s interest, including the hearing. (See 7 CFR 1.141(b) (3) and (4), hearing conducted by audio-visual function involved and the fiscal and 1.168(b) (3) and (4), 47.15(c) (3) and (4), telecommunication allows full cross- administrative burdens that the and 47.49(f) (2) and (3) and 9 CFR examination with an ability to observe additional or substitute procedural 202.112(a) (3) and (4) in this final rule.) the demeanor of the witness; provides requirement would entail. Mathews v. an opportunity to transmit and receive 2. Compliance with the Administrative Eldridge, 424 U.S. 319 (1976). documents by the use of facsimile; The question of what process is due Procedure Act provides for a prior exchange of requires flexibility rather than an either/ Four commenters stated that a hearing exhibits; and allows the person or analysis which assumes that either conducted by telecommunication would conducting the proceeding full control face-to-face oral hearings are always violate the Administrative Procedure of the course of the hearing. If a hearing required or that face-to-face oral Act. All four commenters stated that a conducted by telecommunication would hearings are never required. The hearing conducted by not constitute a full and fair hearing, the proposed rule provides such flexibility. telecommunication would deprive the person conducting the hearing may Hearings would be conducted by parties of their right to cross-examine require a face-to-face hearing. telephone, audio-visual witnesses in violation of 5 U.S.C. Further, the final rule provides that telecommunication, or by the personal 556(d). Two commenters stated that a the person conducting the proceeding attendance of any individual who is hearing conducted by may, in his or her sole discretion or in expected to participate in the hearing. telecommunication would deprive the response to a motion by a party to the Under the proposal, the person judge of the ability to control the proceeding, conduct the hearing by conducting the proceeding would proceeding to ensure that only reliable telephone only if the person conducting determine which method of conducting evidence is received. One commenter the proceeding finds that a hearing the hearing is to be used in a particular stated that a hearing conducted by conducted by telephone: (1) Would 8448 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations provide a full and fair evidentiary 3. Statutory Requirements explicitly rejected the argument that hearing; (2) would not prejudice any One commenter stated that the plain ‘‘before’’ was susceptible of only one party; and (3) would cost less than meaning of statutes that require hearings meaning. The court found that the word conducting the hearing by audio-visual to be held ‘‘before the Secretary’’ is that ‘‘before’’ did not of necessity mean ‘‘in telecommunication or personal face-to-face hearings are required. front of’’ or ‘‘in the presence of,’’ attendance of any individual who is Therefore, any hearings under those thereby mandating that the special expected to participate in the hearing. statutes which are conducted by inquiry officer be physically present at a hearing required to be held ‘‘before’’ Toward this end, we proposed to telecommunication would be inconsistent with those statutes. the special inquiry officer. The court amend the Uniform Rules, the Capper- found that ‘‘before’’ could be used in a Volstead Rules, the PACA Reparation Numerous hearings conducted under the rules of practice which this final jurisdictional sense and mean ‘‘to be Rules, the PACA Responsibly judged or acted on by’’ or ‘‘under the Connected Rules, and the P&S rule amends are conducted pursuant to statutes that require hearings ‘‘before the official or formal consideration of.’’ The Reparation Rules to authorize the court, citing Chevron, U.S.A., Inc. v. person conducting a proceeding to: (1) Secretary.’’ We fully examined whether hearings conducted by Natural Resources Defense Council, Require each party to provide all other Inc., 467 U.S. 837 (1984), held that ‘‘[i]n telecommunication in which some or all parties and the person conducting the the absence of unambiguous of the evidence is introduced at proceeding with a copy of any exhibit congressional intent, we defer to an locations other than the location at that the party intends to introduce into agency’s reasonable interpretation of a which the person conducting the evidence prior to any hearing to be statute it is charged with administering. proceeding is situated would violate None of the statutes that require conducted by telephone or audio-visual statutes that require hearings to be telecommunication; and (2) require that proceedings to be conducted ‘‘before the conducted ‘‘before the Secretary.’’ We Secretary’’ under which hearings are any hearing to be conducted by concluded that such hearings would not telephone or audio-visual conducted pursuant to the rules of violate these statutes. The memorandum practice amended by this final rule telecommunication be conducted at containing our analysis and findings locations at which the parties and the define the word ‘‘before’’ nor do these was placed in the rulemaking record statutes provide any clear indication of person conducting the proceeding are upon publication of the proposed rule. able to transmit documents during the congressional intent with respect to the A few courts have found that meaning of the word ‘‘before’’ as used hearing. These proposed provisions (see telephone hearings were insufficient in these statutes. Therefore, it is proposed 7 CFR 1.144(c) (9) and (11), due to language of the statute under reasonable for the Department to find 1.173(d) (7) and (8), 47.11(c) (9) and which the hearings were conducted. For that the word ‘‘before,’’ as used in these (11), and 47.56 (g) and (h) and 9 CFR example, in Purba v. Immigration & statutes, is jurisdictional and means ‘‘to 202.118(a) (8) and (10)) regarding the Naturalization Service, 884 F. 2d 516 be judged or acted on by,’’ ‘‘under the exchange of exhibits prior to a hearing (9th Cir. 1989), the court held that a official or formal consideration of,’’ or conducted by telecommunication and deportation hearing must be conducted ‘‘under the cognizance or jurisdiction the ability to transmit documents during in the physical presence of the of.’’ a hearing conducted by immigration judge, absent the consent of telecommunication are designed to the parties, because the statute under 4. Credibility Determinations ensure that all parties have a full which the hearing was held required the Seven commenters stated that opportunity to participate in the hearing to be ‘‘before’’ the judge. The hearings conducted by hearing, present oral or documentary court found the plain meaning of the telecommunication negatively impact evidence, and cross-examine witnesses. word ‘‘before’’ is ‘‘in the presence of,’’ credibility determinations. Five ‘‘in sight of,’’ or ‘‘face-to-face with’’ a We have retained these provisions in commenters focused exclusively on the person and that conducting the hearing the final rule with one minor need for the judge to observe demeanor by telephone was not a hearing ‘‘before’’ modification to correct an oversight in to determine credibility. One the judge. However, the Supreme Court the proposed rule. As stated above, commenter stated that it is important for has recently held that where Congress proposed 7 CFR 1.144(c)(11), all participants to assess credibility of has not decided, any alternative other participants. Four commenters 1.173(d)(8), 47.11(c)(11), and 47.56(h) dictionary definition of a word that has raised the specter of witnesses reading and 9 CFR 202.118(a)(10) would a rational effect under a statute is a prepared statements without the authorize a person conducting a possibility for agency choice, and the knowledge of all participants. proceeding to require that any hearing courts are to defer to the agency’s choice Hearings conducted by audio-visual to be conducted by telephone or audio- of the interpretation of the word, if it is telecommunication do not impact visual telecommunication be conducted reasonable. National Railroad Passenger credibility determinations because the at locations at which the parties and the Corp. v. Boston and Maine Corp., ll fact finder is able to see and hear person conducting the proceeding are U.S. ll, 112 S. Ct. 1394 (1992). witnesses in a hearing conducted by able to transmit documents during the The eleventh circuit, applying the audio-visual telecommunication in hearing. We have amended 7 CFR rationale in National Railroad Passenger much the same manner and to the same 1.144(c)(11), 1.173(d)(8), 47.11(c)(11), Corp., found that a hearing conducted extent as the fact finder would see and and 47.56(h) and 9 CFR 202.118(a)(10) by telephone did not violate the hear witnesses in a face-to-face hearing. to authorize a person conducting a Immigration and Nationality Act that Hearings conducted by telephone may, proceeding to require that any hearing provides that a ‘‘[d]etermination of but do not necessarily, negatively to be conducted by telephone or audio- deportability * * * shall be made only impact credibility determinations. visual telecommunication be conducted on the record in a proceeding before a While we believe that the proposal at locations at which the parties and the special inquiry officer.’’ Bigby v. United provides the person conducting the person conducting the proceeding are States Immigration and Naturalization proceeding with sufficient flexibility to able to transmit and receive documents Service, 21 F. 3d 1059 (11th Cir. 1994). tailor the manner in which a hearing is during the hearing. (Emphasis added.) The eleventh circuit conducted so that credibility Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8449 determinations are not negatively voice responses, pauses, levels of requirement that the hearing officer also impacted, in the final rule we made irritation and other factors’’ and a see Gomez testify * * * would impose substantial changes to these proposed survey showing that 82% of examiners the rigidities of judicial procedure on provisions which address the concerns who have presided over telephone what is supposed to be an informal regarding credibility raised by the hearings believe they can judge proceeding.’’ Id., at 124–25. commenters. The final rule provides credibility in hearings conducted by that hearings conducted under the telephone. Id., at 353–54, citing 5. Exchange of Direct Testimony of Each Uniform Rules, the Capper-Volstead Attitudes Towards the Use of the Witness a Party Will Call Rules, the PACA Reparation Rules, the Telephone in Administrative Fair We proposed to amend the Uniform PACA Responsibly Connected Rules, Hearings, The California Experience, 31 Rules, the Capper-Volstead Rules, the and the P&S Reparation Rules shall be Admin. L. Rev. 247 (1979). PACA Reparation Rules, the PACA conducted by audio-visual Further, in Utica Mutual Ins. Co. v. Responsibly Connected Rules, and the telecommunication unless the person Vincent, 375 F.2d 129, 131 (2nd Cir. P&S Reparation Rules to provide that conducting the proceeding determines 1967), the Second Circuit stated, ‘‘Utica unless the hearing is scheduled to begin that conducting the hearing by personal finds in the due process clause of the less than 20 days after the person attendance of any individual who is Fifth Amendment a requirement that conducting the proceeding issues a expected to participate in the hearing: when there are issues of credibility, as notice stating the time of the hearing, (1) Is necessary to prevent prejudice to was assumed to be true here, no each party must exchange, in writing, a party; (2) is necessary because of a determination of fact may be made with all other parties, a verified disability of any individual expected to unless the decider has either seen the narrative statement of the direct participate in the hearing; or (3) would witnesses himself or has been furnished testimony of each witness that the party cost less than conducting the hearing by with a report as to the credibility by will call to provide oral direct testimony audio-visual telecommunication. another who has * * *. We discern no at the hearing. (See proposed 7 CFR The person conducting the such absolute in the history laden words 1.141(g), 1.168(f), 47.15(f), and 47.58(a) proceeding may, in his or her sole of the Fifth Amendment; Utica would and 9 CFR 202.112(e).) discretion or in response to a motion by freeze what is usually a sensible rule of One commenter objected to the a party to the proceeding, conduct the judicial administration into a exchange of direct testimony of each hearing by telephone only if the person constitutional imperative.’’ The court witness. Two commenters stated that conducting the proceeding finds that a further noted that when the Constitution they had no objection to the exchange hearing conducted by telephone: (1) was adopted the settled practice in the of direct testimony as long as each Would provide a full and fair English chancery courts was to take witness is required ‘‘to appear in court evidentiary hearing; (2) would not evidence almost wholly by deposition. for cross-examination.’’ prejudice any party; and (3) would cost Id., at 131 n. 3. Utica was cited as less than conducting the hearing by support in at least two other federal The requirement that parties exchange audio-visual telecommunication or cases involving the fact finder’s inability the written narrative statements of the personal attendance of any individual to observe demeanor. See Moore v. Ross, direct testimony of witnesses the parties who is expected to participate in the 687 F.2d 604, 609–10 (2nd Cir. 1982), intend to call at a hearing may, in some hearing. (See 7 CFR 1.141(b) (3) and (4), cert. denied, 459 U.S. 1115 (1983); Blake instances, necessitate a significant 1.168(b) (3) and (4), 47.15(c) (3) and (4), v. Ambach, 691 F.Supp. 651, 655–56 expenditure of time and resources. and 47.49(f) (2) and (3) and 9 CFR (S.D.N.Y. 1988). Based on our past experience, many 202.112(a) (3) and (4) in this final rule.) Numerous state courts have also administrative proceedings conducted We do expect that, after the effective upheld the use of telephone hearings under the rules of practice which we are date of this final rule, a number of under circumstances in which the issue amending are settled just prior to the hearings will be conducted by telephone of demeanor and credibility was raised. scheduled date of hearing. In these based upon a finding by the person In Babcock v. Employment Division, 696 circumstances, the preparation and conducting the proceeding that a P.2d 19, 21 (Or. App 1985), the court exchange of a written verified narrative hearing conducted by telephone will considered credibility the most difficult statement of the oral direct testimony of provide a full and fair evidentiary issue for unemployment compensation each witness the parties intend to call hearing; will not prejudice any party; telephone hearings, yet stated that while would constitute an unnecessary and will cost less than conducting the ‘‘[p]hysical appearance can be a clue to expenditure of time and resources. One hearing by audio-visual credibility, * * * of equal or greater of the purposes of this final rule is to telecommunication or personal importance is what a witness says and make adjudicatory proceedings attendance of any individual who is how she says it.’’ The Oregon appellate conducted by the Department as expected to participate in the hearing. court was satisfied ‘‘that the audible efficient as possible. Therefore, this Numerous courts have found that indicia of a witness’ demeanor are final rule limits the provisions regarding hearings conducted by telephone do not sufficient for a referee to make an the exchange of written verified increase the risk of error because adequate judgment as to believability.’’ narrative statements of the oral direct witness demeanor cannot be viewed. In Id. testimony of witnesses the parties Casey v. O’Bannon, 536 F. Supp. 350 In State, ex. rel. Human Services intend to call to hearings to be (E.D. Pa. 1982), the court determined Department v. Gomez, 657 P.2d 117, conducted by telephone. Except as that plaintiffs failed to prove that the 124 (N.M. 1983), the court rejected discussed below, we have retained the constitution compels face-to-face Gomez’s contention that the telephonic provision regarding the exchange of hearings and that there is a risk of an hearing was not meaningful because his written verified narrative statements of erroneous deprivation by virtue of the efforts to remain on welfare depended oral direct testimony prior to hearings telephone procedures as they currently upon his credibility and the hearing conducted by telephone to expedite exist. The court was influenced by officer could not judge credibility these hearings, prevent surprise, ensure testimony at trial showing that ‘‘hearing without seeing him. The court did state that all parties have a full opportunity examiners can effectively judge that credibility may be a minimal factor to participate in the hearing and cross- credibility over the phone by noting in disability determination, but ‘‘a examine witnesses, and assist the 8450 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations person conducting the hearing with necessary at a hearing in order to refer they review transcripts by using the fast credibility determinations. to evidentiary rulings made in forward and reverse modes that are Proposed 7 CFR 1.141(g), 1.168(f), prehearing conferences and transcripts available on most recording devices. In 47.15(f), and 47.58(a) and 9 CFR of depositions are necessary for the addition, relevant portions of recordings 202.112(e) would have required each proper cross-examination of witnesses. can be referenced by time, revolution, or party to obtain written verified narrative One commenter noted that the some other method, as determined by statements of oral direct testimony of all Department would have to purchase the person conducting the proceeding. witnesses the party intends to call to equipment to enable its counsel to Prior to this rulemaking proceeding, provide oral direct testimony. Under the review recordings. none of the rules of practice which are proposal, testimony would be limited to We made changes based on these the subject of this rulemaking the written direct testimony. comments. The final rule requires that proceeding required that prehearing Occasionally parties call hostile hearings to be conducted by telephone conferences be recorded and we did not witnesses or witnesses over whom they shall be recorded verbatim by electronic propose to require the transcription of have no control to provide oral direct recording device. Hearings conducted prehearing conferences. Therefore, the testimony at hearings in proceedings by audio-visual telecommunication or comment regarding the transcription of conducted under the Uniform Rules, the the personal attendance of any prehearing conferences in order to refer Capper-Volstead Rules, the PACA individual who is expected to to evidentiary rulings made in Reparation Rules, the PACA participate in the hearing shall be prehearing conferences is beyond the Responsibly Connected Rules, and the transcribed, unless the person scope of this rulemaking proceeding. P&S Reparation Rules. Requiring a party conducting the hearing finds that 7. ‘‘Practical’’ Problems to obtain and exchange written verified recording the hearing verbatim would narrative statements from hostile expedite the proceeding and the person Four commenters stated that hearings witnesses and witnesses over whom a conducting the hearing orders the conducted by telecommunication would party has no control could result in a hearing to be recorded verbatim. The result in what the commenters party’s inability to introduce relevant person conducting the hearing shall characterized as ‘‘practical problems.’’ and material evidence at a hearing. certify that to the best of his or her (a) One commenter stated that Therefore, this final rule provides that knowledge and belief the recording with hearings conducted by each party need only obtain and exhibits that were accepted into telecommunication would impair the exchange written verified narrative evidence is the record of the hearing. ability of the parties to observe statements of the oral direct testimony The final rule provides that if a party documents and call witnesses. of the following witnesses that the party requests the transcript of a hearing or We proposed to amend the Uniform intends to call at hearings to be part of a hearing and the person Rules, the Capper-Volstead Rules, the conducted by telephone: (1) The party; conducting the hearing determines that PACA Reparation Rules, the PACA (2) the employees and agents of the the disposition of the proceeding would Responsibly Connected Rules, and the party; and (3) the party’s expert be expedited by a transcript of the P&S Reparation Rules to authorize the witnesses. The oral direct testimony hearing or part of a hearing, the person person conducting a proceeding to: (1) provided by a witness at a hearing conducting the hearing shall order the Require each party to provide all other conducted by telephone will be limited verbatim transcription of the recording parties and the person conducting the to the presentation of the written direct as requested by the party. (See 7 CFR proceeding with a copy of any exhibit testimony, unless the person conducting 1.141(i), 1.168(h), 47.15(i), and 47.60 that the party intends to introduce into the hearing finds that oral direct and 9 CFR 202.112(i) in this final rule.) evidence prior to any hearing to be testimony which is supplemental to the The final rule provides that transcripts conducted by telephone or audio-visual written direct testimony would further and recordings of hearings conducted telecommunication; and (2) require that the public interest and would not under the Uniform Rules and the any hearing to be conducted by constitute surprise. Capper-Volstead Rules shall be made telephone or audio-visual available to any person at actual cost of telecommunication be conducted at 6. Verbatim Recordings in Lieu of duplication. (See 7 CFR 1.141(i) and locations at which the parties and the Transcripts 1.168(h) in this final rule.) We have person conducting the proceeding are We proposed to amend the Uniform retained the provisions regarding the able to transmit documents during the Rules, the Capper-Volstead Rules, the cost and availability of transcripts that hearing. These proposed provisions (see PACA Reparation Rules, the PACA are currently in the PACA Reparation proposed 7 CFR 1.144(c) (9) and (11), Responsibly Connected Rules, and the Rules, the PACA Responsibly 1.173(d) (7) and (8), 47.11(c) (9) and P&S Reparation Rules to provide for the Connected Rules, and the P&S (11), and 47.56 (g) and (h) and 9 CFR use of recordings of hearings, and, Reparation Rules (see current 7 CFR 202.118(a) (8) and (10)) regarding the where applicable, depositions. Four 47.15(g) and 47.60 and 9 CFR exchange of exhibits prior to a hearing commenters opposed the use of 202.112(h)) and have applied these cost conducted by telecommunication and recordings. One commenter objected to and availability provisions to the ability to transmit documents during the use of recordings of hearings and recordings. (See 7 CFR 47.15(i) and a hearing conducted by depositions rather than transcripts, but 47.60 and 9 CFR 202.112 (i) in this final telecommunication are designed to did not state the basis for the objection. rule.) ensure that all parties have a full Three commenters stated that the The discretion provided to the person opportunity to participate in the review of a recording is more time- conducting the hearing to order that a hearing, present oral or documentary consuming than the review of a transcript be provided to a party rather evidence, and cross-examine witnesses. transcript of the same proceeding and than a recording will ensure that As we stated above, we have retained the citation of relevant portions of a transcripts are available when a party these provisions in the final rule with recording more difficult than the does not have access to equipment that one minor modification to correct an citation of relevant portions of a enables that party to use recordings. oversight in the proposed rule. transcript. Two commenters stated that Further, we believe that parties will be Further, we proposed to amend the transcripts of prehearing conferences are able to review recordings as quickly as Uniform Rules, the Capper-Volstead Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8451 Rules, the PACA Reparation Rules, the evidence, the examination of a witness telecommunication would make PACA Responsibly Connected Rules, regarding documents that the witness sequestration difficult. and the P&S Reparation Rules to has in his or her possession on entering A person conducting a hearing by provide that unless the hearing is the courtroom, the examination of a telecommunication could order scheduled to begin less than 20 days witness regarding his or her ability to sequestration in the same manner in after the person conducting the read at a distance, or the request that a which it is ordered in a face-to-face proceeding issues a notice stating the witness draw a picture. hearing. We agree that, in most time of the hearing, each party must As discussed previously in this situations, the person conducting a exchange, in writing, with all other rulemaking document, the final rule hearing by telecommunication will not parties, the direct testimony of each provides that the person conducting the be in a position to determine whether a witness that the party will call to proceeding may require hearings sequestration order has been followed. provide oral direct testimony at the conducted by telecommunication to be We expect that all parties in hearing. (See proposed 7 CFR 1.141(g), held at locations at which the parties adjudicatory proceedings conducted by 1.168(f), 47.15(f), and 47.58(a) and 9 and the person conducting the the Department and counsel to those CFR 202.112(e).) The written direct proceeding are able to transmit and parties will make every effort to comply testimony must be in narrative form and receive documents during the hearing. with lawful orders issued by the person must be verified. The written direct This requirement will enable parties to conducting the proceeding. testimony of witnesses shall be examine witnesses regarding documents (e) Two commenters stated that exchanged by the parties at least 10 days that the witness has in his or her hearings conducted by prior to the hearing. The oral direct possession on entering the courtroom telecommunication would make testimony provided by a witness at the and the ability to read at a distance, and recesses impractical. We disagree and have made no hearing will be limited to the to request witnesses to draw pictures or change based on these comments. presentation of the written direct diagrams in hearings conducted by Recesses can be called as easily in a testimony, unless the person conducting telecommunication. hearing conducted by the proceeding finds that oral direct If real evidence is to be introduced in telecommunication as in a hearing testimony which is supplemental to the a hearing, the hearing or that part of the written direct testimony would expedite conducted by personal attendance of hearing in which the real evidence is to those involved with the hearing. the proceeding and would not constitute be introduced can be conducted by the surprise. These provisions regarding (f) Four commenters stated that personal attendance of those who are to prompting witnesses at hearings exchange of direct testimony are participate in the hearing. As stated designed to ensure that all parties have conducted by telecommunication would above, the person conducting the be difficult to control. a full opportunity to participate in the proceeding can require the hearing to be hearing, and cross-examine witnesses. Prompting of witnesses can occur in conducted by personal attendance of face-to-face hearings, but we do agree As discussed above, we have limited the any individual who is expected to provisions regarding the exchange of that, in some situations, it may be more participate in the hearing if personal difficult for a person conducting a written verified narrative statements of attendance is necessary to prevent oral direct testimony to hearings to be hearing to detect witness prompting at prejudice to a party. The inability of a a hearing conducted by conducted by telephone and to certain party to introduce admissible evidence specified witnesses. telecommunication than to detect because a hearing is conducted by These provisions will ensure that witness prompting at a hearing telecommunication may prejudice a parties to adjudicatory proceedings conducted by personal attendance of conducted under the rules of practice party, and, in such circumstances, a participants. However, prompting of which we are amending will have ample face-to-face hearing will be conducted. witnesses in hearings conducted by opportunity to observe documents. (c) Two commenters stated that audio-visual telecommunication will be We do not agree with the comment hearings conducted by far more difficult to conceal from other that parties will have any more telecommunication would reduce the parties and the person conducting a difficulty calling witnesses in a hearing appearance of justice. hearing than in hearings conducted by conducted by telecommunication than We disagree with the comment and telephone. In fact, current audio-visual parties will have when calling witnesses have not made any change based on this technology can provide the person in a face-to-face hearing. The comment. The quality of justice will not conducting the proceeding and the commenter did not provide any basis for be affected by this final rule. If any party parties with virtually unlimited vision this concern. will be prejudiced by a hearing in the room in which a hearing is being (b) One commenter stated that no conducted by telecommunication, the conducted. We believe that the potential provision can be made in hearings person conducting the proceeding will prompting problem is minimized by conducted by telecommunication for— require the hearing to be conducted by making audio-visual hearings the the introduction of real evidence, the personal attendance of any individual prevalent method of hearing. examination of a witness regarding who is expected to participate in the (g) Two commenters stated that documents that the witness has in his or hearing. The use of audio-visual hearings conducted by her possession on entering the technology preserves due process, telecommunication could be negated by courtroom, the examination of a witness promotes ease of participation by those a signal or power failure or electronic regarding his or her ability to read at a for whom travel is difficult, and allows interference. distance, the request that a witness draw each party and the person conducting We disagree. If a signal or power a picture; or any ‘‘other unexpected the proceeding to participate fully and failure were to occur, the hearing would events.’’ with the effect of face-to-face be adjourned until such time as the We have not made any change based confrontation. Therefore, we believe hearing could be resumed. That portion on this comment. Very few of the that this final rule will in fact heighten of the hearing which is completed prior hearings conducted under the rules of the appearance and fact of justice done. to the signal or power failure would not practice which this final rule amends (d) Two commenters stated that be negated. A signal or power failure necessitate the introduction of real hearings conducted by which causes the adjournment of a 8452 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations hearing conducted by feasibility of conducting cross- implementation of telecommunication telecommunication is not different than examination via audio-visual devices.’’ on an experimental basis. an event, such as a power failure or fire We have not made any change based (b) Five commenters stated that in the building in which a hearing is upon these comments. Prior to hearings should only be conducted by being conducted, that may cause the preparing the proposed rule, we telecommunication when the parties person conducting a face-to-face hearing thoroughly examined the range of agree. to temporarily adjourn a hearing. equipment available to conduct We have not made any change based (h) One commenter stated that the adjudicatory proceedings by on this comment. The final rule rules of practice would be subject to telecommunication. We found that both provides the parties with ample challenge which would add to the telephone and audio-visual opportunity to make the person uncertainty and cost money to defend. telecommunication equipment are conducting the proceeding aware of the While proceedings conducted by generally adequate to conduct cross- parties’ preferences regarding the telecommunication could be challenged, examinations. Again, the final rule manner in which the hearing should be we believe that these challenges can be amends the Uniform Rules, the Capper- conducted and to persuade the person easily defended. Above, we cited a Volstead Rules, the PACA Reparation conducting the proceeding to conduct number of cases in which adjudicatory Rules, the PACA Responsibly the hearing in a manner other than that proceedings conducted by Connected Rules, and the P&S ordered by the person conducting the telecommunication have been Reparation Rules, to provide that proceeding. Specifically, the final rule challenged, and the state and federal hearings will be conducted by the amends the Uniform Rules, the Capper- agencies conducting proceedings by personal attendance of any individual Volstead Rules, the PACA Reparation telecommunication have prevailed. who is expected to participate in the Rules, the PACA Responsibly (i) Two commenters stated that hearing if the person conducting the Connected Rules, and the P&S hearings conducted by proceeding finds that personal Reparation Rules to provide that any telecommunication would often attendance: (1) Is necessary to prevent party may move that the hearing be necessitate the employment of multiple prejudice to a party; (2) is necessary conducted by telephone or personal counsel by each party to observe because of a disability of any individual attendance of any individual expected witness demeanor at each location at expected to participate in the hearing; or to attend the hearing rather than by which a hearing is being held. (3) would cost less than conducting the audio-visual telecommunication. The final rule does not require hearing by audio-visual Further, within 10 days after the person counsel to be present at the location at telecommunication. The person conducting the proceeding issues a which a witness is testifying in a conducting the proceeding may, in his notice stating the manner in which the proceeding conducted by or her sole discretion or in response to hearing is to be conducted, any party telecommunication. While we do not a motion by a party to the proceeding, may move that the person conducting believe that the presence of counsel at conduct the hearing by telephone only the proceeding reconsider the manner in each location at which witnesses testify if the person conducting the proceeding which the hearing is to be conducted. is necessary, a party may chose to have finds that a hearing conducted by (See 7 CFR 1.141(b)(2), 1.168(b)(2), counsel present at some or all of the telephone: (1) would provide a full and 47.15(c)(2), and 47.53 (b) and (c) and 9 locations at which witnesses testify in fair evidentiary hearing; (2) would not CFR 202.112(b) (2) and (3) in this final hearings conducted by prejudice any party; and (3) would cost rule.) telecommunication. Such an less than conducting the hearing by (c) Two commenters stated that the expenditure would be at the option of audio-visual telecommunication or parties should elect the manner in each party to the proceeding. personal attendance of any individual which depositions are to be held and who is expected to participate in the judges should only be involved if the 8. The Rulemaking Record hearing. parties cannot agree. Six commenters stated that the (c) One commenter stated that it did We agree with the commenters with rulemaking record is deficient. not have adequate notice of the respect to the PACA Reparation Rules (a) Four commenters stated that the proposed rule, and, therefore, the and the P&S Reparation Rules. We cost-benefit analysis is inadequate or comment period should be extended. proposed to amend the Uniform Rules, nonexistent. On June 22, 1994, in response to this the PACA Reparation Rules, and the We have not made any change based comment, we published a document in P&S Reparation Rules to provide that a upon these comments. In accordance the Federal Register (59 FR 32138) deposition shall be conducted by with Executive Order 12866, we reopening and extending the comment telephone unless the person conducting prepared an assessment in connection period until July 22, 1994. the proceeding determines that with the preparation of the notice of conducting the deposition by audio- proposed rulemaking which preceded 9. Suggestions visual telecommunication: (1) Would this final rule. The assessment, which (a) Five commenters stated that the cost less than conducting the deposition was included in the rulemaking record, Department should experiment with by telephone; (2) is necessary to prevent contains a discussion of the costs and proceedings conducted by prejudice to a party; or (3) is necessary benefits associated with the proposed telecommunication on a limited basis. because of a disability of any individual rule. Again, in accordance with We have not made any change based expected to participate in the Executive Order 12866, we prepared an on these comments. The use of deposition. If the deposition is not assessment in connection with the telecommunication in adjudicatory conducted by telephone, the deposition preparation of this final rule. The proceedings is not new. Numerous state shall be conducted by audio-visual assessment, which was included in the and federal agencies have conducted telecommunication unless the person rulemaking record, contains a adjudicatory proceedings by conducting the proceeding determines discussion of the costs and benefits telecommunication in the past. We that conducting the deposition by associated with the final rule. believe that experience of other state personal attendance of any individual (b) Two commenters stated that there and federal agencies is sufficient to who is expected to participate in the was no ‘‘justification of the technical enable the Department to forego the deposition: (1) Would cost less than Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8453 conducting the deposition by telephone Further, based upon the general need proceeding order the verbatim or audio-visual telecommunication; (2) to allow the person conducting the transcription of the recording as is necessary to prevent prejudice to a proceeding to tailor the manner in requested by the party. We proposed to party; or (3) is necessary because of a which the proceeding is conducted to require that any presiding person’s disability of any individual expected to prevent prejudice to any party and to order to transcribe a hearing and the participate in the deposition. ensure that any hearing is a full and fair basis for the order be reduced to a However, the government is never a evidentiary hearing, we have eliminated written order and filed with the Hearing party in proceedings conducted under all of the provisions which appeared in Clerk. We have eliminated the the PACA Reparation Rules and the P&S the proposal concerning interlocutory requirement that the order of the person Reparation Rules and incurs very little appeal. Specifically, we proposed to conducting the proceeding and the basis cost associated with depositions taken amend 7 CFR 1.143(e) to allow any of that order be reduced to a written in PACA and P&S reparation party to appeal to the Judicial Officer a order and filed with the Hearing Clerk. proceedings. Therefore, the final rule Judge’s order: (1) To conduct a (See 7 CFR 1.141(i) and 47.60 and 9 CFR provides that in proceedings conducted conference by audio-visual 202.112(i) in this final rule.) We do not under the PACA Reparation Rules and telecommunication or personally attend believe that an order regarding the P&S Reparation Rules the parties a conference; (2) to conduct a hearing by transcription of a hearing must be audio-visual telecommunication or may agree upon the manner in which handled in a manner different than any the depositions are to be conducted and personally attend a hearing; or (3) to other order issued by the person the person conducting the proceeding conduct a deposition by audio-visual conducting the proceeding. will only determine the manner in telecommunication or personally attend which a deposition is to be conducted a deposition. Further, we proposed to Finally, the Department will bear the when the parties cannot agree. (See 7 amend 7 CFR 47.13(b) to allow any entire cost of audio-visual transmission CFR 47.16(b) (3) and (4) and 9 CFR party to appeal to the Secretary an and only some of the travel costs related 202.109(d) (4) and (5) in this final rule.) examiner’s order: (1) To conduct a to face-to-face hearings, conferences, (d) One commenter opposed the conference by audio-visual and depositions. Therefore, there could proposal, but urged the Department to telecommunication or personally attend be rare circumstances in which the modernize its rules and to form an ad a conference; (2) to conduct a hearing by overall cost of conducting a conference, hoc committee to review the rules. audio-visual telecommunication or hearing, or deposition by audio-visual We welcome any comments or personally attend a hearing; or (3) to telecommunication may be cheaper than petitions for rulemaking which any conduct a deposition by audio-visual conducting the same conference, interested member of the public may telecommunication or personally attend hearing, or deposition in some other wish to make regarding any of the a deposition. Further still, we proposed manner and at the same time the Department’s rules of practice, but we to amend 7 CFR 1.172(e) to allow any Department’s cost of conducting the do not believe that it is necessary to party to appeal to the Judicial Officer a conference, hearing, or deposition by form a committee to review the Judge’s order: (1) To conduct a audio-visual telecommunication could Department’s rules or practice. The conference by audio-visual be higher than conducting that Department regulation regarding telecommunication or personally attend conference, hearing, or deposition in petitions for issuance, amendment, or a conference; or (2) to conduct a hearing some other manner. In order to avoid a repeal of a rule is set forth in 7 CFR by audio-visual telecommunication or measurable increase in costs to the 1.28. personally attend a hearing. Finally, we Department, this final rule provides that proposed to amend 9 CFR 202.118(b) to (e) Two commenters supported if the person conducting the proceeding allow any party to appeal to the Judicial conducting conferences by telephone finds that a hearing or deposition Officer a presiding officer’s order: (1) To when the judge decides that the use of conducted by audio-visual conduct a conference by audio-visual the telephone is appropriate. telecommunication would measurably telecommunication or personally attend We did not make any change based on increase costs to the Department, the these comments. The proposed rule a prehearing conference; (2) to conduct an oral hearing by audio-visual hearing or deposition shall be provided that conferences are to be held conducted by personal attendance or by either by telephone or by telecommunication or personally attend an oral hearing; or (3) to conduct a telephone. If the person conducting the correspondence unless certain findings proceeding finds that a conference are made by the person conducting the deposition by audio-visual conducted by audio-visual proceeding. The final rule retains those telecommunication or personally attend telecommunication would measurably provisions. a deposition. None of these proposed amendments concerning interlocutory increase costs to the Department, the Conclusion appeal have been adopted in this final conference shall be conducted by Based on the rationale in the rule. personal attendance, by telephone, or by proposed rule and this rulemaking Further, the proposed rule amended correspondence. (See 7 CFR 1.140(c), document, we are adopting the the Uniform Rules, the PACA 1.141(b), 1.148(b), 1.167(b), 1.168(b), provisions of the proposal as a final rule Responsibly Connected Rules, and the 47.14(c), and 47.15(c), and 9 CFR except as previously discussed in this P&S Reparation Rules to require 202.110(b) and 202.112(a) in this final rulemaking document and except for hearings to be recorded verbatim by an rule.) We did not make this change with minor editorial changes for clarity. In electronic recording device. Only if a respect to depositions conducted under addition, since the preparation of the party to the proceeding requests a the PACA Reparation Rules or the P&S notice of proposed rulemaking 7 CFR transcript of the hearing or a part of the Reparation Rules because the 180.300 has been redesignated as 7 CFR hearing and the person conducting the government is never a party in 97.300. Therefore, we have removed the proceeding determines that the proceedings conducted under those amendment of 7 CFR 180.300 in this disposition of the proceeding would be rules and incurs very little cost final rule and, instead, amended 7 CFR expedited by a transcript of the hearing associated with depositions taken in 97.300. could the person conducting the PACA and P&S reparation proceedings. 8454 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations Establishment of the Grain Inspection, held under the rules that we are 7 CFR Part 47 Packers and Stockyards Administration amending are currently held by Administrative practice and Pursuant to Public Law 103–354, the telephone, unless the conference is held procedure, Agricultural commodities, Federal Crop Insurance Reform and during the hearing. Therefore, this final Agricultural Marketing Service, Brokers. Department of Agriculture rule will not result in a change with 7 CFR Part 50 Reorganization Act of 1994, the respect to the manner in which most Secretary of Agriculture published a conferences are conducted. Administrative practice and Nonetheless, we believe that private notice of the Department’s procedure, Agricultural commodities, individuals who participate in reorganization establishing the Grain Agricultural Marketing Service. conferences, depositions, and hearings Inspection, Packers and Stockyards conducted by telecommunication, 7 CFR Part 51 Administration (59 FR 66517). This rule which will be paid for by the United includes amendments to 9 CFR chapter Agricultural commodities, Food States, will reduce costs which are grades and standards, Fruits, Nuts, II which are necessary to bring agency associated with travel, even to regulations in alignment with the Reporting and recordkeeping convenient locations, and private requirements, Vegetables. departmental reorganization. parties who participate in these Executive Order 12866 and Regulatory proceedings will save the difference 7 CFR Part 52 Flexibility Act between the cost of transcripts and Food grades and standards, Food recordings in depositions and hearings We are issuing this final rule in labeling, Frozen foods, Fruit juices, in which recordings are used. conformance with Executive Order Fruits, Reporting and recordkeeping Most of the private individuals who requirements, Vegetables. 12866. This rule has been determined to participate in proceedings conducted be significant and has been reviewed by under the Uniform Rules, the Capper- 7 CFR Part 53 the Office of Management and Budget Volstead Rules, the PACA Reparation Cattle, Hogs, Livestock, Sheep. under Executive Order 12866. Rules, the PACA Responsibly This final rule provides for Connected Rules, and the P&S 7 CFR Part 54 conducting certain conferences, Reparation Rules are small entities. This Food grades and standards, Food depositions, and hearings in connection final rule will result in a small labeling, Meat and meat products. with proceedings under the Uniform economic impact on private individuals Rules, the Capper-Volstead Rules, the who participate in the proceedings in 7 CFR Part 97 PACA Reparation Rules, the PACA question. Administrative practice and Responsibly Connected Rules, and the Under these circumstances, the procedure, Labeling, Plants. P&S Reparation Rules by Secretary has determined that this telecommunication. Further, the final action will not have a significant 9 CFR Part 202 rule provides for the use of recordings economic impact on a substantial Agriculture, Animals, Administrative in connection with depositions and number of small entities. practice and procedure, Reparation hearings conducted under the Uniform proceedings. Executive Order 12778 Rules, the Capper-Volstead Rules, the Accordingly, 7 CFR part 0, part 1, PACA Reparation Rules, the PACA This rule has been reviewed under subpart H and subpart I, part 47, part 50, Responsibly Connected Rules, and the Executive Order 12778, Civil Justice part 51, part 52, part 53, part 54, and P&S Reparation Rules. Finally, this final Reform. This rule: (1) Preempts all State part 97 and 9 CFR part 202 are amended rule requires each party to exchange, in and local laws and regulations that are as follows: writing, with all other parties in the inconsistent with this rule; (2) has no proceeding a verified narrative retroactive effect; and (3) does not TITLE 7Ð[AMENDED] statement of the oral direct testimony of require administrative proceedings certain specified witnesses the party before parties may file suit in court SUBTITLE AÐOFFICE OF THE SECRETARY intends to call in hearings to be challenging this rule. OF AGRICULTURE conducted by telephone. These PART 0ÐEMPLOYEE amendments are designed to save Paperwork Reduction Act RESPONSIBILITIES AND CONDUCT money associated with the purchase of The Paperwork Reduction Act of 1980 transcripts and time and money does not apply to this rule because the 1. The authority citation for part 0 is associated with travel to conferences, rule does not seek answers to identical revised to read as follows: questions or impose reporting or record depositions, and hearings. Authority: E.O. 11222, 30 FR 6469, 3 CFR, Most of the costs of the proceedings keeping requirements on 10 or more 1965 Comp., page 306; 5 CFR 735.104; 18 conducted under the Uniform Rules, the persons, and the information collected U.S.C. 207(j), unless otherwise noted. Capper-Volstead Rules, the PACA is not used for general statistical Reparation Rules, the PACA purposes. § 0.735±11 [Amended] Responsibly Connected Rules, and the List of Subjects 2. Section 0.735–11 is amended as P&S Reparation Rules are borne by the follows: United States, which is not a small 7 CFR Part 0 a. In paragraph (b)(6), by adding the entity. The vast majority of conferences, Conflict of interest. words ‘‘or such monitoring or recording hearings, and depositions held under occurs in the course of a Department of the rules we are amending are 7 CFR Part 1 Agriculture proceeding conducted by conducted at locations convenient to the Administrative practice and telephone or audio-visual private individuals participating in the procedure, Agriculture, Antitrust, Blind, telecommunication and the person proceeding. Therefore, the United States Claims, Concessions, Cooperatives, conducting the proceeding is an will incur most of the costs associated Equal access to justice, Federal administrative law judge, hearing with travel in connection with the buildings and facilities, Freedom of officer, examiner, or presiding officer’’ proceedings. Further, most conferences information, Lawyers, Privacy. immediately before the semicolon. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8455 b. In paragraph (b)(7), by adding the Judge determines that conducting the with due regard for the public interest words ‘‘or such monitoring or recording conference by audio-visual and the convenience and necessity of occurs in the course of a Department of telecommunication: the parties. The Judge shall file with the Agriculture proceeding conducted by (i) Is necessary to prevent prejudice to Hearing Clerk a notice stating the time telephone or audio-visual a party; and place of the hearing.3 This notice telecommunication and the person (ii) Is necessary because of a disability shall state whether the hearing will be conducting the proceeding is an of any individual expected to conducted by telephone, audio-visual administrative law judge, hearing participate in the conference; or telecommunication, or personal officer, examiner, or presiding officer’’ (iii) Would cost less than conducting attendance of any individual expected immediately before the semicolon. the conference by telephone or to participate in the hearing. The Judge’s correspondence. If the Judge determines determination regarding the manner of PART 1ÐADMINISTRATIVE that a conference conducted by audio- the hearing shall be made in accordance REGULATIONS visual telecommunication would with paragraphs (b)(3) and (b)(4) of this 3. The authority citation for part 1, measurably increase the United States section. If any change in the time, place, subpart H, is revised to read as follows: Department of Agriculture’s cost of or manner of the hearing is made, the conducting the conference, the Judge shall file with the Hearing Clerk Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, conference shall be conducted by a notice of such change, which notice 149, 150gg, 162, 163, 164, 228, 268, 499o, personal attendance of any individual shall be served upon the parties, unless 608c(14), 1592, 1624(b), 2151, 2621, 2714, who is expected to participate in the 2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; it is made during the course of an oral 16 U.S.C. 620d, 1540(f), 3373; 21 U.S.C. 104, conference, by telephone, or by hearing and made part of the transcript 111, 117, 120, 122, 127, 134e, 134f, 135a, correspondence. or recording, or actual notice is given to 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR (2) If the conference is not conducted the parties. 2.35, 2.41. by telephone or correspondence, the (2) (i) If any material issue of fact is conference shall be conducted by audio- joined by the pleadings and the matter § 1.131 [Amended] visual telecommunication unless the is at issue and is ready for hearing, any 4. In § 1.131, paragraph (a), the second Judge determines that conducting the party may move that the hearing be sentence is revised to read ‘‘Section 1.26 conference by personal attendance of conducted by telephone or personal shall be inapplicable to proceedings any individual who is expected to attendance of any individual expected covered by this subpart.’’ participate in the conference: to attend the hearing rather than by § 1.132 [Amended] (i) Is necessary to prevent prejudice to audio-visual telecommunication. Any a party; 5. Section 1.132 is amended as motion that the hearing be conducted by (ii) Is necessary because of a disability telephone or personal attendance of any follows: of any individual expected to a. In paragraph (d), the reference to individual expected to attend the participate in the conference; or ‘‘459g’’ is removed and ‘‘450g’’ added in hearing must be accompanied by a (iii) Would cost less than conducting memorandum in support of the motion its place. the conference by audio-visual b. In paragraph (d), the reference to stating the basis for the motion and the telecommunication. ‘‘1970 ed. appendix, p. 550’’ is removed circumstances that require the hearing and ‘‘App. (1988)’’ added in its place. * * * * * to be conducted other than by audio- visual telecommunication. c. In paragraph (d), the reference to ‘‘7 § 1.141 [Amended] CFR 2.35(a)’’ is removed and ‘‘§ 2.35(a) (ii) Within 10 days after the Judge of this chapter’’ added in its place. 8. Section 1.141 is amended as issues a notice stating the manner in d. Section 1.132 is amended by follows: which the hearing is to be conducted, removing all alphabetical paragraph a. Paragraph (b) is revised to read as any party may move that the Judge designations and placing the definitions set forth below. reconsider the manner in which the in alphabetical order. b. Paragraph (e) is amended by hearing is to be conducted. Any motion removing the words ‘‘of these rules’’ for reconsideration must be § 1.133 [Amended] both times they appear. accompanied by a memorandum in 6. In § 1.133, paragraph (a)(1), the first c. Paragraph (g)(7) is amended by support of the motion stating the basis sentence is amended by removing the adding the words ‘‘or recording’’ for the motion and the circumstances words ‘‘of this subpart’’. immediately after the word ‘‘transcript’’ that require the hearing to be conducted each of the three times the word other than in accordance with the § 1.140 [Amended] ‘‘transcript’’ appears. Judges’s notice. 7. In § 1.140, the section heading is d. Paragraphs (g) and (h) are revised to read as set forth below; redesignated as paragraphs (h) and (i) 3 The place of hearing in a proceeding under the paragraph (a)(1) introductory text is respectively. Packers and Stockyards Act shall be set in amended by removing the word e. New paragraph (g) is added to read accordance with the Packers and Stockyards Act (7 ‘‘prehearing’’ and revising the second as set forth below. U.S.C. 228 (e) and (f)). In essence, if there is only one respondent, the hearing is to be held as near sentence to read ‘‘Reasonable notice of f. Redesignated paragraph (i) is as possible to the respondent’s place of business or the time, place, and manner of the revised to read as set forth below. residence depending on the availability of an conference shall be given.’’; paragraph appropriate location for conducting the hearing. If § 1.141 Procedure for hearing. (b) is amended by removing the word there is more than one respondent and they have * * * * * their places of business or residence within a single ‘‘prehearing’’; and paragraph (c) is unit of local government, a single geographical area revised to read as follows: (b) Time, place, and manner. (1) If within a State, or a single State, the hearing is to any material issue of fact is joined by be held as near as possible to their places of § 1.140 Conferences and procedure. the pleadings, the Judge, upon motion of business or residence depending on the availability * * * * * any party stating that the matter is at of an appropriate location for conducting the (c) Manner of Conference. (1) The issue and is ready for hearing, shall set hearing. If there is more than one respondent, and they have their places of business or residence conference shall be conducted by a time, place, and manner for hearing as distant from each other, 7 U.S.C. 228 (e) and (f) telephone or correspondence unless the soon as feasible after the motion is filed, have no applicability. 8456 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations (3) The hearing shall be conducted by with this paragraph if the hearing is c. New paragraphs (c)(9), (c)(10), audio-visual telecommunication unless scheduled to begin less than 20 days (c)(11), and (c)(12) are added to read as the Judge determines that conducting after the Judge’s notice stating the time set forth below. the hearing by personal attendance of of the hearing. § 1.144 Judges. any individual who is expected to * * * * * participate in the hearing: (i) Transcript or recording. (1) * * * * * (c) * * * (i) Is necessary to prevent prejudice to Hearings to be conducted by telephone (2) Set the time, place, and manner of a party; shall be recorded verbatim by electronic a conference and the hearing, adjourn (ii) Is necessary because of a disability recording device. Hearings conducted the hearing, and change the time, place, of any individual expected to by audio-visual telecommunication or and manner of the hearing; participate in the hearing; or the personal attendance of any (iii) Would cost less than conducting individual who is expected to * * * * * the hearing by audio-visual participate in the hearing shall be (9) Require each party to provide all telecommunication. If the Judge transcribed, unless the Judge finds that other parties and the Judge with a copy determines that a hearing conducted by recording the hearing verbatim would of any exhibit that the party intends to audio-visual telecommunication would expedite the proceeding and the Judge introduce into evidence prior to any measurably increase the United States orders the hearing to be recorded hearing to be conducted by telephone or Department of Agriculture’s cost of verbatim. The Judge shall certify that to audio-visual telecommunication; conducting the hearing, the hearing (10) Require each party to provide all the best of his or her knowledge and shall be conducted by personal other parties with a copy of any belief any recording made pursuant to attendance of any individual who is document that the party intends to use this paragraph with exhibits that were expected to participate in the hearing or to examine a deponent prior to any accepted into evidence is the record of by telephone. deposition to be conducted by the hearing. (4) The Judge may, in his or her sole telephone or audio-visual (2) If a hearing is recorded verbatim, discretion or in response to a motion by telecommunication; a party to the proceeding, conduct the a party requests the transcript of a (11) Require that any hearing to be hearing by telephone if the Judge finds hearing or part of a hearing, and the conducted by telephone or audio-visual that a hearing conducted by telephone: Judge determines that the disposition of telecommunication be conducted at (i) Would provide a full and fair the proceeding would be expedited by locations at which the parties and the evidentiary hearing; a transcript of the hearing or part of a Judge are able to transmit and receive (ii) Would not prejudice any party; hearing, the Judge shall order the documents during the hearing; and verbatim transcription of the recording (12) Require that any deposition to be (iii) Would cost less than conducting as requested by the party. conducted by telephone or audio-visual the hearing by audio-visual (3) Recordings or transcripts of telecommunication be conducted at telecommunication or personal hearings shall be made available to any locations at which the parties are able attendance of any individual who is person at actual cost of duplication. to transmit and receive documents expected to participate in the hearing. § 1.142 [Amended] during the deposition; * * * * * 9. Section 1.142 is amended as * * * * * (g) Written statements of direct follows: testimony. (1) Except as provided in § 1.145 [Amended] a. In paragraph (a), the heading is paragraph (g)(2) of this section, each amended by adding the words ‘‘or 11. Section 1.145 is amended as party must exchange with all other recording’’ immediately after the word follows: parties a written narrative verified a. In paragraph (a), the reference to ‘‘transcript’’. statement of the oral direct testimony b. Paragraph (a)(1) is amended by ‘‘§ 1.141(g)(2)’’ is removed and that the party will provide at any adding the words ‘‘or recording’’ ‘‘§ 1.141(h)(2)’’ added in its place. b. In paragraph (c), the second hearing to be conducted by telephone; immediately after the word ‘‘transcript’’. sentence is amended by adding the the direct testimony of each employee c. Paragraph (a)(2) is amended by words ‘‘or recording’’ immediately after or agent of the party that the party will adding the words ‘‘or recording’’ the word ‘‘transcript’’. call to provide oral direct testimony at immediately after the word ‘‘transcript’’ any hearing to be conducted by both times the word ‘‘transcript’’ § 1.147 [Amended] telephone; and the direct testimony of appears. each expert witness that the party will 12. In section 1.147, paragraph (c)(2) d. Paragraph (a)(3) is amended by is amended by removing the words ‘‘of call to provide oral direct testimony at adding the words ‘‘or recording’’ any hearing to be conducted by this part’’; and paragraph (d) is amended immediately after the word ‘‘transcript’’ by removing the words ‘‘of this part’’. telephone. The written direct testimony each of the three times the word of witnesses shall be exchanged by the ‘‘transcript’’ appears. § 1.148 [Amended] parties at least 10 days prior to the e. Paragraph (c)(2) is amended by 13. Section 1.148 is amended as hearing. The oral direct testimony removing the words ‘‘of the record’’ and follows: provided by a witness at a hearing adding the words ‘‘or recording’’ in their a. Paragraph (b) is revised to read as conducted by telephone will be limited place. set forth below: to the presentation of the written direct b. In paragraph (f), the words ‘‘or testimony, unless the Judge finds that § 1.144 [Amended] recording’’ are added immediately after oral direct testimony which is 10. Section 1.144 is amended as the word ‘‘transcript’’ in the paragraph supplemental to the written direct follows: heading; in paragraph (f)(1), once; in testimony would further the public a. Paragraph (c)(2) is revised to read paragraph (f)(2), twice; and in paragraph interest and would not constitute as set forth below. (f)(3), twice. surprise. b. Paragraphs (c)(9) and (c)(10) are (2) The parties shall not be required redesignated as paragraphs (c)(13) and § 1.148 Depositions. to exchange testimony in accordance (c)(14) respectively. * * * * * Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8457 (b) Judge’s order for taking deposition. a. In paragraph (c), the words ‘‘or her’’ (ii) Is necessary because of a disability (1) If the Judge finds that the testimony are added immediately after the word of any individual expected to may not be otherwise available at the ‘‘his’’. participate in the conference; or hearing, the taking of the deposition b. In paragraph (g), the reference to (iii) Would cost less than conducting may be ordered. The order shall be filed ‘‘1976 ed., appendix, p. 764’’ is removed the conference by telephone or with the Hearing Clerk and shall state: and ‘‘App. (1988)’’ added in its place. correspondence. If the Judge determines (i) The time of the deposition; c. In paragraph (g), the reference to ‘‘7 that a conference conducted by audio- (ii) The place of the deposition; CFR 2.35’’ is removed and ‘‘§ 2.35(a) of visual telecommunication would (iii) The manner of the deposition this chapter’’ added in its place. measurably increase the United States (telephone, audio-visual d. In paragraph (g), the words ‘‘or Department of Agriculture’s cost of telecommunication, or personal she’’ are added immediately after the conducting the conference, the attendance of those who are to word ‘‘he’’. conference shall be conducted by participate in the deposition); personal attendance of any individual (iv) The name of the officer before e. Section 1.161 is amended by removing all alphabetical paragraph who is expected to participate in the whom the deposition is to be made; and conference, by telephone, or by (v) The name of the deponent. The designations and placing the definitions in alphabetical order. correspondence. officer and the time, place, and manner (2) If the conference is not conducted need not be the same as those suggested § 1.162 [Amended] by telephone or correspondence, the in the motion for the deposition. conference shall be conducted by audio- (2) The deposition shall be conducted 17. Section 1.162 is amended as by telephone unless the Judge follows: visual telecommunication unless the determines that conducting the a. In paragraph (b), in the first Judge determines that conducting the deposition by audio-visual sentence, the word ‘‘part’’ is removed conference by personal attendance of telecommunication: and the word ‘‘paragraph’’ added in its any individual who is expected to (i) Is necessary to prevent prejudice to place. participate in the conference: a party; b. In paragraph (b), in the first (i) Is necessary to prevent prejudice to (ii) Is necessary because of a disability sentence, the word ‘‘he’’ is removed and a party; of any individual expected to the words ‘‘the Secretary’’ added in its (ii) Is necessary because of a disability participate in the deposition; or place. of any individual expected to (iii) Would cost less than conducting c. In paragraph (b), in the second participate in the conference; or the deposition by telephone. If the Judge sentence, the word ‘‘he’’ is removed and (iii) Would cost less than conducting determines that a deposition conducted ‘‘, the Secretary’’ added in its place. the conference by audio-visual by audio-visual telecommunication telecommunication. § 1.164 [Amended] would measurably increase the United § 1.168 [Amended] States Department of Agriculture’s cost 18. In § 1.164, paragraph (a), the first 20. Section 1.168 is amended as of conducting the deposition, the sentence is amended by removing the deposition shall be conducted by follows: word ‘‘his’’ and adding the words ‘‘the a. In paragraph (e)(1), the first personal attendance of any individual respondent’s’’ in its place. who is expected to participate in the sentence is amended by removing the deposition or by telephone. § 1.167 [Amended] word ‘‘reported’’ and adding the words (3) If the deposition is not conducted 19. Section 1.167 is revised to read as ‘‘transcribed or recorded’’ in its place. by telephone, the deposition shall be follows: b. In paragraph (e)(2), the first conducted by audio-visual sentence is amended by removing the telecommunication unless the Judge § 1.167 Conference word ‘‘he’’ and by adding the words determines that conducting the (a) Purpose. Upon motion of a party ‘‘the party’’ in its place. deposition by personal attendance of or upon the Judge’s own motion, the c. In paragraph (e)(2), the second any individual who is expected to Judge may direct the parties to attend a sentence is amended by adding the participate in the deposition: conference when the Judge finds that words ‘‘or recording’’ immediately after (i) Is necessary to prevent prejudice to the proceeding would be expedited by the word ‘‘transcript’’. a party; discussions on matters of procedure d. Paragraph (e)(6) is amended by (ii) Is necessary because of a disability and/or possible stipulations. The adding the words ‘‘or recording’’ of any individual expected to conference may include discussions immediately after the word ‘‘transcript’’ participate in the deposition; or regarding: each of the three times the word (iii) Would cost less than conducting (1) Simplification of the issues; ‘‘transcript’’ appears. e. Paragraphs (b), (c), (d), and (e) are the deposition by telephone or audio- (2) Limitation of expert or other redesignated as (c), (d), (e), and (g) visual telecommunication. witnesses; * * * * * respectively. (3) The orderly presentation of f. New paragraphs (b), (f), and (h) are § 1.149 [Amended] evidence; and added to read as follows: 14. In § 1.149, paragraph (b), the last (4) Any other matters that may sentence is amended by removing the expedite and aid in the disposition of § 1.168 Procedure for hearing. words ‘‘of this part’’. the proceeding. * * * * * 15. The authority citation for part 1, (b) Manner of the Conference. (1) The (b) Manner of hearing. (1) The Judge subpart I, is revised to read as follows: conference shall be conducted by shall file with the Hearing Clerk a notice telephone or correspondence unless the Authority: 7 U.S.C. 291, 292; 7 CFR 2.35, stating whether the hearing will be 2.41. Judge determines that conducting the conducted by telephone, audio-visual conference by audio-visual telecommunication, or personal § 1.161 [Amended] telecommunication: attendance of any individual expected 16. Section 1.161 is amended as (i) Is necessary to prevent prejudice to to attend the hearing and the Judge’s follows: a party; determination regarding the manner of 8458 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations hearing shall be made in accordance (ii) Would not prejudice any party; hearing, the Judge shall order the with paragraphs (b)(3) and (b)(4) of this and verbatim transcription of the recording section. If any change in the manner of (iii) Would cost less than conducting as requested by the party. the hearing is made, the Judge shall file the hearing by audio-visual (3) Recordings or transcripts of with the Hearing Clerk a notice of the telecommunication or personal hearings shall be made available to any change, which notice shall be served on attendance of any individual who is person at actual cost of duplication. the parties, unless it is made during the expected to participate in the hearing. * * * * * course of an oral hearing and made part * * * * * of the transcript or recording, or actual (f) Written statements of direct § 1.169 [Amended] notice is given to the parties. testimony. (1) Except as provided in 21. Section 1.169 is amended as (2)(i) Any party may move that the paragraph (f)(2) of this section, each follows: hearing be conducted by telephone or party must exchange with all other a. In paragraph (a), the heading is personal attendance of any individual parties a written narrative verified revised to read ‘‘Corrections to expected to attend the hearing rather statement of the oral direct testimony transcript or recording.’’ than by audio-visual that the party will provide at any b. In paragraph (a)(1), the words ‘‘or telecommunication. Any motion that hearing to be conducted by telephone; recording’’ are added immediately after the hearing be conducted by telephone the direct testimony of each employee the word ‘‘transcript’’. or personal attendance of any individual or agent of the party that the party will c. In paragraph (a)(2), the words ‘‘or expected to attend the hearing must be call to provide oral direct testimony at recording’’ are added immediately after accompanied by a memorandum in any hearing to be conducted by the word ‘‘transcript’’ both times the support of the motion stating the basis telephone; and the direct testimony of word ‘‘transcript’’ appears. for the motion and the circumstances each expert witness that the party will d. In paragraph (a)(3), the words ‘‘or that require the hearing to be conducted call to provide oral direct testimony at recording’’ are added immediately after other than by audio-visual any hearing to be conducted by the word ‘‘transcript’’ each of the three telecommunication. telephone. The written direct testimony times the word ‘‘transcript’’ appears. (ii) Within 10 days after the Judge of witnesses shall be exchanged by the e. In paragraph (c), in the last issues a notice stating the manner in parties at least 10 days prior to the sentence, the word ‘‘herein’’ is removed. which the hearing is to be conducted, hearing. The oral direct testimony § 1.170 [Amended] any party may move that the Judge provided by a witness at a hearing reconsider the manner in which the conducted by telephone will be limited 22. Section 1.170 is amended as hearing is to be conducted. Any motion to the presentation of the written direct follows: for reconsideration must be testimony, unless the Judge finds that a. In paragraph (a), in the second accompanied by a memorandum in oral direct testimony which is sentence, the reference to ‘‘§ 1.167(e)(2)’’ support of the motion stating the basis supplemental to the written direct is removed and ‘‘§ 1.168(g)(2)’’ added in for the motion and the circumstances testimony would further the public its place. that require the hearing to be conducted interest and would not constitute b. In paragraph (c), the words ‘‘or other than in accordance with the surprise. recording’’ are added immediately after Judges’s notice. (2) The parties shall not be required the word ‘‘transcript’’. (3) The hearing shall be conducted by to exchange testimony in accordance c. In paragraph (i), in the last audio-visual telecommunication unless with this paragraph if the hearing is sentence, the word ‘‘herein’’ is removed. the Judge determines that conducting scheduled to begin less than 20 days § 1.171 [Amended] the hearing by personal attendance of after the Judge’s notice stating the time 23. Section 1.171 is amended by any individual who is expected to of the hearing. removing the word ‘‘herein’’. participate in the hearing: * * * * * (i) Is necessary to prevent prejudice to (h) Transcript or recording. (1) § 1.172 [Amended] a party; Hearings to be conducted by telephone 24. In § 1.172, paragraph (a) is (ii) Is necessary because of a disability shall be recorded verbatim by electronic amended by adding the words ‘‘or of any individual expected to recording device. Hearings conducted recording’’ immediately after the word participate in the hearing; or by audio-visual telecommunication or ‘‘transcript’’. (iii) Would cost less than conducting the personal attendance of any the hearing by audio-visual individual who is expected to § 1.173 [Amended] telecommunication. If the Judge participate in the hearing shall be 25. Section 1.173 is amended as determines that a hearing conducted by transcribed, unless the Judge finds that follows: audio-visual telecommunication would recording the hearing verbatim would a. In paragraph (b)(1), the words ‘‘or measurably increase the United States expedite the proceeding and the Judge herself’’ are added immediately after the Department of Agriculture’s cost of orders the hearing to be recorded word ‘‘himself’’. conducting the hearing, the hearing verbatim. The Judge shall certify that to b. In paragraph (b)(2), the word ‘‘he’’ shall be conducted by personal the best of his or her knowledge and is removed and the words ‘‘the Judge’’ attendance of any individual who is belief any recording made pursuant to added in its place. expected to participate in the hearing or this paragraph with exhibits that were c. In paragraph (b)(2), the words ‘‘or by telephone. accepted into evidence is the record of herself’’ are added immediately after the (4) The Judge may, in his or her sole the hearing. word ‘‘himself’’. discretion or in response to a motion by (2) If a hearing is recorded verbatim, d. In paragraph (d), in the a party to the proceeding, conduct the a party requests the transcript of a introductory language, the words ‘‘or hearing by telephone if the Judge finds hearing or part of a hearing, and the her,’’ are added immediately after the that a hearing conducted by telephone: Judge determines that the disposition of word ‘‘him’’. (i) Would provide a full and fair the proceeding would be expedited by e. Paragraph (d)(2) is revised to read evidentiary hearing; a transcript of the hearing or part of a as set forth below. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8459 f. Paragraph (d)(7) is redesignated as § 47.3 [Amended] g. In paragraph (d), the word ‘‘him’’ is paragraph (d)(9). 29. Section 47.3 is amended as removed and the words ‘‘the examiner’’ g. New paragraphs (d)(7) and (d)(8) follows: added in its place. are added to read as set forth below. a. In paragraph (b)(1), in the first h. In paragraph (e), the word ‘‘his’’ is sentence, the word ‘‘his’’ is removed § 47.11 Examiners. removed and the words ‘‘the Judge’s’’ and the words ‘‘the Director’s’’ added in * * * * * added in its place. its place. (c) * * * i. In paragraph (e), the word ‘‘him’’ is b. Paragraph (c) is revised to read as (2) Set the time, place, and manner of removed and the words ‘‘the Judge’’ are follows: the hearing, adjourn the hearing, and added in its place both times the word change the time, place, and manner of ‘‘him’’ appears. § 47.3 Institution of proceedings. the hearing; * * * * * * * * * * § 1.173 Judges. (c) Status of person filing informal (9) Require each party to provide all * * * * * complaint. The person filing an other parties and the examiner with a (d) * * * informal reparation complaint shall not copy of any exhibit that the party (2) Set the time, place, and manner of be a party to any disciplinary intends to introduce into evidence prior any conference, set the manner of the proceeding which may be instituted as to any hearing to be conducted by hearing, adjourn the hearing, and a result of the informal reparation telephone or audio-visual change the time, place, and manner of complaint. The person filing an telecommunication; the hearing; informal reparation complaint shall (10) Require each party to provide all * * * * * have no legal status in the reparation other parties with a copy of any (7) Require each party to provide all proceeding, except as he or she may be document that the party intends to use other parties and the Judge with a copy subpoenaed as a witness or deposed to examine a deponent prior to any of any exhibit that the party intends to without expense to him or her. deposition to be conducted by introduce into evidence prior to any § 47.4 [Amended] telephone or audio-visual hearing to be conducted by telephone or telecommunication; audio-visual telecommunication; 30. In section 47.4, paragraph (b)(2) is (8) Require that any hearing to be amended by removing the words ‘‘of (11) Require that any hearing to be conducted by telephone or audio-visual this part’’. conducted by telephone or audio-visual telecommunication be conducted at telecommunication be conducted at § 47.5 [Amended] locations at which the parties and the locations at which the parties and the 31. Section 47.5 is amended by Judge are able to transmit and receive examiner are able to transmit and removing the words ‘‘of these documents during the hearing; receive documents during the hearing; regulations in this part’’ and ‘‘of the (12) Require that any deposition to be * * * * * regulations in this part’’ and revising the conducted by telephone or audio-visual § 1.174 [Amended] last sentence to read as follows: telecommunication be conducted at 26. In § 1.174, paragraph (c) is § 47.5 Scope and applicability of rules of locations at which the parties are able amended by adding the words ‘‘or practice. to transmit and receive documents recording’’ immediately after the word * * * In addition, except to the extent during the deposition; ‘‘transcript’’. that they are inconsistent with §§ 1.130 * * * * * SUBTITLE BÐREGULATIONS OF THE through 1.151 of this chapter, §§ 47.1 § 47.12 [Amended] DEPARTMENT OF AGRICULTURE through 47.5 and 47.46 are also applicable to procedures governing the 33. Section 47.12 is amended by CHAPTER IÐAGRICULTURAL MARKETING removing the word ‘‘he’’ and adding the SERVICE filing and disposition of formal complaints and other moving papers words ‘‘the petitioner’’ each of the three times the word ‘‘he’’ appears. PART 47ÐRULES OF PRACTICE relating to administrative proceedings to UNDER THE PERISHABLE enforce the Act pursuant to §§ 1.130 § 47.13 [Amended] through 1.151 of this chapter. AGRICULTURAL COMMODITIES ACT 34. Section 47.13 is amended as 27. The authority citation for part 47 § 47.11 [Amended] follows: is revised to read as follows: 32. Section 47.11 is amended as a. In paragraph (a)(1), the words ‘‘or Authority: 7 U.S.C. 499o; 7 CFR follows: recording’’ are added immediately after 2.17(a)(8)(xiii), 2.50(a)(8)(xiii). a. In paragraph (b), in the second the word ‘‘transcript’’. sentence, the word ‘‘he’’ is removed and b. Paragraph (b) is revised to read as § 47.2 [Amended] the words ‘‘the Secretary’’ are added in follows: 28. Section 47.2 is amended as its place. § 47.13 Motions and requests. follows: b. In paragraph (c), in the introductory a. In paragraph (c), the words ‘‘or her’’ language, the words ‘‘elsewhere in the * * * * * are added immediately after the word regulations’’ are removed. (b) Certification to the Secretary. The ‘‘his’’. c. In paragraph (c), in the introductory submission or certification of any b. In paragraph (e), the words ‘‘or her’’ language, the words ‘‘or her’’ are added motion, request, objection, or other are added immediately after the word immediately after the word ‘‘him’’. question to the Secretary prior to ‘‘his’’. d. Paragraph (c)(2) is revised to read transmittal of the record to the Secretary c. In paragraph (f), the words ‘‘or her’’ as set forth below. as provided in this part shall be made are added immediately after the word e. Paragraph (c)(9) is redesignated as by and in the discretion of the examiner. ‘‘his’’. (c)(13). The examiner may either rule upon or d. In paragraph (h), the words ‘‘or f. New paragraphs (c)(9), (c)(10), certify the motion, request, objection, or her’’ are added immediately after the (c)(11), and (c)(12) are added to read as other question to the Secretary, but not word ‘‘his’’. set forth below. both. 8460 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations § 47.14 [Amended] (i) Is necessary to prevent prejudice to visual telecommunication, or personal 35. Section 47.14 is revised to read as a party; attendance of any individual expected follows: (ii) Is necessary because of a disability to participate in the hearing and the (a) In any proceeding in which it of any individual expected to examiner’s determination regarding the appears that a conference will expedite participate in the conference; or manner of the hearing shall be made in the proceeding, the examiner, at any (iii) Would cost less than conducting accordance with paragraphs (c)(3) and time prior to or during the course of the the conference by audio-visual (c)(4) of this section. If any change in oral hearing, may request the parties or telecommunication. the time, place, or manner of the hearing is made, the examiner shall file with the their counsel to appear at a conference § 47.15 [Amended] before the examiner to consider: hearing clerk a notice of the change. The (1) The simplification of the issues; 36. Section 47.15 is amended as notice of any change in the time, place, (2) The necessity or the desirability of follows: or manner of the hearing shall be served a. Paragraph (c) is revised to read as amendments to the pleadings; on the parties, unless it is made during set forth below. (3) The possibility of obtaining the course of an oral hearing and made b. In paragraph (d)(2), the word ‘‘he’’ stipulations of fact and of documents part of the transcript or recording, or is removed and the words ‘‘the party’’ which will avoid unnecessary proof; actual notice is given to the parties. are added in its place. (4) The limitation of the number of (2)(i) If and when the proceeding has c. In paragraph (d)(2), the words ‘‘or expert or other witnesses; or reached the stage of oral hearing, any her’’ are added immediately after the (5) Such other matters as may party may move that the hearing be word ‘‘his’’. expedite and aid in the disposition of conducted by telephone or personal d. In paragraph (d)(3)(i), the words ‘‘or attendance of any individual expected the proceeding. her’’ are added immediately after the (b) No transcript or recording of the to attend the hearing rather than by word ‘‘him’’. audio-visual telecommunication. Any conference shall be made. If the e. In paragraph (f)(2)(i), the word ‘‘he’’ motion that the hearing be conducted by conference is conducted by is removed and the words ‘‘the party’’ telephone or personal attendance of any correspondence, the examiner shall are added in its place. individual expected to attend the forward copies of letters and documents f. In paragraphs (f)(2)(i), the words ‘‘or hearing must be accompanied by a to the parties as circumstances require. recording’’ are added immediately after memorandum in support of the motion The correspondence in connection with the word ‘‘transcript’’ both times the stating the basis for the motion and the a conference shall not be part of the word ‘‘transcript’’ appears. circumstances that require the hearing record. The examiner shall prepare and g. In paragraph (f)(6)(ii), ‘‘recording,’’ to be conducted other than by audio- file for the record a written summary of is added immediately after ‘‘document,’’ visual telecommunication. the action agreed upon or taken at the both times ‘‘document,’’ appears. conference, which shall incorporate any h. In paragraph (f)(8), the words ‘‘or (ii) Within 10 days after the examiner written stipulations or agreements made recording’’ are added immediately after issues a notice stating the manner in by the parties at the conference or as a the word ‘‘transcript’’ the three times which the hearing is to be conducted, result of the conference. the word ‘‘transcript’’ appears. any party may move that the examiner (c) Manner of the Conference. (1) The i. In paragraph (g), in the first reconsider the manner in which the conference shall be conducted by sentence, the words ‘‘hereinafter hearing is to be conducted. Any motion telephone or correspondence unless the provided’’ are removed and the words for reconsideration must be examiner determines that conducting ‘‘provided in this part’’ are added in accompanied by a memorandum in the conference by audio-visual their place. support of the motion stating the basis telecommunication: j. In paragraph (g), in the second for the motion and the circumstances (i) Is necessary to prevent prejudice to sentence, the word ‘‘he’’ is removed and that require the hearing to be conducted a party; the words ‘‘the examiner’’ are added in other than in accordance with the (ii) Is necessary because of a disability its place. examiner’s notice. of any individual expected to k. Paragraphs (f), (g), and (h) are (3) The hearing shall be conducted by participate in the conference; or redesignated as (g), (h), and (i) audio-visual telecommunication unless (iii) Would cost less than conducting respectively. the examiner determines that the conference by telephone or l. A new paragraph (f) is added to read conducting the hearing by personal correspondence. If the examiner as set forth below. attendance of any individual expected determines that a conference conducted m. Redesignated paragraph (i) is to attend the hearing: by audio-visual telecommunication revised to read as set forth below. (i) Is necessary to prevent prejudice to would measurably increase the United a party; States Department of Agriculture’s cost § 47.15 Oral hearing before examiner. (ii) Is necessary because of a disability of conducting the conference, the * * * * * of any individual expected to conference shall be conducted by (c) Time, place, and manner. (1) If participate in the hearing; or personal attendance of any individual and when the proceeding has reached (iii) Would cost less than conducting who is expected to participate in the the stage of oral hearing, the examiner, the hearing by audio-visual conference, by telephone, or by giving careful consideration to the telecommunication. If the examiner correspondence. convenience of the parties, shall set a determines that a hearing conducted by (2) If the conference is not conducted time for hearing and shall file with the audio-visual telecommunication would by telephone or correspondence, the hearing clerk a notice stating the time measurably increase the United States conference shall be conducted by audio- and place of hearing. Unless the parties Department of Agriculture’s cost of visual telecommunication unless the otherwise agree, the place of the hearing conducting the hearing, the hearing examiner determines that conducting shall be the place in which the shall be conducted by personal the conference by personal attendance respondent is engaged in business. This attendance of any individual who is of any individual who is expected to notice shall state whether the hearing expected to participate in the hearing or participate in the conference: will be conducted by telephone, audio- by telephone. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8461 (4) The examiner may, in his or her examiner determines that the be served by the hearing clerk upon the sole discretion or in response to a disposition of the proceeding would be parties in accordance with § 47.4. motion by a party to the proceeding, expedited by a transcript of the hearing (2) The order shall state: conduct the hearing by telephone if the or part of a hearing, the examiner shall (i) The time of the deposition (which examiner finds that a hearing conducted order the verbatim transcription of the unless otherwise agreed shall not be less by telephone: recording as requested by the party. than 20 days after the filing of the (i) Would provide a full and fair (3) If a reporter transcribes or records order); evidentiary hearing; the testimony at a hearing, the reporter (ii) The place of the deposition; (ii) Would not prejudice any party; shall deliver the original transcript or (iii) The manner of the deposition and recording, with exhibits thereto (telephone, audio-visual (iii) Would cost less than conducting attached, to the examiner, who will telecommunication, or personal the hearing by audio-visual retain such copy for the official file and attendance of those who are to telecommunication or personal for use in preparing his or her report. participate in the deposition); attendance of any individual who is The reporter will also deliver to the (iv) The name of the officer before expected to participate in the hearing. examiner such other copy or copies as whom the deposition is to be made; and * * * * * may be ordered by the Department, (v) The name of the deponent. (f) Written statements of direct which copy or copies the examiner will (3) The deposition shall be conducted testimony. (1) Except as provided in forward to the hearing clerk. in the manner (telephone, audio-visual paragraph (f)(2) of this section, each (4) Parties to the proceeding, or telecommunication, or personal party must exchange with all other others, who desire a copy of the attendance of those who are to parties a written narrative verified transcript or recording of the hearing participate in the deposition) agreed to statement of the oral direct testimony may place orders at the hearing with the by the parties. that the party will provide at any reporter, who will furnish and deliver (4) If the parties cannot agree on the hearing to be conducted by telephone; such copies direct to the purchaser manner in which the deposition is to be the direct testimony of each employee upon payment of the applicable rate. conducted: or agent of the party that the party will * * * * * (i) The deposition shall be conducted call to provide oral direct testimony at § 47.16 [Amended] by telephone unless the examiner any hearing to be conducted by determines that conducting the telephone; and the direct testimony of 37. Section 47.16 is amended as deposition by audio-visual each expert witness that the party will follows: telecommunication: call to provide oral direct testimony at a. Paragraphs (a)(3) and (a)(4) are (A) Is necessary to prevent prejudice any hearing to be conducted by revised and (a)(5) and (a)(6) are added to a party; telephone. The written direct testimony to read as set forth below. (B) Is necessary because of a disability of witnesses shall be exchanged by the b. Paragraph (b) is revised to read as of any individual expected to parties at least 10 days prior to the set forth below. participate in the deposition; or hearing. The oral direct testimony c. Paragraph (d)(1) is revised to read (C) Would cost less than conducting provided by a witness at a hearing as set forth below. the deposition by telephone. conducted by telephone will be limited d. In paragraph (e), in the first (ii) If the deposition is not conducted to the presentation of the written direct sentence, the word ‘‘him’’ is removed testimony, unless the examiner finds by telephone, the deposition shall be and the words ‘‘the officer’’ added in its conducted by audio-visual that oral direct testimony which is place. supplemental to the written direct telecommunication unless the examiner e. In paragraph (e), in the second determines that conducting the testimony would further the public sentence, the word ‘‘He’’ is removed and interest and would not constitute deposition by personal attendance of the words ‘‘The officer’’ added in its any individual who is expected to surprise. place. (2) The parties shall not be required participate in the deposition: to exchange testimony in accordance § 47.16 Depositions. (A) Is necessary to prevent prejudice to a party; with this paragraph if the hearing is (a) * * * scheduled to begin less than 20 days (3) the proposed time of the (B) Is necessary because of a disability after the examiner’s notice stating the deposition which, unless otherwise of any individual expected to time of the hearing. agreed, shall be at least 30 days after the participate in the deposition; or (C) Would cost less than conducting * * * * * date of the mailing of the application; the deposition by telephone or audio- (i) Transcript or recording. (1) (4) the proposed place of the deposition; visual telecommunication. Hearings to be conducted by telephone (5) the proposed manner in which the shall be recorded verbatim by electronic deposition is to be conducted * * * * * recording device. Hearings conducted (telephone, audio-visual (d) Procedure on examination. (1) The by audio-visual telecommunication or telecommunication, or by personal deponent shall be examined under oath the personal attendance of any attendance of the individuals who are or affirmation and shall be subject to individual who is expected to expected to participate in the cross-examination. The testimony of the participate in the hearing shall be deposition); and (6) the reasons for deponent shall be recorded by the transcribed, unless the examiner finds taking the deposition. officer or some person under the that recording the hearing verbatim (b) Examiner’s order for taking officer’s direction. In lieu of oral would expedite the proceeding and the deposition. (1) If, after examination of examination, parties may transmit examiner orders the hearing to be the application, the examiner is of the written questions to the officer prior to recorded verbatim. opinion that the deposition should be examination and the officer shall (2) If a hearing is recorded verbatim, taken, the examiner shall order the propound the written questions to the a party requests the transcript of a taking of the deposition. The order shall deponent. hearing or part of a hearing, and the be filed with the hearing clerk and shall * * * * * 8462 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations § 47.17 [Amended] of the three times the word ‘‘he’’ hearing by the personal attendance of 38. In § 47.17, paragraph (c), the last appears; and by adding the words ‘‘or any individual expected to attend the sentence is amended by removing the her’’ immediately after the word ‘‘his’’ hearing: words ‘‘of this part’’. each of the three times the word ‘‘his’’ (i) Is necessary to prevent prejudice to appears. a party; § 47.19 [Amended] (ii) Is necessary because of a disability 39. Section 47.19 is amended as § 47.24 [Amended] of any individual expected to follows: 44. In § 47.24, paragraph (a) is participate in the hearing; or a. In paragraph (a), the heading is amended by removing the word ‘‘he’’ (iii) Would cost less than conducting revised to read ‘‘Certification of and adding the words ‘‘the Secretary’’ in the hearing by audio-visual transcript or recording.’’. its place both times the word ‘‘he’’ telecommunication. If the presiding b. In paragraph (a), the words ‘‘or appears. officer determines that a hearing recording’’ are added immediately after conducted by audio-visual § 47.25 [Amended] the word ‘‘transcript’’ each of the five telecommunication would measurably times the word ‘‘transcript’’ appears. 45. In § 47.25, paragraph (e) is increase the United States Department c. In paragraph (a), the words ‘‘or her’’ amended by removing the words ‘‘the of Agriculture’s cost of conducting the are added immediately after the word regulations in’’, and by adding the hearing, the hearing shall be conducted ‘‘his’’ both times time the word ‘‘his’’ words ‘‘or her’’ immediately after the by personal attendance of any appears. word ‘‘him’’. individual who is expected to d. In paragraph (a) the word ‘‘he’’ is § 47.46 [Amended] participate in the hearing or by removed and the words ‘‘the examiner’’ 46. Section 47.46 is amended by telephone. added in its place both times the word (3) The presiding officer may, in his removing the word ‘‘he’’ and adding the ‘‘he’’ appears. or her sole discretion or in response to words ‘‘the Secretary’’ both times the e. In paragraph (b), in the second a motion by a party to the proceeding, word ‘‘he’’ appears; and adding the sentence, the words ‘‘or she’’ are added conduct the hearing by telephone if the words ‘‘or her’’ immediately after the immediately after the word ‘‘he’’. presiding officer finds that a hearing word ‘‘his’’. f. In paragraph (d)(3), the word ‘‘his’’ conducted by telephone: is removed and the words ‘‘the party’s’’ § 47.47 [Amended] (i) Would provide a full and fair are added in its place. 47. Section 47.47 is amended as evidentiary hearing; g. In paragraph (d)(6), in the first follows: (ii) Would not prejudice any party; sentence, the words ‘‘or her’’ are added a. In the introductory language, the and immediately after the word ‘‘his’’. reference to ‘‘7 CFR 47.2 (a) through (h)’’ (iii) Would cost less than conducting h. In paragraph (e), the words ‘‘or her’’ is removed and ‘‘§§ 47.2 (a) through (h)’’ the hearing by audio-visual are added immediately after the word added in its place. telecommunication or personal ‘‘his’’. b. In the introductory language, the attendance of any individual who is § 47.20 [Amended] reference to ‘‘7 CFR 47.47 through expected to participate in the hearing. 40. Section 47.20 is amended as 47.68’’ is removed and ‘‘§§ 47.47 § 47.53 [Amended] through 47.68’’ added in its place. follows: 49. Section 47.53 is revised to read as a. In paragraph (b)(2), the words ‘‘or c. Section 47.47 is amended by removing all paragraph designations follows: she’’ are added immediately after the § 47.53 Notice of time, place, and and placing the definitions in word ‘‘he’’ both times the word ‘‘he’’ manner of hearing and provision of the alphabetical order. appears. official file. b. In paragraph (h), ‘‘(or she)’’ is § 47.49 [Amended] (a) Upon assignment of the matter for added immediately after the word ‘‘he’’ 48. In section 47.49, paragraph (f) is oral hearing, the presiding officer shall both times the word ‘‘he’’ appears. revised to read as follows: notify the parties by serving them with c. In paragraph (k), the words ‘‘or her’’ copies of the notice of hearing, stating are added immediately after the word § 47.49 Determinations. the time and place of the hearing. The ‘‘his’’. * * * * * notice shall state whether the oral d. In paragraph (l), the words ‘‘or her’’ (f)(1) The presiding officer will order hearing will be conducted by telephone, are added immediately after the word that an oral hearing be held if one is audio-visual telecommunication, or ‘‘his’’. requested by the petitioner, or if the personal attendance of any individual § 47.21 [Amended] presiding officer determines that an oral expected to attend the hearing, and the presiding officer’s determination 41. Section 47.21 is amended by hearing is necessary. A verbatim record regarding the manner of the hearing adding the words ‘‘or recording’’ shall be made of the hearing. In the shall be made in accordance with immediately after the word ‘‘transcript’’ event that an oral hearing is neither § 47.49(f)(2) and § 47.49(f)(3). The and by removing the word requested by the petitioner, nor ordered parties will be notified as soon as ‘‘prehearing’’. by the presiding officer, the presiding officer shall provide the petitioner a possible of any change in the time, § 47.22 [Amended] copy of the official file, and give the place, or manner of the hearing. 42. In § 47.22, paragraph (a) is parties an opportunity to submit (b) If the presiding officer orders an amended by removing the reference to documents and other evidence to oral hearing, any party may move that ‘‘§ 47.15(g)’’ and adding ‘‘§ 47.15(h)’’ in support their positions, as well as the hearing be conducted by telephone its place. written arguments pertaining to their or personal attendance of any individual positions. expected to attend the hearing rather § 47.23 [Amended] (2) If an oral hearing is held, it shall than by audio-visual 43. Section 47.23 is amended by be conducted by audio-visual telecommunication. Any motion that removing the word ‘‘he’’ and adding the telecommunication unless the presiding the hearing be conducted by telephone words ‘‘the Secretary’’ in its place each officer determines that conducting the or personal attendance of any individual Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8463 expected to attend the hearing must be the word ‘‘transcript’’ both times the shall be transcribed, unless the accompanied by a memorandum in word ‘‘transcript’’ appears. presiding officer finds that recording the support of the motion stating the basis c. Paragraphs (a), (b), (c), (d), (e), and hearing verbatim would expedite the for the motion and the circumstances (f) are redesignated as (b), (c), (d), (e), (f), proceeding and the presiding officer that require the hearing to be conducted and (g) respectively. orders the hearing to be recorded other than by audio-visual d. A new paragraph (a) is added to verbatim. The presiding officer shall telecommunication. read as follows: certify that to the best of his or her (c) Within 10 days after the presiding knowledge and belief any recording officer issues a notice stating the § 47.58 Evidence. made pursuant to this paragraph with manner in which the hearing is to be (a) Written statements of direct exhibits that were accepted into conducted, any party may move that the testimony. (1) Except as provided in evidence is the record of the hearing. presiding officer reconsider the manner paragraph (a)(2) of this section, each (b) If a hearing is recorded verbatim, in which the hearing is to be conducted. party must exchange with all other a party requests the transcript of a Any motion for reconsideration must be parties a written narrative verified hearing or part of a hearing, and the accompanied by a memorandum in statement of the oral direct testimony presiding officer determines that the support of the motion stating the basis that the party will provide at any disposition of the proceeding would be for the motion and the circumstances hearing to be conducted by telephone; expedited by a transcript of the hearing that require the hearing to be conducted the direct testimony of each employee or part of a hearing, the presiding officer other than in accordance with the or agent of the party that the party will shall order the verbatim transcription of presiding officer’s notice. call to provide oral direct testimony at the recording as requested by the party. (d) Upon assignment of the matter for any hearing to be conducted by (c) Parties to the proceeding who oral hearing, the presiding officer shall telephone; and the direct testimony of desire a copy of the transcript or make the official file a part of the each expert witness that the party will recording of the hearing may place records of the proceeding and shall call to provide oral direct testimony at orders at the hearing with the reporter provide the petitioner with a copy of the any hearing to be conducted by who will furnish and deliver such official file. telephone. The written direct testimony copies direct to the purchaser upon of witnesses shall be exchanged by the payment therefore at the rate provided § 47.56 [Amended] parties at least 10 days prior to the by the contract between the reporter and 50. Section 47.56 is amended as hearing. The oral direct testimony the Department for such reporting follows: provided by a witness at a hearing services. a. Paragraph (b) is revised to read as conducted by telephone will be limited § 47.62 [Amended] set forth below. to the presentation of the written direct b. Paragraphs (g) and (h) are testimony, unless the presiding officer 54. In § 47.62, the last sentence is redesignated as paragraphs (i) and (j) finds that oral direct testimony which is amended by removing the words ‘‘of respectively. supplemental to the written direct this part’’. c. New paragraphs (g) and (h) are testimony would further the public added to read as set forth below. PART 50ÐRULES OF PRACTICE interest and would not constitute GOVERNING WITHDRAWAL OF § 47.56 Powers of presiding officer. surprise. INSPECTION AND GRADING (2) The parties shall not be required SERVICES * * * * * to exchange testimony in accordance (b) Set the time, place, and manner of with this paragraph if the hearing is 55. The authority citation for part 50 the hearing, adjourn the hearing, and scheduled to begin less than 20 days is revised to read as follows: change the time, place, and manner of after the presiding officer’s notice the hearing; Authority: 7 U.S.C. 1621 et seq.; 7 CFR stating the time of the hearing. 2.35, 2.41. * * * * * * * * * * (g) Require each party to provide all 56. Part 50 is revised to read as other parties and the presiding officer § 47.59 [Amended] follows: with a copy of any exhibit that the party 52. Section 47.59 is amended as PART 50ÐRULES OF PRACTICE intends to introduce into evidence prior follows: GOVERNING WITHDRAWAL OF to any hearing to be conducted by a. The section heading is revised to INSPECTION AND GRADING telephone or audio-visual read ‘‘Filing transcripts or recordings SERVICES telecommunication; and exhibits.’’ (h) Require that any hearing to be b. In section 47.59, the words ‘‘or Subpart AÐGeneral conducted by telephone or audio-visual recording’’ are added immediately after Sec. telecommunication be conducted at the word ‘‘transcript’’ each of the five 50.1 Scope and applicability of rules of locations at which the parties and the times the word ‘‘transcript’’ appears. practice. presiding officer are able to transmit and Subpart BÐSupplemental Rules of Practice receive documents during the hearing; § 47.60 [Amended] 53. Section 47.60 is revised to read as 50.10 Definitions. * * * * * 50.11 Conditional withdrawal of service. follows: § 47.58 [Amended] 50.12 Summary suspension of service. § 47.60 Transcript or recording. 51. Section 47.58 is amended as Subpart AÐGeneral follows: (a) Hearings to be conducted by a. In paragraph (b), the words ‘‘or telephone shall be recorded verbatim by § 50.1 Scope and applicability of rules of recording’’ are added immediately after electronic recording device. Hearings practice. the word ‘‘transcript’’ both times the conducted by audio-visual (a) The Rules of Practice Governing word ‘‘transcript’’ appears. telecommunication or the personal Formal Adjudicatory Proceedings b. In paragraph (f), the words ‘‘or attendance of any individual who is Instituted by the Secretary Under recording’’ are added immediately after expected to participate in the hearing Various Statutes set forth in §§ 1.130 8464 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations through 1.151 of this title are rules of for the withdrawal has already been PART 53±LIVESTOCK (GRADING, practice applicable to adjudicatory corrected. CERTIFICATION, AND STANDARDS) proceedings under the regulations promulgated under 7 U.S.C. 1621 et seq. § 50.12 Summary suspension of service. 61. The authority citation for part 53 is revised to read as follows: for denial or withdrawal of inspection, (a) General. In any situation in which certification, or grading service. In the integrity of grading or inspection Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50. addition, the supplemental rules of service would be jeopardized if the practice in subpart B of this part shall grading or inspection service were § 53.13 [Amended] be applicable to adjudicatory continued pending a decision in a 62. In § 53.13, paragraph (a)(2) is proceedings under the regulations proceeding to withdraw grading or revised to read as follows: promulgated under 7 U.S.C. 1621 et seq. inspection service, such service to the for denial or withdrawal of inspection, respondent may be suspended effective § 53.13 Denial or withdrawal of service. certification, or grading service. on the third day after mailing of a (a) * * * (b) Neither the rules of practice in written notice of the suspension of (2) Procedure. All cases arising under this paragraph shall be conducted in §§ 1.130 through 1.151 of this title nor service to the respondent’s last known accordance with the Rules of Practice the supplemental rules of practice in address or designated address or upon Governing Formal Adjudicatory subpart B of this part modify existing actual receipt of the written notice, Proceedings Instituted by the Secretary procedures for refusing to inspect, whichever is earlier. grade, or certify a specific lot of a Under Various Statutes set forth in product because of adulteration, (b) Actual or threatened physical §§ 1.130 through 1.151 of this title and improper preparation of the lot for violence. In any case of actual or the Supplemental Rules of Practice in grading, improper presentation of the lot threatened physical violence to an part 50 of this chapter. for grading, or because of failure to inspector or grader, grading and * * * * * comply with any similar requirements inspection services to the respondent set forth in applicable regulations. may be suspended prior to the PART 54ÐMEATS, PREPARED transmittal of the written notice of MEATS, AND MEAT PRODUCTS Subpart BÐSupplemental Rules of suspension to the respondent. A written (GRADING, CERTIFICATION, AND Practice notice shall be given as promptly as STANDARDS) circumstances permit. § 50.10 Definitions. 63. The authority citation for part 54 Director. The Director of the Division PART 51 [AMENDED] is revised to read as follows: or any employee of the Division to Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, whom authority to act in his or her 57. The authority citation for part 51 2.50. stead is delegated. is revised to read as follows: § 54.11 [Amended] Division. The Division of the Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 64. In § 54.11, paragraph (a)(2) is Agricultural Marketing Service, United 2.50; unless otherwise noted. revised to read as follows: States Department of Agriculture, initiating the withdrawal of inspection, § 51.46 [Amended] § 54.11 Denial or withdrawal of service. certification, or grading service. 58. Section 51.46 is amended by (a) * * * (2) Procedure. All cases arising under Mailing. Depositing an item in the revising the last sentence to read ‘‘The this paragraph shall be conducted in United States mail with postage affixed Rules of Practice Governing Formal accordance with the Rules of Practice and addressed as necessary to cause the Adjudicatory Proceedings Instituted by item to be delivered to the address Governing Formal Adjudicatory the Secretary Under Various Statutes set Proceedings Instituted by the Secretary shown by ordinary mail, certified mail, forth in §§ 1.130 through 1.151 of this or registered mail. Under Various Statutes set forth in title and the Supplemental Rules of §§ 1.130 through 1.151 of this title and § 50.11 Conditional withdrawal of service. Practice in part 50 of this chapter shall the Supplemental Rules of Practice in govern proceedings conducted pursuant (a) The Director may withdraw part 50 of this chapter. to this section.’’ grading or inspection service from a * * * * * person for correctable cause. The PART 52 [AMENDED] grading or inspection service PART 97ÐPLANT VARIETY PROTECTION withdrawn, after appropriate corrective 59. The authority citation for part 52 action is taken, will be restored is revised to read as follows: 65. The authority citation for part 97 immediately, or as soon thereafter as a is revised to read as follows: grader or inspector can be made Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, available. 2.50. Authority: 7 U.S.C. 2321, 2326, 2352, 2353, 2356, 2371, 2402(b), 2403, 2426, 2427, (b) Written notice of withdrawal of § 52.54 [Amended] 2501(c); 7 CFR 2.17, 2.50. grading or inspection service under this section shall be given to the person from 60. In § 52.54, paragraph (a) is § 97.300 [Amended] whom grading or inspection services amended by revising the last sentence to 66. In § 97.300, paragraph (d), the last will be withdrawn in advance of read ‘‘The Rules of Practice Governing sentence is revised to read ‘‘If a formal withdrawal, whenever it is feasible to Formal Adjudicatory Proceedings hearing is requested, the proceeding provide such an advance written notice. Instituted by the Secretary Under shall be conducted in accordance with If advance written notice is not given, Various Statutes set forth in §§ 1.130 the Rules of Practice Governing Formal the withdrawal action and the reasons through 1.151 of this title and the Adjudicatory Proceedings Instituted by for the withdrawal shall be confirmed as Supplemental Rules of Practice in part the Secretary Under Various Statutes set promptly as circumstances permit, 50 of this chapter shall be applicable to forth in §§ 1.130 through 1.151 of this unless the deficiency which is the basis such debarment action.’’ title.’’ Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8465 TITLE 9Ð[AMENDED] g. In paragraph (j), the word ‘‘therein’’ (C) Would cost less than conducting is removed and the words ‘‘in the the deposition by telephone. Chapter IIÐGrain Inspection, Packers and deposition’’ added in its place. (ii) If the deposition is not conducted Stockyards Administration (Packers and h. In paragraph (l), the words ‘‘or by telephone, the deposition shall be Stockyards Programs), Department of conducted by audio-visual Agriculture recording’’ are to be added immediately after the word ‘‘transcript’’ both times telecommunication unless the presiding 67. The heading of 9 CFR chapter II the word ‘‘transcript’’ appears. officer determines that conducting the is revised to read as set forth above. deposition by personal attendance of 68. In 9 CFR chapter II, consisting of § 202.109 Rule 9: Depositions. any individual who is expected to parts 200 to 205, all references to (a) * * * participate in the deposition: ‘‘Packers and Stockyards (5) if oral, a suggested time and place (A) Is necessary to prevent prejudice Administration’’ are revised to read where the proposed deposition is to be to a party; ‘‘Grain Inspection, Packers and made and a suggested manner in which (B) Is necessary because of a disability Stockyards Administration (Packers and the proposed deposition is to be of any individual expected to Stockyards Programs)’’ and all conducted (telephone, audio-visual participate in the deposition; or references to ‘‘P&SA’’ are revised to read telecommunication, or by personal (C) Would cost less than conducting ‘‘GIPSA’’. attendance of the individuals who are the deposition by telephone or audio- expected to participate in the visual telecommunication. PART 202ÐRULES OF PRACTICE deposition). The application for an * * * * * GOVERNING PROCEEDINGS UNDER order for the taking of testimony by THE PACKERS AND STOCKYARDS deposition shall be made in writing, § 202.110 [Amended] ACT unless it is made orally on the record at 74. Section 202.110 is amended as an oral hearing. follows: 69. The authority citation for part 202 a. In paragraph (a), the last sentence, * * * * * is revised to read as follows: the words ‘‘or recording’’ are added (d) Order. (1) The presiding officer, if immediately after the word ‘‘transcript’’. Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), satisfied that good cause for taking the 2.56. b. Paragraph (b) is revised to read as deposition is present, may order the set forth below. § 202.102 [Amended] taking of the deposition. (2) The order shall be served on the § 202.110 Rule 10: Prehearing Conference. 70. Section 202.102 is amended by parties and shall include: removing all paragraph designations * * * * * (i) The name and address of the (b) Manner of the prehearing and placing the definitions in officer before whom the deposition is to alphabetical order. conference. (1) The prehearing be made; conference shall be conducted by § 202.103 [Amended] (ii) The name of the deponent; telephone or correspondence unless the (iii) Whether the deposition will be 71. In § 202.103, paragraph (a), the presiding officer determines that oral or on written questions; conducting the prehearing conference second sentence is amended by (iv) If the deposition is oral, the removing the words ‘‘the provisions of’’. by audio-visual telecommunication: manner in which the deposition is to be (i) Is necessary to prevent prejudice to § 202.105 [Amended] conducted (telephone, audio-visual a party; 72. In § 202.105, paragraph (f)(2) is telecommunication, or personal (ii) Is necessary because of a disability amended by removing the words ‘‘of attendance of those who are to of any individual expected to this part’’. participate in the deposition); and participate in the prehearing conference; (v) The time, which shall not be less or § 202.109 [Amended] than 20 days after the issuance of the (iii) Would cost less than conducting 73. Section 202.109 is amended as order, and place. the prehearing conference by telephone follows: (3) The officer, time, place, and or correspondence. If the presiding a. Paragraph (a)(5) is revised to read manner of the deposition as stated in officer determines that a prehearing as set forth below. the presiding officer’s order need not be conference conducted by audio-visual the same as the officer, time, place, and b. In paragraph (c)(2), in the second telecommunication would measurably manner suggested in the application. increase the United States Department sentence, the word ‘‘pace’’ is removed (4) The deposition shall be conducted of Agriculture’s cost of conducting the and the word ‘‘place’’ is added in its in the manner (telephone, audio-visual prehearing conference, the prehearing place. telecommunication, or personal conference shall be conducted by c. Paragraph (d) is revised to read as attendance of those who are to personal attendance of any individual set forth below. participate in the deposition) agreed to who is expected to participate in the d. In paragraph (g), the words ‘‘or by the parties. prehearing conference, by telephone, or recording’’ are added immediately after (5) If the parties cannot agree on the by correspondence. the word ‘‘transcript’’ each of the four manner in which the deposition is to be (2) If the prehearing conference is not times the word ‘‘transcript’’ appears. conducted: conducted by telephone or e. In paragraph (h), the words ‘‘or (i) The deposition shall be conducted correspondence, the prehearing recording’’ are added immediately after by telephone unless the presiding conference shall be conducted by audio- the word ‘‘transcript’’ each of the four officer determines that conducting the visual telecommunication unless the times the word ‘‘transcript’’ appears. deposition by audio-visual presiding officer determines that f. In paragraph (i), the words ‘‘or telecommunication: conducting the prehearing conference recording’’ are added immediately after (A) Is necessary to prevent prejudice by personal attendance of any the word ‘‘transcript’’ each of the six to a party; individual who is expected to times the word ‘‘transcript’’ appears (B) Is necessary because of a disability participate in the prehearing conference: and, in the first sentence, the words of any individual expected to (i) Is necessary to prevent prejudice to ‘‘the provisions of’’ are removed. participate in the deposition; or a party; 8466 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations (ii) Is necessary because of a disability hearing is to be conducted shall be be conducted by telephone, audio-visual of any individual expected to determined in accordance with telecommunication, or personal participate in the prehearing conference; paragraphs (a)(3) and (a)(4) of this attendance of any individual expected or section. to participate in the hearing. If any (iii) Would cost less than conducting (2) The place shall be set in change is made in the time, place, or the prehearing conference by audio- accordance with paragraphs (e) and (f) manner of the oral hearing, a notice of visual telecommunication. of section 407 of the Act, if applicable. the change shall be served on each party In essence, under paragraphs (e) and (f) prior to the time of the oral hearing as § 202.112 [Amended] of section 407 of the Act, if the changed, unless the change is made 75. Section 202.112 is be amended as complainant and the respondent, or all during the course of an oral hearing and follows: of the parties, if there are more than shown in the transcript or on the a. Paragraph (a) is revised to read as two, have their principal places of recording. Any party may waive such set forth below. business or residence within a single notice, in writing, or orally on the b. Paragraph (b) is revised to read as unit of local government, a single record at an oral hearing and shown in set forth below. geographical area within a State, or a the transcript or on the recording. c. In paragraph (e)(2), in the second single State, the oral hearing is to be (2) If the presiding officer orders an sentence, the words ‘‘or recording’’ are held as near as possible to such places oral hearing, any party may move that added immediately after the word of business or residence, depending on the hearing be conducted by telephone ‘‘transcript’’, and the word ‘‘thereon’’ is the availability of an appropriate or personal attendance of any individual removed and the words ‘‘on objections’’ location for conducting the hearing. If expected to attend the hearing rather added in its place. the parties have such places of business than by audio-visual d. In paragraph (e)(3), the words ‘‘or or residence distant from each other, telecommunication. Any motion that recording’’ are added immediately after then paragraphs (e) and (f) of section the hearing be conducted by telephone the word ‘‘transcript’’ both times the 407 of the Act are not applicable. or personal attendance of any individual word ‘‘transcript’’ appears. (3) The oral hearing shall be expected to attend the hearing must be e. In paragraph (e)(5), the word conducted by audio-visual accompanied by a memorandum in ‘‘thereof’’ is removed and the words ‘‘of telecommunication unless the presiding support of the motion stating the basis the Department’’ added in its place, and officer determines that conducting the for the motion and the circumstances the word ‘‘therein’’ is removed and the oral hearing by personal attendance of that require the hearing to be conducted words ‘‘in the record of the Department’’ any individual who is expected to other than by audio-visual added in its place. participate in the hearing: telecommunication. f. Paragraphs (e), (f), (g), (h), (i), and (i) Is necessary to prevent prejudice to (3) Within 10 days after the presiding (j) are redesignated as (f), (g), (h), (i), (j), a party; officer issues a notice stating the and (k) respectively. (ii) Is necessary because of a disability manner in which the hearing is to be g. New paragraph (e) is added to read of any individual expected to conducted, any party may move that the as set forth below. participate in the hearing; or presiding officer reconsider the manner h. Redesignated paragraph (i) is (iii) Would cost less than conducting in which the hearing is to be conducted. revised to read as set forth below. the hearing by audio-visual Any motion for reconsideration must be i. In redesignated (j), the heading is telecommunication. If the presiding accompanied by a memorandum in revised to read ‘‘Filing, and presiding officer determines that a hearing support of the motion stating the basis officer’s certificate, of the transcript or conducted by audio-visual for the motion and the circumstances recording.’’; the words ‘‘or recording’’ telecommunication would measurably that require the hearing to be conducted are added immediately after the word increase the United States Department other than in accordance with the ‘‘transcript’’ each of the 10 times the of Agriculture’s cost of conducting the presiding officer’s notice. word ‘‘transcript’’ appears; and the hearing, the hearing shall be conducted words ‘‘or recorded’’ are added by personal attendance of any * * * * * immediately after the word individual who is expected to (e) Written statements of direct ‘‘transcribed’’. participate in the hearing or by testimony. (1) Except as provided in j. In redesignated paragraph (k), the telephone. paragraph (e)(2) of this section, each heading is revised to read ‘‘Keeping of (4) The presiding officer may, in his party must exchange with all other copies of the transcript or recording.’’; or her sole discretion or in response to parties a written narrative verified and the words ‘‘or recording’’ are added a motion by a party to the proceeding, statement of the oral direct testimony immediately after the word ‘‘transcript’’ conduct the hearing by telephone if the that the party will provide at any each of the three times the word presiding officer finds that a hearing hearing to be conducted by telephone; ‘‘transcript’’ appears. conducted by telephone: the direct testimony of each employee (i) Would provide a full and fair or agent of the party that the party will § 202.112 Rule 12: Oral hearing. evidentiary hearing; call to provide oral direct testimony at (a) Time, place, and manner. (1) If (ii) Would not prejudice any party; any hearing to be conducted by and when the proceeding has reached and telephone; and the direct testimony of the stage where an oral hearing is to be (iii) Would cost less than conducting each expert witness that the party will held, the presiding officer shall set a the hearing by audio-visual call to provide oral direct testimony at time, place, and manner for oral telecommunication or personal any hearing to be conducted by hearing. The time shall be set based attendance of any individual who is telephone. The written direct testimony upon careful consideration to the expected to participate in the hearing. of witnesses shall be exchanged by the convenience of the parties. The place (b) Notice. (1) A notice stating the parties at least 10 days prior to the shall be set in accordance with time, place, and manner of oral hearing hearing. The oral direct testimony paragraph (a)(2) of this section and shall be served on each party prior to provided by a witness at a hearing careful consideration to the convenience the time of the oral hearing. The notice conducted by telephone will be limited of the parties. The manner in which the shall state whether the oral hearing will to the presentation of the written direct Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8467 testimony, unless the presiding officer (3) Parties to the proceeding who 202.118 Rule 18: Presiding officer. finds that oral direct testimony which is desire copies of the transcript or (a) * * * supplemental to the written direct recording of the oral hearing may make (1) Set the time, place, and manner of testimony would further the public arrangements with the reporter, who a prehearing conference and an oral interest and would not constitute will furnish and deliver such copies hearing, adjourn the oral hearing from surprise. direct to such parties, upon receipt from time to time, and change the time, place, (2) The parties shall not be required such parties of payment for the and manner of oral hearing; to exchange testimony in accordance transcript or recording, at the rate * * * * * with this paragraph if the hearing is provided by the contract between the (8) Require each party to provide all scheduled to begin less than 20 days reporter and the Department for such other parties and the presiding officer after the presiding officer’s notice reporting service. with a copy of any exhibit that the party stating the time of the hearing. * * * * * intends to introduce into evidence prior to any oral hearing to be conducted by * * * * * § 202.115 [Amended] (i) Transcript or recording. (1) telephone or audio-visual 76. Section 202.115 is amended as Hearings to be conducted by telephone telecommunication; follows: shall be recorded verbatim by electronic (9) Require each party to provide all a. Paragraph (b), the second sentence recording device. Hearings conducted other parties with a copy of any is amended by adding the words ‘‘or by audio-visual telecommunication or document that the party intends to use recording’’ immediately after the word the personal attendance of any to examine a deponent prior to any ‘‘transcript’’. individual who is expected to deposition to be conducted by b. Paragraph (d) is revised to read as participate in the hearing shall be telephone or audio-visual set forth below. transcribed, unless the presiding officer telecommunication; finds that recording the hearing § 202.115 Rule 15: Submission for final (10) Require that any hearing to be verbatim would expedite the proceeding consideration. conducted by telephone or audio-visual telecommunication be conducted at and the presiding officer orders the * * * * * locations at which the parties and the hearing to be recorded verbatim. The (d) Oral argument. There shall be no presiding officer are able to transmit and presiding officer shall certify that to the right to oral argument other than that receive documents during the hearing; best of his or her knowledge and belief provided in rule 12(h), § 202.112(h). any recording made pursuant to this (11) Require that any deposition to be paragraph with exhibits that were § 202.118 [Amended] conducted by telephone or audio-visual accepted into evidence is the record of 77. Section 202.118 is amended as telecommunication be conducted at the hearing. follows: locations at which the parties are able (2) If a hearing is recorded verbatim, a. Paragraph (a)(1) is revised to read to transmit and receive documents a party requests the transcript of a as set forth below. during the deposition; and hearing or part of a hearing, and the b. In paragraph (a)(7), the word ‘‘and’’ * * * * * presiding officer determines that the is removed. Done in Washington, D.C., this 31st day of disposition of the proceeding would be b. Paragraph (a)(8) is redesignated as January, 1995. expedited by a transcript of the hearing paragraph (a)(12). Richard E. Rominger, or part of a hearing, the presiding officer c. New paragraphs (a)(8), (a)(9), Acting Secretary of Agriculture. shall order the verbatim transcription of (a)(10), and (a)(11) are added to read as [FR Doc. 95–3464 Filed 2–13–95; 8:45 am] the recording as requested by the party. set forth below. BILLING CODE 3410±01±P federal register February 14,1995 Tuesday Groundfish; FinalRules 1995 HarvestSpecificationsof Fisheries InandOffofAlaska;Final Limited AccessManagementofFederal 50 CFRPart611,etal. Administration National OceanicandAtmospheric Commerce Department of Part III 8469 8470 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Kaja Reserves that are not reapportioned to Brix, NMFS, (907) 586–7228. DAP or JVP may be reapportioned to National Oceanic and Atmospheric TALFF according to § 672.20(d)(2). SUPPLEMENTARY INFORMATION: Administration The Council met from September 28 Background to October 5, 1994, and developed 50 CFR Parts 611, 672, and 676 NMFS announces for the 1995 fishing recommendations for proposed 1995 [Docket No. 950206041±5041±01; I.D. year: (1) Total allowable catch (TAC) TAC specifications for each species 112894A] amounts for each groundfish species category of groundfish on the basis of the best available scientific information. Groundfish of the Gulf of Alaska; category in the GOA and apportionments thereof among domestic The Council also recommended other Foreign Fishing; Limited Access management measures pertaining to the Management of Federal Fisheries In annual processing (DAP), joint venture processing (JVP), total allowable level of 1995 fishing year. Under and Off of Alaska; Final 1995 Harvest § 672.20(c)(1)(ii), proposed GOA Specifications of Groundfish foreign fishing (TALFF), and reserves; (2) apportionments of reserves to DAP; groundfish specifications and AGENCY: National Marine Fisheries (3) assignments of the sablefish TAC to specifications for prohibited species Service (NMFS), National Oceanic and authorized fishing gear users; (4) bycatch allowances for the groundfish Atmospheric Administration (NOAA), apportionments of pollock TAC among fishery of the GOA were published in Commerce. regulatory areas, seasons, and between the Federal Register on December 22, ACTION: Final 1995 harvest inshore and offshore components; (5) 1994 (59 FR 65990). Interim amounts of specifications of groundfish and apportionment of Pacific cod TAC one-fourth the proposed TAC levels associated management measures; between inshore and offshore were published in the Federal Register closures; request for comments. components; (6) ‘‘other species’’ TAC; on December 22, 1994 (59 FR 65975). (7) prohibited species catch (PSC) limits The final 1995 groundfish harvest SUMMARY: NMFS announces final 1995 relevant to fully utilized groundfish specifications and prohibited species harvest specifications for Gulf of Alaska species; (8) closures to directed fishing; bycatch allowances contained in this (GOA) groundfish and associated (9) Pacific halibut PSC mortality limits; action supersede the interim management measures. This action is and, (10) seasonal apportionments of the specifications. necessary to establish harvest limits and halibut PSC limits. A discussion of each The Council met on December 7–11, associated management measures for of these measures follows. 1994, to review the best available groundfish during the 1995 fishing year. The process of determining TACs for scientific information concerning NMFS is also closing specified fisheries groundfish species in the GOA is groundfish stocks, and to consider consistent with the final 1995 established in regulations implementing public testimony regarding 1995 groundfish specifications. These the FMP, which was prepared by the groundfish fisheries. Scientific measures are intended to carry out North Pacific Fishery Management information is contained in the management objectives contained in the Council (Council) under authority of the November 1994 SAFE report for the Fishery Management Plan for Magnuson Fishery Conservation and GOA. The November 1994 SAFE report Groundfish of the Gulf of Alaska (FMP). Management Act. The FMP is was prepared and presented by the GOA DATES: The final 1995 harvest implemented by regulations for the Plan Team to the Council and the specifications are effective on February foreign fishery at 50 CFR part 611 and Council’s Scientific and Statistical 8, 1995 through 2400 Alaska local time for the U.S. fishery at 50 CFR parts 672 Committee (SSC) and Advisory Panel (A.l.t.), December 31, 1995, or until and 676. General regulations that also (AP) and includes the most recent changed by subsequent notification in pertain to U.S. fisheries appear at 50 information concerning the status of the Federal Register. The closures to CFR part 620. groundfish stocks based on the most directed fishing are effective February 8, Pursuant to § 672.20(a)(2)(ii), the sum recent catch data, survey data, and 1995 through 2400 A.l.t., December 31, of the TACs for all species must fall biomass projections using different 1995, or until changed by subsequent within the combined optimum yield modeling approaches or assumptions. notification in the Federal Register. (OY) range of 116,000–800,000 metric For establishment of the acceptable Comments are invited on the tons (mt) established for these species in biological catches (ABCs) and TACs, the apportionments of reserves on or before § 672.20(a)(1). Under §§ 611.92(c)(1) and Council considered information in the February 23, 1995. 672.20(a)(2)(i), TACs are apportioned SAFE report, recommendations from its ADDRESSES: Comments should be sent to initially among DAP, JVP, TALFF, and SSC and AP, as well as public Ronald J. Berg, Chief, Fisheries reserves. The DAP amounts are testimony. The SSC adopted the ABC Management Division, Alaska Region, intended for harvest by U.S. fishermen recommendations from the Plan Team, National Marine Fisheries Service, P.O. for delivery and sale to U.S. processors. which were provided in the SAFE Box 21668, Juneau, AK 99802–1668, JVP amounts are intended for joint report, for all of the groundfish species Attn: Lori Gravel. Copies of the ventures in which U.S. fishermen categories, except Pacific ocean perch Environmental Assessment (EA) for typically deliver their catches to foreign (POP), Pacific cod, and Atka mackerel. 1995 Total Allowable Catch processors at sea. TALFF amounts are The Plan Team separated black Specifications for the Gulf of Alaska, intended for harvest by foreign rockfish from the pelagic shelf rockfish dated February 1995, may be obtained fishermen. and established an ABC for this species. from the above address or by calling Regulations at § 672.20(a)(2)(ii) The SSC did not believe adequate (907) 586–7229. The Final Stock establish initial reserves equal to 20 biological information is available to Assessment and Fishery Evaluation percent of the TACs for pollock, Pacific separate this species and did not Report (SAFE report), dated November cod, flatfish species categories, and recommend a separate category. The 1994, is available from the North Pacific ‘‘other species.’’ Reserve amounts are set Council accepted the advice of the SSC Fishery Management Council, P.O. Box aside for possible reapportionment to and this action continues to include 103136, Anchorage, AK 99510 or by DAP and/or JVP if the initial black rockfish as a part of the pelagic calling (907) 271–2809. apportionments prove inadequate. shelf rockfish group. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8471 The Plan Team and the SSC slope rockfish, rex sole, flathead sole, for the Central Gulf (CG) TAC for recommended removing redbanded and arrowtooth flounder. The final 1995 arrowtooth flounder. The Council rockfish (Sebastes babcocki) from the ABCs, TACs, and OFLs are shown in recommended increasing the CG TAC demersal shelf rockfish (DSR) group and Table 1. The sum of the TACs for all for arrowtooth flounder from 20,000 mt placing it in the ‘‘other rockfish’’ GOA groundfish is 279,463 mt, which is to 25,000 mt, to accommodate category because the harvest of this within the OY range specified by the anticipated increased groundfish species as bycatch in other fisheries can FMP. The sum of the TACs is lower harvest in this area of the GOA. The result in closure of the DSR fishery than the 1994 TAC sum of 304,595 mt. 1995 TAC for various flatfish groups before other species components may be The 1995 POP ABC was reflect these recommendations. harvested. Furthermore, redbanded approximately double the 1994 ABC The Council approved the AP rockfish are caught as bycatch in the level. This caused some concern for the recommendation of adopting the 1994 ‘‘other rockfish’’ category. The DSR and Council in establishing a 1995 TAC that TAC amounts for flathead sole as the ‘‘other rockfish’’ TAC amounts are was significantly higher than the 1994 1995 TAC amounts. In the GOA Eastern adjusted in this action to reflect this TAC. Therefore, the Council requested Regulatory Area, the 1994 TAC amount reclassification of redbanded rockfish. staff to prepare an FMP amendment to (3,000 mt) is higher than the Council’s The Council adopted the SSC’s ABC the POP rebuilding plan that would recommended 1995 ABC (2,740 mt). To recommendations for each species establish an upperbound TAC limit but maintain consistency with the accepted category, except for POP. The Council’s allow the Council to establish TAC policy of setting TACs lower than or recommended ABCs reflect harvest below that limit. The current POP equal to ABC amounts, NMFS is amounts that are less than the specified rebuilding plan does not allow a TAC to establishing a 1995 TAC of 2,740 mt for overfishing amounts. These amounts are be set that differs from that specified in the Eastern Regulatory Area. This listed in Table 1. The sum of 1995 ABCs the rebuilding plan. However, until the number is equal to the 1995 ABC for all groundfish is 492,780 mt, which FMP has been amended, NMFS must recommended by the Plan Team and the is lower than the 1994 ABC total of establish a POP TAC consistent with the SSC and approved by the Council. 553,050 mt. current POP rebuilding plan, or 5,630 Adjustment of the flathead sole TAC in As in 1994, the SSC calculated the mt. NMFS recognizes the Council’s the Eastern Regulatory Area changes the ABC for POP by applying a fishing intent, but is required to specify a TAC total 1995 flathead sole TAC to 9,740 mortality rate of F=0.078 adjusted by the consistent with the FMP until the FMP mt. This revision is also reflected in the ratio of the current biomass to target is amended to allow a more 1995 TAC for ‘‘other species.’’ NMFS spawning biomass to provide for conservative TAC and a more rapid establishes a TAC of 13,308 mt for rebuilding, which results in an ABC of rebuilding schedule. ‘‘other species’’ which represents 5 8,230 mt. Because this ABC is equal to The Plan Team’s ABC percent of the sum of the TACs for the the overfishing level (OFL), the Plan recommendation for Pacific cod other groundfish species categories. Team had further reduced this number (108,000 mt) was approximately double The Council, after specifying the by F35%/F30% to provide a buffer the 1994 ABC (50,400 mt). This was TACs, recommended 1995 between the ABC and OFL, which due, in part, to a change from the apportionments of the TACs for each results in an ABC of 6,530 mt. As at the length-based stock assessment model to species category among DAP, JVP, September meeting, the SSC did not a stock synthesis model that used a TALFF, and reserves. Existing agree with the latter adjustment and, as different recruitment assumption, and harvesting and processing capacity of it did in 1994, recommended that ABC that had fitted survey selectivity of the U.S. industry is capable of utilizing equal OFL. However, the Council catch along with natural mortality rate. the entire 1995 TAC specification for adopted the recommendation of the However, the SSC was concerned with GOA groundfish; therefore, the Council Plan Team. The ABC for POP is set at the Plan Team recommendation because recommended that the DAP allowance 6,530 mt. the stock has been declining since 1987 equal the TAC for each species category. and, with an average recruitment rate, NMFS concurs and no TALFF or JVP 1. Specifications of TAC and the stock is projected to decline under apportionments for the 1995 fishing Apportionments Thereof Among DAP, any catch rate. The SSC advised using year are specified. JVP, TALFF, and Reserves a more conservative F40% exploitation NMFS reviewed the Council’s The Council recommended TACs rate. The resulting ABC is 69,200 mt. recommendations concerning TAC equal to ABCs for pollock, Pacific cod, The AP recommended a TAC equal to specifications and apportionments. sablefish, shortraker/rougheye rockfish, the SSC’s ABC. This level was accepted Except as noted, NMFS hereby approves pelagic shelf rockfish, DSR, thornyhead by the Council. The 1995 TAC for the Council’s recommendations and rockfish, Atka mackerel, and northern Pacific cod is set at 69,200 mt. specifications under rockfish. The Council recommended The Council recommended setting the § 672.20(c)(1)(ii)(B). TACs less than the ABC for shallow- TAC for the various flatfish groups The 1995 ABCs, TACs, and water and deep-water flatfish, other equal to the 1994 TAC amounts except overfishing levels are shown in Table 1. TABLE 1.Ð1995 ABCS, TACS, AND DAPS OF GROUNDFISH (METRIC TONS) FOR THE WESTERN/CENTRAL (W/C), WEST- ERN (W), CENTRAL (C), AND EASTERN (E) REGULATORY AREAS AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULF-WIDE (GW) DISTRICTS OF THE GULF OF ALASKA. AMOUNTS SPECIFIED AS JOINT VEN- TURE PROCESSING (JVP) AND TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING (TALFF) ARE PROPOSED TO BE ZERO AND ARE NOT SHOWN IN THIS TABLE. RESERVES ARE APPORTIONED TO DAP Species Area1 ABC TAC=DAP Overfishing Pollock 2 Shumagin ...... (61) 30,380 30,380} Chirikof ...... (62) 15,310 15,310} 266,000 8472 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations TABLE 1.Ð1995 ABCS, TACS, AND DAPS OF GROUNDFISH (METRIC TONS) FOR THE WESTERN/CENTRAL (W/C), WEST- ERN (W), CENTRAL (C), AND EASTERN (E) REGULATORY AREAS AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULF-WIDE (GW) DISTRICTS OF THE GULF OF ALASKA. AMOUNTS SPECIFIED AS JOINT VEN- TURE PROCESSING (JVP) AND TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING (TALFF) ARE PROPOSED TO BE ZERO AND ARE NOT SHOWN IN THIS TABLE. RESERVES ARE APPORTIONED TO DAPÐContinued Species Area1 ABC TAC=DAP Overfishing Kodiak ...... (63) 16,310 16,310} Subtotal ...... W/C 62,000 62,000 E 3,360 3,360 14,400 Total ...... 65,360 65,360 280,400 Pacific cod 3 Inshore ...... W ...... 18,090 Offshore ...... W ...... 2,010 Inshore ...... C ...... 41,085 Offshore ...... C ...... 4,565 Inshore ...... E ...... 3,105 Offshore ...... E ...... 345 Subtotals W 20,100 20,100 C 45,650 45,650 E 3,450 3,450 Total ...... 69,200 69,200 126,000 Flatfish 4 (deep-water) ...... W 670 460 C 8,150 7,500 E 5,770 3,120 Total ...... 14,590 11,080 17,040 Rex sole 4 ...... W 1,350 800 C 7,050 7,050 E 2,810 1,840 Total ...... 11,210 9,690 13,091 Flathead sole ...... W 8,880 2,000 C 17,170 5,000 E 2,740 2,740 Total ...... 28,790 9,740 31,557 Flatfish 5 (shallow-water) ...... W 26,280 4,500 C 23,140 12,950 E 2,850 1,180 Total ...... 52,270 18,630 60,262 Arrowtooth flounder ...... W 28,400 5,000 C 141,290 25,000 E 28,440 5,000 Total ...... 198,130 35,000 231,416 Sablefish 6 ...... W 2,600 2,600 C 8,600 8,600 WYK 4,100 4,100 SEO 6,200 6,200 Total ...... 21,500 21,500 25,730 Pacific ocean perch 7 ...... W 1,180 1,014 1,482 C 3,130 2,702 3,951 E 2,220 1,914 2,799 Total ...... 6,530 5,630 8,232 Short raker rougheye 8 ...... W 170 170 C 1,210 1,210 E 530 530 Total ...... 1,910 1,910 2,925 Other rockfish 9 10 11 ...... W 180 55 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8473 TABLE 1.Ð1995 ABCS, TACS, AND DAPS OF GROUNDFISH (METRIC TONS) FOR THE WESTERN/CENTRAL (W/C), WEST- ERN (W), CENTRAL (C), AND EASTERN (E) REGULATORY AREAS AND IN THE WEST YAKUTAT (WYK), SOUTHEAST OUTSIDE (SEO), AND GULF-WIDE (GW) DISTRICTS OF THE GULF OF ALASKA. AMOUNTS SPECIFIED AS JOINT VEN- TURE PROCESSING (JVP) AND TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING (TALFF) ARE PROPOSED TO BE ZERO AND ARE NOT SHOWN IN THIS TABLE. RESERVES ARE APPORTIONED TO DAPÐContinued Species Area1 ABC TAC=DAP Overfishing C 1,170 370 E 5,760 1,810 Total ...... 7,110 2,235 8,395 Northern Rockfish 12 ...... W 640 640 C 4,610 4,610 E 20 20 Total ...... 5,270 5,270 9,926 Pelagic shelf rockfish 13 ...... W 910 910 C 3,200 3,200 E 1,080 1,080 Total ...... 5,190 5,190 8,704 Demersal shelf rockfish 11 ...... SEO 580 580 1,044 Thornyhead rockfish ...... GW 1,900 1,900 2,660 Atka mackerel ...... W ...... 2,310 C ...... 925 E ...... 5 Total ...... 3,240 3,240 11,700 Other species14 ...... GW 15 N/A 13,308 Total 16 ...... 492,780 279,463 839,082 1 Regulatory areas and districts are defined at § 672.2. 2 Pollock is apportioned to three statistical areas in the combined Western/Central Regulatory Area (Table 3), each of which is further divided into equal quarterly allowances. In the Eastern Regulatory Area, pollock is not divided into quarterly allowances. 3 Pacific cod is allocated 90 percent to the inshore, and 10 percent to the offshore component. Component allowances are shown in Table 4. 4 ``Deep-water flatfish'' means Dover sole and Greenland turbot. 5 ``Shallow-water flatfish'' means flatfish not including ``deep-water flatfish,'' flathead sole, rex sole, or arrowtooth flounder. 6 Sablefish is allocated to trawl and hook-and-line gears (Table 2). 7 ``Pacific ocean perch'' means Sebastes alutus. 8 ``Shortraker/rougheye rockfish'' means Sebastes borealis (shortraker) and S. aleutianus (rougheye). 9 ``Other rockfish'' in the Western and Central Regulatory Areas and in the West Yakutat District means slope rockfish and demersal shelf rock- fish. The category ``other rockfish'' in the Southeast Outside District means slope rockfish. 10 ``Slope rockfish'' means Sebastes aurora (aurora), S. melanostomus (blackgill), S. paucispinis (bocaccio), S. goodei (chilipepper), S. crameri (darkblotch), S. elongatus (greenstriped), S. variegates (harlequin), S. wilsoni (pygmy), S. babcocki (redbanded), S. proriger (redstripe), S. zacentrus (sharpchin), S. jordani (shortbelly), S. brevispinis (silvergrey), S. diploproa (splitnose), S. saxicola (stripetail), S. miniatus (vermilion), and S. reedi (yellowmouth). 11 ``Demersal shelf rockfish'' means Sebastes pinniger (canary), S. nebulosus (china), S. caurinus (copper), S. maliger (quillback), S. helvomaculatus (rosethorn), S. nigrocinctus (tiger), and S. ruberrimus (yelloweye). 12 ``Northern rockfish'' means Sebastes polyspinis. 13 ``Pelagic shelf rockfish'' means Sebastes melanops (black), S. mystinus (blue), S. ciliatus (dusky), S. entomelas (widow), and S. flavidus (yellowtail). 14 ``Other species'' means sculpins, sharks, skates, eulachon, smelts, capelin, squid, and octopus. The TAC for ``other species'' equals 5 per- cent of the TACs of target species. 15 ``N/A'' means not applicable. 16 The total ABC is the sum of the ABCs for target species. 2. Apportionment of Reserves to DAP amounts. Specifications of DAP shown 3. Assignment of the Sablefish TACs to in Table 1 reflect apportioned reserves. Authorized Fishing Gear Users Regulations implementing the FMP Under § 672.20(d)(5)(iv), the public may require 20 percent of each TAC for submit comments on the Under § 672.24(c), sablefish TACs for pollock, Pacific cod, flatfish species, apportionments of reserves. Comments each of the regulatory areas and districts and the ‘‘other species’’ category be set should focus on whether, and the extent are assigned to hook-and-line and trawl aside in reserves for possible to which, operators of vessels of the gear. In the Western and Central apportionment at a later date United States will harvest reserve or Regulatory Areas, 80 percent of each (§ 672.20(a)(2)(ii)). For the preceding 7 DAP amounts during the remainder of TAC is assigned to hook-and-line gear years, including 1994, NMFS has the year and whether, and the extent to and 20 percent to trawl gear. In the apportioned all of the reserves to DAP. which, U.S. harvested groundfish can or Eastern Regulatory Area, 95 percent of For 1995, NMFS apportions reserves for the TAC is assigned to hook-and-line will be processed by U.S. fish each species category to DAP, gear and 5 percent is assigned to trawl processors or received at sea by foreign anticipating that domestic harvesters gear. The trawl gear allocation in the fishing vessels. and processors will need all the DAP Eastern Regulatory Area may only be 8474 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations used as bycatch to support directed other than hook-and-line or trawl gear the assignments of the 1995 sablefish fisheries for other target species. must be treated as prohibited species TACs between hook-and-line and trawl Sablefish caught in the GOA with gear and may not be retained. Table 2 shows gear. TABLE 2.Ð1995 SABLEFISH TAC SPECIFICATIONS IN THE GULF OF ALASKA AND ASSIGNMENTS THEREOF TO HOOK-AND- LINE AND TRAWL GEAR. VALUES ARE IN METRIC TONS Hook-and-line Area/district TAC share Trawl share Western ...... 2,600 2,080 520 Central ...... 8,600 6,880 1,720 West Yakutat ...... 4,100 3,895 205 Southeast Outside ...... 6,200 5,890 310 Total ...... 21,500 18,745 2,755 4. Apportionments of Pollock TAC fishing year (Table 3). Within any Regulations at § 672.20(a)(2)(v)(A) Among Regulatory Areas, Seasons, and fishing year, any unharvested amount of require that the DAP apportionment for Between Inshore and Offshore any quarterly allowance of pollock TAC pollock in all regulatory areas and all Components is added in equal proportions to the quarterly allowances thereof be divided In the GOA, pollock is apportioned by quarterly allowance of following into inshore and offshore components. area, season, and inshore/offshore quarters, resulting in a sum for each One hundred percent of the pollock components. Regulations at quarter that does not exceed 150 percent DAP in each regulatory area is § 672.20(a)(2)(iv) require that the TAC of the initial quarterly allowance. apportioned to the inshore component for pollock in the combined Western Similarly, harvests in excess of a after subtraction of amounts that are and Central Areas of the GOA be quarterly allowance of TAC are determined by the Regional Director to apportioned among statistical areas deducted in equal proportions from the be necessary to support the bycatch Shumagin (61), Chirikof (62), and remaining quarterly allowances of that needs of the offshore component in Kodiak (63) in proportion to known fishing year. As defined at § 672.23(f), directed fisheries for other groundfish distributions of the pollock biomass. directed fishing for the four quarterly species. At this time, incidental This measure was intended to provide allowances starts on January 1, June 1, amounts of pollock to be caught by the spatial distribution of the pollock July 1, and October 1. The Eastern offshore component are unknown, and harvest as a sea lion protection measure. Regulatory Area pollock TAC of 3,360 will be determined during the fishing Each statistical area apportionment is mt is not allocated among smaller areas, year. further divided equally among the four quarterly reporting periods of the or quarters. TABLE 3.ÐDISTRIBUTION OF POLLOCK IN THE WESTERN AND CENTRAL REGULATORY AREAS OF THE GULF OF ALASKA (W/ C GOA); BIOMASS DISTRIBUTION, AREA APPORTIONMENTS, AND QUARTERLY ALLOWANCES. ABC FOR THE W/C GOA IS 62,000 METRIC TONS (MT). BIOMASS DISTRIBUTION IS BASED ON 1993 SURVEY DATA. TACS ARE EQUAL TO ABC. INSHORE AND OFFSHORE ALLOCATIONS OF POLLOCK ARE NOT SHOWN. ABCS AND TACS ARE ROUNDED TO THE NEAREST 10 MT Biomass per- Quarterly al- Statistical area cent 1995 TAC lowance Shumagin (61) ...... 49 30,380 7,595 Chirikof (62) ...... 24.7 15,310 3,826 Kodiak (63) ...... 26.3 16,310 4,078 Total ...... 100.0 62,000 15,499 5. Apportionment of Pacific Cod TAC Pacific cod in all regulatory areas be Pacific cod TAC in each regulatory area. Between Inshore and Offshore allocated to vessels catching Pacific cod The remaining 10 percent of the TAC Components for processing by the inshore and assigned to the offshore component. offshore components. The inshore Inshore and offshore allocations of the Regulations at § 672.20(a)(2)(v)(B) component is equal to 90 percent of the 69,200 mt Pacific cod TAC for 1995 are require that the DAP apportionment of shown in Table 4. TABLE 4.Ð1995 ALLOCATION (METRIC TONS) OF PACIFIC COD IN THE GULF OF ALASKA; ALLOCATIONS TO INSHORE AND OFFSHORE COMPONENTS Component allocation Regulatory area TAC Offshore Inshore (90%) (10%) Western ...... 20,100 18,090 2,010 Central ...... 45,650 41,085 4,565 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8475 TABLE 4.Ð1995 ALLOCATION (METRIC TONS) OF PACIFIC COD IN THE GULF OF ALASKA; ALLOCATIONS TO INSHORE AND OFFSHORE COMPONENTSÐContinued Component allocation Regulatory area TAC Offshore Inshore (90%) (10%) Eastern ...... 3,450 3,105 345 Total ...... 69,200 62,280 6,920 6. ‘‘Other Species’’ TAC specified for that species or species closures for the final specifications are group. listed in Table 5. The FMP specifies that the TAC The Council recommended that DAP Under § 672.20(c)(2)(ii), the Director, amount for the ‘‘other species’’ category equal TAC for each species category. Alaska Region, NMFS (Regional is calculated as 5 percent of the 1995 NMFS concurs with the Council’s Director), determined that the entire combined TACs for target species. This recommendation, and has not TACs or allocations of TAC of some results in a TAC amount of 13,308 mt established any JVP amounts; therefore, groundfish species and species groups for 1995. no groundfish PSC limits under will be needed as incidental catch to 7. PSC Limits Relevant to Fully Utilized § 672.20(b)(1) are necessary. support other anticipated groundfish Species fisheries during 1995. The Regional 8. Closures to Directed Fishing Director is establishing directed fishing Under § 672.20(b)(1), if NMFS The interim 1995 initial specifications allowances of zero mt and prohibiting determines, after consultation with the of groundfish, associated management directed fishing for the remainder of the Council, that the TAC for any species or measures, and closures for the GOA (59 year for the fisheries listed in Table 5. species group will be fully utilized in FR 659575, December 22, 1994) Directed fishing standards for the the DAP fishery, a groundfish PSC limit contained several closures to directed aforementioned closures may be found applicable to the JVP fisheries may be fishing for groundfish during 1995. The at § 672.20(g). TABLE 5.ÐCLOSURES TO DIRECTED FISHING FOR TOTAL ALLOWABLE CATCHES IMPLEMENTED BY THIS ACTION.1 OFFSHORE=THE OFFSHORE COMPONENT; TRW=TRAWL; ALL=ALL GEARS; WG=WESTERN REGULATORY AREA; CG=CENTRAL REGULATORY AREA; EG=EASTERN REGULATORY AREA; GOA=ENTIRE GULF OF ALASKA Fishery Component Gear Closed areas Atka mackerel ...... ALL GOA Northern rockfish ...... ALL WG, EG Deep-water flatfish ...... ALL WG Other rockfish 2 ...... ALL WG, CG Pacific cod ...... Offshore ALL EG Pacific ocean perch ...... ALL WG, CG Rex sole ...... ALL WG Sablefish ...... TRW WG, CG Shortraker/rougheye rockfish ...... ALL GOA Thornyhead rockfish ...... ALL GOA 1 These closures to directed fishing are in addition to closures and prohibitions found in regulations at 50 CFR part 672. 2 ``Other rockfish'' includes slope and demersal shelf rockfish in the WG and CG. In addition to the above closures, pollock in Statistical Area 62 from 12 9. Halibut PSC (PSC) Mortality Limits NMFS closed statistical areas 62 and 63 noon, A.l.t., February 8, 1995 until 12 Under § 672.20(f)(2), annual Pacific to directed fishing for pollock effective noon, A.l.t., February 10, 1995. Effective halibut PSC limits are established and noon, A.l.t., January 24, 1995 (60 FR 12 noon, A.l.t., February 10, 1995, the apportioned to trawl and hook-and-line 5337, January 27, 1995; 60 FR 5338, closure to directed fishing for pollock in gear and are established for pot gear. January 27, 1995), under authority of the Statistical Area 62 is reinstated. In The Council recommended that NMFS interim 1995 specifications. In accordance with § 672.20(c)(2)(ii), the initiate rulemaking to exempt the hook- accordance with § 672.20(c)(2)(ii), the closure for Statistical Area 62 will and-line sablefish fishery from the closure for Statistical Area 63 will remain in effect until 12 noon, A.l.t., halibut PSC limit. The sablefish and remain in effect until noon, A.l.t., April April 1, 1995, or until changed by halibut Individual Fishing Quota (IFQ) 1, 1995, or until changed by subsequent subsequent notification in the Federal program will be implemented in 1995, notification in the Federal Register. The Register. Directed fishing standards for and will allow legal-sized halibut to be Director, Alaska Region, NMFS, applicable gear types may be found in retained in the sablefish fishery. A determined that the remaining quarterly the regulations at § 672.20(g). Pursuant proposed rule to implement the allowance of pollock TAC in Statistical to § 672.23(f), directed fishing for Council’s recommendation was Area 62 is sufficient to allow a 48-hour pollock is prohibited after the first published in the Federal Register on directed fishery. In a separate quarter ends on noon, April 1, 1995, December 29, 1994 (59 FR 67268). If notification in the Federal Register, until the second quarter directed fishery made final, this would also specify a NMFS is reopening directed fishing for opens at 12 noon, A.l.t., June 1, 1995. reduced halibut PSC limit for the 1995 8476 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations GOA hook-and-line gear fisheries other (1) Estimated halibut bycatch in prior rockfish (decreased to 5,270 from 5,760 than sablefish. years; (2) current estimates of halibut mt), pelagic shelf rockfish (decreased to At its December 1994 meeting, the biomass and stock condition; (3) 5,190 mt from 6,890 mt), DSR Council recommended a hook-and-line potential impacts of expected fishing for (decreased to 580 mt from 960 mt), and PSC limit of 300 mt, based on the groundfish on halibut stocks and U.S. Atka mackerel (decreased to 3,240 mt proposed exemption of the hook-and- halibut fisheries; and (4) methods from 3,505 mt). Those species for which line sablefish fishery. Until the available for, and costs of, reducing the 1995 TAC is higher than in 1994 are regulatory amendment to authorize the halibut bycatches in groundfish Pacific cod (increased to 69,200 mt from exemption of hook-and-line sablefish is fisheries. That discussion is not 50,400 mt), arrowtooth flounder approved, NMFS is specifying the PSC repeated here. The following (increased to 35,000 mt from 30,000 mt), limits of 750 mt for hook-and-line and information was also considered: POP (increased to 5,630 mt from 2,550 2,000 mt for trawl gear. The hook-and- A. Expected Changes in Groundfish mt), and thornyhead rockfish (increased line halibut PSC limit is further Stocks to 1,900 mt from 1,180 mt). apportioned between the DSR fishery (10 mt halibut mortality) and all other At its December 1994 meeting, the 10. Seasonal Allocations of the Halibut hook-and-line fisheries (740 mt). The Council adopted lower ABCs for PSC Limits final rule to exempt hook-and-line pollock, deep-water flatfish, rex sole, sablefish, if approved, would establish flathead sole, sablefish, pelagic shelf Under § 672.20(f)(1)(iii), NMFS the hook-and-line PSC limit at 300 mt, rockfish, DSR, Atka mackerel, seasonally allocates the halibut PSC as recommended by the Council. arrowtooth flounder, shortraker/ limits based on recommendations from Regulations at § 672.20(f)(1)(i) rougheye, ‘‘other’’ rockfish, and the Council. The FMP requires that authorize separate apportionments of northern rockfish, than those certain information be considered by the the trawl halibut bycatch mortality limit established for 1994. The Council Council in recommending seasonal between trawl fisheries for deep-water adopted higher ABCs for Pacific cod, allocations of halibut. The publication and shallow-water species. These shallow-water flatfish, POP, and of the final 1994 groundfish and PSC apportionments are divided seasonally thornyhead rockfish than those specifications (59 FR 7647, February 16, to avoid seasonally high halibut bycatch established for 1994. More information 1994) summarizes Council findings with rates. on these changes is included in the respect to each of the FMP As in the proposed specifications, the Final SAFE Report dated November considerations. At this time, the Council recommended that pot gear be 1994 and in the Council and SSC Council’s findings are unchanged from exempt from Pacific halibut PSC limits minutes. those set forth for 1994. Pacific halibut for the 1995 fishing year. The Council B. Expected Changes in Groundfish PSC limits, and apportionments thereof, proposed this exemption after Catch are presented in Table 6. Regulations considering that the 1994 groundfish specify that any overages or shortfalls in catch and associated halibut bycatch The total of the 1995 TACs for the mortality (4 mt), which continues to be GOA is 279,463 mt, a slight decrease a seasonal apportionment of a PSC limit low relative to other groundfish from the 1994 TAC total of 304,595 mt. will be deducted from or added to the operations. NMFS concurs with the At its December 1994 meeting, the next respective seasonal apportionment Council’s recommendation. Council changed the 1995 TACs for within the 1995 season. In making its determinations with some fisheries from the 1994 TACs. As noted above, the Council requested respect to halibut PSC mortality limits, Those fisheries for which the 1995 a change in the hook-and-line PSC limit NMFS considered information TACs are lower than in 1994 are pollock for 1995, which would be established in presented in the 1994 SAFE report; in (decreased to 65,360 mt from 109,300 a separate rulemaking exempting the addition, information from Alaska mt), rex sole (decreased to 9,690 mt hook-and-line sablefish from the PSC Department of Fish and Game, the from 10,140), flathead sole (decreased to limit. Until that final rule becomes International Pacific Halibut 9,740 mt from 10,000 mt), sablefish effective, NMFS is establishing the same Commission (IPHC) and public (decreased to 21,500 mt from 25,500 allowances for 1995 as were used in testimony also were considered. The mt), shortraker/rougheye (decreased to 1994. proposed 1995 specifications discuss: 1,910 mt from 1,960 mt), northern TABLE 6.ÐFINAL 1995 PACIFIC HALIBUT PSC LIMITS, ALLOWANCES, AND APPORTIONMENTS. THE PACIFIC HALIBUT PSC LIMIT FOR HOOK-AND-LINE GEAR IS ALLOCATED TO THE DEMERSAL SHELF ROCKFISH (DSR) FISHERY AND FISHERIES OTHER THAN DSR. VALUES ARE IN METRIC TONS Trawl gear Hook-and-line gear Other than DSR DSR Dates Amount Dates Amount Dates Amount Jan 1±Mar 31 ...... 600(30%) Jan 1±May 17 ...... 200(27%) Jan 1±Dec 31 ...... 10(100%) Apr 1±June 30 ...... 400(20%) May 18±Aug 31 ...... 500(68%) Jul 1±Sep 30 ...... 600(30%) Sep 1±Dec 31 ...... 40(5%) Oct 1±Dec 31 ...... 400(20%) Total ...... 2,000(100%) ...... 740(100%) ...... 10(100%) Regulations at § 672.20(f)(1)(i) halibut PSC limit allowance as bycatch complex and a shallow-water species authorize apportionments of the trawl allowances to a deep-water species complex. The deep-water species Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8477 complex consists of sablefish, rockfish, shallow-water flatfish, flathead sole, deep-water flatfish, and arrowtooth Atka mackerel, and ‘‘other species.’’ The flounder. The shallow-water species apportionment for these two complexes complex consists of pollock, Pacific cod, is presented in Table 7. TABLE 7.ÐFINAL 1995 APPORTIONMENT OF PACIFIC HALIBUT PSC TRAWL LIMITS BETWEEN THE DEEP-WATER SPECIES COMPLEX AND THE SHALLOW-WATER SPECIES COMPLEX. VALUES ARE IN METRIC TONS Season Shallow-water Deep-water Total Jan. 20±Mar. 31 ...... 500 100 600 Apr. 1±Jun. 30 ...... 100 300 400 Jul. 1±Sep. 30 ...... 200 400 600 Oct. 1±Dec. 31 ...... No apportionment between shallow and deep for the 4th quarter. Except as noted below, the Council for the GOA bottom trawl pollock mortality rates of 20 percent and 58 proposed that revised halibut discard fishery: 63 percent for shoreside percent, respectively. The Council mortality rates recommended by the processors and 74 percent for at-sea recommended setting the Pacific cod IPHC be adopted for purposes of processors. The different rates for at-sea hook-and-line halibut mortality rate at monitoring halibut bycatch mortality and shoreside processors result from 12.5 percent and the trawl rate at 55 limits established for the 1995 analyses by the IPHC that showed that percent. NMFS has evaluated the groundfish fisheries. These assumed at-sea processing vessels had a Council’s recommendation but adopts halibut mortality rates are based on an significantly higher discard mortality mortality rates suggested by the IPHC average of mortality rates determined rate than the shorebased operators. The for 1995, which is the best information from NMFS-observer data collected rates for the bottom trawl pollock available on assumed mortality rates. during 1992 and 1993, except for the fishery are revised from the proposed GOA hook-and-line rockfish, for which specifications. The rates recommended The IPHC determined that the careful 1992/93 rates were not available and the by the Council are adopted and will be release measures implemented for rates from 1990 and 1991 were used. For used in calculating halibut mortality. vessels using hook-and-line gear did not most fisheries, the 1992–93 averages, on However, NMFS notes that directed show appreciable improvements in which the 1995 mortality rates are fishing for GOA pollock by the offshore mortality rates and has recommended based, are somewhat higher than the component is prohibited under one rate for both observed and assumed rate used in 1994. This occurs § 672.20(a)(2)(v) and that at-sea unobserved vessels in the hook-and-line because the rates used in 1994 were a processing of pollock would be fisheries. This action was approved by rollover of the 1993 rates, which had unlikely. the Council and is adopted by NMFS. been derived from data for 1990 and The Council proposed adjusting the The halibut mortality rates are listed in 1991. IPHC’s recommendation for GOA Pacific Table 8. The Council recommended cod hook-and-line and trawl mortality establishing two separate mortality rates rates. The IPHC recommended assumed TABLE 8.Ð1995 ASSUMED PACIFIC HALIBUT MORTALITY RATES FOR VESSELS FISHING IN THE GULF OF ALASKA. TABLE VALUES ARE PERCENT OF HALIBUT BYCATCH ASSUMED TO BE DEAD Gear and Target Hook-and-Line: Sablefish ...... 25 Pacific cod ...... 20 Rockfish ...... 18 Trawl: Midwater pollock ...... 66 Rockfish ...... 66 Shallow-water flatfish ...... 64 Pacific cod ...... 58 Deep-water flatfish ...... 59 Bottom pollock: Shoreside ...... 63 At-sea ...... 74 Pot: Pacific cod ...... 18 Opening Date of the Directed Fishery Comments December 22, 1994). No written for Sablefish for Hook-and-Line Gear comments were received. Written comments on the proposed Under new regulations implementing 1994 specifications and other Classification the IFQ program (50 CFR part 676) in management measures were requested This action is authorized under 50 1995, the opening of the sablefish until January 20, 1995 (59 FR 65990; CFR 611.92 and 672.20; and is exempt fishery is March 1. from review under E.O. 12866. 8478 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations This action apportions reserves to significant impact on the environment under authority of the Magnuson DAP fisheries on a date other than those will result from their implementation. A Fishery Conservation and Management specified in § 672.20(d)(1)(ii). Under 5 copy of the EA is available (see Act. Fishing by U.S. vessels is governed U.S.C. 553(b)(B), the Assistant addresses). by regulations implementing the FMP at Administrator for Fisheries, NOAA Authority: 16 U.S.C. 1801 et seq. 50 CFR parts 620 and 672. (Assistant Administrator), for the Pursuant to § 672.5(c)(3)(i) the reasons set forth below, finds good Dated: February 7, 1995. Regional Director is requiring offshore cause to waive prior notice and Richard H. Schaefer, component processor vessels, as defined opportunity for public comment at § 672.2, that catch and/or receive provided by the regulations. This waiver Acting Assistant Administrator for Fisheries, Pacific cod in Statistical Areas 61, 62, is necessary to allow the harvest of TAC National Marine Fisheries Service. and 63 in the GOA to submit DPRs in and prevent unnecessary closure of the addition to weekly processor reports. fishery. Closure of the fishery would be [FR Doc. 95–3483 Filed 2–8–95; 4:37 pm] DPRs must include the information contrary to the public interest. In BILLING CODE 3510±22±P required by § 675.2(c)(3)(ii). accordance with § 672.20(d)(5)(iv), These requirements are necessary to comments are invited on the reserve manage the offshore component Pacific apportionments as noted in ‘‘DATES’’ cod fisheries in those areas. The above. 50 CFR Part 672 Regional Director is doing so in This action adopts final 1995 harvest [Docket No. 950206041±5041±01; I.D. consideration of the potential for specifications for the GOA, revises 020695D] exceeding that portion of the total associated management measures, and allowable catch (TAC) of Pacific cod closes specified fisheries. Generally, this Groundfish of the Gulf of Alaska; Daily allocated to vessels catching Pacific cod action does not significantly revise Reporting Requirements for processing by the offshore management measures in a manner that component in those areas. would require time to plan or prepare AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and The allocation of the TACs for Pacific for those revisions. In some cases, such cod to vessels catching Pacific cod for as closures, action must be taken Atmospheric Administration (NOAA), Commerce. processing by the offshore component immediately to conserve fishery under § 672.20(a)(2)(v)(B) will become resources. Without these closures, ACTION: Notice of change in available for directed fishing by offshore specified TAC amounts will be recordkeeping and reporting component vessels with the filing of the overharvested and retention of these requirements. final specifications of groundfish for the species will become prohibited, which GOA and are expected to be rapidly would disadvantage fishermen who harvested. could no longer retain bycatch amounts SUMMARY: NMFS has determined that DPRs must include all information of these species. The immediate Daily Production Reports (DPRs) must effectiveness of this action is required to be submitted by offshore component required by § 672.5(c)(3)(ii) for provide consistent management and processor vessels that catch and/or groundfish harvested from the conservation of fishery resources. receive Pacific cod in Statistical Areas applicable reporting areas. Processors Accordingly, the Assistant 61, 62, and 63 in the Gulf of Alaska must submit the required information Administrator finds there is good cause (GOA). This action is necessary to on the ‘‘Alaska Groundfish Processor to waive the 30-day delayed prevent exceeding that portion of the Daily Production Report’’ form that was effectiveness period under 5 U.S.C. total allowable catch (TAC) of Pacific distributed to participants in the 553(d)(3) with respect to such cod allocated to vessels catching Pacific groundfish fishery with their 1995 provisions and to the apportionment cod for processing by the offshore Federal fisheries permit. The form also discussed above. In some cases, the component in those areas. This action may be obtained from the Regional interim specifications in effect would be will enable NMFS to effectively monitor Director by calling Mary Furuness at insufficient to allow directed fisheries to the Pacific cod catch and take inseason 907–586–7228. Processors must operate during a 30-day delayed action to close the fishery prior to its transmit their completed DPRs to the effectiveness period, which would exceeding the TAC. Regional Director by facsimile transmission to number 907–586-7131, result in unnecessary closures and EFFECTIVE DATE: From noon, Alaska local disruption within the fishing industry; time (A.l.t.), February 8, 1995, through telex (U.S. code) plus 62296000, or by in many of these cases, the final the duration of the 1995 directed telephone via number 907–586-7228, no specifications will allow the fisheries to offshore Pacific cod fishery in these later than 12 hours after the end of the continue, thus relieving a restriction. areas or until the Director, Alaska day the groundfish was processed. Provisions of a rule relieving a Region, NMFS (Regional Director) If and when the Regional Director restriction under 5 U.S.C. 553(d)(1) are determines the supplementary reporting determines that these reports are no not subject to a delay in effective date. requirements are no longer necessary. longer necessary, he may rescind the NMFS has determined that the GOA This determination will be published in requirement. Criteria used to assess the groundfish fisheries are not likely to the Federal Register. need for the reports include the stability affect Steller sea lions in a way or to an of effort and harvest rates in the fishery, extent not already considered in FOR FURTHER INFORMATION CONTACT: and remaining amounts. previous Section 7 consultations on this Andrew N. Smoker, 907–586–7228. The Assistant Administrator for fishery. NMFS has determined that SUPPLEMENTARY INFORMATION: The Fisheries, NOAA, finds that reasons reinitiation of formal consultation under groundfish fishery in the GOA exclusive justifying implementation of this action this ESA is not required. economic zone is managed by NMFS also make it impracticable and contrary NMFS prepared an environmental according to the Fishery Management to the public interest to provide notice assessment (EA) on the 1995 TAC Plan for Groundfish of the Gulf of and opportunity for prior comment or to specifications. The Assistant Alaska (FMP) prepared by the North delay for 30 days its effective date. Administrator concluded that no Pacific Fishery Management Council Intense fishing effort without DPRs Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8479 could result in industry’s exceeding 8, 1995, through 2400 Alaska local time were published in the Federal Register these allocations. (A.l.t.) on December 31, 1995, or until on December 14, 1994 (59 FR 64383). changed by subsequent notification in Comments were invited through January Classification the Federal Register. The closures to 9, 1995. No written comments were This action is taken under 50 CFR directed fishing are effective on received within the comment period. 672.20 and is exempt from review under February 8, 1995, through 2400 A.l.t., Public consultation with the Council E.O. 12866. December 31, 1995. The amendments to occurred during the Council meeting in Authority: 16 U.S.C. 1801 et seq. §§ 675.20 and 675.21 are effective on Anchorage, AK, held on December 5–10, Dated: February 7, 1995. February 8, 1995. 1994. Council recommendations and biological and economic data that were David S. Crestin, ADDRESSES: Comments on directed fishing closures should be sent to available at the Council’s December Acting Director, Office of Fisheries meeting were considered in Conservation and Management, National Ronald J. Berg, Chief, Fisheries Marine Fisheries Service. Management Division, Alaska Region, implementing the final 1995 specifications. [FR Doc. 95–3484 Filed 2–8–95; 4:37 pm] NMFS, P.O. Box 21668, Juneau, AK 99802–1668 (Attn: Lori Gravel). The BILLING CODE 3510±22±F Interim Specifications final Environmental Assessment prepared for the 1995 Total Allowable Regulations under § 675.20(a)(7)(i) authorize one-fourth of each proposed 50 CFR Parts 611, 675, and 676 Catch Specifications may be obtained from the same address, or by calling ITAC and apportionment thereof, one- [Docket No. 950206040±5040±01; I.D. 907–586–7229. The final Stock fourth of each PSC allowance, and the 111494A] Assessment and Fishery Evaluation first proposed seasonal allowance of (SAFE) report is available from the pollock to be in effect on January 1 on Groundfish Fishery of the Bering Sea an interim basis and to remain in effect North Pacific Fishery Management and Aleutian Islands; Foreign Fishing; until superseded by final initial Council, P.O. Box 103136, Anchorage, Limited Access Management of specifications. NMFS published the AK 99510 (907–271–2809). Federal Fisheries In and Off of Alaska; interim 1995 specifications in the Final 1995 Harvest Specifications of FOR FURTHER INFORMATION CONTACT: Federal Register on December 14, 1994 Groundfish Ellen R. Varosi, NMFS, 907–586–7228. (59 FR 64346) and corrected January 30, SUPPLEMENTARY INFORMATION: 1995 (60 FR 5762). The final 1995 initial AGENCY: National Marine Fisheries groundfish harvest specifications and Service (NMFS), National Oceanic and Background prohibited species bycatch allowances Atmospheric Administration (NOAA), Groundfish fisheries in the BSAI are contained in this action supersede the Commerce. governed by Federal regulations at 50 interim 1995 specifications. ACTION: Final 1995 specifications of CFR part 675 that implement the groundfish and associated management Fishery Management Plan for the TAC Specifications and Acceptable measures; final rule; technical Groundfish Fishery of the Bering Sea Biological Catch (ABC) amendment; closures. and Aleutian Island area (FMP). Other The specified TAC for each species is applicable regulations are found at 50 based on the best available biological SUMMARY: NMFS announces final 1995 CFR 611.93 (foreign fishing) and 50 CFR and socioeconomic information. The harvest specifications of total allowable part 676 (Limited Access Management Council, its Advisory Panel (AP), and its catches (TACs), initial apportionments of Federal Fisheries In and Off of Scientific and Statistical Committee of TACs for each category of groundfish, Alaska). The FMP was prepared by the (SSC) reviewed current biological and associated management measures in North Pacific Fishery Management information about the condition of the Bering Sea and Aleutian Islands Council (Council) and approved by groundfish stocks in the BSAI at their management area (BSAI). This action is NMFS under the Magnuson Fishery September and December 1994 necessary to establish harvest limits and Conservation and Management Act. meetings. This information was associated management measures for The FMP and implementing compiled by the Council’s BSAI groundfish during the 1995 fishing year. regulations require NMFS, after Groundfish Plan Team and is presented In addition, this action implements a consultation with the Council, to in the final 1995 Stock Assessment and technical amendment to update a specify annually the apportionments of Fishery Evaluation (SAFE) report for the directed fishery standard and the prohibited species catch (PSC) limits BSAI groundfish fisheries, dated definition of a fishery category to reflect among fisheries and seasons November 1994. The Plan Team a change in a BSAI TAC category that (§ 675.21(b)), the TAC, initial TAC annually produces such a document as resulted from the annual specification (ITAC), initial domestic annual harvest the first step in the process of specifying process. The technical amendment is (DAH), and initial total allowable level TACs. The SAFE report contains a necessary to incorporate a change in a of foreign fishing (TALFF) for each review of the latest scientific analyses groundfish TAC category to target species and the ‘‘other species’’ and estimates of each species’ biomass accommodate other regulations that category (§ 675.20(a)(2)). The sum of the and other biological parameters. From limit bycatch amounts of prohibited TACs must be within the optimum yield these data and analyses, the Plan Team species or groundfish species closed to (OY) range of 1.4 million to 2.0 million estimates an acceptable biological catch directed fishing. NMFS also is closing metric tons (mt) (§ 675.20(a)(2)). (ABC) for each species category. specified fisheries consistent with the Specifications set forth in Tables 1–9 of A summary of the preliminary ABCs final 1995 groundfish specifications and this action satisfy these requirements. for each species for 1995 and other fishery bycatch allowances of prohibited For 1995, the sum of TACs is 2,000,000 biological data from the September 1994 species. These measures are intended to mt. draft SAFE report were provided in the conserve and manage the groundfish The proposed BSAI groundfish discussion supporting the proposed resources in the BSAI. specifications and specifications for 1995 specifications. The Plan Team’s EFFECTIVE DATE: The final 1995 harvest prohibited species bycatch allowances recommended ABCs were reviewed by specifications are effective on February for the groundfish fishery of the BSAI the SSC, AP, and Council at their 8480 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations September 1994 meetings. Based on the Therefore, NMFS finds that the U.S. fishing vessels. The DAP category SSC’s comments concerning technical recommended TACs are consistent with includes U.S. vessels that process their methods and new biological data not the biological condition of groundfish catch on board or deliver it to U.S. fish available in September, the Plan Team stocks. The final TACs and overfishing processors. The joint venture processors revised its ABC recommendations in the levels for groundfish in the BSAI area (JVP) category includes U.S. fishing final SAFE report, dated November for 1995 are given in Table 1 of this vessels working in joint ventures with 1994. The revised ABC action. foreign processing vessels authorized to recommendations were again reviewed receive catches in the U.S. exclusive Apportionment of TAC by the SSC, AP, and Council at their economic zone. December 1994 meetings. While the SSC As required by § 675.20 (a)(3) and In consultation with the Council, the endorsed most of the Plan Team’s (a)(7)(i), each species’ TAC initially is initial amounts of DAP and JVP are recommendations for 1995 ABCs set reduced by 15 percent (special determined by the Director, Alaska forth in the final SAFE report, the SSC provisions apply to the hook-and-line Region, NMFS (Regional Director). recommended revisions to ABC and pot gear allocation for sablefish); Consistent with the final 1991–94 initial amounts calculated for Bogoslof this is the ITAC for the species. The sum specifications, the Council pollock, Greenland turbot, and Atka of these reductions is the reserve. The recommended that 1995 DAP mackerel. The Council adopted the reserve is not designated by species or specifications be set equal to ITAC and SSC’s recommendations for the 1995 species group, and any amount of the that zero amounts of groundfish be ABCs. The final ABCs are listed in Table reserve may be reapportioned to a target allocated to JVP and TALFF. In making 1. species or the ‘‘other species’’ category this recommendation, the Council The Council developed its TAC during the year, providing that such considered the capacity of DAP recommendations based on the final reapportionments do not result in harvesting and processing operations ABCs as adjusted for other biological overfishing. and anticipated that 1995 DAP and socioeconomic considerations, The ITAC for each target species and operations will harvest the full TAC including maintaining the total TAC in the ‘‘other species’’ category at the specified for each BSAI groundfish the required OY range of 1.4–2.0 million beginning of the year is apportioned species category. The ABCs, TACs, mt. None of the Council’s recommended between the DAH and TALFF, if any. ITACs, OFLs, and initial TACs for 1995 exceeds the final 1995 Each DAH amount is further apportionments of groundfish in the ABC for each species category. apportioned between two categories of BSAI for 1995 are set out in Table 1. TABLE 1. FINAL 1995 ACCEPTABLE BIOLOGICAL CATCH (ABC), TOTAL ALLOWABLE CATCH (TAC), INITIAL TAC (ITAC), AND OVERFISHING LEVELS OF GROUNDFISH IN THE BERING SEA AND ALEUTIAN ISLANDS AREAS 1 2 3 4 Over fishing Species ABC TAC ITAC DAP level Pollock: Bering Sea (BS) ...... 1,250,000 1,250,000 1,062,500 1,500,000 Aleutian Islands (AI) ...... 56,600 56,600 48,110 60,400 Bogoslof District ...... 22,100 1,000 850 22,100 Pacific cod ...... 328,000 250,000 212,500 390,000 Sablefish BS ...... 1,600 1,600 1,360 ...... AI ...... 2,200 2,200 1,870 4,900 Atka mackerel total ...... 125,000 80,000 68,000 335,000 Western AI ...... 55,600 16,500 14,025 ...... Central AI ...... 55,900 50,000 42,500 ...... Eastern AI/BS ...... 13,500 13,500 11,475 ...... Yellowfin sole ...... 277,000 190,000 161,500 319,000 Rock sole ...... 347,000 60,000 51,000 388,000 Greenland turbot total ...... 7,000 7,000 5,950 27,200 BS ...... 4,669 4,669 3,969 ...... AI ...... 2,331 2,331 1,981 ...... Arrowtooth flounder ...... 113,000 10,227 8,693 138,000 Flathead sole ...... 138,000 30,000 25,500 167,000 Other flatfish 5 ...... 117,000 19,540 16,609 137,000 Pacific ocean perch. BS ...... 1,850 1,850 1,573 2,910 AI ...... 10,500 10,500 8,925 15,900 Other red rockfish 6. BS ...... 1,400 1,260 1,070 1,400 Sharpchin/Northern. AI ...... 5,670 5,103 4,338 5,670 Shortraker/Rougheye. AI ...... 1,220 1,098 933 1,220 Other rockfish 7: BS ...... 365 329 280 365 AI ...... 770 693 589 770 Squid ...... 3,110 1,000 850 3,110 Other Species 8 ...... 27,600 20,000 17,000 136,000 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8481 TABLE 1. FINAL 1995 ACCEPTABLE BIOLOGICAL CATCH (ABC), TOTAL ALLOWABLE CATCH (TAC), INITIAL TAC (ITAC), AND OVERFISHING LEVELS OF GROUNDFISH IN THE BERING SEA AND ALEUTIAN ISLANDS AREAS 1 2ÐContinued 3 4 Over fishing Species ABC TAC ITAC DAP level Totals ...... 2,836,985 2,000,000 1,700,000 3,655,945 1 Amounts are in metric tons. These amounts apply to the entire Bering Sea (BS) and Aleutian Islands (AI) area unless otherwise specified. With the exception of pollock and for the purpose of these specifications, the BS includes the Bogoslof district. 2 Zero amounts of groundfish are specified for Joint Venture Processing (JVP) and Total Allowable Level of Foreign Fishing (TALFF). 3 Except for the portion of the sablefish TAC allocated to hook-and-line and pot gear, 0.15 of each TAC is put into a reserve. For the portion of the sablefish TAC allocated to vessels using hook-and-line or pot gear, .20 of the allocated TAC is reserved for use by Community Development Quota participants. The ITAC for each species is the remainder of the TAC after the subtraction of these reserves. 4 DAP = domestic annual processing = ITAC. 5 ``Other flatfish'' includes all flatfish species except for Pacific halibut (a prohibited species) and all other flatfish species that have a separate specified TAC amount. 6 ``Other red rockfish'' includes shortraker, rougheye, sharpchin, and northern. 7 ``Other rockfish'' includes all Sebastes and Sebastolobus species except for Pacific ocean perch, sharpchin, northern, shortraker and rougheye. 8 ``Other species'' includes sculpins, sharks, skates, eulachon, smelts, capelin, and octopus. The SSC’s revisions to the ABCs catchability coefficient of 0.75, due to incremental steps are as follows: (M)(1/ recommended by the Plan Team for the lack of recruitment. These 6) in 1992, (M)(2/6) in 1993, (M)(3/6) in Bogoslof pollock, Greenland turbot, and parameters resulted in a conservative 1994, (M)(4/6) in 1995, (M)(5/6) in 1996, Atka mackerel are discussed below. ABC of 18,500 mt. Continued poor and M in 1997. However, due to current Bogoslof pollock. The Plan Team recruitment and stock abundance levels uncertainty about the stock status, the indicated in the final 1995 SAFE report lead the SSC to recommend a SSC recommends that the stairstep be that the current estimate of biomass of continuation of the present 7,000 mt frozen at the level used to reduce the Aleutian Basin pollock (442,000 mt) is ABC for this species. The SSC further calculated ABC for 1994. According to the best estimate, assuming that no recommended that the ABC be split into this revised schedule, the recommended recruitment to the stock has occurred two apportionments: Two-thirds to the ABC for 1995 is (0.30/ and that the natural mortality rate (M) eastern Bering Sea, and one-third to the 2)(832,000)=125,000 mt. The main is 0.2. Reassessment of the Bogoslof area Aleutian Islands. This resulted in ABCs purpose of this approach is to postpone hydroacoustic survey with new of 4,669 mt and 2,331 mt, respectively. a large ABC increase until data are threshold levels of abundance has not This recommendation is intended to available to evaluate the phase-in changed previous conclusions that this spread fishing effort over a larger area to policy. stock has continued to decrease since avoid localized depletion. The Council The Council recommended an 80,000 1988. The Plan Team lacks conclusive concurred with the SSC’s mt TAC for Atka mackerel in the BSAI data that Bogoslof pollock are an recommendation for ABC and set the in 1995. Based on the authority independent stock that is self TAC equal to ABC. That provided by Amendment 28 to the FMP, sustaining. Recruitment to the Aleutian recommendation is adopted in these the Council recommended the following Basin is most likely coming from final specifications. apportionment of the TAC for Atka another area from the surrounding Atka mackerel. The Plan Team was mackerel among the Aleutian Islands continental shelf. To the extent that this not able to assess the current Atka (AI) management districts and the recruitment may not be the progeny of mackerel stock level and the magnitude Bering Sea relative to survey biomass Bogoslof spawners, the Plan Team of the incoming year classes because distribution estimates: 16,500 mt in the assumed no recruitment will occur in data from the 1994 trawl survey and age western AI district; 50,000 mt in the 1995, and projected a biomass for 1995 composition of the 1993 fishery were central AI district; and 13,500 mt in the of 442,000 mt using M=0.2. The Plan not available. As a result, the Plan eastern AI district and Bering Sea Team then calculated the F0.35 Team’s recommended ABC (245,000 mt) combined. These recommendations are exploitation rate of 0.26 to derive an was unchanged from 1994. Since 1992, adopted in these final specifications ABC of 115,000. However, the SSC the SSC has been apprehensive about (Table 1). continued the policy of adjusting the possible environmental problems that exploitation rate downward by M/4, or may result from an increased catch of Apportionment of the Pollock TAC to .05, in proportion to the ratio of current the magnitude implied by the Plan the Inshore and Offshore Components biomass to optimal biomass. This leads Team’s estimate of ABC. Atka mackerel Regulations at § 675.20(a)(2)(iii) to an ABC of 22,100. Due to lack of is a prey species of northern fur seals (a require that the 1995 pollock ITAC recruitment predicted for 1995, the depleted species under the Marine specified for the BSAI be allocated 35 Council recommended a TAC of 1,000 Mammal Protection Act) and Steller sea percent to vessels catching pollock for mt to provide for bycatch in other lions (a threatened species under the processing by the inshore component groundfish operations. That Endangered Species Act). During their and 65 percent to vessels catching recommendation is adopted in these migrations, northern fur seals feed pollock for processing by the offshore final specifications (Table 1). heavily on Atka mackerel as they move component. Definitions of these Greenland turbot. The Plan Team through the Aleutian passes. Therefore, components are found at § 675.2. The used the stock synthesis model to since 1992, the SSC has recommended 1995 ITAC specifications are consistent estimate the ABC, which was updated phasing in the Plan Team’s estimate of with these requirements (Table 2). with 1994 catch and survey data. ABC over a 6-year period by adopting Similar to last year, the Plan Team used the Plan Team’s biomass estimate Seasonal Allowances of Pollock TAC a more conservative exploitation rate of (832,000 mt for 1995), and raising the Under § 675.20(a)(2)(ii), the TAC of F0.40 and an increased slope survey exploitation rate in steps. These pollock for each subarea or district of 8482 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations the BSAI area is divided, after recommended by the Council for the the Council, to limit the amount of subtraction of reserves (§ 675.20(a)(3)), inshore/offshore pollock fisheries (Table pollock TAC that may be taken in the into two allowances. The first allowance 2). directed fishery for pollock using will be available for directed fishing When specifying seasonal allowances nonpelagic trawl gear. This authority is from January 1 to April 15 (roe season). of the pollock TAC, the Council and intended to reduce the amount of The second allowance will be available NMFS consider the factors as specified halibut and crab bycatch that occurs in from August 15 through the end of the in Section 14.4.10 of the FMP and nonpelagic trawl operations. fishing year (non-roe season). discussed in the proposed specifications (59 FR 64383), December 14, 1994). The Council did not recommend The Council recommended that the A discussion of these factors relative limiting the amount of pollock TAC that 1995 seasonal allowances of pollock be to the roe and non-roe seasonal may be taken in the 1995 directed set at the same relative levels as in 1993 allowances (45 and 55 percent of the fishery for pollock by vessels using and 1994 with 45 percent of the pollock TAC, respectively) was presented in the nonpelagic trawl gear, given that ITAC specified for each management final 1993 specifications for BSAI regulations at § 675.7 appear to limit subarea or district during the roe season groundfish (58 FR 8703, February 17, effectively the bycatch of halibut and and 55 percent during the non-roe 1993). Considerations under these crab when directed fishing for pollock season. Although the Council is factors remain unchanged from 1993 with nonpelagic trawl gear is closed. authorized under § 675.20(a)(7)(ii) to and 1994, given that the relative NMFS concurs with the Council’s recommend seasonal allowances of the seasonal allowances for 1993, 1994, and recommendation, and no limit on the 1995 CDQ pollock reserve, it did not 1995 are the same. amount of pollock TAC that may be take such action at its December 1994 meeting. Therefore, NMFS is limiting Apportionment of Pollock TAC to the taken in the directed fishery for pollock the 1995 fishery to 45 percent of the Nonpelagic Trawl Gear Fishery using nonpelagic trawl gear is specified. CDQ reserve during the roe season, Regulations under § 675.24(c)(2) consistent with the seasonal split authorize NMFS, in consultation with TABLE 2.ÐSEASONAL ALLOWANCES OF THE INSHORE AND OFFSHORE COMPONENT ALLOCATIONS OF POLLOCK TACS 1 2 Non-roe sea- Subarea TAC ITAC 3 Roe season 4 son 5 Bering Sea: Inshore ...... 371,875 167,344 204,531 Offshore ...... 690,625 310,781 379,844 1,250,000 1,062,500 478,125 584,375 Aleutian Islands: Inshore ...... 16,838 16,838 (6) Offshore ...... 31,272 31,272 (6) 56,600 48,110 48,110 (6) Bogoslof: Inshore ...... 298 298 (6) Offshore ...... 552 552 (6) 1,000 850 850 (6) 1 TAC = total allowable catch. 2 Based on an offshore component allocation of 0.65(TAC) and an inshore component allocation of 0.35(TAC). 3 ITAC = initial TAC = 0.85 of TAC. 4 January 1 through April 15Ðbased on a 45/55 split (roe = 45 percent). 5 August 15 through December 31Ðbased on a 45/55 split (non-roe = 55 percent). 6 Remainder. Apportionment of the Pollock TAC to eligible Western Alaska communities or BSAI subarea Pollock the Western Alaska Community CDQ groups of communities that have an Development Quota approved community development plan Bering Sea ...... 93,750 mt (CDP). NMFS has approved six CDP’s Regulations at § 675.20(a)(3)(ii) Aleutian Islands ...... 4,245 mt require one-half of the pollock TAC Bogoslof ...... 75 mt and associated percentages of the CDQ placed in the reserve for each subarea or reserve for each CDP recipient for 1994– district, or 7.5 percent of each TAC, be Total ...... 98,070 mt 95 (58 FR 61031, November 19, 1993). assigned to a Community Development Table 3 lists the approved CDP Quota (CDQ) reserve for each subarea or Under regulations governing the CDQ recipients, and each recipient’s district. The 1995 CDQ reserve amounts program at § 675.27, NMFS may allocate allocation of the 1995 pollock CDQ for each subarea are as follows: the 1995 pollock CDQ reserves to reserve for each subarea. TABLE 3.ÐAPPROVED SHARES (PERCENTAGES) AND RESULTING ALLOCATIONS AND SEASONAL ALLOWANCES (METRIC TONS) OF THE 1995 POLLOCK CDQ RESERVE SPECIFIED FOR THE BERING SEA (BS) AND ALEUTIAN ISLANDS (AI) SUBAREAS, AND THE BOGOSLOF DISTRICT (BD) AMONG APPROVED CDP RECIPIENTS CDP recipient Percent Area Allocation Roe-season allowance1 Aleutian Pribilof ...... 18 BS 16,875 7,594 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8483 TABLE 3.ÐAPPROVED SHARES (PERCENTAGES) AND RESULTING ALLOCATIONS AND SEASONAL ALLOWANCES (METRIC TONS) OF THE 1995 POLLOCK CDQ RESERVE SPECIFIED FOR THE BERING SEA (BS) AND ALEUTIAN ISLANDS (AI) SUBAREAS, AND THE BOGOSLOF DISTRICT (BD) AMONG APPROVED CDP RECIPIENTSÐContinued CDP recipient Percent Area Allocation Roe-season allowance1 Island Community ...... AI 764 ...... Development Assn ...... BD 14 ...... Total ...... 17,653 ...... Bristol Bay Economic ...... 20 BS 18,750 8,437 Development Corp ...... AI 849 ...... BD 15 ...... Total ...... 19,614 ...... Central Bering Sea ...... 8 BS 7,500 3,375 Fishermen's Assn ...... AI 340 ...... BD 6 ...... Total ...... 7,846 ...... Coastal Villages ...... 27 BS 25,312 11,390 Fishing Coop ...... AI 1,146 ...... BD 20 ...... Total ...... 26,478 ...... Norton Sound ...... 20 BS 18,750 8,438 Fisheries Development ...... AI 849 ...... Assn ...... BD 15 ...... Total ...... 19,614 ...... Yukon Delta Fisheries ...... 7 BS 6,563 2,953 Development Assn ...... AI 297 ...... BD 5 ...... Total ...... 6,865 ...... Total ...... 100 ...... 98,070 42,182 1 No more than 45 percent of a CDP recipient's 1995 pollock allocation may be harvested during the pollock roe season, January 1 through April 15. Allocation of the Pacific Cod TAC Pacific cod TAC allocated to the hook- relative to prohibited species and-line gear fisheries. The seasonal distributions, (2) expected variations in Under § 675.20(a)(2)(iv), 2 percent of apportionments are intended to provide prohibited species bycatch rates the Pacific cod ITAC is allocated to for the harvest of Pacific cod when flesh experienced in the Pacific cod fisheries vessels using jig gear, 44 percent to quality and market conditions are throughout the year, and (3) economic vessels using hook-and-line or pot gear, optimum and Pacific halibut bycatch effects of any seasonal apportionment of and 54 percent to vessels using trawl rates are low. The Council’s Pacific cod on the hook-and-line and gear. At its December 1994 meeting, the recommendations for seasonal pot gear fisheries. The seasonal Council recommended a seasonal apportionments are based on: (1) allocation of the Pacific cod ITAC is apportionment of the portion of the Seasonal distribution of Pacific cod specified in Table 4. TABLE 4.Ð1995 GEAR SHARES OF THE BSAI PACIFIC COD INITIAL TAC Seasonal apportionment Gear Percent Share ITAC TAC (mt) Date Percent Amount (mt) Jig ...... 2 4,250 Jan 1 ...... 100 4,250 Hook-and-line/pot gear ...... 44 93,500 Jan 1±Apr 30 .... 73 1 68,000 ...... May 1±Aug 31 .. 19 18,000 ...... Sep 1±Dec 31 ... 8 7,500 Trawl gear ...... 54 114,750 Jan 1 ...... 100 114,750 Total ...... 100 212,500 ...... 1 Any portion of the first seasonal apportionment that is not harvested by the end of the first season will become available on September 1, the beginning of the third season. Sablefish Gear Allocation and CDQ gear—50 percent; hook-and-line/pot accommodate the CDQ reserve and Allocations for Sablefish gear—50 percent, and Aleutian Islands allow for the issuance of 1995 sablefish Regulations at § 675.24(c)(1) require subarea: trawl gear—25 percent; hook- individual fishing quotas (IFQs), NMFS that sablefish TACs for BSAI subareas and-line/pot gear—75 percent. In is releasing reserves to make the full be divided between trawl and hook-and- addition, regulations under § 676.24(b) amount of the 1995 sablefish TACs line/pot gear types. Gear allocations of require NMFS to withhold 20 percent of available early in the fishing year. Gear TACs are specified in the following the hook-and-line and pot gear sablefish allocations and CDQ shares of sablefish proportions: Bering Sea subarea: Trawl allocation as sablefish CDQ reserve. To TACs are specified in Table 5. 8484 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations TABLE 5.Ð1995 GEAR AND CDQ SHARES OF BSAI SABLEFISH TAC Area (mt) Gear Percent of Share of Share of Share of TAC TAC (mt) ITAC (mt) 1 CDQ BS ...... Trawl ...... 50 800 800 N/A Hook-and-line/Pot 2 ...... 50 800 640 160 AI ...... Trawl ...... 25 550 550 N/A Hook-and-line/Pot ...... 75 1,650 1,320 330 Total ...... 3,800 3,310 490 1 Reserve added to ITAC. 2 For the portion of the sablefish TAC allocated to vessels using hook-and-line gear or pot gear, 20 percent of the allocated TAC is reserved for use by CDQ participants. The ITAC for each species is the remainder of the TAC after the subtraction of these reserves. Sablefish CDP Allocations Development Plans (CDPs) for the 1995– published in the Federal Register on 97 sablefish CDQ program. The December 2, 1994 (59 FR 61877). The On November 25, 1994, NMFS percentages of CDQ fixed gear sablefish resulting 1995 allocations of sablefish to approved the 1995–97 Community allocation for each approved CDP were the approved CDPs are listed in Table 6. TABLE 6.ÐAPPROVED SHARES (PERCENTAGES) AND RESULTING ALLOCATIONS (MT) OF THE 1995 SABLEFISH CDQ RE- SERVE SPECIFIED FOR THE BERING SEA (BS) AND ALEUTIAN ISLANDS (AI) SUBAREAS AMONG APPROVED CDP RE- CIPIENTS Sablefish CDP recipient Amount (mt) Area Percent Atka Fishermen's Association ...... BS ...... 0 0 AI ...... 0 0 Bristol Bay Economic Development Corp ...... BS ...... 0 0 AI ...... 25 82.5 Coastal Villages Fishing Cooperative ...... BS ...... 0 0 AI ...... 25 82.5 Norton Sound Economic Development Corporation ...... BS ...... 25 40 AI ...... 30 99 Pribilof Island Fishermen ...... BS ...... 0 0 AI ...... 0 0 Yukon Delta Fisheries Development Association ...... BS ...... 75 120 AI ...... 10 33 Aleutian Pribilof Islands Community Development Association ...... BS ...... 0 0 AI ...... 10 33 Total ...... BS ...... 100 160 AI ...... 100 330 Allocation of Prohibited Species Catch operation for groundfish in the BSAI is assumed halibut mortality rates in the (PSC) Limits for Crab, Halibut, and 1 percent of the annual eastern Bering different groundfish fisheries based on Herring Sea herring biomass. The best estimate analyses of 1992–93 observer data. PSC limits of red king crab and C. of 1995 herring biomass is 186,100 mt. The Council recommended bairdi Tanner crab in Bycatch This amount was derived using 1994 continuing to exempt groundfish pot Limitation Zones (50 CFR 675.2) of the survey data and an age-structured gear fisheries from halibut bycatch Bering Sea subarea, and for Pacific biomass projection model developed by restrictions during 1995. In 1994, total halibut throughout the BSAI specified the Alaska Department of Fish and groundfish catch for the pot gear fishery under § 675.21(a). The PSC limits are: Game. Therefore, the herring PSC limit in the BSAI was approximately 8,500 mt for 1995 is 1,861 mt. with an associated halibut bycatch of 58 —Zone 1 trawl fisheries, 200,000 red Regulations at § 675.21(b)(2) authorize mt, or less than 5 mt bycatch mortality, king crabs; the apportionment of the non-trawl using the mortality rate recommended —Zone 1 trawl fisheries, 1 million C. halibut PSC limit among three fishery for 1995 (8 percent). The Council bairdi Tanner crabs; categories (Pacific cod hook-and-line recommended that pot gear be exempt —Zone 2 trawl fisheries, 3 million C. fishery, groundfish pot gear fishery, and from halibut-bycatch restrictions bairdi Tanner crabs; other non-trawl fisheries). The PSC because (1) potential exists for halibut- —BSAI trawl fisheries, 3,775 mt allowances are listed in Table 7. In bycatch mortality in the Greenland mortality of Pacific halibut; general, the fishery bycatch allowances turbot or sablefish hook-and-line —BSAI nontrawl fisheries, 900 mt listed in Table 7 reflect the fisheries to require closure of the pot mortality of Pacific halibut; and recommendations made to the Council gear fishery if the halibut-bycatch —BSAI trawl fisheries, 1,861 mt Pacific by its AP. These recommendations were allowance is reached, and (2) the herring. based on 1994 bycatch amounts, groundfish pot gear fishery uses a The PSC limit of Pacific herring anticipated 1995 harvest of groundfish selective gear type that experiences very caught while conducting any trawl by trawl gear and fixed gear, and low halibut bycatch mortality. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8485 The Council also recommended authority to determine annually recommended that the 1995 BSAI exempting the BSAI jig gear fishery and whether to apportion the halibut- groundfish jig gear fishery and the the sablefish hook-and-line gear fishery bycatch limit to the groundfish jig gear sablefish hook-and-line gear fishery be from halibut-bycatch restrictions. A fishery or the sablefish hook-and-line exempt from halibut-bycatch proposed rule was published by NMFS fishery or to exempt these fisheries from restrictions. The final rule, if approved, on December 29, 1994 (59 FR 67268) halibut-bycatch restrictions. At its would specify the Council’s which, if approved, would provide the December 1994, meeting, the Council recommended exemptions. TABLE 7.ÐFINAL 1995 PROHIBITED SPECIES BYCATCH ALLOWANCES FOR THE BSAI TRAWL AND NONTRAWL FISHERIES. Trawl fisheries Zone 1 Zone 2 BSAI-wide Red king crab, number of animals: Yellowfin sole ...... 50,000 ...... Rcksol/flatsol/othflat 1 ...... 110,000 ...... Turb/arrow/sab 2 ...... 0 ...... Rockfish ...... 0 ...... Pacific cod ...... 10,000 ...... Plck/Atka/othr 3 ...... 30,000 ...... Total ...... 200,000 ...... C. bairdi Tanner crab, number of animals: Yellowfin sole ...... 225,000 1,525,000 ...... Rcksol/flatsol/othflat ...... 475,000 510,000 ...... Turb/arrow/sab ...... 0 5,000 ...... Rockfish ...... 0 10,000 ...... Pacific cod ...... 225,000 260,000 ...... Plck/Atka/othr ...... 75,000 690,000 ...... Total ...... 1,000,000 3,000,000 ...... Pacific halibut, mortality (mt): Yellowfin sole ...... 750 Rcksol/flatsol/othflat ...... 690 Turb/arrow/sab ...... 120 Rockfish ...... 110 Pacific cod ...... 1,550 Plck/Atka/othr ...... 555 Total ...... 3,775 Pacific herring, mt: Midwater pollock ...... 1,345 Yellowfin sole ...... 315 Rcksol/flatsol/othflat ...... 0 Turb/arrow/sab ...... 0 Rockfish ...... 8 Pacific cod ...... 24 Plck/Atka/othr 4 ...... 169 Total ...... 1,861 Non-trawl fisheries ...... Pacific halibut, mortality (mt) Pacific cod ...... 725 Other non-trawl ...... 175 Groundfish pot gear ...... (5) Total ...... 900 1 Rock sole, flathead sole, and other flatfish fishery category. 2 Greenland turbot, arrowtooth flounder, and sablefish fishery category. 3 Pollock, Atka mackerel, and ``other species'' fishery category. 4 Pollock other than midwater pollock, Atka mackerel, and ``other species'' fishery category. 5 Exempt. Seasonal Apportionments of PSC Limits apportionment must be based on certain Table 8, for yellowfin sole, rock sole/ Regulations at § 675.21(b)(3) authorize types of information. See the discussion flathead sole/other flatfish, rockfish, and NMFS, after consultation with the in the proposed specifications (59 FR pollock/Atka mackerel/‘‘other species’’ Council, to establish seasonal 64383, December 14, 1994). fishery categories. The recommended apportionments of prohibited species At its December 1994 meeting, the seasonal apportionments reflect bycatch allowances among the fisheries Council recommended that the halibut recommendations made to the Council to which bycatch has been apportioned. bycatch allowances listed in Table 7 be by its AP. Under § 675.21(b)(3), such an seasonally apportioned as shown in 8486 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations The Council recommended seasonal TABLE 8.ÐFINAL SEASONAL APPOR- halibut mortality rates, based on final apportionments of the halibut bycatch TIONMENTS OF THE 1995 PACIFIC 1994 and 1995 observer data, and adjust allowances specified for the yellowfin HALIBUT BYCATCH MORTALITY AL- the rates for the remainder of 1995. NMFS will use the assumed halibut sole, and rocksole, flathead sole, and LOWANCES FOR THE BSAI TRAWL other flatfish categories to provide mortality rates recommended by the AND NON-TRAWL FISHERIES.ÐCon- additional fishing opportunities in the IPHC staff for the BSAI groundfish BSAI early in the year and to reduce the tinued fisheries in 1995 except for the BSAI Pacific cod hook-and-line gear fishery. incentive for trawl vessel operators to Seasonal move from the BSAI to the Gulf of bycatch Except for that fishery, NMFS believes Alaska after the rock sole roe fishery is Fishery mortality al- data presented by the IPHC staff closed, typically at the end of February. lowance (mt represent the best available information halibut) The AP’s recommended seasonal on halibut discard mortality rates and should be used to estimate halibut apportionment of the halibut bycatch Jul. 01±Dec. 31 ...... 20 allowance for the pollock/Atka bycatch mortality levels. mackerel/’’other species’’ fishery Total ...... 110 NMFS will use an assumed halibut mortality rate of 12.5 percent for the category is based on the seasonal Pacific cod: BSAI hook-and-line cod fishery during allowances of the Bering Sea pollock Jan. 20±Oct. 24 ...... 1,450 the first half of 1995, instead of the ITAC recommended for the roe and non- Oct. 25±Dec. 31 ...... 100 IPHC’s recommended rate of 18 percent, roe seasons, and the assumption that for the following reason: Mandatory most of the pollock taken during the roe Total ...... 1,550 careful release requirements are season will be taken with pelagic trawl expected to result in reduced halibut gear with reduced halibut bycatch rates. Pollock/Atka mackerel/``other species'': discard mortality rates relative to the The AP recommended seasonal Jan. 20±Apr. 15...... 455 rates experienced in 1992–93; the BSAI apportionment of the halibut bycatch Apr. 15±Dec. 31 ...... 100 hook-and-line fishery for Pacific cod has allowance for the Pacific cod fishery Total ...... 555 initiated a program to disseminate based on: (1) Anticipation that the timely in-season data on halibut bycatch proposed rule published in the Federal Total Trawl Halibut Mor- rates and individual vessel mortality Register on December 29, 1994 (59 FR tality ...... 3,775 rates that is anticipated to further 67268) would exempt the BSAI jig gear Non-trawl gear reduce discard mortality rates within fishery and the sablefish hook-and-line Pacific cod: the fleet; vessels using hook-and-line or gear fishery from halibut-catch Jan. 01±Apr. 30 ...... 475 pot gear are allocated a specified portion restrictions, and (2) the Council’s desire May 01±Aug. 31 ...... 40 Sep. 01±Dec. 31 ...... 210 of the BSAI Pacific cod TAC; the to limit a hook-and-line fishery for Council recommended that the halibut Pacific cod during summer months Total ...... 725 bycatch allowance apportioned to the when halibut bycatch rates are high. BSAI Pacific cod hook-and-line fishery Seasonal apportionments of the halibut Other non-trawl ...... 175 ( ) be apportioned into three seasons, with bycatch allowances for 1995 are Groundfish pot ...... 1 28 percent of the annual apportionment specified in Table 8. Total Non-trawl Halibut allocated to the third season that starts Mortality ...... 900 September 1; the NMFS Observer TABLE 8.ÐFINAL SEASONAL APPOR- Program Office has indicated that 1995 1 TIONMENTS OF THE 1995 PACIFIC Exempt. in-season observer data and final 1994 HALIBUT BYCATCH MORTALITY AL- For purposes of monitoring the observer data for the BSAI Pacific cod LOWANCES FOR THE BSAI TRAWL fishery halibut bycatch mortality hook-and-line fishery will be available AND NON-TRAWL FISHERIES. allowances and apportionments, the by mid-1995 to allow for an analysis of Regional Director will use observed observed halibut discard mortality rates Seasonal halibut bycatch rates reported and and an adjustment from the 12.5 bycatch observed groundfish catch to project assumed rate in time for the beginning Fishery mortality al- when a fishery’s halibut bycatch of the third season (September 1). This lowance (mt mortality allowance or apportionment is halibut) reconsideration could result in an reached. The Regional Director monitors increase or decrease of the assumed rate; Trawl gear: the fishery’s halibut bycatch mortality and if the mid-1995 assessment of Yellowfin sole: allowances using assumed mortality observer data indicates that the halibut Jan. 20±Jul. 31 ...... 280 rates that are based on the best mortality rate in the hook-and-line cod Aug. 01±Dec. 31 ...... 470 information available, including fishery has not declined to the extent information contained in the final anticipated, retroactive adjustments in Total ...... 750 annual SAFE report. the estimated 1995 halibut bycatch Rock sole/flathead sole/``other The Council recommended that the mortality would be accommodated flatfish'': assumed halibut mortality rates for the within the third seasonal apportionment Jan. 20±Mar. 31 ...... 428 BSAI groundfish fisheries remain of the annual bycatch allowance Apr. 01±Jun. 30 ...... 180 unchanged from those used in 1994. specified for this fishery. Although an Jul. 01±Dec. 31 ...... 82 This recommendation is contrary to the upward adjustment in estimated recommendation of International Pacific bycatch mortality may preclude a Total ...... 690 Halibut Commission (IPHC) staff, who fishery for Pacific cod in the third Turbot/arrowtooth flounder/sa- advocated assumed mortality rates that season, NMFS believes that the amount blefish Total ...... 120 are generally higher, based on 1992–93 of halibut bycatch mortality apportioned Rockfish: observer data. The Council further to the third season should prevent the Jan. 20±Mar. 31 ...... 30 recommended that NMFS, if possible, halibut bycatch limit from being Apr. 01±Jun. 30 ...... 60 conduct a mid-year evaluation of the exceeded. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8487 Assumed Pacific halibut mortality August 15, 1995, through the end of the TABLE 10.ÐCLOSURES TO DIRECTED rates for BSAI fisheries during 1995 are fishing year; (4) with certain exceptions, FISHING UNDER 1995 TACS 1Ð specified in Table 9. directed fishing for pollock by the Continued offshore component, defined at § 675.2, TABLE 9.ÐASSUMED PACIFIC HALIBUT is authorized from January 26, 1995, to Fishery (all gear) Closed area 2 MORTALITY RATES FOR THE BSAI April 15, 1995, and from August 15, FISHERIES DURING 1995 1995, through the end of the fishing Arrowtooth ...... BSAI. year; (5) directed fishing for pollock 1 These closures to directed fishing are in Percent under the Western Alaska CDQ Program addition to closures and prohibitions found in is authorized from January 1, 1994, regulations at 50 CFR part 675. Hook-and-line gear fisheries: through the end of the fishing year 2 Refer to § 675.2 for definitions of areas. 3 Rockfish ...... 24.0 (§ 675.23(e)); and (6) directed fishing ``AI'' means Aleutian Islands area. Pacific cod 1 ...... 12.5 4 In the BSAI, ``Other rockfish'' includes Greenland turbot ...... 19.0 with trawl gear in Zone 1 for rockfish, Sebastes and Sebastolobus species except Sablefish ...... 17.0 Greenland turbot, arrowtooth flounder, for Pacific ocean perch and the ``other red Trawl gear fisheries: and sablefish is closed, as there is no rockfish'' species. 5 ``Other red rockfish'' includes shortraker, Midwater pollock ...... 89.0 crab PSC to support this fishery (See rougheye, sharpchin, and northern. Non-pelagic pollock ...... 77.0 Table 7). Yellowfin sole ...... 76.0 In addition to these regulatory In addition to the above closures, Rock sole, flathead sole, other closures, NMFS may take action to NMFS closed the directed fishery for flatfish ...... 75.0 Atka mackerel in the Eastern Aleutian Rockfish ...... 69.0 implement closures to directed fishing Pacific cod ...... 65.0 for species needed as bycatch amounts District and Bering Sea subarea effective Atka mackerel ...... 59.0 in other directed fisheries. A principal noon, A.l.t., February 2, 1995, under Arrowtooth ...... 49.0 consideration for the Council in authority of the interim 1995 Greenland turbot ...... 48.0 developing its 1995 TAC specifications. In accordance with Pot gear fisheries: recommendations was ensuring that the § 675.20(a)(7)(ii), these closures will Pacific cod ...... 8.0 sum of the species TACs did not exceed remain in effect until 12 midnight, 1 The assumed halibut bycatch mortality rate the maximum OY of 2 million mt. After A.l.t., December 31, 1995. Directed for the hook-and-line Pacific cod fishery will be consideration of the amount of each fishing standards for applicable gear re-evaluated mid-1995 using final 1994 ob- types may be found in the regulations at server data and inseason 1995 observer data. species category TAC which is required for bycatch in other directed fisheries, § 675.20(h). Groundfish PSC Limits the Council recommended that TAC Technical Amendment To Revise No PSC limits for groundfish species amounts specified for certain species be Specified Fishery Categories for are specified in this action. Section established as directed fishing Directed Fishing Standards and PSC 675.20(a)(6) authorizes NMFS to specify allowances. Apportionments PSC limits for groundfish species or NMFS concurs with the Council’s Two technical amendments are species groups for which the TAC will recommendations, and accordingly, is necessary to update a directed fishery be completely harvested by domestic prohibiting directed fishing for the standard and a definition of a fishery fisheries. These PSC limits apply only to following species and species groups: category to reflect the establishment of JVP or TALFF fisheries. At this time, no (1) Pacific ocean perch in the Bering a flathead sole TAC separate from the groundfish are allocated to either JVP or Sea, (2) other red rockfish in the Bering ‘‘other flatfish’’ category. TALFF and specifications of groundfish Sea, (3) shortraker/rougheye in the PSC limits are unnecessary. Aleutian Islands, (4) other rockfish in First, regulations under § 675.20(h)(2) the BSAI, (5) arrowtooth flounder in the establish directed fishing standards for Closures to Directed Fishing BSAI, and (6) pollock in the Bogoslof yellowfin sole, rock sole, arrowtooth If the Regional Director establishes a district. Species or species groups flounder, and ‘‘other flatfish.’’ To the directed fishing allowance, and that identified in Table 10 are necessary as extent that flathead sole now has a allowance is or will be reached before incidental catch to support other separate ABC, TAC, OFL, and ITAC, the the end of the fishing year, or, with anticipated groundfish fisheries and standards for directed fishing are respect to pollock, before the end of the TAC amounts for these species will be revised by technical amendment to add fishing season, NMFS will prohibit used for bycatch purposes only. If flathead sole to this directed fishing directed fishing for that species or NMFS determines the full TAC amount category. species group in the specified subarea or will not be used as bycatch, NMFS may Second, regulations under § 675.21(b) district under § 675.20(a)(8). open a directed fishery for that species. authorize the apportionment of each Fishing for groundfish in the BSAI is PSC limit into bycatch allowances for authorized from January 1 through TABLE 10.ÐCLOSURES TO DIRECTED specified trawl fishery categories. The December 31, with the following FISHING UNDER 1995 TACS 1 definition of these fishery categories at exceptions (§ 675.23): (1) Directed § 675.21(b)(1)(iii) must be amended to fishing for arrowtooth flounder and Fishery (all gear) Closed area 2 include the new flathead sole fishery at Greenland turbot is authorized from § 675.21(b)(1)(iii)(B)(2). The fishery May 1, 1995, to December 31, 1995, Pollock in Bogoslof Statistical Area 518. category ‘‘rock sole/other flatfish’’ is subject to the other provisions in the District. revised, therefore, to ‘‘rock sole/flathead BSAI regulations; (2) fishing for Pacific ocean perch .. Bering Sea. sole/other flatfish’’ to provide PSC 3 groundfish with trawl gear in the BSAI Shortraker/rougheye AI. amounts for this category. rockfish. is prohibited until January 20, 1995; (3) Other rockfish 4 ...... BSAI. Classification with certain exceptions, directed fishing Other red rockfish 5 ... Bering Sea. for pollock by the inshore component, Rockfish, Greenland Zone 1. This action is authorized under 50 defined at § 675.2, is authorized January turbot/arrowtooth/ CFR 611.93(b), 675.20, and 676; and is 1, 1995, through April 15, 1995, and sablefish. exempt from review under E.O. 12866. 8488 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations The final rule makes minor technical would result in unnecessary closures 2. In § 675.20, paragraph (h)(2) is amendments to 50 CFR 675.20 and and disruption within the fishing revised to read as follows: 675.21. These amendments are a logical industry; in many of these cases, the outgrowth of the proposed 1995 TAC final specifications will allow the § 675.20 General limitations. specifications, which separated flathead fisheries to continue, thus relieving a * * * * * sole from the ‘‘other flatfish’’ category, restriction. Provisions of a rule relieving (h) * * * and are necessary to implement the a restriction under 5 U.S.C. 553(d)(1) are (2) Yellowfin sole, rock sole, specifications. Prior notice and not subject to a delay in effective date. arrowtooth flounder, flathead sole, or opportunity for public comment would NMFS has determined that the BSAI ‘‘other flatfish.’’ The operator of a vessel serve no useful purpose and is, groundfish fisheries are not likely to is engaged in directed fishing for therefore, unnecessary. Accordingly, the affect Steller sea lions in a way or to an yellowfin sole, rock sole, arrowtooth Assistant Administrator for Fisheries, extent not already considered in flounder, flathead sole or ‘‘other NOAA (Assistant Administrator) finds previous Section 7 consultations on this flatfish’’ if he or she retains, at any time good cause to waive prior notice and fishery. NMFS has determined that during a trip, an amount of one of these opportunity for public comment under reinitiation of formal consultation under species equal to or greater than 35 5 U.S.C. 553(b)(B). this ESA is not required. percent of the amount of the other This action adopts final 1995 harvest NMFS prepared an EA on the 1995 respective species retained at the same specifications for the BSAI, revises TAC specifications. The Assistant time on the vessel during the same trip, associated management measures, and Administrator concluded that no plus 20 percent of any groundfish closes specified fisheries. Generally, this significant impact on the environment species other than yellowfin sole, rock action does not significantly revise will result from their implementation. A sole, flathead sole or ‘‘other flatfish’’ management measures in a manner that copy of the EA is available (see retained at the same time on the vessel would require time to plan or prepare addresses). during the same trip. for those revisions. In some cases, such List of Subjects * * * * * as closures, action must be taken 50 CFR Part 611 3. In § 675.21, paragraph immediately to conserve fishery (b)(1)(iii)(B)(2) is revised to read as resources. Without these closures, Fisheries, Foreign relations, Reporting follows: specified TAC amounts will be and recordkeeping requirements overharvested and retention of these § 675.21 Prohibited species catch (PSC) 50 CFR Part 675 species will become prohibited, which limitations. would disadvantage fishermen who Fisheries, Reporting and * * * * * could no longer retain bycatch amounts recordkeeping requirements. (b) * * * of these species. The immediate Dated: February 7, 1995. (1) * * * effectiveness of this action is required to Richard H. Schaefer, (iii) * * * provide consistent management and Acting Assistant Administrator for Fisheries, (B) * * * conservation of fishery resources. National Marine Fisheries Service. (2) Rock sole/flathead sole/‘‘other Accordingly, the Assistant For the reasons set out in the Administrator finds there is good cause flatfish’’ fishery. Fishing with trawl gear preamble, 50 CFR part 675 is amended during any weekly reporting period that to waive the 30-day delayed as follows: effectiveness period under 5 U.S.C. is defined as a flatfish fishery under paragraph (b)(1)(iii)(B) of this section 553(d)(3) with respect to such PART 675ÐGROUNDFISH OF THE provisions and to the technical and is not a yellowfin sole fishery as BERING SEA AND ALEUTIAN ISLANDS defined under paragraph (b)(1)(iii)(B)(1) amendment discussed above. In some AREA cases, the interim specifications in effect of this section. would be insufficient to allow directed 1. The authority citation for part 675 * * * * * fisheries to operate during a 30-day continues to read as follows: [FR Doc. 95–3485 Filed 2–8–95; 4:37 pm] delayed effectiveness period, which Authority: 16 U.S.C. 1801 et seq. BILLING CODE 3510±22±P federal register February 14,1995 Tuesday Proposed Rule Advanced SimulationPlanRevisions; 14 CFRPart121 Federal AviationAdministration Transportation Department of Part IV 8489 8490 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules DEPARTMENT OF TRANSPORTATION on or before the closing date for complete and the designation of comments specified will be considered ‘‘phase’’ for identification of simulator Federal Aviation Administration by the Administrator before taking complexity is no longer descriptive. action on this proposed rulemaking. The Operators no longer begin at a lower 14 CFR Part 121 proposal contained in this notice may level of qualification and upgrade in [Docket No. 28072; Notice No. 95±2] be changed in light of comments phases. The tendency is to acquire a received. All comments received will be given level simulator that best meets RIN 2120±AF29 available, both before and after the their needs. The agency and the Advanced Simulation Plan Revisions closing date for comment, in the Rules industry now commonly refer to the Docket for examination by interested simulators in terms of ‘‘levels.’’ The AGENCY: Federal Aviation persons. A report summarizing each levels currently used to describe a Administration (FAA), DOT. substantive public contact with Federal particular simulator compared with the ACTION: Notice of Proposed Rulemaking Aviation Administration (FAA) older phase designations are: (NPRM). personnel concerned with this rulemaking will be filed in the docket. New terminology Old terminology SUMMARY: The FAA proposes to: Revise Commenters wishing the FAA to and clarify certain requirements of the Level A ...... Visual. acknowledge receipt of their comments Level B ...... Phase I. Advanced Simulation Plan for part 121 submitted in response to this notice operators to authorize more training and Level C ...... Phase II. must include a pre-addressed, stamped Level D ...... Phase III. checking in simulators; clarify the postcard on which the following operating experience requirements for statement is made: ‘‘Comments to It is proposed to revise Appendix H certain second-in-command pilots Docket No. 28072.’’ The postcard will be to replace the old terminology with the trained and checked in simulators; and date stamped and mailed to the new throughout the appendix. The new eliminate the requirement that the commenter. terminology will be used throughout minimum of 1 year of employment as an this preamble in discussing other instructor or check airman be with the Availability of NPRM’s amendments proposed herein. operator of the simulator. This action is Any person may obtain a copy of this Advanced Simulation needed to respond to concerns NPRM by submitting a request to the identified by certain affected certificate Federal Aviation Administration, Office Appendix H was developed and holders in petitions for exemption. It is of Public Affairs, Attention: Public adopted when there were no ‘‘advanced intended to alleviate unnecessary Inquiry Center, APA–430, 800 simulators.’’ Currently, however, training costs while maintaining an Independence Avenue, SW., advanced simulators exist which have equivalent level of safety. Washington, DC 20591, or by calling permitted virtual duplication of many DATES: Comments must be received by (202) 267–3484. Communications must aircraft performance characteristics and March 16, 1995. identify the notice number of this systems. As a result, the vast majority of ADDRESSES: Comments on this proposal NPRM. U.S. airline pilot training is now may be mailed in triplicate or delivered Persons interested in being placed on conducted in these advanced to: Federal Aviation Administration, the mailing list for future NPRM’s simulators. According to industry Office of Chief Counsel, Attention: should request from the above office a members, however, certain limitations Rules Docket (AGC–10), Docket No. copy of Advisory Circular No. 11–2A, originally incorporated into Appendix H 28072, 800 Independence Avenue Notice of Proposed Rulemaking still require a small, yet relatively Washington, DC 20591. Distribution System, which describes expensive, amount of training to be the application procedure. completed in the actual airplane. FOR FURTHER INFORMATION CONTACT: Gary In light of their highly satisfactory E. Davis, Project Development Branch, Background experience with these simulators, some AFS–240, Air Transportation Division, industry members believe that a Level C Terminology Office of Flight Standards, Federal simulator should be approved for those Aviation Administration, 800 Appendix H to 14 CFR part 121, flightcrew training and checking Independence Avenue SW., ‘‘Advanced Simulation Plan,’’ provides maneuvers that currently are permitted Washington, DC 20591, Telephone (202) guidelines and a means for achieving only in the aircraft or in Level D 267–3747. flightcrew training and checking in simulators. In a petition for exemption SUPPLEMENTARY INFORMATION: advanced airplane simulators. The dated October 12, 1992, the Air three-phase plan provides standards for Transport Association, on behalf of its Comments Invited a progressive upgrade of airplane affected member airlines and other Interested persons are invited to simulators so that the total scope of similarly situated airlines, petitioned for participate in the making of the flightcrew training can be enhanced. an exemption to provide for initial proposed rule by submitting such Appendix H specifically describes the training in a Level C simulator. Trans written data, views, or arguments as simulator and visual system World Airlines and Tower Airlines they may desire. Comments relating to requirements that must be met to obtain petitioned individually to use a Level C the environmental, energy, federalism, approval to conduct certain training and simulator to conduct limited initial and or economic impact that might result checking in the particular type of upgrade training and checking functions from adopting the proposals in this simulator (Phase I, II, or III). The term that would normally be conducted in a notice are also invited. Substantive ‘‘phase’’ was used because it was Level D simulator. Agreeing in part with comments should be accompanied by expected that operators would be the petitioners’ supportive information cost estimates. Comments should upgrading their simulator inventories in and, based on its own experience, the identify the regulatory docket or notice phases while exercising simulator FAA granted some limited relief for number and should be submitted in privileges commensurate with the phase training and checking. triplicate to the Rules Docket address of the simulator. The upgrading of More recently, United Airlines (UAL) specified above. All comments received simulators in phases is now essentially has requested similar but slightly more Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8491 extensive relief than previously granted. they undergo the degree of performance safety. Additionally, by not doing this UAL believes that its experience with verification that Level D simulators do. training and checking in flight in the advanced simulation, as well as the However, based on 13 years of actual aircraft, these authorized FAA’s own experience, more than experience using Level C simulators and programs would provide benefits in adequately justifies expanding the scope on the rigorous qualification process safety, energy conservation, and of flightcrew training and checking in a and performance standards required for efficiency. Level C simulator. In support of its Level C simulators, the FAA has request, UAL points out that: (1) The determined that they may now be used Modifying Employment Requirement same training curricula and pilot for initial qualification and upgrade The FAA is proposing to remove the proficiency standards would apply to a training and checking for SIC. Because requirement in Appendix H (in Level C or Level D simulator; (2) these of performance differences between curricula can be implemented and Level C and Level D simulators, paragraph 3 of the section entitled proficiency demonstrated effectively in however, the pilots qualified using ‘‘Advanced Simulation Training a Level C simulator; and (3) daily local Level C simulators should meet certain Program’’) that each instructor and FAA oversight of training and checking prerequisite levels of experience. They check airman have been employed for at programs will assure that these should also be required to have least 1 year by the certificate holder curricula and standards remain supervised post qualification applying for approval of the program. sufficient. operational experience. The FAA’s intention, in originally UAL further believes that its request Prior Aeronautical Experience requiring a minimum period of 1-year of would be in the public interest since it employment with the operator, was to is universally acknowledged that In Appendix H to part 121, the FAA ensure suitable experience levels for simulator training is superior to training proposes to add a new paragraph to the individuals selected to be instructors in an actual aircraft and the public is section entitled ‘‘Level C, Training and and check airmen. The most Checking Permitted.’’ It would permit served best when high quality training sophisticated simulator can be of little SIC applicants to obtain initial and is conducted in the safest and most cost- value without an experienced, well- effective manner. upgrade training and certification checks in Level C simulators if certain trained instructor or check airman to The FAA agrees with much of UAL’s operate it. However, the agency has rationale in its petition; however, after preconditions are met. The rule would require that the applicant meet the prior concluded that this goal can be achieved consideration of the supportive by 1 year of experience serving as an information, the FAA believes that UAL aeronautical experience requirements for an ATP certificate and airplane instructor or check airman with any part is not alone or unique in its request. 121 operator. The FAA believes that this Therefore, the FAA has determined that rating under § 61.155, before beginning amount of instructor experience, in the appropriate response to the UAL training in a Level C simulator and addition to the training prerequisites for petition for exemption is to propose a before being checked under § 61.157 in change to the existing regulations. a Level C simulator for an ATP these individuals in Appendix H, is an certificate or rating. adequate level of preparation for an Discussion of the Proposal In addition, these SIC initial and instructor or check airman in a Level C upgrade applicants must fulfill special Authorizing Additional Training and simulator. Modifying the employment operational experience requirements Checking in a Level C Simulator requirement in this way will not under proposed new provisions in decrease safety. However, it should be All simulators duplicate or simulate § 121.434(c)(2). Under proposed noted that, instructors and check airmen the functions of an airplane to varying § 121.434(c)(2)(ii), the SIC would have may participate in more than one levels of accuracy. The FAA requires to obtain line operations experience at operator’s approved training program; that, for each higher level of simulator, the SIC duty position, supervised by a each operator must provide training for the simulator duplicate the performance check pilot. These pilots will not have each instructor and check airman in its of the airplane over larger and more the option, available to other pilots training program. Thus, an instructor or critical portions of the airplane’s under § 121.434(c)(2)(i), to fulfill operating envelope. This performance operating experience requirements by check airman who instructs for more must be shown by documented simply observing another pilot perform than one operator must receive training evidence. Level D simulators must SIC duties. In addition, as part of this in each operator’s program. provide the highest level of flight initial operating experience, these pilots Similarly, the FAA is proposing to realism. They must perform as the would have to perform a minimum of revise the section entitled ‘‘Phase II, airplane performs over the largest four takeoffs and four landings also Training and Checking Permitted’’ in portion of the airplane’s operating under the supervision of a check pilot. Appendix H to provide that pilots envelope, while providing the most The proposed amendment to seeking to upgrade to pilot in command complete and technically accurate § 121.434(f) would not allow pilots (PIC) do not have to have obtained the environment possible. Evidence of this trained in a Level C simulator to prerequisite SIC experience ‘‘with the performance must include certain substitute takeoffs or landings for operator,’’ nor have served or be serving sophisticated aerodynamic modeling required operating experience. The as SIC ‘‘with that operator.’’ Again, the that allows more complete replication of proposed rule would continue to allow FAA believes that the level of the performance of the airplane. other SIC pilots to reduce by 50 percent experience required by an approved Level C simulators are designed to the hours of required operating training program, in addition to the operate over the same portion of the experience by the substitution of one training prerequisites for these airplane’s operating envelope as Level D additional takeoff and landing for each simulators, and do so under a relatively hour of flight. individuals in Appendix H and sophisticated performance verification Revising Appendix H to authorize elsewhere under the Federal Aviation process. Level C simulators, however, expanded use of Level C simulators for Regulations, establishes an adequate are not required to have sophisticated additional training and checking would level of preparation regardless of aerodynamic modeling factors. Nor do provide an equivalent or higher level of employment with any specific operator. 8492 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules Clarifying Training and Certification new paragraph 3 would refer to ‘‘initial’’ appears and to use the current Check Requirements for Initial and training, the language in the current last alphabetical designations for the various Upgrading Training for SIC’s Upgrading paragraph is no longer needed to levels. to PIC explain that pilots meeting these In addition, it is proposed to remove the section entitled ‘‘Phase IIA Interim The FAA is also proposing to revise requirements may upgrade to another Simulator Upgrade Plan for Part 121 paragraph 2 of the section entitled airplane in that group in which that Operators’’ as obsolete. For the same ‘‘Level C, Training and Checking pilot has not previously qualified. The reason, it is proposed to remove Permitted,’’ to clearly distinguish requirements in new paragraph 3 paragraph 7 of the section entitled between the prerequisites for initial continue to be consistent with ‘‘Advanced Simulation Training versus upgrade training and checking. § 121.400(c)(1), which defines ‘‘initial training’’ as the training required for Program’’ which references Phase IIA. To do this, paragraph 2(a) would be crewmembers and dispatchers who have Under Phase IIA, any part 121 operator redesignated as paragraph 2 and not qualified and served in the same could conduct Phase II training for 3 paragraph 2(b) as paragraph 3. New capacity on another airplane of the same and 1⁄2 years from the date it was paragraph 3 would be stated so as to group. approved for Phase I in a simulator eliminate the need for the flush approved for the landing maneuver paragraph currently at the end of the Modifying Minimum Flight Hour under Phase I. The carrier’s upgrade section. Requirements plan had to be submitted to the FAA Current paragraph 2(a) sets forth the The FAA also is considering whether before July 30, 1981. Thus, these prerequisites for training and checking to propose revising certain flight hour provisions are no longer effective. in a Level C simulator for SIC’s experience requirements for initial and upgrading to PIC in the same upgrade training and checking in a Regulatory Analysis equipment. For example, a pilot serving Level C simulator. Currently, pilots Executive Order 12866 established the as SIC in a Boeing 727 upgrading to PIC upgrading from SIC to PIC in equipment requirement that, within the extent in the same airplane would have to meet in which they have previously qualified permitted by law, a Federal regulatory the requirements of this paragraph. as SIC are required to have at least 500 action may be undertaken only if the Under new paragraph 2, these hours of actual flight time while serving potential benefits to society for the requirements would not change. The as SIC in an airplane in the same group. regulation outweigh the potential costs pilot would still have to have previously Similarly, pilots who are initially to society. In response to this qualified as SIC in the equipment, have upgrading from SIC to PIC in other requirement, and in accordance with at least 500 hours of actual flight time equipment in which the pilot has not Department of Transportation policies as SIC in an airplane in the same group, been previously qualified, must have a and procedures, the FAA has estimated and be currently serving as SIC in an minimum of 2500 hours as SIC in the anticipated benefits and costs of this airplane in the same group. These airplanes of the same group as the rulemaking action. The FAA has requirements are consistent with the equipment to which they are upgrading. determined that this proposed rule is definition of upgrade training under The flight hour experience not a ‘‘significant rulemaking action’’, as Subpart N—Training program. Section requirements ensure that a pilot has defined by Executive Order 12866 121.400(c)(3) defines ‘‘Upgrade adequate experience in order to upgrade (Regulatory Planning and Review). The training’’ as the training required for to PIC. These values were established, anticipated costs and benefits associated crewmembers who have qualified and based on the collective opinions of the with this proposed rule are summarized served as SIC or flight engineer on a FAA and industry members, when below. (A more detailed discussion of particular airplane type, before they Appendix H was originally adopted. costs and benefits is contained in the serve as PIC or SIC, respectively, on that Since then, industry members have full regulatory evaluation placed in the airplane. argued that the required hours are docket for this proposed rule). The requirements of current excessive. Based on the success of some paragraph 2(b) must be read in industry members who have operated Costs conjunction with the final paragraph in under exemptions that provided certain The proposed rule would not improve the section to determine that it applies relief of these flight-hour requirements any additional costs on either part 121 to initial training and checking for SIC’s and other specific requirements for air carrier operators or the flying public. upgrading to PIC in an airplane type in upgrade training under Subpart N, the The proposed rule would allow certain which the pilot has never served as SIC. FAA may propose, for example, to training practices that the FAA has This SIC has experience in the same eliminate the 500 flight-hour determined to be safe and efficient group of airplanes, but not in the same requirement and reduce from 2500 to methods for training pilots, and it airplane to which the pilot wants to 500 the number of flight hours required would clarify other portions of upgrade. For example, a pilot serving as for initial upgrade training and Appendix H. Thus, the proposal would an SIC in a Boeing 737 initially checking. not impose any additional costs because upgrading to PIC in a Boeing 727 must The FAA seeks comments and it would permit operators to use the meet the requirements of this paragraph. additional information that may justify least costly methods of training while New paragraph 3 would not change proposing to modify these current flight maintaining an equivalent level of safety this requirement, but would make it hour requirements in a future notice of for the flying public. Since current easier for the reader to see that it applies proposed rulemaking. training practices would be maintained to initial training and checking. The to current standards under the proposed Standardizing Language and pilot would still have to be employed by rule, there would be no reduction in Eliminating Obsolete References an operator, be currently serving as SIC aviation safety imposed on the flying in an airplane in the same group, have As discussed above, the term ‘‘phase’’ public. a minimum of 2500 flight hours as SIC is no longer used to describe the various in airplanes in the same group, and have simulators referred to in Appendix H. Potential Cost-Relief Benefits served as SIC on at least two airplanes Accordingly, it is proposed to replace The proposed rule would generate of the same group. Because proposed ‘‘phase’’ with ‘‘level’’ wherever it potential cost savings benefits estimated Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules 8493 at $20 million, in 1992 dollars, over the Accordingly to FAA Order 2100.14A Paperwork Reduction Act next 10 years (or $12.4 million, (Regulatory Flexibility and Guidance), a This proposed rule contains no discounted, using a 7.0 percent rate of substantial number of small entities is information collection requests interest). These potential cost savings defined as a number which is not less requiring approval of the Office of benefits would take the form of than eleven and which is more than Management and Budget pursuant to the increased operational efficiency one-third of the small entities subject to Paperwork Reduction Act (44 U.S.C. (qualitative) and cost savings a proposed or existing rule. A 3507 et seq.). (quantitative) to those part 121 operators significant economic impact on a small engaged in initial simulator training, in entity is an annualized net compliance Conclusion accordance with Appendix H. cost which, when adjusted for inflation, For the reasons discussed in the The potential cost savings benefits of equals or exceeds the significant cost preamble, and based on the findings in the proposed rule represent the threshold for the entity type under the Initial Regulatory Flexibility difference between the costs incurred review. Determination and the International currently by part 121 air carriers for The entities that potentially would be Trade Impact Analysis, the FAA has initial training and checking of SIC affected by the proposed rule are small determined that this proposed pilots and the costs that would be part 121 operators that own, but do not regulation is not significant under incurred if the proposal were to become necessarily operate, nine or fewer Executive Order 12866. In addition, it is a rule. Currently, certain requirements aircraft. As discussed in the cost section certified that this proposal, if adopted, for initial training and checking of SIC of this evaluation summary, the will not have a significant economic pilots that are not performed in a Level proposed rule would not impose any impact, positive or negative, on an D simulator must be performed in the costs on these operators because it is substantial number of small entities aircraft. Under the proposed rule, those cost-relieving in nature. Therefore, the under the criteria of the Regulatory requirements that are performed in the proposed rule would not impose a Flexibility Act. This proposal is not aircraft in lieu of a Level D simulator significant economic impact on a considered significant under DOT would be performed in a Level C substantial number of small aircraft Regulatory Policies and Procedures (44 simulator. The costs of operating the operators. aircraft for those requirements above the FR 11034; February 26, 1979). International Trade Impact Assessment costs of operating the less expensive List of Subjects in 14 CFR Part 121 simulator for those same requirements is The proposed rule would have little, Air carriers, Aircraft, Airmen, the estimated benefit of this proposed if any, impact on the competitive Aviation safety, Safety, Transportation. rule. posture of either U.S. carriers doing In an effort to derive a cost-relief business in foreign countries or foreign The Proposed Rule estimate associated with this proposed carriers doing business in the United In consideration of the foregoing, the rule, several part 121 air carriers were States. This assessment is based on the Federal Aviation Administration contacted. These air carriers provided fact that the proposed rule would not proposes to amend part 121 of the the agency with estimated aircraft impose any cost on part 121 operators Federal Aviation Regulations (14 CFR operating costs per hour, the time because it is cost-relieving in nature. part 121) as follows: needed to train and check pilots for These operators do not compete directly those requirements that, under the with air carriers engaged in foreign PART 121ÐCERTIFICATION AND present rule, cannot be performed in a operations (part 129). OPERATIONS: DOMESTIC, FLAG, AND Level C simulator, and the number of Federalism Implications SUPPLEMENTAL AIR CARRIERS AND pilots that it expects to train in the next COMMERCIAL OPERATORS OF 10 years. The regulations proposed herein LARGE AIRCRAFT would not have substantial direct effects Potential Operational Efficiency on the States, on the relationship 1. The authority citation for Part 121 Benefits between the national government and continues to reads as follows: The potential benefits of the proposed the States, or on the distribution of Authority: 49 U.S.C. 1354(a), 1355, 1356, rule would be generated in the form of power and responsibilities among the 1357, 1401, 1421–1430, 1472, 1485, and increased operational efficiency. In the various levels of government. Therefore, 1502; 49 U.S.C. 106(g) (Revised Pub. L. 97– full regulatory evaluation placed in the in accordance with Executive Order 449, January 12, 1983). docket, these potential efficiency 12866, it is determined that this 2. Section 121.434 is amended by benefits are presented qualitatively. proposal would not have federalism revising paragraphs (c)(2) and (f) to read These benefits are difficult to estimate implications requiring the preparation as follows: quantitatively due, at present, to the of a Federalism Assessment. lack of available cost information. § 121.434 Operating experience. International Civil Aviation * * * * * Initial Regulatory Flexibility Organization and Joint Aviation (c) * * * Determination Regulations (2) A second-in-command pilot must The Regulatory Flexibility Act of 1980 In keeping with U.S. obligations perform the duties of a second in (RFA) was enacted by Congress to under the Convention on International command as follows: ensure that small entities are not Civil Aviation, it is FAA policy to (i) For a second-in-command pilot unnecessarily and disproportionately comply with ICAO Standards and who received training for second-in- burdened by government regulations. Recommended Practices (SARP) to the command duties for the relevant type The RFA requires government agencies maximum extent practicable. The FAA airplane pursuant to any appropriate to determine whether rules will have ‘‘a is not aware of any differences that this provision of this part other than significant economic impact on a proposal would present if adopted. Any paragraph 4 of ‘‘Level C Training and substantial number of small entities’’ differences that may be presented in Checking Permitted’’ in Appendix H of and, in cases where they will, conduct comments to this proposal, however, this part, he or she must perform those a Regulatory Flexibility Analysis. will be taken into consideration. duties under the supervision of a check 8494 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Proposed Rules pilot or observe the performance of wherever they appear; by replacing the 2. Upgrade to pilot-in-command training those duties on the flight deck. words ‘‘Phase II, IIA, or III’’ with the and the certification check when the pilot— (ii) For a second-in-command pilot words ‘‘Level C or D’’, wherever they a. Has previously qualified as second in who received training in a Level C appear; by replacing the word ‘‘phase’’ command in the equipment to which the simulator in accordance with Appendix with the word ‘‘level’’, wherever it pilot is upgrading; H of this part, he or she must perform— appears; and by replacing the word b. Has at least 500 hours of actual flight (A) Those duties under the ‘‘phases’’ with the word ‘‘levels’’ time while serving as second in command in supervision of a check pilot; and wherever it appears. an airplane of the same group; and (B) At least four takeoffs and four 4. The section entitled ‘‘Advanced c. Is currently serving as second in landings as sole manipulator of the Simulation Training Program’’ in command in an airplane in this same group. controls under the supervision of a Appendix H is amended by removing 3. Initial pilot-in-command training and check pilot. paragraph 7 and revising paragraph 3 to the certification check when the pilot— a. Is currently serving as second in read as follows: * * * * * command in an airplane of the same group; (f) Except for second-in-command b. Has a minimum of 2,500 flight hours as pilots who were trained for the airplane Appendix H to Part 121ÐAdvanced Simulation Plan second in command in an airplane of the type in a Level C simulator in same group; and accordance with Appendix H of this * * * * * c. Has served as second in command on at part, the hours of operating experience Advanced Simulation Training Program least two airplanes of the same group. for flight crewmembers may be reduced 4. For all second-in-command pilot to 50 percent of the hours required by * * * * * applicants who meet the aeronautical 3. Documentation that each instructor this section by the substitution of one experience requirements of § 61.155 of this and check airman has served for at least additional takeoff and landing for each chapter in the airplane, the initial and 1 year in that capacity in a certificate hour of flight. upgrade training and checking required by holder’s approved program or has * * * * * this part, and the certification check served for at least 1 year as a pilot in requirements of § 61.157 of this chapter. 3. Appendix H is amended by command or second in command in an * * * * * replacing the words ‘‘Phase I’’, ‘‘Phase airplane of the group in which that pilot II’’, and ‘‘Phase III’’ with the words is instructing or checking. 6. Appendix H, ‘‘Phase IIA, Interim ‘‘Level B’’, ‘‘Level C’’, and ‘‘Level D’’ * * * * * Simulator Upgrade Plan for Part 121 respectively, wherever they appear; by 5. Appendix H, ‘‘Phase II, Training Operators’’ is removed in its entirety. replacing the words ‘‘Phase I, II, and III’’ and Checking Permitted’’ is amended by Issued in Washington, DC, on January 31, with the words ‘‘Level B, C, and D’’, revising paragraph 2. and adding 1995. wherever they appear; by replacing the paragraphs 3. and 4. to read as follows: words ‘‘Phase II or III’’ with the words William J. White, ‘‘Level C or D’’, wherever they appear; * * * * * Acting Director, Flight Standards Service. by replacing the words ‘‘Phase I, II, or Level C—Training and Checking Permitted [FR Doc. 95–3132 Filed 2–13–95; 8:45 am] III’’ with the words ‘‘Level B, C, or D’’, 1. * * * BILLING CODE 4910±13±M federal register February 14,1995 Tuesday Comment; Notices Opportunities forPublicReviewand Adjustment, PublicHearing,and Transmission andWholesalePowerRate and ConservationAct;Proposed Pacific NorthwestElectricPowerPlanning Bonneville PowerAdministration Energy Department of Part V 8495 8496 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices DEPARTMENT OF ENERGY pricing, revenue requirement, and other expediting any necessary cross- matters should provide parties valuable examination. A notice of the dates and Bonneville Power Administration information that will enable them to times of any hearings will be mailed to better assess BPA’s initial proposal all parties of record. Objections to Proposed Wholesale Power Rate when it is released in late March or orders made by the Hearing Officer at Adjustment, Public Hearing, and early April. BPA will propose a rate the prehearing conference must be made Opportunities for Public Review and hearing schedule at the prehearing in person or through a representative at Comment conference that will take into account the prehearing conference. changes in the markets and allow The following schedule information is AGENCY: Bonneville Power review of BPA’s initial proposal that it provided for informational purposes. A Administration (BPA), DOE. intends to make in late March or early final schedule will be established by the ACTION: Notice and Opportunities for April of 1995. The rate hearing schedule Hearing Officer at the prehearing Review and Comment. will be published in the Federal conference. SUMMARY: BPA File No: WP–95. BPA Register immediately following the On or about February 9, 1995—Rate requests that all comments and prehearing conference. Schedules and General Rate Schedule documents intended to become part of Opportunities will be available for Provisions, mailed to customers and the Official Record in this process interested persons to review BPA’s rate 1993 rate case parties and available contain the file number designation proposal, to participate in the rate from BPA’s Public Information WP–95. hearing, and to submit oral and written Center; 905 NE. 11th, 1st Floor, The Pacific Northwest Electric Power comments. During the development of Portland, Oregon. Planning and Conservation Act the final rate proposal, BPA will February 13, 1995—Deadline for (Northwest Power Act) provides that evaluate all written and oral comments interventions to be filed with Hearing BPA must establish and periodically received in the rate proceeding. Clerk at above address. Consideration of comments and more review and revise its rates so that they On or about February 13, 1995— current data may result in the final rate are adequate to recover, in accordance Preliminary proposal studies available proposal differing from the rates with sound business principles, the at BPA’s Rates Hearing Room; 2032 proposed in this Notice. costs associated with the acquisition, Lloyd Center; Portland, Oregon and conservation, and transmission of DATES: Persons wishing to become a BPA’s Public Information Center; 905 electric power, and to recover the formal ‘‘party’’ to the proceedings must NE. 11th, 1st Floor, Portland, Oregon. Federal investment in the Federal notify BPA in writing of their intention February 13, 1995—Prehearing Columbia River Power System (FCRPS) to do so in accordance with conference to set schedule and act on and other costs incurred by BPA. BPA requirements stated in this Notice. petitions to intervene. Petitions to intervene must be received is proposing wholesale power rate On or about April 5, 1995—BPA Initial by 9 a.m. February 13, 1995, and should schedules to be effective October 1, Proposal filed. 1995, so that the wholesale power rates be addressed as follows: Hearing in total produce revenues that best Officer, c/o Francis (Jamie) Troy, October 29, 1995—Final Record of enable BPA to meet its costs. Hearing Clerk-LQ, Bonneville Power Decision published. The proposal BPA is making at this Administration, 905 NE. 11th Ave., P.O. BPA also will be conducting public time is preliminary. While BPA was in Box 12999, Portland, Oregon 97212. field hearings. A field hearing schedule the late stages of putting together its In addition, a copy of the petition will be announced at the prehearing proposal, it determined that the must be served concurrently on BPA’s conference. A notice of the dates, times, proposal as prepared could send an Office of Legal Services:, Janet L. and locations of the field hearings will erroneous signal of BPA’s commitment Prewitt, Office of Legal Services-LQ, 905 be made later through mailings and to rate stability. Competitive forces are NE. 11th Ave., P.O. Box 3621, Portland, public advertising. causing fundamental and significant Oregon 97208. When BPA holds public field changes in the Pacific Northwest Persons who have been denied party hearings, written transcripts are made wholesale electric power market on a status in any past BPA rate proceeding and included in the official record. A weekly, and sometimes a daily, basis. shall continue to be denied party status notice of the dates and times of the field The competition is relentless, and BPA unless they establish a significant hearings also will be published in the can not issue a final rate proposal that change of circumstances. Federal Register. does not allow it to meet and beat the A prehearing conference will be held ADDRESSES: The date for written competition. Nothing other than that before the Hearing Officer at 9:00 a.m. comments by participants must be will allow BPA to sustain its statutory on February 13, 1995, in the BPA Rates received by May 15, 1995, to be responsibilities. As a consequence, BPA Hearing Room, 3rd Level, 2032 Lloyd considered in the Draft Record of has determined that its initial proposal Center; Portland, Oregon. Registration Decision (ROD). Written comments should include a stable, 5-year rate for for the prehearing conference will begin should be submitted to the Manager, most, if not all, of its requirements at 8:30 a.m. BPA will prefile Corporate Communications-CK; service. BPA anticipates that the work preliminary proposal studies at the Bonneville Power Administration; P.O. necessary to assemble such a proposal prehearing conference. The Hearing Box 12999; Portland, Oregon 97212. will take until late March or early April Officer will act on all intervention of 1995. Since such a rate would cover petitions and oppositions to FOR FURTHER INFORMATION CONTACT: Mr. the bulk of BPA’s firm sales, its impact intervention petitions, rule on any Michael Hansen, Public Involvement on BPA’s overall proposal is motions, establish additional and Information Specialist, at the fundamental. Thus, the information procedures, establish a service list, address listed above, (503) 230–4328 or BPA is releasing now should be establish a procedural schedule, and call toll-free 1–800–622–4519. considered preliminary. Information in consolidate parties with similar Information may also be obtained from: BPA’s preliminary proposal concerning interests for purposes of filing jointly Mr. Steve Hickok; Group Vice President, rate design, product definition and sponsored testimony and briefs, and for Sales and Customer Service; P.O. Box Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8497 3621; Portland, OR 97232 (503–230– In order to assess its current rates, confirmation and approval by FERC. 5356) BPA first determined the amount of (BPA’s proposal combines the General Mr. George Eskridge; Manager, SE Sales revenues required to meet its financial Rate Schedule Provisions for Wholesale and Customer Service District; 1101 obligations in FY 1996 and FY 1997. Power Rates and Transmission Rates W. River, Suite 250; Boise, ID 83702 BPA has determined that the revenues into one document—the GRSPs). BPA (208–334–9137) it would expect to collect from projected currently anticipates that it will request Mr. Ken Hustad; Manager, NE Sales and sales under its current rates will not FERC approval of its revised rates Customer Service District; Crescent adequately recover these revenue effective October 1, 1995. Court, Suite 500; 707 Main; Spokane, requirements. Therefore, BPA proposes The 1995 wholesale power rate WA 99201 (509–353–2518) to revise its wholesale power rates. At schedules, and the GRSPs associated Ms. Ruth Bennett; Manager, SW Sales the conclusion of the rate proceeding, with those rate schedules, supersede and Customer Service District; 703 BPA will file its rates with the Federal BPA’s 1993 rate schedules (which Broadway; Vancouver, WA 98660 Energy Regulatory Commission (FERC) became effective October 1, 1993) to the (360–418–8600) for confirmation and approval. extent stated in the Availability section Ms. Marg Nelson; Manager, NW Sales Consistent with the risk mitigation of each 1995 rate schedule. These and Customer Service District; 201 policy adopted in BPA’s last rate case, schedules and GRSPs shall be Queen Anne Ave. N., Suite 400; BPA’s preliminary proposal contains an applicable to BPA power sales contracts, Seattle, WA 98109–1030 (206–216– Interim Rate Adjustment (IRA) that as appropriate, including contracts 4272). allows, but does not require, BPA to executed both prior to and subsequent Responsible Official: Mr. Geoff increase its rates for the second year of to enactment of the Northwest Power Moorman, Manager for Pricing, the rate period to reverse any serious, Act. In addition, as stated in the Marginal Cost and Ratemaking, is the unplanned decline in financial reserves availability section of each schedule, official responsible for the development that occurs in the first year of the rate certain of the rates and tiered rate of BPA’s rates. period. BPA also is including power rate methodology will be effective for SUPPLEMENTARY INFORMATION: schedules in this preliminary proposal extended periods of time. that are both new and significantly In developing the proposed wholesale Table of Contents different from BPA’s 1993 power rate power rates, BPA considered many I. Introduction schedules, as well as including the factors, including revenue requirements, II. Purpose and Scope of Hearing negotiated rates for the Pacific ease of administration, revenue stability, III. Procedures Governing Rate Adjustments Northwest Coordination Agreement. rate continuity, ease of comprehension, and Public Participation BPA is planning significant changes IV. Major Studies and BPA’s statutory obligations. The in the design of its power rates. BPA is studies that have been prepared to V. Tiered Rates Methodology proposing to divide its priority firm (PF) VI. Wholesale Power Rate Schedules support the proposed preliminary rates VII. Charges Under the Amended and and industrial firm power (IP) rates into will be mailed to all parties to BPA’s Integrated Pacific Northwest two tiers, (Tier 1 and Tier 2) and to 1993 rate case and will be available for Coordination Agreement establish separate rates for each tier. The examination on February 13, 1995, at other services and products that BPA’s public Information Center, BPA I. Introduction customers may select to complement Headquarters Building, 1st Floor; 905 After the 1993 rate case, BPA either firm requirements service NE. 11th; Portland, and will be available conducted a series of workshops on provided by BPA, or power acquired at the prehearing conference, to the subjects relevant to its ratemaking. The from other sources, will be priced extent they are available. The purpose of the workshops was to separately. identify, simplify, and reduce the The proposed wholesale power rates preliminary studies and documents are: number of issues that might become part were prepared in accordance with 1. Loads and Resources Study and of the 1995 rate case, and to reduce the BPA’s statutory authority to develop Documentation amount of discovery normally required rates, including the Bonneville Project 2. Revenue Requirement Study and during the formal rate proceedings. Act of 1937, as amended, 16 U.S.C. 832 Documentation Opportunity was provided to address (1982); the Flood Control Act of 1944, 3. Segmentation Study the impacts of BPA’s ‘‘reinvention,’’ 16 U.S.C. 825s (1982); the Federal 4. Marginal Cost Analysis Study and transmission issues, risk mitigation, Columbia River Transmission System Documentation forecasted revenue requirements, and Act (Transmission System Act), 16 5. Wholesale Power Rate Development rate design issues. The workshops U.S.C. 838 (1982); and the Pacific Study and Documentation provided opportunity for informal Northwest Electric Power Planning and 6. Wholesale Power and Transmission public comment on issues prior to the Conservation Act, 16 U.S.C. 839 (1982). Rate Schedules. formal hearing process. The proposed rate schedules reflect BPA’s proposed Wholesale Power and On December 28, 1994, BPA many requirements contained Transmission Rate Schedules and published in the Federal Register a principally in the Northwest Power General Rate Schedule Provisions will Notice of ‘‘Intent to Revise Wholesale Act’s rate directives (section 7) and the be published in a separate Federal Power Rates to Become Effective conditions related to classes of Register Notice on or about February 13, October 1, 1995,’’ 59 F.R. 66947, in customers and services contained in the 1995. In addition, the documents order to satisfy contractual provisions Northwest Power Act’s power sales described above will be mailed to BPA’s between BPA and its customers. Since directives (section 5). customers, 1993 rate case parties, and then, BPA has continued to study the BPA proposes that its wholesale other interested persons, and will be adequacy of its current rates and has power rate schedules, including the available from BPA’s Public Information concluded that current rates must be adjustments, charges, and special rate Center on or about February 9, 1995. adjusted for the FY 1996 and FY 1997 provisions, and the General Rate To request any of the above rate period. BPA also is considering Schedule Provisions associated with documents by telephone, call BPA’s setting some rates for periods longer these rate schedules, become effective document request line: (503) 230–3478 than 2 years. upon interim approval or upon final or call toll-free 1–800–622–4520. Please 8498 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices request the document by its above-listed released to the public in June 1994. The including future load growth, and will title. Also state whether you require the Draft Strategic Business Plan sets the be based on the costs associated with accompanying documentation (these overall strategic direction for both supplying power to meet these loads. can be quite lengthy); otherwise, the serving BPA’s customers and meeting To address the increasingly study alone will be provided. (For BPA’s legislated responsibilities, competitive market for power, example, ask for the ‘‘Revenue including new statements of BPA’s transmission, and energy services, BPA Requirement Study and mission, values, and strategic business is proposing to offer a menu of Documentation.’’) objectives to guide its activities. The unbundled products in the 1995 rate Because of the complexity of the Draft Strategic Business Plan also case. BPA expects that the products issues in this rate case, in part describes the conceptual framework for offered will be available both under the occasioned by continuing contract the products BPA is offering. As stated current power sales contracts and under negotiations between BPA and its in the Draft Strategic Business Plan, new power sales contracts. BPA expects customers, as well as BPA’s BPA’s pricing policies are designed to to offer additional unbundled products ‘‘reinvention’’ and Competitiveness meet many objectives, including (1) in future rate cases and to price these Project, BPA anticipates that it will need providing maximum customer choice products to meet market conditions and to meet with customers and other and encouraging optimal use of the its cost recovery obligations. In some interested third parties during the rate FCRPS; (2) contributing to BPA’s cases, BPA expects the market will case on a very frequent, and possibly continued viability in an increasingly require flexible pricing. BPA is planning extended, basis. To comport with the competitive energy market environment; to ‘‘unbundle’’ what it offers so rate case procedural rule prohibiting ex and (3) allowing BPA to take full customers can choose among products parte communications, BPA will advantage of its responsibility and and services based on what they need to provide necessary notice of meetings authority to manage the FCRPS, meet their loads and support their own involving rate case issues for consistent with all statutory resources, if any. participation by all rate case parties. requirements. BPA is assessing the potential Parties should be aware, however, that The Draft Strategic Business Plan environmental effects of its rate such meetings may be held on very envisions BPA as having three separate proposal, as required by the National short notice and they should be and distinct business lines—power, Environmental Policy Act (NEPA), as prepared to devote the necessary transmission, and energy services part of the Business Plan Environmental resources to participate fully in every (conservation)—which will be self- Impact Statement (EIS). Beginning in aspect of the rate proceeding. supporting and serve customers June 1994, BPA solicited input to the Consequently, parties should be according to their unique needs. The Draft Strategic Business Plan and the prepared to attend meetings every day Draft Strategic Business Plan also Business Plan EIS from customers during the course of the rate case. outlines a number of initiatives to throughout the region. From August 3– improve BPA’s competitiveness, August 9, BPA held numerous public II. Purpose and Scope of Hearing including strategies to close the comment meetings throughout the BPA’s proposal to revise its wholesale projected gap between BPA’s costs and region. Additionally BPA held a Draft power rates is needed in order for BPA revenues, a financial strategy, and Business Plan EIS workshop where to continue to recover all costs and proposals to change BPA’s power rate participants were invited to design their expenses allocated to the Federal power structures to give customers more own alternatives and consider the system, including amortization of the choice, to more accurately reflect BPA’s environmental and fiscal result. BPA Federal investment in the FCRPS over a costs associated with providing the field staff also were available to brief reasonable period of time, and to discrete components of electric service groups on the Draft Business Plan upon recover the costs in a way that achieves selected by customers, and thereby to request. A supplemental Draft EIS, the goals of BPA’s Competitiveness encourage investment in cost-effective revised in response to comments Project. BPA has found that substantial conservation. BPA proposes to close the received, will be available for public changes must be made in the ways in revenue gap by exerting strict cost comment in February. The Draft EIS which it sets its rates if it is to remain management and becoming market- evaluates BPA’s Business Plan proposal competitive. If BPA is not competitive, driven. and a range of alternatives, including it will not recover its costs, and it then To provide customers with a price the impacts of the range of potential rate will be unable to satisfy its statutory signal that encourages efficient resource designs for BPA’s power and responsibilities. investment decisions, including transmission services. It also documents BPA began its Competitiveness conservation resources, and the impact of the current rate proposal Project in early 1993 in response to appropriately shares the benefits of the for purposes of the National market forces and deregulation of the relatively low-cost Federal power and Environmental Policy Act. Comments electric utility industry. The project, a transmission systems, BPA is proposing on the Business Plan EIS will be re-invention of the agency to make it to tier its power rates for requirements received outside the formal rate hearing more competitive in the new service and for the residential exchange. process, but will be included in the rate marketplace, included the development The rate for requirements service would case record and considered by the of a new business concept, a marketing be divided into two parts: a Tier 1 rate, Administrator in making a final plan, a review of all of BPA’s activities and one or several alternative Tier 2 decision establishing BPA’s 1995 rates. leading to structural reorganization, rates. BPA expects that the Tier 1 rate The Final Business Plan and the strategic action plans for each of BPA’s will be available to serve most of the Business Plan EIS that elaborates BPA’s major activities, an internal effort to existing customers’ firm loads. The Tier strategic action plans will be released in promote leadership and employee 1 rate is expected to be a lower rate than late 1995. empowerment, and proposals to Tier 2 because it will be based primarily BPA’s spending levels are developed eliminate unnecessary administrative on the costs associated with the existing as a part of its Strategic Business Plan, and regulatory requirements. Federal system. The Tier 2 rates will be with the benefit of a public comment BPA’s Draft Strategic Business Plan available to serve regional firm process. They also are determined as a and the Draft Business Plan EIS were requirements in excess of Tier 1, part of the Federal budget process. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8499 Consistent with the Draft Strategic proposal to adjust wholesale power customers and customer groups whose Business Plan, the Administrator rates will be combined with the rates are subject to revision in the formally announced spending levels for proceedings for BPA’s proposal to adjust hearing will be granted intervention FYs 1996–2001 to the public on January transmission rates. This proceeding will based on a petition filed in conformance 12, 1995. BPA will continue to refine its be governed by BPA’s rules for general with this section. Other petitioners must strategic business objectives, goals, and rate proceedings, § 1010.9 of BPA’s explain their interests in sufficient spending levels, and inform the public Procedures, due to the importance and detail to permit the Hearing Officer to accordingly, as part of its Strategic complexity of the issues involved. determine whether they have a relevant Business Plan development process. These Procedures implement the interest in the hearing. Intervention That process is expected to culminate in statutory section 7(i) requirements. petitions will be available for inspection a final Strategic Business Plan Section 1010.7 of the Procedures in BPA’s Public Information Center; 1st published in June 1995. Therefore, prohibits ex parte communications. Floor; 905 NE. 11th; Portland, Oregon. except for the limited exceptions BPA’s Procedures distinguish Any opposition to a petition to hereafter noted, spending level between ‘‘participants in’’ and ‘‘parties intervene must be raised at the February decisions will not be addressed in this to’’ the hearings. Apart from the formal 13, 1995, prehearing conference. All rate case. Accordingly, pursuant to hearing process, BPA will receive timely applications will be ruled on by section 1010.3(f) of the ‘‘Procedures, comments, views, opinions, and the Hearing Officer. Opposition to an Governing Bonneville Power information from ‘‘participants,’’ who untimely petition to intervene shall be Administration Rate Hearings,’’ 51 FR are defined in the Procedures as any filed and served within 2 days after 7611 (March 5, 1986) (hereinafter person who may express views, but who service of the petition. Interventions are Procedures), the Administrator directs does not petition successfully to subject to § 1010.4 of BPA’s Procedures. the Hearing Officer to exclude from the intervene as a party. Participants’ The record will include, among other record any material attempted to be written comments will be made part of things, the transcripts of any hearings, submitted or arguments attempted to be the official record of the case and any written material submitted by the made in the hearing which seek to in considered by the Administrator. The parties and participants, documents any way visit the appropriateness or participant category gives the public the developed by BPA staff, BPA’s reasonableness of BPA’s decisions on opportunity to participate and have its environmental impact statement and spending levels, as included in BPA’s views considered without assuming the comments accepted on it, and other cost evaluation period of FY 1995 obligations incumbent upon ‘‘parties.’’ material accepted into the record by the through FY 2000 and its test period Participants are not entitled to Hearing Officer. The Hearing Officer revenue requirement for FYs 1996 participate in the prehearing conference, then will review the record, supplement through 2000. If, and to the extent, any cross-examine parties’ witnesses, seek it if necessary, and certify the record to re-examination of spending levels is discovery, or serve or be served with the Administrator for decision. necessary, that re-examination will documents, and are not subject to the The Administrator will develop the occur outside of the rate case. BPA’s same procedural requirements as final proposed rates based on the entire Revenue Requirement Study will parties. record, including the record certified by incorporate spending levels and reflect Written comments by participants the Hearing Officer, comments received BPA’s risk mitigation, capital funding, will be included in the record if they are from participants, other material and and other financial goals in the rates. received by May 15, 1995. This date is information submitted to or developed Excepted from this direction on account anticipated to follow the submission of by the Administrator, and any other of their variable nature, dependency on BPA’s and all other parties’ direct cases. comments received during the rate BPA’s rate case models, or timing, are: Written views, supporting information, development process. The basis for the questions, and arguments should be (1) Forecasts of residential exchange final proposed rates first will be submitted to BPA’s Manager of benefits; (2) forecasts of short-term expressed in the Administrator’s Draft Corporate Communications, at the purchase power costs; (3) provision in Record of Decision (ROD). Parties will address listed in the Summary section BPA’s revenue requirement for cash have an opportunity to comment on the of this Notice, above. In addition, BPA working capital or cash lag needs; (4) Draft ROD as provided in BPA’s hearing will hold several field hearings in the repayment matters such as interest rate procedures. The Administrator will Pacific Northwest region. Participants forecasts, scheduled amortization, serve copies of the Final ROD on all may appear at the field hearings and depreciation, replacements, and interest parties and will file the final proposed present oral testimony. The transcripts expense; and (5) updates to forecasts by rates together with the record with of these hearings will be a part of the BPA which may occur in the spring of FERC for confirmation and approval. 1995 and for which no other review record upon which the Administrator forum has been provided. makes the rate decision. IV. Major Studies The second category of interest is that III. Procedures Governing Rate of a ‘‘party’’ as defined in §§ 1010.2 and 1. Loads and Resources Study Adjustments and Public Participation 1010.4 of BPA’s Procedures. Parties may BPA’s forecasts of regional loads by Section 7(i) of the Northwest Power participate in any aspect of the hearing customer group are the basis from Act, 16 U.S.C. 839e(i), requires that process. which public utility and direct service BPA’s rates be established according to Persons wishing to become a formal industry (DSI) customer purchases from certain procedures. These procedures ‘‘party’’ to BPA’s rate proceeding must BPA (Federal system firm loads) are include, among other things, issuance of notify the Hearing Officer and BPA in projected. BPA also projects Federal a Federal Register Notice announcing writing of their request. Petitions to transmission losses, obligations to the proposed rates; one or more intervene shall state the name and regional investor-owned utilities (IOUs) hearings; the opportunity to submit address of the person and the person’s under their power sales contracts, and written views, supporting information, interests in the outcome of the hearing. other inter- and intraregional questions, and arguments; and a Petitioners may designate no more than contractual obligations. decision by the Administrator based on two representatives upon whom service BPA develops forecasts of regional the record. The proceedings for BPA’s of documents will be made. BPA non- and small-generating public utility 8500 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices (NSGPU) and generating public utility study determines nonfirm energy services throughout the region. Because (GPU) loads using standard econometric availability for the region. most services do not require the use of techniques. Regional NSGPU and GPU the entire system, the FCRTS is divided 2. Revenue Requirement Study loads are forecasted as a function of into nine segments, each providing a average retail electricity prices, weather- The Bonneville Project Act, the Flood distinct type of service. The nine related variables, and nonagricultural Control Act of 1944, the Transmission segments are: integrated network; employment. The regional load forecasts System Act, and the Northwest Power Pacific Northwest-Pacific Southwest then are adjusted to account for factors Act require BPA to set rates that are (Southern) Intertie; Northern Intertie; such as effects from proposed wholesale projected to collect revenues sufficient Eastern Intertie; generation integration; tiered rate implementation and to recover the cost of acquiring, fringe area; and delivery segments for conservation programs to derive a conserving, and transmitting the electric public agency, DSI, and IOU customers. projection of NSGPU and GPU power that BPA markets, including The Segmentation Study categorizes purchases from BPA. The IOU load amortization of the Federal investment the facilities of the FCRTS according to forecast was produced by updating the in the FCRPS over a reasonable period, the types of services it provides. This economic assumptions from the 1991 and to recover BPA’s other costs and provides the basis for segmenting the joint BPA/Northwest Power Planning expenses. The Revenue Requirement projected transmission revenue Council (NPPC) forecast. Study includes a demonstration as to requirements used in BPA’s rate Forecasts of aluminum DSI purchases whether current rates will produce proposals. The results of the Study from BPA are prepared by analyzing enough revenues to recover all BPA include the historical investment and smelter production costs relative to costs and expenses, including BPA’s the average of the last three years’ aluminum prices, and by considering repayment requirements to the U.S. operations and maintenance expenses. other factors affecting smelter loads, Treasury. Revenue requirements are the In addition, the facilities of the including BPA’s proposed tiered rate major factor in determining the overall integrated network similarly are divided implementation. Forecasted non- level of BPA’s proposed power and among distinct services. This division of aluminum DSI purchases from BPA are transmission rates. the FCRTS into segments provides the prepared by analyzing historical and The Transmission System Act and the basis for the equitable allocation of technical plant information and Northwest Power Act require that transmission costs between Federal and forecasted market conditions. transmission rates be based on an non-Federal customers based on their Adjustments also are made to equitable allocation of the costs of the usage of the segments. incorporate the effects of BPA’s tiered Federal transmission system between 4. Marginal Cost Analysis rate implementation. Federal and non-Federal power using BPA’s resource acquisition plans are the system. In compliance with a FERC The Marginal Cost Analysis (MCA) based on work by BPA and the NPPC order dated January 27, 1984, 26 FERC estimates the marginal cost that BPA staff and reflect extensive input and ¶ 61,096, the Revenue Requirement incurs to supply energy on a seasonal, review by the general public and the Study incorporates the results of daily, and hourly basis to meet region’s utilities. The specific resource separate repayment studies for the customers’ loads. acquisitions and associated costs generation and transmission The conditions and terms under included in this proposal are based on components of the FCRPS. The which BPA supplies energy necessitate BPA’s 1994 Draft Strategic Business repayment studies for generation and that BPA take actions that impose a cost. Plan. Besides emphasizing a diverse transmission demonstrate the adequacy The MCA measures the costs that BPA resource portfolio, including both of the projected revenues to recover all incurs in taking actions to provide conservation and generating resources, of the Federal investment in the FCRPS energy under different terms. BPA BPA is committed to moving toward a over the allowable repayment period. proposes to measure the marginal costs blend of acquisition methods, including Separate generation and transmission of actions it takes to (1) guarantee BPA-designed, utility-designed, and revenue requirements are developed in availability of energy, (2) provide energy developer-initiated programs. This the Revenue Requirement Study. The at guaranteed prices, and (3) actually combination of resource diversity and adequacy of projected revenues to deliver energy. The results of the MCA acquisition approaches allows BPA to recover test period revenue are used to develop wholesale power better deal with varying circumstances requirements and to meet repayment rates that promote efficient development and uncertainties. period recovery of the Federal and operation of generation and The load/resource balance determines investment is tested and demonstrated conservation resources. BPA’s obligation to serve firm loads separately for the generation and BPA proposes to measure marginal during the test years under 1930 water transmission functions. costs based on the supply and demand conditions. It also contributes to the The Revenue Requirement Study for conditions BPA faces in the determination of the supply of surplus the 1995 preliminary rate proposal is interconnected West Coast wholesale firm power in the region and on the based on cost and revenue estimates for power market. Estimated marginal costs Federal system. A related hydro FY 1996 and FY 1997. BPA’s Revenue are based on the results from a model regulation study incorporates the Requirement Study reflects actual that was developed to simulate future operation of thermal plants, exports and amortization and interest payments paid wholesale market transactions to aid in imports of power, projected resource through September 30, 1994. In BPA’s long-term power marketing and acquisitions, and system constraints addition, it reflects all FCRPS resource strategy decisions—the Power such as the Columbia River flow obligations incurred pursuant to the Marketing Decision Analysis Model augmentation project, ‘‘spill,’’ and the Northwest Power Act, including (PMDAM). PMDAM projects the water budget for fish migration. For this residential exchange costs. opportunity costs that BPA will face preliminary proposal, a 50-year hydro when taking actions to serve its Pacific study was completed, which includes 3. Segmentation Study Northwest customers, at the least cost, assumptions regarding the Columbia BPA operates and maintains the under conditions of uncertainty. River flow augmentation. The hydro Federal Columbia River Transmission PMDAM uses information on the costs study starts in August 1995. The 50-year System (FCRTS) to provide transmission associated with acquiring and operating Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8501 resources to meet load in conjunction the power uses of the transmission rate. The residential exchange with the costs associated with system form the basis for the power transaction, however, is only a ‘‘paper purchasing and/or selling power in the rates demand charge. As described transaction’’ and does not result in West Coast bulk power market. above in the Section concerning the actual power deliveries. The program The MCA provides estimates of Marginal Cost Analysis, in this rate provides for BPA to pay exchanging BPA—s marginal costs of supplying proposal BPA proposes to classify utilities the difference between the cost energy at different times. These generation costs to two components of of power ‘‘purchased’’ by BPA and the estimates provide the basis for electric power, delivered energy and cost of power ‘‘sold’’ by BPA. These classifying BPA’s costs. All of BPA’s rights to energy. cash payments by BPA are referred to as generation costs were classified to 2. Allocation. The final major step in the net cost of the exchange. For the test hourly energy; no generation costs were the COSA is to allocate the period, BPA is proposing to allocate the classified to demand. The estimates also functionalized, segmented, and net cost of the exchange to all firm loads provide the basis for the seasonal and classified costs to customer classes. except preference customer general hourly time-differentiation of rates, BPA’s proposed tiered rate design requirement loads. including the identification of time- necessitates a change in cost allocation b. Tier 1 and Tier 2 Loads: Within periods in which different rates may approach. BPA is proposing to allocate each customer class, BPA is proposing apply and appropriate levels for rates in costs to reflect the difference in costs to allocate resource costs separately to each time period relative to the others. associated with existing loads and Tier 1 and Tier 2 loads, instead of These time periods consist of hours of future loads. Costs are allocated to allocating costs to the total customer the week when the marginal cost of classes of service on the basis of the class load. To accomplish this, the power is high and those when it is relative use of services, and on the basis resources within the FBS resource pool relatively low, as well as seasons of the of priorities of service by resource pools are separated further into Tier 1 year when different marginal costs provided in the Northwest Power Act. resources and Tier 2 resources. BPA is prevail. The results of the analysis The COSA also determines and allocates proposing to identify a set of FBS suggested more seasonality in BPA the net costs incurred under the resources whose costs then will be rates, three annual periods instead of Residential Exchange Program allocated to Tier 1 loads. All other the two previous seasons. The results prescribed in Section 5(c) of the resource costs, including future FBS also suggested that BPA energy rates be Northwest Power Act. Costs that cannot replacements or new resources, will be diurnally differentiated, which was not be attributed to a particular resource allocated to Tier 2 loads. For the test a feature of previous rate designs. This pool or customer are allocated on a period, BPA is proposing to include all analysis does not include any uniform basis to all customers. FBS resources, both existing and quantitative estimate of marginal costs a. Resource pools: For cost allocation replacements, in the specified set of FBS incurred on the transmission system. purposes, BPA is proposing to separate resource costs allocated to Tier 1 loads. resources into two categories: FBS BPA is proposing to allocate the 5. Wholesale Power Rate Development resources and new resources. FBS majority of its short-term purchase Study (WPRDS) resources are defined as (1) the Federal power costs associated with meeting BPA is proposing substantial changes Columbia River Power System operational deficits to Tier 2 loads. In in the method used to develop its hydroelectric projects; (2) resources the months in which short-term wholesale power rates. BPA’s wholesale acquired by the Administrator under operational purchases are required, power rate develop is a two step long-term contracts in force on the these costs are allocated first to Tier 2 process. First, BPA performs a Cost of effective date of the Pacific Northwest loads, new resources loads, and long Service Analysis (COSA) and then Power Act; and (3) the resources term surplus firm power contract loads. adjusts these results to reflect various acquired by the Administrator in an Any remaining short-term purchase rate design objectives and statutory amount necessary to replace reductions power costs then are allocated to Tier 1 requirements. in capabilities of resources in (1) and loads. (2). Since enactment of the Northwest A. Cost of Service Analysis power Act in 1980, a number of events B. Adjustments to Allocated Costs The Cost of Service Analysis (COSA) have occurred that have reduced FBS The remaining steps in the rate design apportions BPA’s test year revenue resources capability. BPA has initiated a process use the allocated costs requirement to customer classes based consultation process with its customers developed in the COSA and modify on the use of specific types of service by in which BPA is considering replacing them to: (1) reflect BPA’s rate design each customer class and in accord with a portion of this lost capability with objectives; (2) conform with contractual the rate directives of the Northwest approximately 450 average megawatts requirements; (3) reflect the results of Power Act. BPA’s revenue requirement from ten generating resources that BPA other BPA studies and commitments is functionalized to transmission and has acquired or contracted for since made in other public involvement generation in the Revenue Requirement 1980. For the preliminary proposal, processes under section 7(i) of the Study. Transmission costs are identified these FBS replacement resources are Northwest Power Act; and (4) conform with segments of the transmission included in the FBS resource pool. with requirements of applicable system in BPA’s Segmentation Study. Remaining resources are included in the legislation. BPA’s rate design objectives The results of these studies are used in new resource pool. include recovery of BPA’s revenue the COSA to determine the costs of For the test period, BPA is proposing requirement, rate and revenue stability, providing generation and transmission to allocate the payments BPA makes practicality, fairness, and efficiency. services to BPA’s customers. under the residential exchange program. Major rate design adjustments to the The COSA further identifies costs of Under the residential exchange allocated COSA costs include the specific types of service by performing program, BPA purchases power offered following: the following steps: by an exchanging utility at its ‘‘average 1. Excess Revenue Adjustment. In the 1. Classification. BPA classified system cost.’’ BPA then sells an initial cost allocation, BPA allocates its transmission costs entirely to capacity, equivalent amount of power back to the entire test period revenue requirement and the transmission costs allocated to exchanging utility at the applicable PF to firm power loads on the basis of 8502 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices resources available under critical water adjusted the costs by class of service. An into two seasons, with charges higher in conditions. However, rates are set average annual energy rate for each class the months of December through assuming BPA recovers nonfirm sales of service then is developed by dividing February. The proposed demand billing revenues equal to the expected value of the adjusted allocated costs by the factors have been designed to be take-or- revenues under 50 years of streamflows billing determinants for the class of pay, relieved to a certain extent by the in the historical record. Since no service. A set of seasonal and diurnally purchase of the Load Shaping product. generation costs are allocated to NF differentiated energy rates which The Demand Ratchet included in service, forecasted NF revenues are recover an equivalent amount of previous rates has been eliminated. credited against costs allocated to firm adjusted costs then is developed. b. Long-Term Firm Requirements loads. Similarly, revenues from nonfirm Service. Long-Term Firm Requirements 5. Unbundled Products wheeling under the Energy Service is a package of services available Transmission (ET) rate schedule are For service under the 1981 and 1995 to purchasers who sign new (‘‘1995’’) credited to firm transmission loads. power sales contracts, BPA is power sales contracts and make a 6-year 2. Nonfirm Energy Use Adjustment. unbundling the PF, NR, IP, and VI rates commitment to purchase from BPA. It The Nonfirm Energy Use adjustment is into Tier 1, Tier 2, load shaping and includes an adjustment to the a new adjustment that accounts for the load regulation. Load shaping allows customer’s power bill to reflect the costs and benefits derived from the use BPA to meet customer load variations value to BPA of a long-term of nonfirm power to displace planned from forecast. Load regulation, commitment and for customers whose power purchases. The adjustment, in sometimes called load following, loads are 25 aMW or less, a composite effect, results in loads served by follows variations in the customers’ rate. balancing purchases (i.e., purchases loads on an instantaneous basis. BPA c. Low Density Discount. The necessary to balance loads and also will be adding unbundled charges calculation of the proposed Low Density resources) ‘‘buying’’ the nonfirm energy for changes from preschedules and for Discount is revised from previous rate used to displace some of those reactive power deliveries. Outside of the proposals. The calculation uses a sliding purchases, and loads served by the PF, NR, and IP rates, BPA has developed scale of percentage discounts based on Federal Base System resources receiving the Firm Power Products and Services the utility’s number of customers per a credit for this use of the nonfirm (FPS) rate schedule, which is the pole mile and the utility’s ratio of total energy produced by those resources. primary vehicle for BPA’s marketing of electric energy requirements to The cost of purchase power is increased unbundled products described in the investment. The two discounts from the to reflect the average revenues received Draft Marketing Plan and Draft Strategic two ratios are added to result in the from other sales of nonfirm energy in Business Plan. The FPS rate schedule utility’s total discount, which is capped the same months when power purchases will allow BPA to sell firm energy, at 7 percent. are displaced. Loads served by Federal capacity, or power using a variety of d. Irrigation Discount. The irrigation Base System resources then are credited sources of supply, and will specify discount has been eliminated in the by the same amount for this use of charges or specifically authorize 1995 rate proposal. nonfirm energy. negotiated charges for control area e. Reactive Power. Instead of charging 3. Surplus Firm Power Excess services and other resource support a power factor penalty for customers Revenue Adjustment. BPA has sold and services. The Control Area Services part who take excessive quantities of reactive expects to continue to sell surplus of the FPS rate schedule also will power, BPA proposes to bill the power under long term contracts. specify a charge for the generation customer directly for measured Expected revenues from the sale of such control services provided pursuant to quantities of reactive demand and power are compared to allocated costs. section 13(d) of the 1981 utility power reactive energy. BPA expects revenues to exceed costs of sales contracts. Firm power products f. Unauthorized Increase. The this power, resulting in a credit to other and services to be marketed by BPA proposed unauthorized increase charge customers. under the FPS rate schedule are reflects a penalty rate without seasonal 4. 7(c)(2) Adjustment. The rates intended to be flexible so that BPA can differentiation, and includes a demand applicable to the DSIs are set at a level respond to market conditions. Power component to reflect transmission that is equitable in relation to BPA products and services also are available system usage. In addition, there is an preference customers’ industrial rates. for ancillary services for transmission of unauthorized deviation charge for The costs allocated to the DSIs are non-Federal resources. partial requirements purchases higher than revenues from the purchasing under the new (‘‘1995’’) ‘‘equitable’’ rate. The difference is a 6. Other Rate Design Changes power sales contract. revenue deficiency called the ‘‘7(c)(2) BPA is proposing other rate design delta,’’ which is allocated to other changes. These include, among others, 7. Section 7(b)(2) Rate Test Study customers. changes to demand charges, the Section 7(b)(2) of the Northwest The foregoing list of adjustments development of a Long-Term Firm Power Act directs BPA to assure that the identifies some of the major cost Requirements Service option for some wholesale power rates effective after adjustments and is not intended to be customers, elimination of the Irrigation July 1, 1985, to be charged its public all-inclusive. All of the above Discount, and development of a charge body, cooperative, and Federal agency adjustments are functionalized and for reactive power. BPA also is customers (the 7(b)(2) customers) for segmented where appropriate. As a final proposing to modify the contract rate in their general requirements for the rate step in rate design, BPA will develop the NF rate schedule. test period plus the ensuing four years, seasonal and diurnally differentiated a. Demand Charges. Only are no higher than the costs of power to delivered energy charges based on the transmission costs are allocated to those customers for the same time results of the MCA. At this final stage demand. Demand charges are proposed period if specified assumptions are in the rate development process, annual to be billed based on each customer’s made. The effect of the rate test is to energy costs have been allocated in coincident peak, rather than on peaks at protect the 7(b)(2) customers’ wholesale COSA, and a series of rate design individual Points of Delivery. Demand firm power rates from certain costs adjustments have reallocated and charges are seasonally differentiated resulting from provisions of the Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8503 Northwest Power Act. The rate test can is set so that most forecasted purchases on sales during the selected historical result in a reallocation of costs from the will be at the Tier 1 rate. BPA is period. BPA proposes that each utility’s 7(b)(2) customers to other rate classes. proposing a somewhat higher rate that Tier 1 amount will be 90% of their The section 7(b)(2) Rate Test Study would apply to Tier 2 power. The shaped monthly Tier 1 energy amounts describes the application and results of forecasted sales of Tier 2 power will be in August through March, and 100% of the section 7(b)(2) rate test based on the forecasted load above the their shaped monthly Tier 1 energy implementation methodology. Tier 1 amount. The proposed Tier 1 and amounts in April through July. The rate projections and the actual Tier 2 rates will be determined as part Because BPA proposes to establish rate test itself are performed using of BPA’s Wholesale Power Rates separate rates for Heavy Load Hours BPA’s Supply Pricing Model (SPM). The Development Study. (HLH) and Light Load Hours (LLH), BPA SPM simulates BPA’s rate development BPA is proposing to establish the also will establish a separate Tier 1 process, using load, resource, and cost amounts of Tier 1 power each customer amount of power for HLH and LLH. data consistent with that used in this will be able to purchase, based in large Customers will be able to choose how to rate proposal. The assumptions and rate part on information submitted by the shape their monthly Tier 1 amount of development processes such as load/ customers during the course of these power into the HLH and LLH. However, resource balancing, cost allocation, and rate proceedings. BPA is proposing a for the preliminary proposal, BPA split rate design also are consistent with this nomination process where customers each customer’s monthly amount of Tier rate proposal. The SPM calculates two indicate the amount of power they will 1 power into HLH and LLH based on sets of wholesale power rates for BPA’s purchase at the Tier 1 rate for each relative percentage of HLH sales and preference customers: (1) a set of rates month during the rate period within LLH sales during the selected historical for the test period and the ensuing four boundaries set in this rate proceeding. period. years, assuming that section 7(b)(2) is Customer input will establish the billing 2. DSI’s Tier 1 Power: BPA proposes not in effect (program case rates); and factors for the Tier 1 rate, by month, for to establish an amount of Tier 1 power (2) a set for the same period considering that purchaser. The boundaries on the for each individual DSI. For the DSI’s, the five assumptions listed in section customers’ nominations also will be however, the aggregate amount of Tier 1 7(b)(2) (7(b)(2) case rates). Certain costs established based on information power for the DSI class will be set at specified in section 7(g) of the submitted by the customers. The 2,450 aMW, in each month. Like Northwest Power Act (7(g) costs) are deadlines for customer submittals will utilities, each DSI will select a subtracted from the program case rates. be established in BPA’s initial proposal contiguous 12-month period of sales The SPM then discounts each year’s and after consultation with parties and over the FY1986–93 historical period. rates to the test year of the relevant rate customers. BPA encourages all An individual DSI’s monthly share of case, averages each set of discounted customers to devote the necessary the 2,450 aMW will be based on its rates, and compares the two resulting resources to provide the information percentage of historical load compared averages rounded to the nearest tenth of needed to establish the amounts of to the total DSI’s historical load. For the a mill. If the average of the discounted power they will be able to purchase at program case rates, less the 7(g) costs, is a Tier 1 rate. If a customer is unable to preliminary proposal, BPA selected a larger than the average discounted provide the necessary information, BPA historical period for each DSI based on 7(b)(2) case rates, the rate test triggers. is proposing to establish that customer’s the same criteria used to select each If the rate test triggers, the amount of Tier 1 power amounts using the same utility’s historical period. Similarly, dollars to be reallocated in the test approach proposed in this preliminary BPA will split each DSI’s monthly period (7(b)(2) amount) is calculated by proposal. amount of Tier 1 power between HLH multiplying the difference between the 1. Utility Customers’ Tier 1 Power: and LLH. Although BPA is proposing discounted program case and 7(b)(2) BPA proposes the following process to that a DSI may elect to shape its case rates by the general requirements determine each utility customers share monthly amounts of Tier 1 power so loads of the preference customers. The of Tier 1 power. BPA will establish an that its the same in each hour of the 7(b)(2) amount is used as an adjustment aggregate annual amount of Tier 1 month, for the preliminary proposal to the allocated costs in the rate case test power for all preference customers BPA calculated the monthly amount of period. For the preliminary proposal, based on a percentage share of the Tier 1 power in HLH and LLH based on the 7(b)(2) rate test will not be Pacific Northwest Loads and Resources relative percentage of HLH sales and performed. Study FY 1996–97 loads forecast. BPA LLH sales during the selected historical will base each preference customer’s period. V. Tiered Rates Methodology annual share of the total FY 1996–97 3. Residential Exchange Customers’ In this rate period, BPA is proposing load forecast on historical sales during Tier 1 power: BPA is proposing to to tier its rates for sales to public bodies, the period FY 1986 through FY 1993. establish an amount of Tier 1 power for cooperatives, and Federal agencies Each customer may choose a 12-month residential exchange utilities using an under the Priority Firm Power (PF–95) historical period for purposes of approach similar to the approach for rate schedule and for sales to its Direct distributing the forecasted FY 1996–97 establishing utility customers’ Tier 1 Service Industrial (DSI) customers load between it and the other customers. power. For exchanging utilities, under the Industrial Firm Power (IP–95) This chosen subperiod also will be used however, BPA will set an exchanging rate schedule. For utilities participating to shape the given customer’s annual utility’s amount of Tier 1 power in the residential exchange, BPA is also load into monthly amounts. Since proportional to the amount of DSI and proposing to tier the PF rate applicable customers will submit their choice of utility customers’ Tier 1 power. The to such exchanges. historical period during the course of percentage of DSI and preference Under the proposed tiered rate design, this proceeding, for the preliminary customer Tier 1 load relative to their firm power purchases will be divided proposal, BPA has selected a historical total load will be applied to the into two blocks of power. Separate rates period for each customer for the forecasted exchange load for all utilities will be developed for each block of historical 12-month period for which in the residential exchange, both active power for each customer class. The size BPA sales to that customer were the and inactive, to determine the exchange of the first block of power (Tier 1 power) highest. BPA will shape the load based load amount of Tier 1 power. 8504 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices As part of this rate proceeding, BPA Tier 2 demand and energy; and Load purchasers under the VI rate will be will propose a Long-term Tiered Rate Shaping and Load Regulation. The PF– made at the IP–95 rate. The VI–91 rate Methodology that will guide the 95 rate schedule also contains a schedule is unchanged from prior years implementation of a tiered rate structure ‘‘composite’’ rate, for these products for other than to update the rates and rate in subsequent rate cases. BPA expects small full requirement customers (25 parameters based on the rate adjustment that this Methodology will resolve some aMW) purchasing power under the 1995 criteria established in 1991. Service of the basic questions associated with contracts. Also available is capacity under the VI rate is not tiered (i.e., there developing a tiered rate. The Long-term without energy for computed is not Tier 1 and Tier 2 service under Tiered Rate Methodology will be requirements purchasers under ‘‘1981’’ this rate). For the preliminary rate published in a separate Federal Register contracts. The PF–95 rate schedule proposal, BPA assumed no sales under Notice. includes demand charges that are the VI rate schedule during the rate seasonally and diurnally differentiated. period. VI. Wholesale Power Rate Schedules There is no demand charge for Light Firm Power and Services Rate, FPS–95 The wholesale power rates developed Load Hours in any month of the year. in the cost of service analysis and rate The energy charges also are seasonally The proposed FPS–95 rate schedule is design adjustment process are and diurnally differentiated. available for purchase of firm power incorporated in the Wholesale Power The energy billing factors under the products inside and outside the United and Transmission Rate Schedules. The proposed PF–95 rate schedule for States, and control area services, until rate schedule document includes three Computed Requirements customers its termination date, September 30, sections. The first section contains the purchasing under existing (‘‘1981’’) 2000. The FPS–95 rate schedule would wholesale power and transmission rate contracts have been changed from those supersede both the SP–93 (Surplus Firm schedules. Each schedule is comprised in previous rate proposals (the Power Rate) and the CE–93 (Emergency of sections stating to whom the rate Availability Charge). The proposed Capacity) rate schedules, and also schedule is available, rates for the billing factors are now based entirely on includes products formerly available products offered under the schedule, contractual entitlements. under other rate schedules, such as billing factors, and the cost basis of the construction, test and startup, and rates in the schedule (resource New Resource Firm Power Rate, NR–95 station service. Sales under FPS–95 may contribution). Each rate schedule also The proposed NR–95 rate schedule be made at fixed rates, as specified in lists the adjustments, charges, and would replace the NR–93 rate schedule. the rate schedule, or at flexible rates as special provisions that apply to that rate The NR–95 rate schedule is available to established by BPA or mutually agreed schedule. investor-owned utilities under net to by BPA and the purchaser. Fixed The second section contains detailed requirements contracts for resale to demand charges are diurnally but not descriptions of the adjustments, charges, consumers, and to publicly owned seasonally differentiated, and fixed and special provisions that apply to the utilities for New Large Single Loads. energy charges do not change diurnally various rate schedules. The third section Products available under the NR–95 rate or seasonally. contains the General Rate Schedule schedule include New Resource Firm Provisions (GRSPs) for power and Power, Load Shaping, and Load Nonfirm Energy Rate, NF–95 transmission rates. The GRSPs include a Regulation. Demand and energy charges The proposed NF–95 rate schedule lengthy list of definitions, both of are seasonally and diurnally replaces the NF–93 rate. The NF–95 rate products and services and of rate differentiated. schedule is available for purchases of schedule terms. nonfirm energy inside and outside the The Wholesale Power and Industrial Firm Power Rate, IP–95 Pacific Northwest for resale to Transmission Rate Schedules and the The proposed IP–95 rate would consumers, direct consumption, and GRSPs will be published in a separate replace the IP–93 rate. The IP–95 rate resale under Western Systems Power Federal Register Notice as described in schedule is available to BPA’s direct- Pool agreements. The form of the NF– Section I of this Notice. Following is a service industrial customers for firm 95 rate has not changed from previous description of each wholesale power power to be used in their industrial years, with the schedule including a rate schedule. operations. Products available under the Standard rate, a Market Expansion rate, IP–95 rate include Tier 1 demand and an Incremental rate, a Western Systems Priority Firm Power Rate, PF–95 energy, Standard Tier 2 demand and Power Pool rate, an End-User rate, and The proposed PF–95 rate schedule energy, Enhanced Tier 2 demand and a Contract rate. However, the cost basis would replace the PF–93 rate schedule. energy, Load Shaping, and Load for the Contract rate has changed to Power is available under the PF–95 rate Regulation. The IP–95 rate schedule reflect the average cost of nonfirm schedule to public bodies, cooperatives, includes a composite rate for DSI energy. Federal agencies, and utilities purchasers under 1995 or later power The NF Rate Cap, described in the participating in the residential exchange sales contracts who are qualified and Adjustments, Charges, and Special Rate under section 5(c) of the Northwest choose to purchase under the composite Provisions section of the rate schedule Power Act. Priority Firm power must be rate. Demand and energy charges are document, continues to apply to all used to meet firm loads within the seasonally and diurnally differentiated. sales under NF–95 rate schedule. The Pacific Northwest. NF Rate Cap defines the maximum Variable Industrial Power Rate The PF rate schedule is available for nonfirm energy price for general power purchased both under the 1981 The VI–91 rate schedule is available application. The level of the NF Rate power sales contracts and under the to DSIs purchasing from BPA under Cap is based on a formula tied to BPA’s new contracts BPA expects to offer in both the power sales contracts signed system cost and California fuel costs. 1995 (1995 contracts). Rates have been prior to 1995 and the 1986 Variable Rate developed for sales under each contract Contract. The VI–91 rate schedule Reserve Power Rate, RP–95 and for the various products available: terminates on June 30, 1996, at the The RP–95 rate schedule replaces the Tier 1 demand and energy; Standard termination of the Variable Rate RP–93 rate schedule. The RP rate is Tier 2 demand and energy; Enhanced Contracts, at which time sales to available in cases where a purchaser’s Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8505 power sales contract states that the rate Proposed Transmission Rate unless they establish a significant for Reserve Power shall be applied; Adjustment, Public Hearing, and change of circumstances. when BPA determines no other rate Opportunities for Public Review and A prehearing conference will be held schedule is applicable; or to serve a Comment before the Hearing Officer at 9 a.m. on purchaser’s firm power load when BPA February 13, 1995, in the BPA Rates AGENCY: Bonneville Power does not have a power sales contract in Hearing Room, 3rd Level, 2032 Lloyd Administration (BPA), DOE. force with such a purchaser, and BPA Center, Portland, Oregon. Registration determines that this rate should be ACTION: Notice and Opportunities for for the prehearing conference will begin applied. The demand and energy Review and Comment. at 8:30 a.m. BPA will prefile charges are seasonally and diurnally preliminary proposal studies at the SUMMARY: BPA File No: TR–95. BPA differentiated, with no demand charge prehearing conference. The Hearing requests that all comments and Officer will act on all intervention during light load hours during any documents intended to become part of month of the year. petitions and oppositions to the Official Record in this process intervention petitions, rule on any Power Shortage Rate, PS–95 contain the file number designation TR– motions, establish additional 95. procedures, establish a service list, The PS–95 rate schedule is available The Pacific Northwest Electric Power establish a procedural schedule, and for sales under the Share-the-Shortage Planning and Conservation Act consolidate parties with similar agreement or a similar substitute (Northwest Power Act) provides that interests for purposes of filing jointly agreement. BPA is not obligated to make BPA must establish and periodically sponsored testimony and briefs, and for Shortage Power available or broker review and revise its rates so that they expediting any necessary cross- power under the PF–95 rate schedule are adequate to recover, in accordance examination. A notice of the dates and unless specified by contract. with sound business principles, the times of any hearings will be mailed to costs associated with the acquisition, all parties of record. Objections to VII. Charges Under the Amended and conservation, and transmission of orders made by the Hearing Officer at Integrated Pacific Northwest electric power, and to recover the the prehearing conference must be made Coordination Agreement Federal investment in the Federal in person or through a representative at Columbia River Power System (FCRPS) The Pacific Northwest Coordination the prehearing conference. The rate and other costs incurred by BPA. BPA hearing schedule will be published in Agreement (PNCA) is an agreement for is proposing to revise its transmission planned operations among the utilities the Federal Register immediately rate schedules to be effective October 1, following the prehearing conference. and other entities that operate the major 1995, through September 30, 1997, to electric generating facilities and systems The following schedule information is produce sufficient revenues for BPA to provided for informational purposes. in the Pacific Northwest. The parties meet its costs for Fiscal Year (FY) 1996 jointly and cooperatively plan and and FY 1997. On or about February 9, 1995 coordinate their combined generation Opportunities will be available for Rate Schedules, General Rate facilities so as to produce the optimum interested persons to review BPA’s rate Schedule Provisions, and firm load carrying capability (FLCC) of proposal, to participate in the rate Transmission Tariffs mailed to the coordinated system. FLCC is the hearing, and to submit oral and written customers and 1993 rate case firm load that could be carried under comments. During the development of Parties, and available from BPA’s coordinated operation with critical the final rate proposal, BPA will Public Information Center; 905 NE. streamflow conditions and with the use evaluate all written and oral comments 11th, 1st Floor, Portland, Oregon. of all reservoir storage. received in the rate proceeding. February 13, 1995 In order to coordinate operations, and Consideration of comments and more Deadline for interventions to be filed so that each party can meet its current data may result in the final rate with Hearing Clerk at above proposal differing from the rates individual FLCC, the PNCA provides for address. proposed in this Notice. exchanges of energy and capacity among On or about February 13, 1995 the parties. The agreement sets up DATES: Persons wishing to become a Preliminary proposal studies available charges for each form of exchange. The formal ‘‘party’’ to the proceedings must at BPA’s Rates Hearing Room, 2032 parties are negotiating a successor notify BPA in writing of their intention Lloyd Center, Portland, Oregon and agreement to the PNCA, and have to do so in accordance with BPA’s Public Information Center, requirements stated in this Notice. agreed on charges to apply under the 905 NE. 11th, 1st Floor, Portland, Petitions to intervene must be received Oregon. new agreement. by 9 a.m. February 13, 1995, and should February 13, 1995 The PNCA Rate Schedules will be be addressed as follows: Hearing Prehearing conference to set schedule published in a separate Federal Register Officer, c/o Francis (Jamie) Troy, and act on petitions to intervene. Notice as described in Section I of this Hearing Clerk—LQ, Bonneville Power On or about April 5, 1995 notice. Administration, NE. 11th Ave., Box BPA Initial Proposal filed. 12999, Portland, Oregon 97212. Issued in Portland, Oregon, on February 7, October 29, 1995 1995. In addition, a copy of the petition must be served concurrently on BPA’s Final Record of Decision published. J.H. Curtis, Office of Legal Services: Janet L. Prewitt, BPA also will be conducting public Acting Administrator. Office of Legal Services—LQ, field hearings. A field hearing schedule [FR Doc. 95–3534 Filed 2–13–95; 8:45 am] Bonneville Power Administration, Box will be announced at the prehearing BILLING CODE 6450±01±P 3621, Portland, Oregon 97208. conference. A notice of the dates, times, Persons who have been denied party and locations of the field hearings will status in any past BPA rate proceeding be made later through mailings and shall continue to be denied party status public advertising. 8506 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices When BPA holds public field the impacts of reinvention, transmission Lead, (503) 230–3410 or Mr. Michael hearings, written transcripts are made issues, risk mitigation, forecasted Hansen, Public Involvement and and included in the official record. A revenue requirements, and rate design Information Specialist, (503) 230–4328. notice of the dates and times of the field issues. The workshops provided BPA proposes that its transmission hearings also will be published in the opportunity for informal public rate schedules, including the Federal Register. comment on issues prior to the formal adjustments, charges and special rate ADDRESSES: Written comments by hearing process. provisions, and the General Rate participants must be received by May On December 28, 1994, BPA Schedule Provisions (GRSPs) associated 15, 1995, to be considered in the Draft published in the Federal Register a with these rate schedules, become Record of Decision (ROD). Written Notice of ‘‘Intent to Revise Transmission effective upon interim approval or upon comments should be submitted to the Rates to Become Effective October 1, final confirmation and approval by Manager; Corporate Communications— 1995,’’ 57 FR 66946, in order to satisfy FERC. (BPA’s proposal combines the CK; Bonneville Power Administration; contractual provisions between BPA general rate schedule provisions for 905 NE. 11th; P.O. Box 12999; Portland, and its customers. Since then, BPA has wholesale power rates and transmission Oregon 97212. continued to study the adequacy of its rates into one document—the GRSPs.) current rates and has concluded that FOR FURTHER INFORMATION CONTACT: Mr. BPA currently anticipates that it will current rates must be adjusted for the Michael Hansen, Public Involvement request FERC approval effective October FY 1996 and FY 1997 rate period. and Information Specialist, at the 1, 1995, or at the same time as its In order to assess its current rates, revised power rates. The 1995 address listed above, (503) 230–4328 or BPA first determined the amount of call toll-free 1–800–622–4519. transmission rate schedules and the revenues required to meet its financial GRSPs shall supersede BPA’s 1993 rate Information also may be obtained from: obligations in FY 1996 and FY 1997. Mr. Steve Hickok; Group Vice President, schedules and General Transmission BPA has determined that the revenues Rate Schedule Provisions (which Sales and Customer Service; P.O. Box it would expect to collect from projected 3621; Portland, OR 97208, (503) 230– became effective October 1, 1993) to the sales under its current rates will not extent stated in the Availability section 5356. recover these revenue requirements. of each 1995 rate schedule. Mr. George Eskridge; Manager, SE Sales Therefore, BPA proposes to revise its BPA is proposing extension of the and Customer Service District; 1101 current transmission rates. At the W. River, Suite 250; Boise, ID 83702, conclusion of this rate proceeding, BPA Townsend-Garrison Transmission rate (208) 334–9137. will file its rates with FERC for and the Use of Facilities rate with no Mr. Ken Hustad; Manager, NE Sales and confirmation and approval. changes. The Market Transmission rate Customer Service District; Crescent The proposed transmission rates were is being revised only to the extent that Court, Suite 500; 707 Main; Spokane, prepared in accordance with BPA’s the Reactive Power Charge is being WA 99201, (509) 353–2518. statutory authority to develop rates, included in the rate schedule. Three Ms. Ruth Bennett; Manager, SW Sales including the Bonneville Project Act of new rates are proposed: the Network and Customer Service District; 703 1937, as amended, 16 U.S.C. 832 (1982); Integration Transmission rate; the Point- Broadway; Vancouver, WA 98660, the Flood Control Act of 1944, 16 U.S.C. to-Point Firm Transmission rate; and the (360) 418–8600. 825s (1982); the Federal Columbia River Advance Funding rate. The proposed Ms. Marg Nelson; Manager, NW Sales Transmission System Act (Transmission Southern Intertie Annual Costs rate is and Customer Service District; Suite System Act), 16 U.S.C. 838 (1982); the substantially changed to reflect the 400, 201 Queen Anne Ave. N.; Seattle, Pacific Northwest Electric Power outcome of contract negotiations. In WA 98109–1030, (206) 216–4272. Planning and Conservation Act, 16 addition, a Reservation Charge for Responsible Official: Mr. Geoff U.S.C. 839 (1982); and the Energy Policy Transmission Capacity and a Reactive Moorman, Manager for Pricing, Act of 1992, Pub. L. No. 102–486, 106 Power Charge are included in many of Marginal Cost and Ratemaking, is the Stat. 2776 (1992). the transmission rate schedules. BPA official responsible for the development In the Energy Policy Act of 1992, also has provided for charging of BPA’s rates. Congress approved amendments to the opportunity costs in the firm transmission rates for new requests for SUPPLEMENTARY INFORMATION: Federal Power Act that allow FERC to order access to transmitting utilities’ transmission capacity. Table of Contents systems. As a result, FERC has In developing the proposed I. Introduction developed standards for providing transmission rates, BPA considered II. Purpose and Scope of Hearing comparable access including guidelines many factors, including revenue III. Procedures Governing Rate Adjustments for pricing such access. This rate requirements, ease of administration, and Public Participation proposal includes two new rate revenue stability, rate continuity, IV. Major Studies V. Major Studies schedules (the Network Integration and comparability, ease of comprehension, Transmission Rates Point-to-Point Firm rates) to be used for contract provisions, and BPA’s statutory Transmission Rate Schedules FERC-ordered transmission access and obligations. The studies that have been which are designed to allow comparable prepared to support the proposed I. Introduction access to BPA’s transmission system. preliminary transmission rates will be After the 1993 Rate Case, BPA BPA’s Energy Transmission rate mailed to all parties in BPA’s 1993 rate conducted a series of workshops on schedule will be used to price case and will be available for subjects relevant to BPA’s ratemaking. comparable service for nonfirm uses of examination on February 13, 1995, at The purpose of the workshops was to the transmission system. In a process BPA’s Public Information Center; BPA identify, simplify, and reduce the concurrent with the 1995 rate case, BPA Headquarters Building; 1st Floor; 905 number of issues that might become part is proposing terms and conditions for NE. 11th; Portland, and will be available of the 1995 rate case and to reduce the these new services for FERC approval. at the prehearing conference, to the amount of discovery normally required For further information about the terms extent they are available. The during the formal rate proceedings. and conditions process, please contact preliminary studies and documents that Opportunity was provided to address Mr. Dennis Metcalf, Transmission Team relate to transmission rates are: Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8507 1. Loads and Resources Study and BPA began its Competitiveness conservation resources, and Documentation Project in early 1993 in response to appropriately shares the benefits of the 2. Revenue Requirement Study and market forces and deregulation of the relatively low-cost Federal power and Documentation electric utility industry. The project, a transmission systems, BPA is proposing 3. Segmentation Study re-invention of the agency to make it to tier its power rates for requirements 4. Wholesale Power Rate Development more competitive in the new service and for the residential exchange. Study and Documentation marketplace, included the development The rate for requirements service would 5. Transmission Rate Design Study of a new business concept, a marketing be divided into two parts: a Tier 1 rate, 6. Wholesale Power Rate and plan, a review of all of BPA’s activities and one or several alternative Tier 2 Transmission Rate Schedules leading to structural reorganization, rates. BPA expects that the Tier 1 rate BPA’s proposed Wholesale Power and strategic action plans for each of BPA‘s will be available to serve most of the Transmission Rate Schedules, General major activities, an internal effort to existing customers’ firm loads. The Tier Rate Schedule Provisions, and promote leadership and employee 1 rate is expected to be a lower rate than Transmission Tariffs will be published empowerment, and proposals to Tier 2 because it will be based primarily in a separate Federal Register Notice on eliminate unnecessary administrative on the costs associated with the existing or about February 13, 1995. The and regulatory requirements. Federal system. The Tier 2 rates will be documents described above will be BPA’s Draft Strategic Business Plan available to serve regional firm mailed to BPA’s customers, 1993 rate and the Draft Business Plan EIS were requirements in excess of Tier 1, case parties, and other interested released to the public in June 1994. The including future load growth, and will persons, and will be available from Draft Strategic Business Plan sets the be based on the costs associated with BPA’s Public Information Center on or overall strategic direction for both supplying power to meet these loads. about February 9, 1995. serving BPA’s customers and meeting To address the increasingly To request any of the above BPA’s legislated responsibilities, competitive market for power, documents by telephone, call BPA’s including new statements of BPA’s transmission, and energy services, BPA document request line: (503) 230–3478 mission, values, and strategic business is proposing to offer a limited menu of or call toll-free 1–800–622–4520. Please objectives to guide BPA’s activities. The unbundled products in the 1995 rate request the document by its above-listed Draft Strategic Business Plan also case. BPA expects that the products title. Also state whether you require the describes the conceptual framework for offered will be available both under the accompanying documentation (these the products BPA is offering. As stated current power sales contracts and under can be quite lengthy); otherwise the in the Draft Strategic Business Plan, new power sales contracts. BPA expects study alone will be provided. (For BPA’s pricing policies are designed to to offer additional unbundled products example, ask for the ‘‘Revenue meet many objectives, including: (1) in future rate cases and to price these Requirement Study and providing maximum customer choice products to meet market conditions and Documentation.’’) and encouraging optimal use of the its cost recovery obligations. In some Because of the complexity of the FCRPS; (2) contributing to BPA’s cases, BPA expects the market will issues in this rate case, in part continued viability in an increasingly require flexible pricing. BPA is planning occasioned by continuing contract competitive energy market environment; to ‘‘unbundle’’ what it offers so negotiations between BPA and its and (3) allowing BPA to take full customers can choose among products customers as well as BPA’s advantage of its responsibility and and services based on what they need to ‘‘reinvention’’ and Competitiveness authority to manage the FCRPS, meet their loads and support their own Project, BPA anticipates that there will consistent with all statutory resources, if any. be a need to meet with customers and requirements. BPA owns most of the high-voltage other interested third parties during the The Draft Strategic Business Plan transmission system in the PNW and rate case on a very frequent, and envisions BPA as having three separate recognizes the need to ensure that BPA’s possibly extended, basis. To comport and distinct business lines—power, transmission system is not an with the rate case procedural rule transmission, and energy services impediment to a fully functioning and prohibiting ex parte communications, (conservation)—which will be self- competitive bulk power market. To BPA will provide necessary notice of supporting and serve customers assure that the transmission system does meetings involving rate case issues for according to their unique needs. The not provide BPA with anticompetitive participation by all rate case parties. Draft Strategic Business Plan also market power, BPA is proposing Parties should be aware, however, that outlines a number of initiatives to network transmission services and such meetings may be held on very improve BPA’s competitiveness, prices for such services on a basis short notice and they should be including strategies to close the comparable to its own use of its system. prepared to devote the necessary projected gap between BPA’s costs and In setting rates, terms, and conditions of resources to fully participate in every revenues, a financial strategy, and service, BPA will be consistent with aspect of the rate proceeding. proposals to change BPA’s power rate FERC comparability standards Consequently, parties should be structures to give customers more applicable to other transmitting utilities prepared to attend meetings every day choice, to more accurately reflect BPA’s under sections 210 and 211 of the during the course of the rate case. costs associated with providing the Federal Power Act except where discrete components of electric service prohibited by statute or regulation. II. Purpose and Scope of Hearing selected by customers, and thereby to BPA is assessing the potential BPA’s proposal to revise its rates is encourage investment in cost-effective environmental effects of its rate needed in order to continue to recover conservation. BPA proposes to close the proposal as required by the National all costs and expenses allocated to the revenue gap by exerting strict cost Environmental Policy Act (NEPA) as power system, including amortization of management and becoming market part of the Business Plan Environmental the Federal investment in the FCRPS driven. Impact Statement (EIS). Beginning in over a reasonable period of time, and to To provide customers with a price June 1994, BPA solicited input to the recover costs in a way that achieves the signal that encourages efficient resource Draft Strategic Business Plan and the goals of BPA’s Competitiveness Project. investment decisions, including Draft Business Plan EIS from customers 8508 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices throughout the region. From August 3 - Revenue Requirement Study will same procedural requirements as August 9, BPA held numerous public incorporate BPA’s spending levels and parties. comment meetings throughout the reflect BPA’s risk mitigation, capital Written comments by participants region. Additionally, BPA held a Draft funding, and other financial goals in the will be included in the record if they are Business Plan EIS workshop where rates. Excepted from this direction on received by May 15, 1995. This date participants were invited to design their account of their variable nature, follows the anticipated submission of own alternatives and consider the dependency on BPA’s rate case models, BPA’s and all other parties’ direct cases. environmental and fiscal results. The or timing, are: (1) Forecasts of Written views, supporting information, draft EIS evaluates BPA’s Business Plan residential exchange benefits; (2) questions, and arguments should be proposal and a range of alternatives, forecasts of short-term purchase power submitted to BPA’s Manager of including the impacts of the range of costs; (3) provision in BPA’s revenue Corporate Communications at the potential rate designs for BPA’s power requirement for cash working capital or address listed in Section I of this Notice. and transmission services. It also cash lag needs; (4) repayment matters In addition, BPA will hold several field documents the impact of the current such as interest rate forecasts, scheduled hearings in the Pacific Northwest rate proposal for purposes of the amortization, depreciation, Region. Participants may appear at the National Environmental Policy Act. A replacements, and interest expense; and field hearings and present oral supplemental Draft Business Plan EIS, (5) updates to forecasts by BPA which testimony. The transcripts of these revised in response to comments may occur in the Spring of 1995 and for hearings will be a part of the record received, will be available for public which no other review forum has been upon which the Administrator makes comment in February. Comments will provided. the rate decision. be received outside the formal rate III. Procedures Governing Rate The second category of interest is that hearing process, but will be included in Adjustments and Public Participation of a ‘‘party’’ as defined in §§ 1010.2 and the rate case record and considered by 1010.4 of BPA’s Procedures. Parties may the Administrator in making a final Section 7(i) of the Northwest Power participate in any aspect of the hearing decision establishing BPA’s 1995 rates. Act, 16 U.S.C. § 839e(i), requires that process. The Final Strategic Business Plan and BPA’s rates be established according to Persons wishing to become a party to the Business Plan EIS that elaborates certain procedures. These procedures BPA’s rate proceeding must notify the BPA’s strategic action plans will be include, among other things, issuance of Hearing Officer and BPA in writing of released in June 1995. a Federal Register Notice announcing their request. Petitions to intervene shall Spending levels are developed as a the proposed rates; one or more state the name and address of the person part of the BPA Strategic Business Plan, hearings; the opportunity to submit and the person’s interests in the with the benefit of a public comment written views, supporting information, outcome of the hearing. Petitioners may process. They also are determined as a questions, and arguments; and a designate no more than two part of the Federal budget process. decision by the Administrator based on representatives upon whom service of Consistent with the Business Plan, the the record. The proceedings for BPA’s documents will be made. BPA Administrator formally announced proposal to adjust transmission rates customers and customer groups whose spending levels for FYs 1996–2001 to will be combined with the proceedings rates are subject to revision in the the public on January 12, 1995. BPA for BPA’s proposal to adjust wholesale hearing will be granted intervention will continue to refine its strategic power rates. This proceeding will be based on a petition filed in conformance business objectives, goals, and spending governed by BPA’s rule for general rate with this section. Other petitioners must levels, and inform the public proceedings, § 1010.9 of BPA’s explain their interests in sufficient accordingly, as part of its Strategic Procedures. These Procedures detail to permit the Hearing Officer to Business Plan development process. implement the statutory section 7(i) determine whether they have a relevant That process is expected to culminate in requirements. Section 1010.7 of the interest in the hearing. Intervention a Final Strategic Business Plan Procedures prohibits ex parte petitions will be available for inspection published in June 1995. Therefore, communications. in BPA’s Public Information Center, 1st except for the limited exceptions BPA distinguishes between Floor, 905 NE. 11th, Portland, Oregon. hereafter noted, spending level ‘‘participants in’’ and ‘‘parties to’’ the Any opposition to a petition to decisions will not be addressed in this hearings. Apart from the formal hearing intervene must be raised at the February rate case. Accordingly, pursuant to process, BPA will receive comments, 13, 1995, prehearing conference. All § 1010.3(f) of the ‘‘Procedures Governing views, opinions, and information from timely applications will be ruled on by Bonneville Power Administration Rate ‘‘participants,’’ who are defined in the the Hearing Officer. Opposition to an Hearings,’’ 51 FR 7611 (March 5, 1986) procedures as any person who may untimely petition to intervene shall be (hereinafter Procedures), the express views, but who does not filed and served within 2 days after Administrator directs the Hearing petition successfully to intervene as a service of the petition. Interventions are Officer to exclude from the record any party. Participants’ written comments subject to § 1010.4 of the Procedures. material attempted to be submitted or will be made part of the official record The record will include, among other arguments attempted to be made in the of the case and considered by the things, the transcripts of any hearings, hearing which seek to visit in any way Administrator. The participant category any written material submitted by the the appropriateness or reasonableness of gives the public the opportunity to parties and participants, documents BPA’s decisions on spending levels, as participate and have its views developed by BPA staff, BPA’s included in BPA’s cost evaluation considered without assuming the environmental analysis and comments period of FY 1995 through FY 1997 and obligations incumbent upon ‘‘parties.’’ accepted on it, and other material its test period revenue requirements for Participants are not entitled to accepted into the record by the Hearing FYs 1996 and 1997. If, and to the extent, participate in the prehearing conference, Officer. The Hearing Officer then will any re-examination of spending levels is cross-examine parties’ witnesses, seek review the record, will supplement it if necessary, that re-examination will discovery, or serve or be served with necessary, and will certify the record to occur outside of the rate case. The documents, and are not subject to the the Administrator for decision. Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8509 The Administrator will develop final 2. Revenue Requirement Study into nine segments, each providing a proposed rates based on the entire The Bonneville Project Act, the Flood distinct type of service. The nine record, including the record certified by Control Act of 1944, the Transmission segments are: integrated network; the Hearing Officer, comments received System Act, and the Northwest Power Pacific Northwest-Pacific Southwest from participants, other material and Act require BPA to set rates that are (Southern) Intertie; Northern Intertie; information submitted to or developed projected to collect revenues sufficient Eastern Intertie; generation integration; by the Administrator, and any other to recover the cost of acquiring, fringe area; and delivery segments for comments received during the rate conserving, and transmitting the electric public agency, DSI, and IOU customers. The Segmentation Study categorizes development process. The basis for the power that BPA markets, including the facilities of the FCRTS according to final proposed rates first will be amortization of the Federal investment the types of services they provide. This expressed in the Administrator’s Draft in the FCRPS over a reasonable period, ROD. Parties will have an opportunity provides the basis for segmenting the and to recover BPA’s other costs and projected transmission revenue to comment on the Draft ROD as expenses. The Revenue Requirement provided in BPA’s hearing procedures. requirements used in BPA’s rate Study determines whether current rates proposals. The results of the Study The Administrator will serve copies of will produce enough revenues to the Final ROD on all parties and will include the historical investment and recover all BPA costs and expenses, the average of the last 3 years’ file the final proposed wholesale power including BPA’s repayment obligations and transmission rates together with the operations and maintenance expenses. to the U.S. Treasury. Revenue In addition, the facilities of the record with FERC for confirmation and requirements are the major factor in approval. integrated network similarly are divided determining the overall level of BPA’s among distinct services. This division of IV. Major Studies proposed power and transmission rates. the FCRTS into segments provides for The Transmission System Act and the equitable allocation of transmission A. Major Studies Northwest Power Act require that costs between Federal and non-Federal transmission rates be based on an 1. Loads and Resources Study customers based on their usage of the equitable allocation of the costs of the segments. BPA’s forecast of regional loads by Federal transmission system between customer group are the basis from Federal and non-Federal power using 4. Wholesale Power Rate Development which public utility and direct service the system. In compliance with a FERC Study (WPRDS) industry (DSI) customer purchases from order dated January 27, 1984, 26 FERC BPA is proposing substantial changes BPA (Federal system firm loads) are ¶ 61,096, the Revenue Requirement in the method used to develop its projected. BPA also projects Federal Study incorporates the results of wholesale power rates. The cost of transmission losses, obligations to separate repayment studies for the service analysis (COSA) and rate design regional investor-owned utilities (IOUs) generation and transmission adjustments are the two central parts of under their power sales contracts, and components of the FCRPS. The the rate development process. The other inter- and intraregional repayment studies for generation and COSA apportions BPA’s test year contractual obligations. transmission demonstrate the adequacy generation and transmission revenue of the projected revenues to recover all requirements to customer classes based BPA’s resource acquisition plans are of the Federal investment in the FCRPS on the use of specific types of service by based on work by BPA and the over the allowable repayment period. each customer class and in accord with Northwest Power Planning Council staff Separate generation and transmission the rate directives of the Northwest and reflect extensive input and review revenue requirements are developed in Power Act. Costs are allocated to classes by the general public and the region’s the Revenue Requirement Study. The of service on the basis of the relative use utilities. The specific resource adequacy of projected revenues to of services. The coincidental peak (CP) acquisitions and associated costs recover test period revenue allocation of network transmission costs included in this proposal are based on requirements and to meet repayment to customer classes uses an average of BPA’s 1994 Draft Strategic Business period recovery of the Federal a 12–CP and 3–CP (December, January, Plan. investment is tested and demonstrated and February) method to reflect The load/resource balance determines separately for the generation and transmission cost causation. The BPA’s obligation to serve firm loads transmission functions. transmission costs allocated to the during the test years under 1930 water The Revenue Requirement Study for Federal power uses of the transmission conditions. It also contributes to the the 1995 preliminary rate proposal is system form the basis for the power determination of the supply of surplus based on revenues and cost estimates for rates’ demand charge; the transmission firm power in the region and on the FY 1996 and FY 1997. BPA’s Revenue costs allocated to non-Federal uses form Federal system. A related hydro Requirement Study reflects actual the basis for the transmission, or regulation study incorporates the amortization and interest payments paid wheeling, rates that are calculated in the operation of thermal plants, exports and through September 30, 1994. In Transmission Rate Design Study imports of power, projected resource addition, it reflects all FCRPS (discussed below). acquisitions, and system constraints obligations incurred pursuant to the The rate design adjustment portion of such as the Columbia River flow Northwest Power Act, including the WPRDS modifies the allocated costs augmentation project, ‘‘spill’’, and the residential exchange costs. developed in the COSA to: (1) Reflect water budget for fish migration. For this BPA’s rate design objectives; (2) proposal, a 50-year hydro study was 3. Segmentation Study conform with contractual requirements; completed which includes assumptions BPA operates and maintains the (3) reflect the results of other BPA regarding the Columbia River flow Federal Columbia River Transmission studies and commitments made in other augmentation. The hydro study starts in System (FCRTS) to provide transmission public involvement processes under August 1995. The 50-year study services throughout the region. Because section 7(i) of the Northwest Power Act; determines nonfirm energy availability most services do not require the use of and (4) conform with requirements of for the region. the entire system, the FCRTS is divided applicable legislation. BPA’s rate design 8510 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices objectives include recovery of BPA’s Transmission Capacity and a Reactive and a firm rate with separate demand revenue requirement, rate and revenue Power Charge are included in the many and energy components. stability, practicality, fairness, of the transmission rate schedules. BPA also is proposing two rates for comparability, and efficiency. All of the 1. Formula Power Transmission (FPT) the IN–95 rate schedule: an energy-only rate design adjustments are rate for nonfirm wheeling, and a rate functionalized, classified, segmented, The FPT–95 rate schedule is available with demand and energy components and seasonalized where appropriate. for the firm wheeling of power on the for firm wheeling. The cost of the After all adjustments are made, the final network segment of the FCRTS. This Northern Intertie is allocated to Federal power rates are calculated. rate includes a distance or mileage and non-Federal power; the cost 5. Transmission Rate Design Study component for transmission lines and allocated to non-Federal power is the (TRDS) various transformation and terminal basis for the calculation of the rate. charges. The FPT rate form is designed The IE–95 rate is available for nonfirm In the TRDS, rates for various to reflect a wheeling formula that is transmission on the Eastern Intertie. It is transmission services are calculated prescribed by contract provisions. calculated as the ratio of the Eastern using the portion of the transmission In calculating the FPT–95 rate, the Intertie segment cost to the projected revenue requirement allocated to non- first step is to quantify costs for the wheeling of energy from the Colstrip Federal uses of the transmission system. specific types of transmission facilities plant. Wheeling load forecasts are developed treated in the rate components. in the TRDS in order to calculate rates. BPA is continuing its MT–95 rate Estimates of the use of these facilities unchanged, except for the addition of The design of individual rate schedules are determined from a simulation of the also is accomplished in the TRDS. the Reactive Power Charge. This rate power flow of the projected peak load schedule was developed for use among B. Transmission Rates during the test period. Unit costs for the Western Systems Power Pool (WSPP) In a process concurrent with the 1995 FPT rate components are derived by participants and allows for flexible rate case, BPA is proposing terms and dividing facility cost by facility use as hourly, daily, weekly, and monthly conditions for new and existing services determined in a power flow study. charges. (network integration, point-to-point 2. Integration of Resources (IR) 4. Use of Facilities Transmission (UFT) firm, and nonfirm) that allow The IR service is a flexible and Townsend-Garrison Transmission comparable access to the Federal (TGT) transmission system. Two new rate transmission service that may be used to schedules (the Network Integration integrate multiple resources and The UFT–95 and TGT–95 rate Transmission rate and the Point-to-Point transmit non-Federal power to multiple schedules are formula rates that are Firm Transmission rate) are proposed to points of delivery on the FCRTS being proposed unchanged from the price the new services. BPA’s Energy Integrated Network facilities. The IR–95 current 1993 rates. The UFT rate Transmission rate is proposed to price rate is structured as a postage-stamp recovers the annual cost of identified comparable nonfirm transmission (independent of distance) rate with a facilities over which specific wheeling services. These new services ensure that demand and energy charge. The transactions occur. The TGT rate is a all parties have access to the Federal proposed IR–95 rate schedule continues contract rate that recovers the cost of the transmission system under comparable to include the Short-Distance Discount, Montana (Eastern) Intertie. terms, conditions, and rates as BPA. an exception to the postage stamp rate 5. Southern Intertie Annual Costs (AC) Such comparability allows for a design for contractually specified points competitive marketplace for power of integration. BPA is proposing the AC–95 rate to be products. The IR–95 rate is calculated by applied to owners of AC Intertie BPA also is proposing the Advance dividing the revenue requirement for capacity. This rate recovers the Capacity Funding rate to allow BPA to collect the the class into two equal parts to reflect Owner’s prorata share of actual AC cost of specified BPA-owned a 50–50 classification of costs to Intertie costs: Operations, maintenance, transmission facilities through advance capacity and energy. The quotient of general plant, and other identified payment. In addition to the three new these costs and the appropriate billing expenses, as well as capital costs of rate schedules, all of BPA’s traditional determinant (contract demand for replacements and reinforcements. The transmission rate schedules are capacity-related costs; total energy usage proposed AC–95 rate takes the place of proposed to be confirmed. A charge is for energy) yields the rates. the AC–93 rate which was a ‘‘bridge’’ included in the firm transmission rates 3. Energy Transmission (ET); Southern rate until Capacity Ownership contracts to allow BPA to charge opportunity cost Intertie (IS), Northern Intertie (IN), and were complete. when that is higher than the embedded Eastern Intertie (IE) Transmission; and 6. Network Integration Transmission cost charge for new requests for Market Transmission (MT) (NT) and Point-to-Point Firm transmission capacity. BPA also Transmission (PT) provides notice in the firm rate The ET–95 rate is designed to schedules that requests for new or approximate the average cost of firm The proposed NT–95 and PT–95 rates, increased firm transmission service may wheeling on the network. It is along with the associated terms and be subject to incremental cost rates that calculated by dividing the costs conditions of service, are designed to would be developed pursuant to section allocated to the FPT/IR class of service provide customers with transmission 7(i) of the Northwest Power Act. In by all wheeling under firm wheeling service that is comparable to what BPA applying incremental or opportunity contracts. The ET rate applies to use of provides itself in serving its power cost rates, BPA would be consistent intra-regional FCRTS facilities customers. Network Integration with FERC’s ‘‘or’’ pricing—the higher of excluding the Interties and will provide transmission service allows customers embedded cost or incremental cost (or, comparable nonfirm transmission to serve their load located in the PNW the higher of embedded cost or service. region. The proposed NT–95 rate is opportunity cost), but not the sum of the The proposed IS–95 rate consists of based on a load-ratio share concept. The two. Finally, a Reservation Charge for two parts: a nonfirm energy-only rate, load-ratio share measures the Network Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8511 Integration customer’s contribution to products and services and of rate place as the prehearing conference for the FCRTS peak. schedule terms. this proceeding. BPA’s present intent is The proposed PT rate, along with The Wholesale Power and for the Hearing Officer for this terms and conditions of service, Transmission Rate Schedules and the transmission terms and conditions provides transmission service for GRSPs will be published in a separate proceeding to be other than the Hearing customer’s native load and/or Federal Register Notice as described in Officer presiding over BPA’s 1995 transactions with third parties over the Section I of this Notice. power and transmission rate FCRTS Integrated Network. The PT rate Issued in Portland, Oregon, on February 7, proceeding. However, it also is BPA’s is based on transmission costs allocated 1995. intent to merge as much as possible the to the FPT/IR class of service and is J.H. Curtis, schedules and records for these two structured as a monthly demand charge. Acting Administrator. proceedings in order to address 7. Advance Funding (AF) [FR Doc. 95–3535 Filed 2–13–95; 8:45 am] common transmission issues efficiently. BILLING CODE 6450±01±P At the prehearing conference, BPA may The proposed AF rate allows BPA to move to consolidate common collect the capital and related costs of transmission issues. specified BPA-owned transmission Hearing and Opportunity for Public The Hearing Officer will act on all facilities through advance payment. Comment; Regarding Proposed intervention petitions and oppositions Such facilities could include Comparable Transmission Terms and to intervention petitions, rule on any interconnection and resource Conditions motions, establish additions or changes integration facilities, and upgrades or to the Procedures, establish a service reinforcements to the FCRTS. Following AGENCY: Bonneville Power list, establish a procedural schedule in commercial operation of the specified Administration (BPA), DOE. conjunction with the rates hearing facilities, a true-up of estimated costs ACTION: Notice of Hearing and officer, and consolidate parties with with actual costs would occur. Opportunity to Comment. similar interests for purposes of filing jointly-sponsored testimony and briefs 8. Reservation Charge for Transmission SUMMARY: BPA File No. TC–95. BPA Capacity, and Reactive Power Charge requests that all comments and and for expediting any necessary cross- documents intended to become part of examination. A notice of the dates and The proposed Reservation Charge is times of any hearings will be mailed to included in the firm transmission rate the Official Record in this process contain the file number designation TC– all parties of record. Objections to schedules for application to customers orders made by the Hearing Officer at who enter into a contract with BPA for 95. BPA will be proposing terms and conditions applicable to three the prehearing conference must be made new or increased firm transmission in person or through a representative at service on the FCRTS and want to transmission services over the network transmission system of the Federal the prehearing conference. reserve transmission capacity to The following schedule information is accommodate such service. Payment of Columbia River Transmission System (FCRTS) which BPA considers to be provided for informational purposes. A the Reservation Charge for Transmission final schedule will be established by the Capacity would allow a customer to comparable to the uses BPA itself makes of such system for its own power Hearing Officer at the prehearing reserve capacity for up to 3 years, with conference. the possibility of two annual extensions transactions. The Federal Power Act, as granted by BPA on a case-by-case basis. amended by the Energy Policy Act of February 9, 1995 (on or about) The proposed Reactive Power Charge 1992, provides that BPA may institute a Proposed Transmission Terms and is included in BPA’s transmission rate regional hearing process on proposed Conditions mailed to customers and schedules as well as BPA’s power rate transmission terms and conditions of 1993 rate case parties and available schedules, and charges customers for general applicability. By this notice, from BPA’s Public Information their reactive power requirements by BPA is announcing such a proceeding Center, 1st Floor, 905 N.E. 11th point of delivery. and the dates on which the proposed Ave., Portland, Oregon. transmission terms and conditions will February 13, 1995 (on or about) V. Transmission Rate Schedules be available. Proposed Transmission Terms and The proposed transmission rates are DATES: Persons wishing to comment on Conditions published in Federal incorporated in the Wholesale Power the proposed transmission terms and Register. and Transmission Rate Schedules. The conditions but not wishing to become February 13, 1995 rate schedule document includes three ‘‘parties’’ to the proceeding must submit Prehearing conference to set schedule sections. The first section contains the written comments on the proposals by and act on petitions to intervene. wholesale power and transmission rate May 15, 1995. Persons wishing to April 5, 1995 (on or about) schedules. Each schedule is comprised become formal ‘‘parties’’ to the Supplemental testimony filed. of sections stating to whom the rate proceeding must notify BPA in writing October 29, 1995 schedule is available, rates for the of their intention to do so in accordance Administrator’s Final Decision products offered under the schedule, with requirements stated in this Notice. BPA also will be conducting public and billing factors. Each rate schedule Intervention petitions must be received field hearings on it proposed power and also lists the adjustments, charges, and by 9 a.m. February 13, 1995. transmission rates. Comments on the special provisions that apply to that rate A prehearing conference will be held proposed transmission terms and schedule. before the Hearing Officer at 9:00 a.m. conditions also will be accepted at these The second section contains detailed on February 13, 1995, in the BPA Rates hearings. The dates and locations of the descriptions of the adjustments, charges, Hearing Room located at 2032 Lloyd field hearings will be announced later and special provisions that apply to the Center, Portland, Oregon. Registration through mailings and public various rate schedules. The third section for the prehearing conference will begin advertising. contains the GRSPs for power and at 8:30 a.m. The prehearing conference ADDRESSES: Written comments by transmission rates. The GRSPs include a for BPA’s 1995 power and transmission ‘‘participants’’ should be submitted by lengthy list of definitions, both of rate case will occur at the same time and May 15, 1995, to: Manager, Corporate 8512 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices Communications–CK, Bonnesville general applicability for certain applicable law, setting forth the reasons Power Administration, 905 N.E. 11th transmission services comparable to the for reaching any findings and Ave, P.O. Box 12999, Portland, Oregon uses Bonneville provides itself over the conclusions different from those of the 97212 integrated network transmission system hearing officer. Pursuant to BPA’s Petitions to intervene should be filed of the FCRTS. These proposed terms statutory requirements, the rates by 9 a.m. February 13, 1995. Persons and conditions for comparable services associated with these terms and intervening in the power and are intended to: (1) respond to customer conditions will be the subject of a transmission rate case who also desire requests in the context of the formal hearing, also noticed today, to intervene in this proceeding may file renegotiation of BPA’s power sales established by BPA under section 7(i) of a single petition to intervene which contracts that Bonneville eliminate its the Northwest Power Act. The extent to specifically identifies both proceedings. transmission-based market power, (2) which the schedules for these two Petitions to intervene should be with respect to network transmission related hearings will be merged will be addressed as follows: Hearing Officer, services, comply with the Commission’s determined at the prehearing conference c/o Francis (Jamie) Troy, Hearing requirement that members of regional on February 13, 1995. Clerk—LQ, Bonneville Power transmission associations develop and BPA will be proposing comparable Administration, 905 N.E. 11th Ave., publish tariffs meeting the network transmission tariffs based on P.O. Box 12999, Portland, Oregon Commission’s comparability standards; similar tariff documents recently 97212. and (3) facilitate an opportunity for developed by the litigation staff of the In addition, persons intervening in FERC to review the rates for these Federal Energy Regulatory Commission the rate case must serve a copy of the services, which BPA will file as meeting (hereafter ‘‘Commission’’). Proposed petition on: Janet L. Prewitt, Office of the just, reasonable, and not unduly commitments and requirements will be Legal Services—LQ, Bonneville Power discriminatory or preferential standard described for: (1) integrated network Administration, 905 N.E. 11th Ave., in t′he context of the associated service pursuant to which an entity may P.O. Box 3621, Portland, OR 97208. contractual terms and conditions. use the integrated network transmission Interventions in this proceeding must Though BPA and its customers have not system of the FCRTS flexibly to meet its be served concurrently on: Stephen yet concluded their discussions network loads on a basis equal to BPA’s Larson, Office of Legal Services—LP, regarding what constitutes comparable native load obligations; (2) a flexible, 905 N.E. 11th Ave., P.O. Box 3621, access to the Federal transmission multiple point-to-point firm Portland, Oregon 97208. system, nevertheless BPA is now transmission service over the integrated FOR FURTHER INFORMATION CONTACT: Mr. initiating this proceeding in order to network transmission system of the Michael Hansen, Public Involvement place it on the same initial schedule as FCRTS and available to serve network and Information Specialist, at the the related transmission rate case, also loads as well as off-system sales; and (3) address listed above, (503) 230–4328 or being noticed today. It is likely that nonfirm point-to-point transmission call toll-free 1–800–622–4519. discussions will continue before and service over the integrated network Information also may be obtained from: during this proceeding, consistent with transmission system of the FCRTS. The proposed tariffs will be published in a Mr. Steve Hickok, Group Vice President, ex parte rules, in an attempt to settle separate Federal Register Notice on or Sales and Customer Service, P.O. Box outstanding issues. about February 13, 1995. The tariffs also 3621, Portland, OR, 97232 (503) 230– The Federal Power Act amendments will be mailed to BPA’s customers, 1993 5356. passed by Congress in the Energy Policy Mr. George Eskridge, Manager, SE Sales rate case parties and other interested Act of 1992, Pub. L. No. 102–486, 106 persons, and will be available from and Customer Service District, 1101 Stat. 2776 (1992), provide that BPA may BPA’s Public Information Center on or W. River, Suite 250, Boise, ID 83702, institute a formal regional hearing on about February 9, 1995. (208) 334–9137. transmission terms and conditions Because of the complexity of the Mr. Ken Hustad, Manager, NE Sales and which it proposes to establish for issues in this proceeding and the related Customer Service District, Crescent general applicability. 16 U.S.C. rate case, in part occasioned by Court, Suite 500, 707 Main, Spokane, § 824k(i)(2). This hearing is in some continuing contract negotiations WA 99201, (509) 353–2518. important respects different in function between BPA and its customers together Ms. Ruth Bennett, Manager, SW Sales from BPA’s rate case proceedings under with BPA’s reinvention and its and Customer Service District, 703 section 7(i) of the Northwest Power Act, Competitiveness Project, BPA Broadway, Vancouver, WA 98660, 16 U.S.C. § 839e(i). If BPA elects to anticipates that it will need to meet with (360) 418–8600. institute a transmission terms and customers and other interested third Ms. Marg Nelson, Manager, NW Sales conditions hearing, the agency must (1) parties on a very frequent, and possibly and Customer Service District, Suite give notice in the Federal Register and extended, basis. To comport with the 400, 201 Queen Anne Ave. N., Seattle, state in such notice the reasons why the procedural rule prohibiting ex parte WA 98109–1030, (206) 216–4272. terms and conditions are being offered, communications, BPA will provide Responsible Official: Mr. Dennis and (2) adhere to the procedural necessary notice of meetings involving Metcalf, BPA Transmission Team Lead, requirements of paragraphs (1) through issues related to transmission terms and is the responsible official for the (3) of section 7(i) of the Northwest conditions of general applicability for development of BPA’s transmission Power Act, 16 U.S.C. § 839e(i)(1)–(3), participation by all parties to the terms and conditions. except that the Hearing Officer shall proceeding. Parties should be aware, SUPPLEMENTARY INFORMATION: make findings and conclusions on however, that such meetings may be material issues of fact, law or discretion held on very short notice. In the interim I. Background presented on the record and make a prior to the prehearing conference, Pursuant to this notice, BPA is recommended decision to the BPA persons who would like notice of such initiating a regional hearing process on Administrator. The Administrator then meetings should provide their name, proposed transmission services terms must make a separate determination, address, phone and fax numbers to: Ms. and conditions. BPA is proposing to based on the hearing record, the Hearing Janet L. Prewitt, Office of General establish terms and conditions of Officer’s recommendation, and Counsel—LQ, Bonneville Power Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Notices 8513 Administration, P.O. Box 3621, successfully to intervene as a party. their request by 9:00 am, February 13, Portland, OR 97208, Tel: (503) 230– Participants’ written comments will be 1995. Petitions to intervene shall state 4201, Fax: (503) 230–7405. made part of the official record of the the name and address of the person and case and considered by the Hearing II. Governing Procedures the person’s interests in the outcome of Officer and the Administrator. The the proceeding in sufficient detail to BPA is adopting the ‘‘Procedures participant category gives the public the permit the Hearing Officer to determine Governing Bonneville Power opportunity to participate and have its whether the person has a relevant Administration Rate Hearings,’’ 51 FR views considered without assuming the interest in the proceeding. Petitioners 7611 (March 5, 1986) (hereafter obligations incumbent upon ‘‘parties.’’ may designate no more than two ‘‘Procedures’’) to govern this Participants are not entitled to representatives upon whom service of proceeding, except that the Hearing participate in the prehearing conference, Officer will make a recommended documents will be made. Intervention cross-examine parties’ witnesses, seek petitions will be available for inspection decision to the Administrator as discovery, serve or be served with in BPA’s Public Information Center, 1st described in section 212(i)(2)(A)(II) of documents, and are not subject to the Floor, 905 N.E. 11th Ave., Portland, the Federal Power Act, 16 U.S.C. same procedural requirements as § 824k(i)(2)(A)(II), and the parties. Written comments by Oregon. Any opposition to a petition to Administrator will either accept or participants on BPA’s proposed intervene must be raised at the February reject the recommendation. BPA and transmission terms and conditions will 13, 1995, prehearing conference. All parties to the proceeding may move to be accepted May 15, 1995, and should timely applications will be ruled on by adopt special rules of practice at the be submitted to BPA’s Manager of the Hearing Officer. Opposition to an February 13 prehearing conference to Corporate Communications at the untimely petition to intervene shall be better address the requirements of this address listed above in the Summary filed and served within 2 days after proceeding. Section of this notice. service of petition. Interventions are The Procedures distinguish between The second category of interest is that subject to § 1010.4 of the Procedures. ‘‘participants’’ and ‘‘parties’’ to the of a ‘‘party’’ as defined in §§ 1010.2 and Issued in Portland, Oregon, on February 7, hearing. Apart from the formal hearing 1010.4 of the Procedures. Parties may 1995. process, BPA will receive comments, participate in any aspect of the hearing J.H. Curtis, views, opinions and information from process. Persons wishing to timely ‘‘participants,’’ who are defined in the become a party to BPA’s terms and Acting Administrator. Procedures as any person who may conditions proceeding must notify the [FR Doc. 95–3533 Filed 2–13–95; 8:45 am] express views but who does not petition Hearing Officer and BPA in writing of BILLING CODE 6450±01±P±M federal register February 14,1995 Tuesday Workers EmploymentWeek Proclamation 6769ÐNationalOlder Month Proclamation 6768ÐAmericanHeart The President Part VI 8515 8517 Federal Register Presidential Documents Vol. 60, No. 30 Tuesday, February 14, 1995 Title 3— Proclamation 6768 of February 10, 1995 The President American Heart Month, 1995 By the President of the United States of America A Proclamation Throughout history, the heart has been a symbol of health and well-being. Yet nothing now overshadows Americans’ health as much as heart disease— the leading cause of death among men and women. Diseases of the heart and blood vessels kill nearly a million Americans each year, most from the effects of atherosclerosis, the narrowing and stiffening of blood vessels from the buildup of plaque that usually begins early in life. Today, Americans are enjoying the rewards of the progress humanity has made in understanding and treating cardiovascular disease. Advances in diagnosis make it possible to see the heart beat without the use of invasive procedures. Thousands of heart attack victims are being saved by the rapid administration of drugs to dissolve blood clots. Soon, gene therapy may be able to prevent the smooth muscle cell multiplication that contributes to the narrowing of blood vessels. Perhaps most important, we have greater understanding of how to prevent the development of heart disease. By controlling blood pressure and blood cholesterol, being physically active, and not smoking cigarettes, more Americans can have the chance to lead long, healthy lives. The Federal Government has contributed to these successes by supporting research and education through the National Heart, Lung, and Blood Institute. Through its commitment to research, its programs to heighten public aware- ness, and its vital network of dedicated volunteers, the American Heart Association also has played a crucial role in bringing about these remarkable accomplishments. Yet the heart has not revealed all of its mysteries. No one knows why heart disease begins. And, while it is known that heart disease develops differently in men and women, the reasons for those variations are still being studied. About 50 million Americans continue to suffer from hyper- tension, a major cause of stroke, and 1.25 million Americans have heart attacks every year. Conquering these diseases requires unwavering national and personal com- mitment. On the national level, the Federal Government will continue to support research into the prevention, diagnosis, and treatment of heart dis- ease. On the personal level, Americans can take steps to prevent heart disease from striking their families, including teaching their children heart- healthy habits. Working together, we can make the tragedy of heart disease a nightmare of the past. In recognition of the need for all Americans to become involved in the ongoing fight against cardiovascular disease, the Congress, by Joint Resolution approved December 30, 1963 (77 Stat. 843; 36 U.S.C. 169b), has requested that the President issue an annual proclamation designating February as ‘‘American Heart Month.’’ NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, do hereby proclaim February 1995 as American Heart Month. I invite the Governors of the States, the Commonwealth of Puerto Rico, officials of other areas subject to the jurisdiction of the United States, and 8518 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Presidential Documents the American people to join me in reaffirming our commitment to combating cardiovascular disease and stroke. IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of February, in the year of our Lord nineteen hundred and ninety-five, and of the Independence of the United States of America the two hundred and nineteenth. [FR Doc. 95–3886 œ– Filed 2-13-95; 11:16 am] Billing code 3195–01–P Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Presidential Documents 8519 Presidential Documents Proclamation 6769 of February 10, 1995 National Older Workers Employment Week, 1995 By the President of the United States of America A Proclamation Today, our Nation relies more than ever on the active involvement of citizens 55 years old or older. It is estimated that more than 70 percent of these Americans work every day to keep our Nation running, contributing to all aspects of our economy and our society. And as our population continues to age, the contributions of older workers will play an increasingly important role in maintaining America’s leadership in a highly competitive international marketplace. Yet despite often impressive job qualifications, these citizens find that the search for employment becomes more difficult as they grow older. Those seeking to change careers or those struggling to find new jobs are too often confronted by employer reluctance or stereotyping. Rather than being judged on their abilities, older people sometimes face the injustice of being judged solely on their age. But we Americans understand the meaning of fairness and the value of honest labor. Every reasonable measure of job performance tells us that older workers are at least as effective as younger employees. In many cases, their unique combinations of knowledge, skills, insight, and experience make older Americans even more effective. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the week of March 12 through March 18, 1995, as ‘‘National Older Workers Employment Week.’’ I urge all employers to consider carefully the qualifications of men and women 55 and older and to make use of their talents and expertise. I also encourage public officials responsible for job placement, training, and related services to intensify efforts to help older workers find suitable jobs and training. IN WITNESS WHEREOF, I have hereunto set my hand this tenth day of February, in the year of our Lord nineteen hundred and ninety-five, and of the Independence of the United States of America the two hundred and nineteenth. [FR Doc. 95–3887 œ– Filed 2-13-95; 11:17 am] Billing code 3195–01–P i Reader Aids Federal Register Vol. 60, No. 30 Tuesday, February 14, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING FEBRUARY Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. Document drafting information 523±3187 Machine readable documents 523±4534 3 CFR 1002...... 6606, 7290 Proclamations: 1004...... 6606, 7290 Code of Federal Regulations 6767...... 7427 1005...... 6606, 7290 Index, finding aids & general information 523±5227 6768...... 8517 1006...... 6606, 7290 Printing schedules 523±3419 6769...... 8519 1007...... 6606, 7290 1011 ...... 6396, 6606, 7290 Laws Executive Orders: 12898 (Amended by 1012...... 6606, 7290 Public Laws Update Service (numbers, dates, etc.) 523±6641 EO 12948)...... 6381 1013...... 6606, 7290 Additional information 523±5230 12948...... 6381 1030...... 6606, 7290 12949...... 8169 1032 ...... 6005, 6606, 7290 Presidential Documents 1033...... 6606, 7290 Administrative Orders: 1036...... 6606, 7290 Executive orders and proclamations 523±5230 Memorandums: 1040...... 6606, 7290 Public Papers of the Presidents 523±5230 February 7, 1995 ...... 7885 1044...... 6606, 7290 Weekly Compilation of Presidential Documents 523±5230 5 CFR 1046...... 6606, 7290 The United States Government Manual 1049...... 6606, 7290 185...... 7891 1050...... 6606, 7290 General information 523±5230 211...... 6595 1064...... 6606, 7290 Other Services 214...... 6383 1065...... 6606, 7290 317...... 6383 Data base and machine readable specifications 523±4534 1068...... 6606, 7290 319...... 6383 Guide to Record Retention Requirements 523±3187 1075...... 6606, 7290 353...... 6595 Legal staff 523±4534 1076...... 6606, 7290 359...... 6383 Privacy Act Compilation 523±3187 1079...... 6606, 7290 430...... 6595 Public Laws Update Service (PLUS) 523±6641 1093...... 6606, 7290 534...... 6383 TDD for the hearing impaired 523±5229 1094...... 6606, 7290 2635...... 6390 1096...... 6606, 7290 Proposed Rules: 1099...... 7290 ELECTRONIC BULLETIN BOARD 532...... 6041 1106...... 6606, 7290 Free Electronic Bulletin Board service for Public Law 1108...... 6606, 7290 7 CFR numbers, Federal Register finding aids, and list of 1124...... 6606, 7290 documents on public inspection. 202±275±0920 0...... 8446 1126 ...... 6606, 7290, 7465 1...... 8446 1131 ...... 6606, 7290, 7466 FAX-ON-DEMAND 25...... 6945 1134...... 6606, 7290 You may access our Fax-On-Demand service. You only need a fax 29...... 7429 1135...... 6606, 7290 machine and there is no charge for the service except for long 47...... 8446 1137...... 6606, 7290 distance telephone charges the user may incur. The list of 50...... 8446 1138...... 6606, 7290 documents on public inspection and the daily Federal Register’s 51...... 8446 1139...... 6606, 7290 table of contents are available using this service. The document 52...... 8446 1485...... 6352 numbers are 7050-Public Inspection list and 7051-Table of 53...... 8446 Contents list. The public inspection list will be updated 54...... 8446 8 CFR immediately for documents filed on an emergency basis. 70...... 6638 103...... 6647 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 97...... 8446 292...... 6647 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 110...... 8118 299...... 6647 public inspection may be viewed and copied in our office located 300...... 6957 310...... 6647 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 319...... 5997, 6957 312...... 6647 telephone number is: 301±713±6905 322...... 5997 313...... 6647 372...... 6000 315...... 6647 729...... 7429 FEDERAL REGISTER PAGES AND DATES, FEBRUARY 316...... 6647 920...... 7430 316a...... 6647 985...... 6392 319...... 6647 5997±6382...... 1 7429±7696...... 8 997...... 6394 322...... 6647 6383±6646...... 2 7697±7884...... 9 1005...... 7432 324...... 6647 1007...... 7432 325...... 6647 6647±6944...... 3 7885±8168...... 10 1011...... 7432 327...... 6647 6945±7110...... 6 8169±8282...... 13 1046...... 7432 328...... 6647 7111±7428...... 7 8283±8520...... 14 1050...... 7434 329...... 6647 1212...... 7435 330...... 6647 1435...... 7697 331...... 6647 1751...... 8171 332...... 6647 Proposed Rules: 332a...... 6647 29...... 6452, 6453 332b...... 6647 1001...... 6606, 7290 332c ...... 6647 ii Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Reader Aids 332d...... 6647 135...... 6616 Proposed Rules: 4...... 7124 333...... 6647 302...... 6919 1...... 7487, 7488 39 CFR 334...... 6647 Proposed Rules: 53...... 7488 334a...... 6647 Ch. I ...... 6045 20...... 7912 28 CFR 335...... 6647 1...... 7380 233...... 8305 335a...... 6647 25 ...... 6456, 6632, 7479 64...... 7446 Proposed Rules: 335c ...... 6647 33...... 7380 111...... 6047, 7154 336...... 6647 39 ...... 6045, 6459, 7140, 7143, 29 CFR 3001...... 8211 337...... 6647 7480, 7482, 7485, 7919, 825...... 6658 40 CFR 338...... 6647 7920, 7922, 7924, 8205, 1910...... 7447 339...... 6647 8206 51...... 7449 340...... 6647 71 ...... 6461, 6462, 6686, 6975, 30 CFR 52 ...... 6022, 6027, 6401, 7124, 343b...... 6647 7718 914...... 6400 7453, 7713, 7715, 7913, 344...... 6647 121...... 6632, 8490 926...... 6006 8306 499...... 6647 125...... 6632 Proposed Rules: 63...... 7627 135...... 6632 Ch. II...... 6977, 7152 80...... 6030 9 CFR 6...... 8209 81...... 7124, 7453 16 CFR Ch. II ...... 8446 18...... 8209 82...... 7386 202...... 8446 1500...... 8188 19...... 8209 93...... 7449 Proposed Rules: Proposed Rules: 20...... 8209 180 ...... 6032, 7456, 7457, 7458 92...... 7137 Ch. 1 ...... 6463 21...... 8209 261...... 7366, 7824 94...... 6454, 7138 307...... 8312 22...... 8209 270...... 6666 98...... 7137 310...... 8313 23...... 8209 271...... 7824 302...... 7824 308...... 6774 17 CFR 26...... 8209 310...... 6774 27...... 8209 Proposed Rules: 318...... 6774, 6975 140...... 8194 29...... 8209 Ch. I ...... 7931 320...... 6774 230...... 6965 33...... 8209 51...... 7508 325...... 6774 Proposed Rules: 35...... 8209 52 ...... 6049, 6051, 6052, 6467, 326...... 6774 1...... 7925 756...... 7926 6687, 7154, 7742, 7931, 327...... 6774 240...... 7718 7934 381...... 6774, 6975 249...... 7718 31 CFR 63...... 8333 270...... 7146 550...... 8300 70...... 8335 10 CFR 274...... 7146 575...... 6376 80...... 8341 20...... 7900 82...... 7390 18 CFR 32 CFR Proposed Rules: 86...... 7404 157...... 6657, 7821 199...... 6013 93...... 7508 50...... 7467 1310...... 8195 52...... 7467 320...... 7908 180...... 6052, 7509 100...... 7467 Proposed Rules: 552...... 8305 185...... 7511 803...... 7925 553...... 8305 186...... 7511 11 CFR 804...... 7925 Proposed Rules: 261...... 6054, 7513 805...... 7925 271...... 7513 100...... 7862 199...... 7489 300...... 7934, 8212 104...... 7862 19 CFR 33 CFR 302...... 7513 113...... 7862 4...... 6966 117 ...... 6658, 7121, 7122 761...... 7742 12 CFR Proposed Rules: 165...... 7909, 7910 134...... 6464 41 CFR 3...... 7903 210...... 7723 Proposed Rules: 101±40...... 7129 208...... 8177 Ch. I ...... 7927 201±3...... 7715 225...... 8177 20 CFR 117 ...... 7928, 7930, 8209 201±9...... 7715 325...... 8182 404...... 8140 137...... 7652 201±18...... 7715 330...... 7701 416...... 8140 34 CFR 201±20...... 7715 344...... 7111 422...... 7117 201±21...... 7715 1617...... 7660 Proposed Rules: 74...... 6660 201±23...... 7715 Proposed Rules: 217...... 7728 75...... 6660 201±39...... 7715 35...... 7467 226...... 7729 Proposed Rules: 208...... 6042 232...... 7729 668...... 6940 42 CFR 225...... 6042 100...... 7678 21 CFR 36 CFR 348...... 7139 Proposed Rules: Ch. XVII ...... 7468 101...... 7711 7...... 6021 482...... 7514 510...... 7121 Proposed Rules: 13 CFR 558...... 7121 242...... 6466 43 CFR 107...... 7392 Proposed Rules: 1400...... 7506 Proposed Rules: 310...... 6892 11...... 7154, 7155 14 CFR 37 CFR 2920...... 7877 25...... 6616 22 CFR 251...... 8196, 8198 8360...... 7743 33...... 7112 43...... 7443 252...... 8196 39 ...... 6397, 6652, 6654, 8283, 226...... 7712 253...... 8196 44 CFR 8284, 8286, 8288, 8290, Proposed Rules: 254...... 8196 64...... 6034, 6035 8292, 8294, 8295, 8297 140...... 7737 255...... 8196 65...... 6403, 6404 71 ...... 6657, 6958, 6959, 6960, 256...... 8196 67...... 6407 7115, 7116, 7439, 7441, 24 CFR 257...... 8196 206...... 7130 7442, 7821, 8164, 8165, 91...... 6967 258...... 8196 Proposed Rules: 8166 907...... 6399 259...... 8196, 8198 67...... 6470 91...... 8166 97 ...... 6398, 6961, 6962, 6963 26 CFR 38 CFR 46 CFR 121...... 6616 300...... 8298 3...... 6660 15...... 8308 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Reader Aids iii 25...... 7131 48 CFR 50 CFR 649...... 7936 160...... 7131 31...... 7133 17...... 6671, 6968 650...... 7936 Proposed Rules: 651...... 7936 Proposed Rules: 229...... 6036 Ch. I ...... 6687 611 ...... 7288, 8470, 8479 652...... 6977 28...... 6602 381...... 6067 642...... 7134, 7716 675...... 8114 572...... 6482 32...... 6602 651...... 6446 676...... 8114 45...... 7744 663...... 6039 52...... 6602, 7744 672 .....7136, 7288, 7917, 8470, 47 CFR 8478 LIST OF PUBLIC LAWS 2...... 8309 49 CFR 675...... 6974, 8479 64...... 7131 676 ...... 6448, 7288, 8470, 8479 73...... 6670 173...... 7627 Note: No public bills which Proposed Rules: have become law were 97...... 7459 192...... 7133 Ch. VI...... 7156 received by the Office of the Proposed Rules: 571 ...... 6411, 7461, 8199, 8202 17...... 8342 Federal Register for inclusion Ch. 1 ...... 6482 100...... 6466 Proposed Rules: in today's List of Public 64...... 8217 222...... 6977 653...... 7100 Laws. 73 ...... 6068, 6483, 6490, 6689 654...... 7100 424...... 7744 90...... 8341 611...... 8114 Last List February 13, 1995